THE VALUE BUILDER SYSTEM™ TERMS AND CONDITIONS
Effective Date: January 31, 2023
BUILT TO SELL INC. (“BTS”) IS WILLING TO GRANT THE SUBSCRIBER
(DEFINED BELOW) RIGHTS TO A SUBSCRIPTION AND TO USE THE SERVICES DESCRIBED
BELOW ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS. PLEASE READ THE
TERMS CAREFULLY. BY COMPLETING AND SUBMITTING AN ONLINE ORDER FORM AT THE LINK
WE PROVIDE (THE “ORDER FORM”), YOU CONFIRM THAT YOU HAVE READ, UNDERSTAND AND
ACCEPT ALL OF THESE TERMS. YOU MAY AGREE TO THESE TERMS AS AN INDIVIDUAL OR IF
YOU ARE AGREEING TO THESE TERMS ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL
ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND IT TO
THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY
TO BIND YOUR ORGANIZATION OR ENTITY, THEN BTS IS UNWILLING TO GRANT YOU RIGHTS
TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES.
1. Definitions.
a. “Administrator”
means an individual Subscriber or a contractor or employee of a Subscriber who
is authorized to designate
Authorized Users (defined below). Each organization or entity Subscriber must
have at least one Administrator.
b. “Applicable Law”
means all applicable present and future laws, statutes, regulations, treaties,
judgments and decrees and, whether or not having the force of law, all
applicable requirements, requests, official directives, rules, consents,
approvals, authorizations, guidelines, orders and policies of any governmental
authority having or purporting to have authority over one or both parties
and/or the subject matter of these terms. For greater certainty, included in
the meaning of “Applicable Law” are all laws relating to data, privacy, and
electronic communications.
c. “Authorized User”
means a person other than the Subscriber who has been invited to use our
Services through a subscription and who must also accept these terms to use our
Services and who is deemed to have accepted them upon his/her use of the
Services. The number of Authorized Users shall always be limited to the number
of subscriptions set out in your Order Form.
d. “Content” means
digital files and data that you upload and post to public areas of this this
site or elsewhere, such as our public forums where you post content and
collaborate with other subscribers.
e. “Services” means
(i) access on this website and to our “The Value Builder System™” software
product (including related content, documentation, training and certification);
(ii) any updates or upgrades to the Services released by us from time to time;
and (iii) any other services we provide now or in the future.
f. “Subscriber”
means the individual, organization, or entity purchaser of the subscription for
the Services.
2. Parties. The parties to this legal agreement are
BTS and the Subscriber which may be referred to as “you”, “your”, and/or
“yourself”. All references to “we”, “us”, “our”, “this website” or “this site”
shall be construed to mean this com, valuebuilder.com website and
builttosell.com.
3. Subscription Period. Your subscription commences on the day on
which the initial charge appears on your credit card, unless otherwise agreed
in writing, and continues for a period of one year (the “Initial Term”).
At the end of the Initial Term and each Renewal Term (as defined below), your
subscription shall automatically continue, subject to the provisions below, for
successive periods of ninety (90) days (each a “Renewal Term”), provided
you continue to pay the Subscription Fees. Together, the Initial Term and all
Renewal Terms shall be the “Term”. You may choose to terminate your
subscription as further detailed below. You’ll still need to pay all relevant
Subscription Fees up to and including the day of termination.
4.Pricing, Payment Terms and Taxes. You need to pay for a subscription
based on the pricing as detailed in the Order Form, which explains the pricing
details and other terms of your subscription. Your use of our Services requires
you to pay a monthly fee based on your subscription type (the “Subscription
Fee“) which shall be automatically charged to your credit card,
debited from your bank account, or paid via other methods based on our
applicable billing frequency. The terms of the pricing plan form part of these
terms. We may occasionally update or amend the pricing plan, but such changes
won’t apply retrospectively and, if we make changes and you’re a Subscriber,
we’ll make every effort to let you know. Depending on your region,
transactional taxes like HST, VAT and other similar taxes may apply in addition
to Subscription Fees unless otherwise indicated. In the event of any payment
default during the Initial Term, the monetary balance of your subscription for
the Initial Term will be accelerated and will become immediately due and
payable in full. All invoices must be paid within fifteen (+15) days of the
date on which they are sent to you, failing which you shall pay us on demand as
a genuine estimate of liquidated damages (the parties acknowledging that the
actual amount thereof is incapable of precise determination), the sum of
$100.00 for each outstanding invoice per month, the whole without prejudice to
any of our other rights and recourses.
5. Discounts. We may offer at our discretion from time to time
promotion that may include reduced fees for Services conditioned upon your
membership in a particular organization (“Partner”). You agree that we
are entitled to request from you or the Partner reasonable proof of your
membership in the Partner organization as a prerequisite of providing you any
Services at promotional rates, and to request from time to time proof of your
continued membership in order to continue such promotional rates. Failure to
provide proof of membership in a Partner organization upon our request will
result in the imposition of regular fees for Services retroactive to the last
date as to which proof of membership was provided.
6. Agreement and Modification of Agreement. The legal agreement
between you and BTS (the “Agreement”) consists of these terms and our
privacy policy https://valuebuilder.com/privacy-policy/ which is hereby
incorporated and accessible on our home page. We can modify these terms at any
time by posting amended terms that are accessible through a link on our webpage
and will also endeavor to give you prior notice. You should check these terms
periodically for modifications. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU,
YOUR ONLY RECOURSE IS TO TERMINATE YOUR SUBSCRIPTION. YOUR CONTINUED USE OF
THIS SITE AND/OR THE SERVICES FOLLOWING OUR POSTING OF AMENDED TERMS OR
PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
7. Modification of Services. We reserve the right to occasionally
modify the Services. Generally, we will endeavor to provide you with 30 days’
notice of material modifications they become effective, unless we need to make
immediate changes for reasons we don’t have control over. Certain other new functionality
may be offered in the future for an additional fee, and if you elect to
purchase any of this new functionality it will be deemed to be part of the
Services.
8. Right to Use Our Services. Whether you’re a Subscriber or an
Authorized User, and subject to these terms, we grant you a non-exclusive,
non-transferable right to use our Services (based on your subscription type,
your user role and the level of access you’ve been granted) for as long as the
Subscriber continues to pay for the subscription, until the subscription is
terminated, or – if you’re an Authorized User – until your access is revoked (“Authorized
Use”).
9. Restrictions on Use. You agree that your use of the Services
will be in a manner consistent with these terms and with all Applicable Law.
You agree to use our Services only for lawful business purposes and in line
with the instructions and guidance we provide. While we can’t cover everything
here, we do want to highlight a few more examples of things you mustn’t ever
do: (i) undermine the security or integrity of our computing systems or
networks; (ii) use our Services in any way that might impair functionality or
interfere with other people’s use; (iii) access any system without permission;
(iv) Introduce or upload anything to our services that includes viruses or
other malicious code.; (v) share anything that may be offensive, violates any
Applicable Law, or infringes on the rights of others; (vi) modify, copy, adapt,
reproduce, disassemble, decompile, reverse engineer or extract the source code
of any part of our services; (vii) resell, lease or provide our Services in any
way not expressly permitted by us; (viii) repackage, resell, or sublicense any
leads or data accessed through our Services; (iv) act in a manner that is
abusive or disrespectful to us, our employees, partners or other customers; or
(v) use the Services for any purpose other than your internal business purposes
of processing, storing, and maintaining your data. We will not tolerate any
abuse or bullying of our employees in any situation and that includes
interaction with our customer support or customer success teams.
10. Your Access to the Services and Your Confidential Information.
a. Individual Subscribers
are required to register as the initial Administrator and an Authorized User.
b. The initial
Administrator shall register and designate himself/herself as the initial
administrator. The initial Administrator shall be the overall administrator of
the subscription and is authorized to appoint additional Administrators and
Authorized Users. Any Administrator is authorized to manage the subscription,
including the authority to appoint Authorized Users. If an Administrator deems
it necessary to terminate access to the Services for any Authorized User, s/he shall
follow the designated procedures to deactivate the person’s Username (defined
below).
c. Administrators shall
provide each Authorized User with a unique email address, login ID and password
(“Username”) which is not transferable to any other user, including Authorized
Users.
d. Administrators shall
manage the subscription and assume the responsibility for the appointment of,
and use of the Services by, and Authorized Users. Administrators are
responsible for maintaining the confidentiality of Usernames and any additional
information that we may provide. No Administrator or Authorized User may share,
distribute, rent, loan, sell, purport to sublicense or otherwise transfer or
attempt to transfer a Username to another person and doing so shall be cause
for us to immediately terminate your subscription and to suspend access to all
Services.
e. Administrators shall
have access to all contact information and reports associated with the
subscriptions.
f. Use of the Services by
Authorized Users via an Application Program Interface (“API”) is authorized,
subject to the following conditions:
i. These terms shall apply
to all use of the Services via an API or third-party product, including without
limitation all limitations of liability provided herein.
ii. Excessive use of the
Services via an API or third-party product may result in a diminution of the
Services. We reserve the right in our sole discretion to suspend or terminate
use of the Services via an API or third-party product.
g. Subscribers that are
organizations or entities (non-individuals), cannot split a subscription among
multiple users. Each user must be an Authorized User and the Subscription Fees
will vary based on the number of Authorized Users as further detailed in the
Order Form. All Authorized Users under an organization’s or entity’s
subscription must be employed by or contracted to the same legal entity.
h. You agree not to make
any former Authorized User an Authorized User hereunder during the Term and for
a period of twelve (12) months thereafter without our permission which we can
withhold for any reason.
i. The Subscriber is
responsible for all the activity of each Authorized User.
j. We strive to maintain
the availability of our Services and provide support. On occasion, we need to
perform maintenance on our services, and this may require a period of downtime.
We try to minimize any such downtime. Where planned maintenance is being
undertaken, we’ll attempt to notify you in advance but can’t guarantee it. You
know how the internet works – occasionally you might not be able to access our
services and your data. This might happen for any number of reasons, at any
time.
k. You promise that you’ll
keep your information (including a current email address) up to date. You’re
responsible for providing true, accurate and complete information and for
verifying the accuracy of any information that you use from our services for
your legal, tax and compliance obligations. You’re also responsible for
protecting your Username and password from getting stolen or misused. We have
minimum password standards, but you will ensure that passwords are very strong
and not easily guessable – the stronger the password the better!
l. You will not market,
sell or re-sell any part of your subscription to another individual or entity
or to bundle it with any services you provide to others without our written
consent
11. Security. We take security seriously and you
should too!
a. Security safeguards: We’ve invested in
certain safeguards to do our part to help keep your data safe and secure. While
we’ve taken steps to help protect your data, no method of electronic storage is
completely secure, and we cannot guarantee absolute security. We will notify
you if there appears to be unauthorized access to your account and we may also
restrict access to certain parts of our Services until you verify that access
was by an authorized user.
b. Account security
features:
We may introduce security features to make your account more secure. Depending
on where you are in the world or what Services you’re using, we may require you
to adopt some of these features. Where we make the use of security features
optional, you’re responsible (meaning we’re not liable) for any consequences of
not using those features. We strongly encourage you to use all optional
security features.
c. Playing your part to
secure your data: You have an important part to play by keeping your login details
secure, not letting any other person use them, and by making sure you have
strong security on your own systems. If you realize there has been any unauthorized
use of your password or any breach of security to your account or email address
linked to your account, you must let us know immediately.
12. Confidential Information. While using the
Services, and only for the purposes contemplated here, you may share
Confidential Information with us, and you may become aware of confidential
information about us. You and we both agree to take reasonable steps to protect
the other party’s confidential information from being accessed by unauthorized individuals.
You or we may share each other’s confidential information with legal or
regulatory authorities if required to do so. In our case, we claim as “Confidential
Information” the nonpublic marketing and sales and subscriber information,
algorithms, logic, design, and coding methodology embodied in the Services, our
website, and all software and technology we use to provide the Services as well
as any reports produced including any “The Value Builder Score™” report(s).
13. Discussions and Postings and Content.
a.
On The Value Builder System™ Facebook & LinkedIn Groups, you
can participate in discussions about our Services. Only share private
information if you’re happy for others to know it, and don’t post anything you
don’t have the right to share. Full rules for each group are available on their
respective pages.
b.
You retain all rights and ownership to your Content. We make no
claim of ownership to your Content; however, we do need certain rights (a
license) to use your Content to enable our Services. If you upload or submit
your Content, you grant to us and any of our affiliated entities a worldwide,
non-exclusive, irrevocable, and perpetual right and license (i) to use,
reproduce, modify, and create derivative works based on your Content, and (ii)
to host, publish, distribute, publicly display, publicly perform your Content
and derivative works in all methods and means of distribution and publication,
now known or hereafter developed. This license granted by you is only for
purposes of marketing, promoting, or improving our Services.
14. Termination; CANCELLATION.
a.
You or we can terminate your subscription with three (3) months’
written notice following the Initial Term. If you violate these terms in any
way or if you become insolvent, your business goes into liquidation or has a
receiver or manager appointed over any of its assets, or you become subject to
any similar insolvency event in any jurisdiction, we may terminate your
subscription immediately and/or suspend access to your subscription or data.
There will be no refunds of Subscription Fees or any other prepaid amounts upon
termination by either of us.
b.
Once a subscription is terminated by you or us, it is archived,
and the data submitted or created by you is no longer available to you. In any
event, we reserve the right (but do not have the obligation) to irrevocably
delete all of your data and any contact information beginning thirty (30) days
after your subscription ceases for any reason, without any further notice or
obligation to you.
c.
Upon expiry or termination for any reason of your subscription,
you will be required to remove all references to The Sellability Score,
Certified Value Builder™ and The Value Builder System™ from all your marketing
materials (g. company literature, website, etc.) You will also lose your status
as a Certified Value Builder™ and will be required to remove the “Certified
Value Builder™” designation from your professional email signatures, business
cards and profiles (including on LinkedIn, etc.).
15. Training. As part of your subscription, each Subscriber
(and, in cases where the Subscriber is an entity or organization with multiple
Authorized Users, at least one Authorized User) must first earn the Certified
Value Builder™ designation (additional cost applies per Order Form) to offer
the Value Builder Engagements. To earn this designation, an individual must
complete the Value Builder online (e-learning) course and attend one of our
virtual or in-person Certified Value Builder™ courses. A Certified Value
Builder™ designation is only valid if a subscription is in effect and shall immediately
terminate upon its expiry or termination for any reason. Each Subscriber (and,
in cases where the Subscriber is an entity or organization with multiple
Authorized Users, at least one Authorized User) may choose to receive a
Certified Value Builder™ designation as part of our SmartStart program. This
program includes the Value Builder online course, Certified Value Builder™
training, RocketLaunch and CoachMasters. The SmartStart program is not
transferable between Authorized Users or among other members within an
organization. You must always have a minimum of one Authorized User with a
valid subscription that has completed, or is enrolled in, the SmartStart
program. All courses included in the SmartStart program must be completed
within 12 months of registration. Our SmartStart guarantee is as follows: if
you successfully complete the SmartStart program and are not satisfied, we will
credit your account with 100% of your SmartStart investment. To qualify for
this guarantee, you must have: (i) a current valid subscription; (ii)
successfully completed the SmartStart program by attending, completing, and
providing feedback on all of the above-referenced courses within 12 months of
becoming a Subscriber; (iii) participated in regular meetings with your
Onboarding Manager during the first 6 months of your subscription; and (iv)
participated in at least one meeting with your Account Manager within 12 months
of becoming a Subscriber. Once registered for specific course sessions, you may
change your course dates by submitting a request to your Onboarding Manager 30
days prior to course commencement. Refunds are not offered on any of our
training programs for any reason whatsoever.
16. Technical Support and Consulting Services. During the Term, we will
provide technical product support in the form of responses to questions by
email or telephone at no additional charge. If additional services are required
for the proper use and operation of the Services or if additional optional
training or consulting services are requested, we will provide such services on
a time and materials (“T&M”) basis; that is, (i) you will pay us for
all the time spent performing such services (including all travel time), plus
materials, taxes, and reimbursable expenses; and (ii) the rates for such
services shall be our then-current standard rates when such services are
provided. Any monetary limit stated in an estimate for T&M services shall
be an estimate only for your budgeting and our resource scheduling purposes. If
the limit is exceeded, we will cooperate with you to provide continuing
services on a T&M basis. We will invoice you monthly for T&M services.
Charges shall be payable upon receipt of invoice. We reserve the right to
require a non-refundable fee and/or cost deposit prior to commencement of
services as well as a work order.
17. Data Use and Privacy. We use your data to provide our services to
you. Our privacy policy is an important part of these terms and describes in
more detail how we deal with personal data, like your name and email address.
a.
Use of data. When you enter or upload your data into our systems, and subject
to the provisions of the section “Intellectual Property Ownership” below, we
don’t own that data but you grant us a licence to use, copy, transmit, store, analyze,
and back up all data you submit to us through our Services, including personal
data of yourself and others, to: enable you to use our Services; allow us to
improve, develop and protect our Services; create new services; communicate
with you about your subscription; and send you information we think may be of
interest to you based on your marketing preferences. We may use third party
sub-processors.
b.
Use of your own personal data: We respect your privacy and take data
protection seriously. In addition to these terms, our privacy policy sets out
in detail how we process your own personal data that you add into The Value
Builder System™.
c.
Anonymized statistical data: When you use our Services, we may create
anonymized statistical data from your data and usage of our services, including
through aggregation. Once anonymized, we may use it for our own purposes, such
as to provide and improve our services, to develop new services or product
offerings, to identify business trends, and for other uses we communicate to
you.
d.
Data breach notifications: Where we think there has been unauthorized access to personal
data inside your subscription, we’ll let you know and give you information
about what has happened. Depending on the nature of the unauthorized access, and
the location of your affected contacts, you may be required to assess whether
the unauthorized access must be reported to the contact and/or a relevant
authority. We think you’re best placed to make this decision, because you’ll
have the most knowledge about the personal data stored in your subscription.
18. Intellectual Property Ownership. We own everything
we’ve put into our Services unless otherwise stated and excluding content owned
by others. This includes rights in the design, compilation, and look and feel
of our services including our websites, all content, training materials,
software and software code and technology and reports, including “Value Builder
Score” reports. It also includes rights in all copyrighted works, trademarks,
designs, inventions, and other intellectual property. You agree not to copy,
distribute, modify, or make derivative works of any of our content or use any
of our intellectual property rights in any way not expressly permitted by us.
We also own the rights to any websites/domain names/links we temporarily
provide to Subscribers while they are subscribers. For greater certainty, once
your subscription ceases, you retain no rights to use any such websites/domain
names/links, nor do you have any rights relating to any leads generated from
them. In addition, we may occasionally and in our sole discretion provide you
with sales leads. We may at any time, whether you are then a Subscriber or
whether your subscription has ceased for any reason, reassign any such lead(s)
to any other subscriber without any compensation or obligation to you
whatsoever. We also own all user data collected from The Value Builder System™
and your use of the Services. No part or derivation of The Value Builder
System™, “Certified Value Builder” or “Built to Sell” can appear in your URL.
For example, you cannot use MyValueBuilderSystem.com or any derivations of it.
To use the Certified Value Builder™ designation in your marketing and
professional profile, you must have an active subscription. We are not required
to delete any information relating to anyone that interacts with us to obtain
his/her/its Value Builder Score once your subscription ceases. You will not
sell, share, or refer any sales leads we have provided to you without our
written permission. If a contact that you add into our system does not interact
with us (whether to obtain a Value Builder Score or otherwise), that contact
and any of the data it provides remains your sales lead and upon your written
request (to be made within fifteen (15) days of the date on which your
subscription ceases), we will delete this contact’s information.
19. Compliance with Applicable Law. You agree you will always comply
with all Applicable Law. You may not use the Services in any way, including
directly or indirectly, to send, transmit, handle, distribute or deliver
unsolicited email in violation of Applicable Law, including but not limited to
the General Data Protection Regulation (GDPR), Canada’s anti-spam legislation
(CASL), Australia’s Spam Act 2003, the USA’s CAN-SPAM Act of 2003, or any other
Applicable Law. You further represent and warrant that any contact information
referred to in the section “Intellectual Property Ownership” above has been
obtained lawfully and with all required consents and has not, for example, been
obtained via any surreptitious methods (g. scraping or harvesting). Different
laws may apply in different countries that restrict our relationship with you.
We may block your access, terminate your subscription, or refuse to process a
payment if we reasonably believe there’s a risk – like a potential breach of
Applicable Law – associated with you, your company, your subscription, or a
payment. Examples of where we might do this include transactions where the
payment is from a sanctioned person or country; or where we reasonably believe
there is a legal or regulatory risk or a risk of loss being suffered by us or
our customers or partners. You promise that you’re not located in a sanctioned
country and are not on a sanctioned persons list. We may also block users from
a country if we can’t receive payments from that country. You should check what
payment methods are available in your country for making payments. We may take
any of these actions without notice.
20. Limited Warranty; Disclaimers. We warrant that (i) your use of the
Services will be free and clear of any third-party proprietary rights; (ii) we
will undertake reasonable efforts to maximize uptime for the Services, except
for routine maintenance; and (iii) the Services will be free of material
defects and will conform to the descriptions we provide (“Limited Warranty”).
These express warranties are the sole warranties with respect to the Services
and are in lieu of all other warranties express or implied. Your sole and
exclusive remedy for breach of this Limited Warranty shall be the prompt
correction of material defects and non-conforming Services at our expense.
Whatever the cause of any downtime, access issues or data loss, your only
recourse is to discontinue using the Services. WE PROVIDE THE SERVICES “AS-IS”
AND WITH ALL FAULTS. WE DO NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED TO YOU. WE, ON BEHALF OF OUR SUPPLIERS AND VENDORS, AND SUBJECT TO THE
PROVISIONS IN THE SECTION “CONSUMER LAWS” BELOW, SPECIFICALLY DISCLAIM ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE RELATING TO NON-INFRINGEMENT,
MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
21. Our Indemnity of You. We will indemnify, defend and hold you
harmless from and against any demands, lawsuits, liabilities, losses, costs and
expenses that we incur arising out of, or in connection with a third-party
claim against you that any Services infringes on any Canadian or U.S.
intellectual property right of a third party that is known to us prior to
providing the Services to you. We will have no liability or obligation if the
claim arises from (i) any alteration or modification to the Services other than
by us, (ii) any combination of the Services with other programs or data not
furnished by us, or (iii) any use of the Services prohibited by these terms or
Applicable Law or otherwise outside the scope of use for which the Services is
intended. If you are enjoined from using the Services, or if we believe that
the Services may become the subject of a claim of intellectual property
infringement, we, at our option and expense, may: (i) procure the right for you
to continue to use the Services; (ii) replace or modify the Services so as to
make them non-infringing; or (iii) terminate your subscription, in which case
we will refund to you any Subscription Fees paid in advance for those Services.
These remedies are your sole remedies for claims of infringement.
22. Your Indemnity of Us. Subscriber will indemnify, defend and hold us
harmless from and against any demands, lawsuits, liabilities, losses, costs and
expenses that we incur arising out of, or in connection with a third-party
claim against us relating to your use of our Services or any third-part product
(except as far as we’re at fault) and/or in connection with any breach by you
of these terms of Applicable Law.
23. LIMITATION OF LIABILITY. OTHER THAN LIABILITY THAT WE CAN’T EXCLUDE
OR LIMIT BY APPLICABLE LAW, OUR LIABILITY TO YOU IN CONNECTION WITH THESE
TERMS, THE SERVICES OR YOUR SUBSCRIPTION, IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, IS LIMITED AS FOLLOWS: (I) WE HAVE NO LIABILITY
ARISING FROM YOUR USE OF THE SERVICES FOR ANY LOSS OF REVENUE OR PROFIT, LOSS
OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS,
LEGAL, TAX OR ACCOUNTING COMPLIANCE ISSUES, DAMAGE TO REPUTATION, LOSS IN
CONNECTION WITH ANY OTHER CONTRACT, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR SPECIAL LOSS, DAMAGE OR EXPENSE. (II) FOR LOSS OR
CORRUPTION OF YOUR DATA, OUR LIABILITY WILL BE LIMITED TO TAKING REASONABLE
STEPS TO TRY AND RECOVER THAT DATA FROM OUR AVAILABLE BACKUPS. (III) OUR TOTAL
AGGREGATE LIABILITY TO YOU IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL AMOUNT
YOU PAID US FOR YOUR SUBSCRIPTION IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING
THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
24. Consumer Laws: In some places, there may be non-excludable
warranties, guarantees or other rights provided by law (non-excludable consumer
guarantees). They still apply – these terms do not exclude, restrict, or modify
them. Except for non-excludable consumer guarantees and other rights you have
that we cannot exclude, we’re bound only by the express promises made in these
terms. Our liability for breach of a non-excludable consumer guarantee is
limited, at our option, to either replacing or paying the cost of replacing the
relevant service (unless the non-excludable consumer guarantee says otherwise).
25. Non-Solicitation. During the Term and for a period of one (1) year
following the Term, you agree that you will not, directly or indirectly,
solicit or attempt to solicit: (i) for employment any persons employed by us or
contracted by us to provide Services; and (ii) as your customer, any current
Subscriber or any individual or entity who has been a subscriber in the
twenty-four (24) months leading up to the date on which you ceased to be a
Subscriber for any reason if such solicitation would lead to a loss in revenue
to us.
26. Relationship between the parties; Assignment. Nothing in these terms
is to be construed as constituting a partnership, joint venture, employment or
agency relationship between you and us, or between you and any other
subscriber. You’re solely responsible for resolving disputes between you and
any other Subscriber. These terms shall inure to the benefit of and be binding
upon any successor to all or substantially all the business and assets of each
party, whether by merger, sale of assets, or other agreements or operation of
law. Except as provided above, you shall not assign the Agreement or any right
or interest under the Agreement, without our advance permission.
27. Notices. Any notice or communication required or permitted to be
given hereunder may be delivered by hand, deposited with an overnight courier,
or sent by or Canada Post or U.S. Mail (registered or certified only), return
receipt requested. Any notices sent to BTS must be sent to 1 Yonge Street,
Suite 1801, Toronto, ON M5E 1W7, Canada. Any notice sent to you must be sent to
the most address that you have provided to us. In either case, notices may be
sent to another address designated in writing by either party to the other.
Such notice will be deemed to be given when received.
28. Force Majeure. Except for your payment obligations hereunder,
neither party shall be liable for damages for any delay or failure of delivery
arising out of causes beyond their reasonable control and without their fault
or negligence.
29. Governing Law and Jurisdiction; Waiver of Class Action Proceedings.
The courts sitting in Toronto, Ontario, Canada shall be the exclusive
jurisdiction and venue for all legal proceedings that arise under the
Agreement. The Agreement shall be construed under the laws of the Province of
Ontario and the laws of Canada, without regard to its principles of conflicts
of law, and such laws shall apply to all issues in dispute hereunder. The
application the United Nations Convention of Contracts for the International
Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are
expressly excluded. You and we agree that any dispute must be brought in the
parties’ individual capacity and not as a plaintiff or class member in any
purported class or representative proceeding.
30. Survival. The following obligations shall survive the expiration,
termination, or cancellation hereof: (i) any and all warranty disclaimers,
limitations of liability, and indemnities, (ii) any covenant granted herein for
the purpose of determining ownership of, or protecting, the intellectual
property rights, including without limitation, the confidential information of
either party, or any remedy for breach thereof, and (iii) the payment of taxes,
duties, or any money due to either party.
31. Miscellaneous. The Agreement constitutes the entire understanding of
the parties with respect to the subject matter of the Agreement and merges all
prior communications, understandings, and agreements. The Agreement may be
modified only by a written agreement signed by the parties. The failure of
either party to enforce at any time any of the provisions hereof shall not be a
waiver of such provision, or any other provision, or of the right of such party
thereafter to enforce any provision hereof. If any provision of these terms is
declared invalid or unenforceable, such provision shall be deemed modified to
the extent necessary and possible to render it valid and enforceable. In any
event, the unenforceability or invalidity of any provision shall not affect any
other provision of these terms and these terms shall continue in full force and
effect, and be construed and enforced, as if such provision had not been
included, or had been modified as above provided, as the case may be. It is the
express wish of the parties that this Agreement and all related documents,
including notices and other communications, be drawn up in the English language
only. Il est la volonté expresse des parties que cette convention et tous les
documents s’y rattachant, y compris les avis et les autres communications,
soient rédigés et signés en anglais seulement. You are responsible for
complying with all Applicable Law which might impact your right to import,
export or use this site and/or the Services, and you represent that you have
complied with any regulations or registration procedures required by Applicable
Law to make these terms enforceable.
