Welcome to The Coaches Site! These Terms of Service (together with the AUP, any Order Forms, attachments, exhibits, and/or addendums hereto, as amended from time to time, collectively the “Agreement”) forms a binding legal agreement between the customer (the “Customer”, “you” or “your”) and The Coaches Site Inc. (“The Coacahes Site”) under which the Customer and its Permitted Users (defined below) can access and uses The Coaches Site’s web and mobile resource for the latest news and information regarding the coaching profession, hosted by The Coaches Site and delivered as a software-as-a-service (the “TCS Platform” ) and permits the Customer to subscribe for Additional Services (as defined below), and is entered into on the earlier of the date Customer first uses any part of the TCS Platform and the effective date of Customer’s fist Order Form (the “Effective Date”). Each of The Coaches Site and Customer will individually be referred to as a “Party” and jointly as the “Parties”. Capitalized terms used but not defined in these Terms if Service have the meaning ascribed to them in Section 15 (Definitions).
This Agreement sets forth the terms and conditions that govern the provision and use of the Services (defined below).
BY USING THE TCS PLATFORM (INCLUDING OUR MOBILE APP OR WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE TCS PLATFORM. CUSTOMER REPRESENTS AND WARRANTS TO THE COACHES SITE THAT CUSTOMER: (I) IS A PROFESSIONAL COACH; (II) HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT; AND, IF CUSTOMER IS USING THE TCS PLATFORM ON BEHALF OF ANOTHER PERSON, THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE TCS PLATFORM MAY NOT BE ACCESSED FOR PERSONAL OR FAMILY PURPOSES, OR FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
The TCS Platform
Provisioning of the TCS Platform. The Coaches Site will make the TCS Platform available to Customer, which Customer and Permitted Users may access and use in accordance with the terms and conditions of this Agreement, including any usage limits or other terms and conditions set out in an Order Form, during the term for Customer’s subscription for use of the TCS Platform and Services as identified in an Order Form (“Subscription Term”). The TCS Platform allows users to invite other users (“Participants”) to user’s profile as more particular set out in Section 3 (a).
Restrictions on Use. Customer will not itself, and will not permit others (including but not limited to any Permitted Users) to:
sub-license, sell, rent, lend, lease or distribute the TCS Platform or any Intellectual Property Rights therein, or otherwise make the TCS Platform available to others other than Permitted Users;
use the TCS Platform to permit timesharing, service bureau use or commercially exploit the TCS Platform;
use or access the TCS Platform:
in violation of any Applicable Law;
in a manner that threatens the security or functionality of the TCS Platform; or
for any purpose or in any manner not expressly permitted in this Agreement including the AUP;
use the TCS Platform to create, collect, transmit, store, use or process any Customer Data:
that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
use the TCS Platform or any Services for personal, family or household purposes;
Modify the TCS Platform;
reverse engineer, decompile or disassemble the TCS Platform;
remove or obscure any proprietary notices or labels on the TCS Platform, including brand, copyright, trademark or patent or patent pending notices;
access or use the TCS Platform for the purpose of building a similar or competitive product or service;
perform any vulnerability, penetration, or similar testing of the TCS Platform; or
use the TCS Platform for any purpose or in any manner not expressly permitted in this Agreement.
Permitted Purpose. Customer may access and use the TCS Platform solely for Customer’s internal business purposes in Canada (excluding Quebec) and in accordance with Applicable Laws (the “Permitted Purpose”).
Suspension of Access; Scheduled Downtime; Modifications. The Coaches Site may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
suspend Customer’s access to or use of the TCS Platform or any component thereof:
if Customer or any Permitted User violates any provision of this Agreement;
for scheduled maintenance;
due to a Force Majeure event;
to address any emergency security concerns;
if required to do so by a regulatory body or as a result of a change in Applicable Law; or
for any other reason as provided in this Agreement,
provided that The Coaches Site will use reasonable endeavors to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it or address the issue that has prompted The Coaches Site to take such action. There may be some situations, such as security emergencies or a change in Applicable Law, where it is not practicable for The Coaches Site to give such advance notice. The Coaches Site will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.
Modify the Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of The Coaches Site to the TCS Platform.
Subcontracting. The Coaches Site may engage third parties to assist it in providing the TCS Platform, the Additional Services or any part thereof, without the prior written consent of Customer, provided that The Coaches Site will remain responsible for all its obligations under this Agreement.
Additional Services. The Coaches Site may make available Additional Services as set out in an applicable Order Form. Such Additional Services may include providing access to certain coaches and consultants.
Third-Party Products. The TCS Platform may contain or require the use of licensed third-party technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. The Coaches Site does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by The Coaches Site as “certified” or otherwise. The Coaches Site cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to The Coaches Site. The Coaches Site is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
User Accounts
User Accounts. To access certain features of the TCS Platform , and dependent on Customer’s subscription choices, Customer may be required to sign up for an account (the “Customer User Account”) for use by Customer and one user that will use and access the TCS Platform (each, a “Permitted User”). Access permissions and functionalities for each Permitted User will depend on the Customer’s account type and subscription to the TCS Platform.
Access to the TCS Platform. Customer will ensure that each Permitted User only uses the TCS Platform through such Permitted User’s Customer User Account. Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use the TCS Platform.
Authorized Use of the TCS Platform. Customer will not allow any Permitted User to share such Permitted User’s Customer User Account with any other Person. Customer will promptly notify The Coaches Site of any actual or suspected unauthorized use of the TCS Platform. The Coaches Site reserves the right to suspend, deactivate or replace any Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose, and will notify Customer of such suspension, deactivation or replacement as soon as reasonably possible.
Compliance with this Agreement. Customer will ensure that all Permitted Users comply with this Agreement (including the AUP) and that none of the Permitted Users bring or maintain any claim against The Coaches Site, its partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement. Customer will be liable for any breach by a Permitted User of this Agreement.
Additional Terms for User Accounts
Premium Content Creator Accounts. Customer may have the option to create a premium account (the “Premium Account”), through which Customer may provide the Customer Content on a subscription basis to Participants. The Coaches Site has no liability for how other users including any Participants may access or use Customer Content or any other Customer Data as a result of Customer making such subscriptions or invitations available to Participants or any other user. The Coaches Site does not control fees charged by a Premium Account to Customer’s Participants and is not responsible for payments made by these Participants to the Customer. Any dispute regarding these payments is between the Participants and the Customer.
Free Trials. If Customer receives access to the TCS Platform on a free, beta or trial basis (“Free Trial”), its use of TCS Platform in connection with the Free Trial, and Customer’s use of the TCS Platform including any content created in connection with such Free Trial, is permitted only for Customer’s internal evaluation during the period designated by The Coaches Site. Customer will comply with all terms related to any Free Trial as posted on our mobile app or Website, or otherwise made available to Customer. The Coaches Site may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Free Trial at any time. The Coaches Site may suspend or terminate Customer’s access to or use of any Free Trial at any time. Customer agrees that The Coaches Site will not be liable to Customer or any third party for such termination. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, AFTER SUSPENSION OR TERMINATION OF CUSTOMER’S ACCESS TO OR USE OF ANY FREE TRIAL FOR ANY REASON: (A) CUSTOMER WILL NOT HAVE ANY FURTHER RIGHT TO ACCESS OR USE THE APPLICABLE FREE TRIAL; AND (B) CUSTOMER DATA USED IN THE APPLICABLE FREE TRIAL MAY BE DELETED OR INACCESSIBLE. NOTWITHSTANDING THE “WARRANTY AND DISCLAIMER” SECTION AND “INDEMNITIES” SUBSECTION BELOW, THE FREE TRIAL IS PROVIDED “AS -IS” WITHOUT ANY WARRANTY AND THE COACHES SITE WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE TRIAL UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE THE COACHES SITE’S LIABILITY WITH RESPECT TO THE FREE TRIAL WILL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, THE COACHES SITE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE FREE TRIAL WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER’S USE OF THE FREE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA OR ANY CONTENT PROVIDED THROUGH THE FREE TRIAL WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITIES” SECTION BELOW, CUSTOMER WILL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COACHES SITE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE TRIAL, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
Ownership; Reservation of Rights
Customer Data. The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to The Coaches Site, and its subcontractors:
a nonexclusive, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to provide the Services including to allow other customers and users of the TCS Platform to access, view, use, download, and store the Customer Content; and
a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to:
(A) improve and enhance the Services and its other offerings, including third-parties providing Additional Services such as The Coaches Site’s consultants, subcontractors, and referral partners; and
(B) produce, generate and use, data, information, or other materials about users use of the TCS Platform and information administrative information provided by Customer or other users, that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”) solely to improve, analyze, support, operate and otherwise provide the TCS Platform to Customer and other users. Aggregated Data will not include Customer Data.
The Coaches Site may use, process, store, disclose and transmit the Aggregated Data as noted herein and without obligation to Customer of any kind. As between The Coaches Site and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by The Coaches Site.
Customer Content. Without limiting Section 3(a), Customer agrees that: (i) The Coaches Site may (but is not obligated to) review Customer Content to confirm it aligns with Applicable Law, the AUP, and this Agreement; (ii) The Coaches Site may prevent access to, remove, or refuse to display any Customer Content for any reason at its sole discretion; (iii) The Coaches Site has no obligation to monitor, review, or endorse any Customer Content; (iv) Customer is solely responsible for its Customer Content; (v) The Coaches Site may retain the Customer Content in perpetuity subject to Applicable Laws applicable to The Coaches Site; (vi) the Customer has all rights and permissions to provide the Customer Content; and (vii) Customer Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability. The Coaches Site reserves the right, at its sole discretion, to delete any Customer Content that it deems to violate any provision of this Agreement or is otherwise unacceptable.
The Coaches Site Property. The Coaches Site or its licensors retain all ownership and Intellectual Property Rights in and to:
the Services;
anything developed or delivered by or on behalf of The Coaches Site under this Agreement including but not limited to, any reports generated from the TCS Platform or any Aggregated Data;
The Coaches Site’s Confidential Information; and
any Modifications to the foregoing (i), (ii) and (iii)
(collectively “The Coaches Site Property”). All rights not expressly granted by The Coaches Site to Customer under this Agreement are reserved.
Feedback. Customer grants to The Coaches Site and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the TCS Platform, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of The Coaches Site’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. The Coaches Site is not obligated to use any Feedback.
Privacy
Customer understands that Personal Information will be treated in accordance with The Coaches Site’s privacy policy located at https://members.thecoachessite.com/pp.php or such other place as may be updated by The Coaches Site’s from time to time (the “Privacy Policy”).
Communications Over the Internet and Public Networks
Given the inherent nature of the internet and public networks, and without limiting the Privacy Policy referenced herein, The Coaches Site does not, and cannot, guarantee the security of data transmitted or the confidentiality of any communications made by Customer or any Permitted User over the Internet or public networks in connection with Customer’s use of the TCS Platform.
Fees and Payment
Fees. Customer will pay to The Coaches Site the applicable fees as described in an Order Form (“Fees”). Unless otherwise noted on an Order Form: (i) all Fees are identified in the currency set out in the applicable Order Form; (ii) Fees are payable in advance, are non-cancelable, and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the TCS Platform exceeds the service capacity set forth on an Order Form, the Customer’s size stated in the Order Form is inaccurate, or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
Changes to the Fees. The Coaches Site reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
Invoicing. Unless covered by Section 7(h) through the Payment Processor (defined hereunder), The Coaches Site will prepare and send to the Customer, at the then-current contact information on file with The Coaches Site, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
Disputed Invoices or Charges. If the Customer believes The Coaches Site has charged or invoiced the Customer incorrectly, the Customer must contact The Coaches Site no later than 30 days after having been charged by The Coaches Site or receiving such invoice in which the error or problem appeared to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith to resolve the dispute.
Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. The Coaches Site reserves the right to suspend the Customer’s access to the Services and any delivery of Additional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting The Coaches Site other rights, The Coaches Site may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of The Coaches Site.
Suspension. Any suspension of the Services by The Coaches Site pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Payment Processing.
If Customer has a Premium Account, The Coaches Site will provide access to a third party payments platform through which Customer may process payment transactions with its customers (the “Premium Payments”). This payment processing component is provided by the third-party payment processing provider, Stripe Inc. (“Payment Processor”). This payment processing is subject to the Stripe Services Agreement available at https://stripe.com/en-ca/legal/ssa including other documents referred to such agreement (collectively, the “Payment Processing Agreement”), as modified by the Payment Processor in accordance with the Payment Processing Agreement. By using the payment processing component of the TCS Platform, you agree to be bound by the applicable terms of the Payment Processing Agreement. The Coaches Sites reserves the right to change the Payment Processor at any time, and Customer agrees to take such steps as are reasonably necessary to migrate the Premium Payments to the new Payment Processor.
The Coaches Site will charge a fee for each Premium Payment processed through the TCS Platform, including purchase/payment transactions and credit/refund/return transactions. Fees for each Premium Payment transaction will be in accordance with the pricing schedule available at https://thecoachessite.com.
Confidential Information
Definitions. For the purposes of this Agreement, a Party or its affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is the Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations; (iv) Customer Content.
Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not:
disclose Confidential Information of the Discloser to any person, except to:
in the case of the Customer to its own personnel and Permitted Users that have a “need to know” for the purposes of receiving or providing the TCS Platform and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
in the case of The Coaches Site, to its employees, independent contractors, advisors, consultants, agents and its affiliates, that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement and to its subcontractors and contractors to perform the Services;
use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of The Coaches Site, to potential assignees, acquirers or successors of The Coaches Site if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of The Coaches Site.
Injunction and other equitable relief. The Customer agrees: (i) that no adequate remedy exists at law if it breaches any of its obligations in this Section 8; (ii) that it would be difficult to determine the damages resulting from its breach of this Section 8 and that such breach would cause irreparable injury to The Coaches Site; and (iii) that a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that The Coaches Site prove actual damage or post a bond or other security. The Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
(e) Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information of the other Party in its possession or control within a reasonable amount of time in accordance with this Agreement and the Recipient’s data destruction practices. Notwithstanding the foregoing, The Coaches Site may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
Warranty and Disclaimer
Customer Warranty. Customer represents and warrants to and covenants with The Coaches Site that:
Customer is eligible to register and use the TCS Platform;
Customer possess all requisite licenses, registrations, and permits order to operate its business and use the TCS Platform in compliance with Applicable Law;
Customer will not use the TCS Platform for any fraudulent undertaking;
the Customer Data and all transactions processed through the TCS Platform will be accurate, complete, and will not violate any Applicable Laws;
the Customer Data is accurate, up to date, and complete;
the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws to enable TCS to provide the TCS Platform and exercise its rights under this Agreement; and
Customer has the necessary rights in the Customer Data to provide the licenses set out in this Agreement.
GENERAL DISCLAIMER.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TCS PLATFORM IS LIMITED TO AN ONLINE PLATFORM TO SUPPORT CONNECTION BETWEEN COACHES. THE TCS PLATFORM IS PROVIDED AT CUSTOMER’S OWN RISK. THE COACHES SITE DOES NOT CONTROL THE CONTENT OF POSTINGS MADE ON THE TCS PLATFORM, AND DOES NOT GUARANTEE THE TRUTH, ACCURACY, OR SAFETY OF ANY CONTENT POSTED ON THE TCS PLATFORM OR THE ABILITY OF THE CUSTOMER TO UTILIZE THE CONTENT FOR CUSTOMER’S COACHING.
THE COACHES SITE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY THE COACHES SITE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COACHES SITE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THE COACHES SITE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR OR TO TAKE ANY ACTION REGARDING DISPUTES BETWEEN YOU AND ANY OTHER USER AND SHALL HAVE NO LIABILITY FOR YOUR INTERACTIONS OR ANY DISPUTES WITH OTHER USERS OR FOR ANY USER’S ACTION OR INACTION. YOU ARE SOLELY RESPONSIBLE FOR YOUR CONDUCT ON THE TCS PLATFORM AND YOUR INTERACTIONS WITH OTHER USERS.
Indemnities
The Coaches Site’s Indemnity.
The Coaches Site will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the TCS Platform infringe any third-party Intellectual Property Right in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of the TCS Platform into, or any combination, operation, or use of the TCS Platform with, any products or services not provided or authorized by The Coaches Site, unless such infringement would also have resulted solely from the use of the TCS Platform without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of the TCS Platform other than by The Coaches Site or with The Coaches Site’s express written approval; (C) unauthorized use of the TCS Platform; or (D) Customer’s indemnity in Section 10(b). THIS SECTION 10 (A)(i) IS THE COACHES SITE’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
If the TCS Platform is, or in The Coaches Site’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of the TCS Platform is enjoined or threatened to be enjoined, The Coaches Site may, at its option and sole cost and expense:
obtain the right for the Customer to continue to use the affected the TCS Platform materially as contemplated by this Agreement;
modify or replace the TCS Platform, in whole or in part, to seek to make the TCS Platform (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the TCS Platform under this Agreement; or
if The Coaches Site determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by The Coaches Site and The Coaches Site’s sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to the TCS Platform that were to be provided after the effective date of termination.by written notice to the Customer, terminate the Services, in whole or in part, and require the Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
Customer Indemnity. The Customer will defend, indemnify and hold harmless The Coaches Site, and its officers, directors, employees and agents (each, a “The Coaches Site Indemnitee”) from and against any and all Losses incurred by a The Coaches Site Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a The Coaches Site Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; (iv) Customer’s business; (v) any interaction between Customer and Permitted Users (including its Participants) or between Customer any other users; or (vi) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with The Coaches Site in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of The Coaches Site.
Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor will not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10(c) will not relieve the Indemnitor of its indemnity obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF THE COACHES SITE (OR ITS SUPPLIERS OR ITS LICENSORS) IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL THE COACHES SITE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE COACHES SITE (OR ITS SUPPLIERS OR ITS LICENSORS) BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
Term and Subscription Term Renewals.
The term of this Agreement commences on the Effective Date and continues until the expiration or termination of all applicable Subscription Terms unless terminated earlier in accordance with the terms of this Agreement (“Term”).
Your Subscription Term will automatically renew for successive 12-month periods, unless either Party gives the other Party notice of non-renewal at least ninety (90) days before the current Subscription Term ends or as specified otherwise in an applicable Order Form. Upon notice of non-renewal, you will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.
Termination for Cause.
Either Party may, in addition to other relief, terminate this Agreement (including all Order Forms), if the other Party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. The Coaches Site may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
In addition, and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be terminated or suspended by The Coaches Site at any time at The Coaches Site’s sole discretion. The Coaches Site may immediately terminate Customer’s right to use the Services or this Agreement (including all Order Forms): (1) if The Coaches Site believes that Customer or any Permitted User has violated this Agreement (including the AUP); (2) if The Coaches Site believes the use of Customer Data with the Services is not in The Coaches Site’s or its users’ best interests; (3) if The Coaches Site ceases to offer the Services; or (4) as required by Applicable Laws.
Termination for Convenience. Except as expressly specified in an Order Form, either Party may terminate the Agreement or any Order Form at any time for any reason by providing at least 30 days advance written notice to the other Party, provided: (i) you will not be entitled to a refund of any pre-paid Fees; and (ii) if you have not already paid all applicable Fees for the then-current Subscription Term, any such Fees that are outstanding will become immediately due and payable.
Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the TCS Platform and return The Coaches Site Property in its possession and certify in writing to The Coaches Site that The Coaches Site Property has been returned. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to The Coaches Site are immediately due and are to be immediately paid by Customer to The Coaches Site. All Order Forms will terminate upon the termination of this Agreement. No new Order Forms may be agreed to or entered into by the Parties, upon the termination of this Agreement.
Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 4 (Ownership; Reservation of Rights), Section 5 (Privacy), Section 6 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty and Disclaimer), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 12 (Survival), and Section 13 (General Provisions).
Support Services
Except as otherwise specified in an Order Form, The Coaches Site has no obligation under this Agreement to provide support services for the TCS Platform to Customer.
General Provisions
Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to The Coaches Site, to 1055 Dunsmuir Street, Suite 3000, Vancouver, BC, V7X 1K8 and to info@thecoachessite.com; and (ii) if to Customer, to the current mailing or email address that The Coaches Site has on file with respect to Customer. The Coaches Site may change its contact information by posting the new contact information on our mobile app or Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with The Coaches Site current at all times during the Term.
Assignment. Customer may not assign this Agreement to any third party without The Coaches Site’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. The Coaches Site may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent The Coaches Site from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the TCS Platform. The Coaches Site makes no representation or warranty that the TCS Platform may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event will not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 6, 8, or 10.
Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Independent Contractors. The Coaches Site’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, THE COACHES SITE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT THROUGH OUR MOBILE APP OR WEBSITE. UNLESS OTHERWISE INDICATED BY THE COACHES SITE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON OUR MOBILE APP OR WEBSITE (WHICHEVER IS THE EARLIER).
No Third Party Beneficiaries. Except for The Coaches Site’s licensors and Sections 10(a)(i) and 10(b), nothing in this Agreement, express or implied, is intended to or will confer upon any person other than the Party and their respective successors and permitted assigns any legal or equitable right, benefit, or remedy of any nature under or by reason of this Agreement.
English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Definitions
As used in this Agreement, the following capitalized words have the meaning set out below:
“AUP” has the meaning in Section 1.
“Additional Services” means the consulting, training and other professional services described in an Order Form. The term “Additional Services” does not include the TCS Platform.
“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Customer Content” means any all content such as videos, files, data, graphics, photos and links that Customer or any Permitted User posts to the Customer User Account or otherwise loads, enters into, transmits to, or makes available to the TCS Platform.
“Customer Data” means Customer Content, data, information, and record that Customer or any Permitted User loads or enters into, transmits to, or makes available to the TCS Platform, including but not limited to Personal Information and Customer Content, excluding Aggregated Data and any other The Coaches Site Property.
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over The Coaches Site.
“Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Loss” or “Losses” means all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Order Form” means any The Coaches Site provided ordering document, online registration, order description or order confirmation referencing these Terms of Service.
“Participants” has the meaning in Section 1.
“Permitted User” has the meaning in Section 2 and includes all Participants.
“Permitted Purpose” has the meaning in Section 1.
“Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
“Services” means the TCS Platform, plus any Additional Services offered by The Coaches Site.
“Subscription Term” has the meaning in Section 1.
“TCS Platform” means: (i) the services through which The Coaches Site hosts and makes available the TCS Platform as described in an Order Form; (ii) The Coaches Site Application; and (iii) any component or Modifications of the services referred to in (i) and (ii).
“The Coaches Site Application” means The Coaches Site’s mobile application product, and any updates provided as part of the TCS Platform.
“Website” means any websites used by The Coaches Site to provide the TCS Platform, including the websites located at https://thecoachessite.com.