Terms of Service

INFLUITIVE CORPORATION
TERMS OF SERVICE (V.2/21/18)
February 21, 2018

BEFORE USING INFLUITIVE’S SERVICES (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THIS “AGREEMENT”).  THIS AGREEMENT IS INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”) AND INFLUITIVE CORPORATION (“INFLUITIVE”). PURSUANT TO THIS AGREEMENT, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE INFLUITIVE’S ENGAGEMENT PLATFORMS; AND/OR RECEIVE OTHER SERVICES FROM INFLUITIVE.  THIS AGREEMENT AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND INFLUITIVE, EFFECTIVE AS OF THE EARLIEST OF THE DATE OF MUTUAL EXECUTION OF THE ORDER FORM OR THE DATE IN WHICH THE CUSTOMER USES THE SERVICES.

1. DEFINITIONS

“Advocate” means individuals who have been invited by Customer to join Customer’s Advocate community by using the Services and accepting Customer’s Advocate User Agreement. “Advocate User Agreement” means the terms and conditions under which Advocates will agree to use the Customer’s Advocate Platform. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Customer Content” means all data or information uploaded, submitted or posted by Customer and its Users during the Service Term. “Documentation” means Influitive’s online knowledge base, documentation, and/or help and training materials, as updated from time to time, accessible via Influitive.com or login to the applicable Service. “Services” or “Subscription” means the online, Web-based application provided by Influitive on a Subscription basis, including but not limited to AdvocateHub, AdvocateAnywhere; and Upshot; associated offline components; third party applications; and professional services that are ordered by Customer under an Order Form or a Statement of Work. “User” means an individual who is authorized by Customer to use the Services on behalf of the Customer, including but not limited to employees, consultants, contractors, and agents of Customer.

2.  INFLUITIVE SERVICES

2.1  Provision of Services.  Influitive shall make the Services available to Customer and its Users on a subscription basis pursuant to this Agreement and the applicable Order Forms during the Service Term (the “Subscription”).

2.2  Subscriptions.  Unless otherwise specified in the applicable Order Form or the Statement of Work, (i) Services are purchased as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing Subscriptions, prorated for the remainder of the Term in effect at the time the additional Services are added; and (iii) the added Subscriptions shall terminate on the same date as the pre-existing Subscriptions.  Professional Services may be purchased by Customer at Influitive’s then current rates and shall be detailed in the corresponding Statement of Work.

 2.3  Influitive Responsibilities. Influitive shall: (i) provide to Customer basic support for the Services at no additional charge, and/or upgraded support if purchased, provided that the terms of such upgraded support are described in the Order Form; (ii) make the Services available in accordance with Influitive’s policies; and (iii) provide the Services in accordance with applicable laws and government regulations.

2.4  Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and of the means by which it acquired Customer Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Influitive promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with Influitive’s instructions and applicable laws and government regulations.  Customer shall not (a) make the Services available to any third party other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, as such term is defined in Section 8.3, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

3.  FEES

3.1  Fees. Customer shall pay Influitive all the fees specified in the Order Forms (the “Fees”).  Except as otherwise provided in the Order Form, all Fees are quoted in United States currency; Fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Fees are non-refundable. Fees for the Services will be invoiced in advance in accordance with the terms of the Order Form.

3.2  Payment Terms. Unless otherwise stated in the Order Form, payment is due within thirty (30) days of the invoice date. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Influitive reserves the right to suspend the Services without liability to Influitive, until such account is paid in full.

3.3  Taxes. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Influitive’s income. If Influitive has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Influitive with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.  TERM AND TERMINATION

4.1  Term of the Agreement.  This Agreement commences on the last date of execution of the Order Form and continues until all Services expire or this Agreement is mutually terminated by the parties. 

4.2  Term of the Services.  The Services are offered for the initial term of service specified in the Order Form (the “Initial Term”). The Initial Term shall begin on the Contract Start Date stated in the Order Form.  Following the Initial Service Term, Services shall renew in accordance with the terms of the Order Form (each, a “Renewal Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional Subscriptions to its use of the Service, the amount of Customer’s Fees shall increase the sum set forth in the Order Form and, the Service Term for any such additional Services shall be coterminous with the Initial Term or any Renewal Term in effect at the time.

4.3  Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 

4.4  Early Termination.  If Customer wishes to terminate the Services under this Agreement prior to the expiration of the current Term and such termination is not due to Influitive’s breach, all Fees which would otherwise be due through the end of the Term in effect at the time, including any applicable taxes shall be due and payable within thirty (30) days of the effective date of termination and no refunds for pre-paid Services will be provided. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.

5.  PROPRIETARY RIGHTS

5.1  Grant of License. Subject to the terms herein, Influitive grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to access and use the Services solely for Customer’s own business purposes and only for the specific number of Users and time periods as set forth in each fully executed Order Form.

5.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Influitive reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.3  Restrictions. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Customer may permit use of Services, strictly in accordance with this Agreement, by third parties working on behalf of the Customer; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the User ID that is provided by Influitive; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; or build a product or service similar to the Services; or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code or material in violation of third-party privacy rights, or (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.

5.4  Customer Content.   Customer retains all rights, title and interest in and to all Customer Content.  Influitive does not control or monitor the Customer Content posted by the Users or the Advocates via the Advocate Hub Platform and, as such, does not guarantee the accuracy, integrity or quality of the Customer Content.  Customer is responsible for the collection of the Customer Content and the use of the Services by the Advocates. Please review our Privacy Policy, which forms an integral part of this Agreement, at http://www.influitive.com/privacy carefully as it sets out how we collect, store and use information about our users and will govern use of your Customer Content. If you do not agree with any of our privacy practices you must not use the Services. Influitive shall not be liable in any way for the any content, including, but not limited to, any errors or omissions in any Customer Content, or for any loss or damage of any kind incurred as a result of the collection, use of or reliance upon any content posted, emailed, transmitted, or otherwise made available via the Service. Customer grants Influitive a limited license, during the Term, to use and display Customer Content solely within the Services.

5.5  Excluded Customer Content.  Customer acknowledges that the Services are not intended to be a repository of personal identifiable information (“PII”) or personal data that may be considered sensitive or privileged, such as financial information, non-public personally identifiable information that could be legally considered private or sensitive, including without limitation, social security numbers, driver’s license numbers, birth dates, personal bank account numbers, and credit card numbers (the “Excluded Customer Content”).  Notwithstanding the above, in the event that Customer or any of its Users uploads Excluded Customer Content to the Services in violation of this Agreement, Customer agrees to remove such information immediately, or at its reasonable discretion and upon prior written notice, Influitive may purge such data from its systems.

5.6  User passwords. Customer shall ensure that its Advocate and Users protect their unique user identification name and not make them available to persons or entities not authorized to use the Services.   Influitive will only store User’s passwords in encrypted form.  Influitive personnel will not be able to read User’s passwords.

5.7  Advocate User Agreement. Customer shall be responsible for ensuring that Advocates agree to the Advocate User Agreement, substantially in the form of Exhibit A, prior to using the Services.

5.8  Destruction of Customer Content.  Upon written request by Customer made within 30 days after the effective date of termination, Influitive will provide Customer with temporary access to the Services so that Customer can retrieve its Customer Content.  After such 30-day period, Influitive shall have no obligation to maintain or provide any Customer Content and shall reasonably thereafter, unless legally prohibited, delete all Customer Content in Influitive’s systems or otherwise in its possession or control.

6  CONFIDENTIALITY

6.1  Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to Customer Content, the terms and conditions of this Agreement and any Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party.  However, Confidential Information (other than Customer Content) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2  Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third-party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

6.3  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.  REPRESENTATIONS AND WARRANTIES 

7.1  Corporate Authority.  Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

7.2  Functionality Warranty. Influitive warrants that the Services will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable Documentation. 

7.3  Security Warranty.  Influitive has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Services at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Influitive, whether by accident or otherwise

7.4  Additional Warranties. Influitive represents and warrants that: (i) the Services will be provided in a professional, timely and workman like manner by persons with the proper skill, training and background, and consistent with generally accepted industry standards; (ii) the Services will comply with all written specifications; (iii) the Services will be free of material defects; (iv) the Influitive technology shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at the time of delivery, all Documentation required hereunder (if any) shall be complete so as to enable Customer personnel with ordinary skills and experience to utilize the Services for the purposes for which they are being acquired by Customer, (vi) it will at all times utilize reasonable and appropriate practices and technologies common and prevalent in Influitive’s industry to avoid causing damage to Customer’s computer systems or other technology.

7.5  Disclaimer. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis.  Other than as expressly provided herein, Influitive disclaims warranties, whether expressed, implied, STATUTORY OR otherwise AND specifically disclaims all implied warranties including without limitation the conditions AND/or warranties of merchantability or fitness for any purpose to the maximum extent permitted by law.  Influitive does not warrant that the Services will meet the Customer’s requirements or that the operation of the Services will be uninterrupted or error-free.  Further, Influitive does not warrant that all errors in the Services can be corrected.

8.  LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. INDEMNIFICATION

9.1  Influitive Indemnification. Influitive shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services, as contemplated hereunder, infringes the intellectual property rights of a third party.  Notwithstanding the foregoing if Influitive reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Influitive may, at its expense: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Services as set out herein. Influitive shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Services with other equipment or software not supplied by Influitive or in a manner not consistent with Influitive’s instructions. THIS SECTION SETS FORTH INFLUITIVE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

9.2  Customer Indemnification.  Customer agrees to indemnify and hold Influitive harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Influitive by a third party arising from or relating to Customer’s use of the Customer Content or the Services in violation of this Agreement.

9.3  Mutual Provisions.  Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

10.  GENERAL PROVISIONS

10.1  Publicity.  Customer agrees that Influitive may use Customer’s name and logo on Influitive’s website, and as a part of a general list of customers for use and reference in corporate, promotional and marketing literature. Without limiting the generality of the foregoing, Customer agrees that “Powered by Influitive” or similar marks may appear in forms, web pages and other outputs of Influitive Services.

10.2  Assignment.  Neither party shall assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

10.3  NoticesNotices regarding new or modified Documentation, including but not limited to Influitive’s Terms of Service, Service Level Agreement, Privacy Policy and other internal documents will become effective and will be deemed accepted by Customer, (a) immediately for those Customers who purchase the Services after the updated version is published on Influitive’s website, or (b) for those having pre-existing accounts, the updated Terms of Service will be deemed effective with Customer’s continued use of the Service.  Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Influitive’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses given above in the heading to this Agreement or to such other address as a Party may, from time to time, designate by notice to the other Party.

10.4  Amendments. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby.

10.5  Governing Law.  This Agreement shall be construed in accordance with and governed by the laws of the state of New York and subject to the exclusive jurisdiction of the state of New York.

10.6  Relationship. The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship exists between Customer and Influitive.

10.7  Waiver and Severability. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

10.8  Force Majeure.   Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.

10.9  Entire Agreement. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein), comprises the entire agreement between Customer and Influitive regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall prevail.

10.10  Surviving Provisions.  The sections titled “Fees” “Payment Terms,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” Surviving Provisions,” and “General Provisions” shall survive any termination or expiration of this Agreement.

Exhibit A

Advocate User Agreement Form

Welcome to the XXX Advocate Community. When you use the Community (defined below), you’re agreeing to these terms and conditions of use, which is a contract between you and us.

We are XXX with office address is at ____________________________________________.

1. General

1.1  The XXX Advocate Community (“Community”) is a web-based platform that enables you and other XXX advocates to receive invitations from us to participate in various challenges related to promoting XXX, such as but not limited to sharing items of importance to us on social media, speaking at one of our conferences, or talking about us to others (each a “Challenge”).

1.2  You agree that by providing us with your information and clicking “Accept”, you are entering into a legally binding agreement with us in your capacity as an authorized representative of XXX.

1.3  We call the terms and conditions set out in this document the “User Agreement”. Your “Agreement” with us includes this User Agreement, our Privacy Policy and any other terms that are displayed to you when you use additional features or services (if any), all as may be amended from time to time. If you do not agree to any of the terms of the Agreement, do not click “[NAME]” or interact with the Community.

2.  Sharing

2.1  Your participation in the Community is completely voluntary. You may cancel your account at any time. Participation in a Challenge is also voluntary. You are free to refuse to participate in any Challenge.

2.2  The Community may allow you to interact with us and other advocates by posting your own content to the Community. “Content” means anything you post to the Community, including opinions, expressions, points of view, articles, videos, messages, photos, advice or any other information.

2.3  As between you and us, you own the Content that you post to the Community. However, by posting Content, you give us the right to use this Content, subject to certain limitations that we set out below. In legal language, this means that if you post Content, you give us and our corporate affiliates (which are companies that we own or that are under common ownership with us) a non-exclusive, royalty-free, perpetual, transferable and sublicensable license to use, copy, modify, distribute, publish and process your Content, without any further consent, notice, or compensation to you or any other third party.

2.4  Our rights to the Content are limited in the following ways:

a. You can end our license for any particular piece of Content by deleting it from the Community or by closing your Community account. However, if you have shared the Content with others and they have made a copy or stored your Content, it may not be completely deleted from the Community.

b. We will get your consent if we want to give others the right to publish your Content outside of the Community. However, other advocates of the Community may access and share your Content consistent with the functionality of the Community.

c. While we will not modify or amend your Content, we may make formatting changes to your Content.

2.5  If you participate in any Challenges, we may award you points based on your successful completion of the Challenge. We will automatically track your points for you. We will also display a leaderboard within the Community that sets out the number of points each Advocate has. This leaderboard is viewable by all other advocates of the Community. Please note that you can remove yourself from the leaderboard at any point in time, in your sole discretion.

2.6  We appreciate your thoughts about the Community. By submitting suggestions or other feedback about the Community to us, you agree that we can use and share (but do not have to use or share) such feedback for any purpose without compensation to you.

3.  The Community Rules

3.1  We have certain rules that we require all of the advocates of our Community to follow. These rules help to ensure that the Community functions properly and benefits all participants, including us.

3.2  You agree that you will:

a. be at least 18 years old (and you cannot use the Community if you are younger than 18);

b. choose a strong password, keep your password secure and confidential, and not transfer any part of your account to anybody else. You are responsible for anything that happens through your account unless the use happens after you’ve closed your account;

c. use the Community in a professional manner and in accordance with any usage guidelines we may make available from time to time

d. provide accurate and correct information about yourself to us and keep it updated, including using your real name in your Community profile; and

e. only post Content that does not violate the law or anyone else’s rights (including somebody’s intellectual property rights).

3.3  You agree that you will not:

a. create an account for somebody else;

b. use or attempt to use another advocate’s account;

c. harass, abuse, or harm another person;

d. scrape or copy profiles and information of others through any means;

e. act in an unlawful, libelous, abusive, obscene, discriminatory, or otherwise in an objectionable manner (to be determined within our sole discretion);

f. post Content that you do not have the right to post;

g. violate our intellectual property rights or use our intellectual property rights in anyway other than as expressly permitted by us;

h. post any Content that constitutes unsolicited or unauthorized advertising, such as junk mail, spam, or any other form of solicitation that we have not authorized;

i. post any Content or otherwise interact with the Community in any way that contains and/or spreads viruses, worms, or any other harmful code;

j. copy or use the Content of others, in connection with a service that competes with the Community;

k. reverse engineer, decompile, disassemble, decipher, or otherwise attempt to derive all or part of the source code for the Community or any related technology;

l. use bots or other automated methods to access the Community;

m. monitor the availability, performance, or functionality of the Community for any competitive purpose;

n. engage in framing, mirroring, or otherwise simulating the appearance or function of the Community;

o. rent, lease, loan, trade, or sell/re-sell access to the Community or any related information, data or Content;

p. imply or state that you are affiliated with us or endorsed by us without our prior written consent;

q. remove any intellectual property rights notices in the Community;

r. collect, use, copy, or transfer any third party Content without our consent; or

s. override or attempt to override any security features of the Community.

4. Messages, the service, and limitations

4.1  The Community may allow the sharing of Content and communication with other advocates. Other advocates or the public may see Content that you post, depending on the settings we offer and your choice of how to manage such settings.

4.2  We do not have to publish your Content, nor do we have to allow you to post Content. We reserve the right to remove any Content at any time for any reason, within our sole discretion.

4.3  We may change, suspend, or end any part or all of the Community at any time for any reason, in our sole discretion. To the extent permissible under applicable law, these changes are effective upon notice to you. Following such a change, if you do not want to continue to use the Community, please close your account immediately.

4.4  Depending on the functionality of the Community as it may exist from time to time, we may allow messaging amongst users of the Community. Any such messages must be sent in accordance with this Agreement and our usage guidelines.

4.5  The Community is not a storage service. We have no obligation to store, maintain, or provide you a copy of any Content that you or others provide, except to the extent this is required in accordance with applicable law and as set out in our Privacy Policy.

4.6  Since we do not review Content before it is published, you may see Content that is inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. Although we do our best to encourage advocates to follow the Community rules, you agree that we are not responsible for Content posted by anybody but us, or for any damages as a result of your use or reliance on such Content.

4.7  By joining the Community, you give us consent to email you about the Community, related services from us, and/or related services from third parties. If we send you a marketing email, you will always have the opportunity to opt-out of future marketing emails in the footer of every email we send you.

5.  Disclaimer of Warranties; Exclusions and Limits of Liability

***Please read this entire section 5, as it excludes and limits our liability to you in certain ways***

5.1  We do not exclude or limit any liability that cannot be excluded or limited under applicable law. If you live in a country where any of the exclusions and/or limitations set out in this section 5 are not allowed, such exclusions and/or limitations do not apply to you.

5.2  Subject to section 1, we:

a. will provide you access to the Community and any related services with reasonable skill and care, provided that we disclaim all other warranties, conditions, representations or other terms, whether express or implied;

b. do not guarantee that the Community will function without interruption or errors, or at all; and

c. will provide the Community on an “as is” and on an “as available” basis, subject to 2(a).

5.3  Subject to sections 1 and 5.2, we exclude all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise, direct or indirect, whether foreseeable, known, foreseen or otherwise, for any: (a) lost profits (of any kind); (b) loss or corruption of data; (c) loss of reputation or goodwill; or (d) for any special, indirect or consequential loss, costs, damages, charges or expenses, however arising.

5.4  Subject to sections 1, 5.2 and 5.3, our total liability, however arising, will under no circumstances exceed in aggregate, the greater of $1,000.

5.5  If anyone brings a claim against us related to your actions or any Content you post to the Community, you will indemnify us from all damages, losses, and expenses of any kind (including reasonable legal fees and costs) that we suffer arising out of claim.

6.  Suspension and termination

6.1  We may suspend your access to your account if you violate any material obligation of this Agreement.

6.2  Both you and us may terminate this Agreement at any time for any reason, with notice to the other party. On termination, you lose the right to access or use the Community.

6.3  The sections of this Agreement that need to survive termination in order to give full effect to their provisions, survive this Agreement’s termination.

7.  Complaints about content

7.1  We respect the intellectual property rights of others. It is our aim that the Community contains no content that violates any third party rights. We try to accomplish this via this User Agreement. In addition, we also set out the policies and procedures in this section 8 for individuals to identify potentially problematic or infringing Content.

7.2  When you submit a complaint to us, whether or not we take action, we may make a good faith effort to notify the individual who posted or submitted the Content, including by providing the complainant’s contact information, so that the individual who posted the Content is notified of the alleged violation of intellectual property rights or other content violation.

7.3  Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice.

Claims regarding copyright infringement

Notice of copyright infringement

7.4  Pursuant to the Digital Millennium Copyright Act (“DMCA”), we have implemented procedures for receiving written notification of claimed infringements. We have also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may submit a written communication to us at _________________________ or our address set out above, setting out the following:

a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

b. a description of the copyrighted work that you claim has been infringed;

c. a description specifying the location on our website of the material that you claim is infringing;

d. your telephone number and e-mail address;

e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

f. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Counter-notice

7.5  If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a counter-notice, in accordance with the DMCA. You may submit your counter-notice to ___________________________or to our office address set out above, setting out the following:

a. your physical or electronic signature;

b. identification of the Content removed or to which access has been disabled; and

c. a statement under penalty of perjury that you have a good faith belief that removal or disablement of the Content was a mistake or that the Content was misidentified.

8.  Miscellaneous

8.1  The only way you can provide us legal notice is to the address we have provided at the beginning of this User Agreement.

8.2  The following rules of interpretation apply to this Agreement: (a) the words “include” and “including” are deemed to have the words “without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) references to “will” are to be construed as having the same meaning as “shall”.

8.3  If any term of this Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.

8.4  If we do not enforce a term of the Agreement, it is not a waiver of that term or any other term.

8.5  This Agreement makes up the entire agreement between you and us, and supersedes any prior agreements.

8.6  You will not transfer any of your rights or obligations under this Agreement to anyone else without our consent. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, sale of assets, by operation of law or otherwise.

8.7  If you are a resident of the United States, this Agreement shall be construed in accordance with and governed by the laws of the state of New York and subject to the exclusive jurisdiction of the state of New York. If you are not a resident of the United States this Agreement shall be construed in accordance with and governed by the laws of the province of Ontario, Canada and subject to the exclusive jurisdiction of the province of Ontario.

Last updated:  February 21, 2018