Terms of Service
This Agreement sets out the provisions pursuant to which Tranquility will provide to the Client access to the proprietary web-based Tranquility Platform (defined below).
In addition to those capitalized terms defined throughout these terms and conditions, the following terms shall have the following meaning:
a) Client Data means the personal information and other data about Client uploaded to or collected through the Platform, including but not limited to personal health information, client correspondence with Tranquility, and evaluations.
b) "Intellectual Property Rights" or “IPR” means all intellectual property rights wherever in the world, whether registrable or not, registered or unregistered, including any application or right of application for such rights, including copyright and related rights, software, code, data, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, ideas, improvements, inventions, patents, and any other rights that would be considered intellectual property rights.
c) “Order Form” means the order form attached hereto that sets out the term of this Agreement, the payment terms and any other applicable terms, which is incorporated into this Agreement.
d) "Platform" means the online anxiety management platform which allows registered Clients to learn about and practice cognitive behavioural therapy techniques.
e) "Services" means the provision of access to the Platform and related coaching and educational services provided by Tranquility to Client under this Agreement.
f) “Term” means the term of this Agreement, as stated in the Order Form, as well as any renewal terms.
g) "Trial Period" means any trial period offered under this Agreement, as stated in the Client’s Order Form.
2. NO MEDICAL ADVICE (DISCLAIMER)
The Services are being provided by Tranquility to Client do not constitute medical advice and are for informational purposes only. Tranquility coaches are not licensed health care professionals and are not authorized to provide services requiring professional licensure. CLIENT AGREES THAT THE PLATFORM AND SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR ADVICE, DIAGNOSIS, OR TREATMENT FROM A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. CLIENT ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND SERVICES.
3. PLATFORM LICENSE
a) Provision of Service. Conditioned on the provisions in this Section 3 and the other terms and conditions of this Agreement, Tranquility hereby grants Client a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform during the Term for Client’s personal use.
b) Restrictions. Client shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Platform; (b) circumvent any user limits or other timing or use restrictions that are built into the Platform; (c) remove any proprietary notices, labels, or marks from the Platform; (d) frame or mirror any content forming part of the Platform; or (e) access the Platform in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Platform.
c) Client Eligibility. Client represents and warrants that (a) it is a resident of Canada; (b) it is at least 18 years of age; (c) it has voluntarily agreed to receive the Services ; and (d) all information provided to Tranquility by Client is accurate and complete.
d) Client Responsibilities. In exchange for the license granted under Section 2(a), Client is responsible for all activities that occur under Client’s user Account.
4. COACHING SERVICES
Subject to the terms hereof, Tranquility will provide Client with the coaching services related to the Platform modules and/or access to the Platform’s “self-help” function.
a) Fees. Client agrees to pay all fees set out in the Order Form, including any fees for renewal terms, as well as applicable taxes.
b) Pre-authorized Payment. By providing a credit card information to Tranquility, Client thereby authorizes Tranquility to charge the credit card for all outstanding fees, taxes and charges and outstanding account balances incurred by Client in respect to the Services,
c) Renewal. If Client does not provide notice of non-renewal of the subscription for the Services (of at least 30 days for any monthly subscription and 60 days for any annual subscription), then the relevant fees for the renewal of the subscription to the Services for a new subscription having the same subscription term will be automatically processed and charged to Client in full at the then-current fees for the Services for such renewed term.
6) PROPRIETARY RIGHTS.
a) Exclusive Ownership. Except for the rights and licenses granted in this Agreement, Client acknowledges and agrees that any and all Intellectual Property Rights to or arising from the software, technology and database used to provide the Platform and Services shall remain the exclusive property of Tranquility and its licensors. Nothing in this Agreement is intended to transfer any such IPR to, or to vest any such Intellectual Property Rights in, Client. Client is only entitled to the limited use of the IPR granted to Client in this Agreement. Client will not take any action to jeopardize, limit or interfere with Tranquility’s IPR.
b) Analytics. Client acknowledges and agrees that Tranquility compiles and analyzes Client Data to create useful, aggregated information about client service delivery and performance and accordingly Tranquility requires the right to generate data about the use and operation of the Platform and delivery of the Services, from reports generated pursuant to this Agreement and raw Client Data (“Analytics Data”). Client hereby grants Tranquility a perpetual, worldwide, non-exclusive, royalty-free license to create Analytics Data from Client Data and combine it in whole or in part with data derived through the use of the Services and with other data at Tranquility’s discretion. For the avoidance of doubt, Analytics Data will not include any raw Client Data, including any personal information or health information, and will not be distributed in a manner which identifies Client. Tranquility shall have exclusive ownership of any Analytics Data and the exclusive right to use the same for any purpose without restriction.
c) Suggestions. Tranquility shall exclusively own any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Platform and operation of the Services during the Term (“Suggestions”). Client hereby assigns all right, title and interest in any Suggestions, including any IPR therein, to Tranquility. Client hereby irrevocably waives all moral rights it may have in any Suggestions.
d) Client’s Responsibilities. Client shall abide by all applicable laws and regulations in connection with the use of the Services (including privacy and copyright laws). Client shall notify Tranquility immediately of any unauthorized use or copying of any data accessed through the Services which comes to Client’s attention and use reasonable efforts to stop such copying and distribution.
a) Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, 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 the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
b) Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
c) Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner as it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
d) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.
e) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
a) Disclaimer. The Platform and Services are provided by Tranquility to Client on an ‘as is’ basis. Tranquility makes no warranties, representations or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding the Platform or Services. Tranquility (including its affiliates, licensors, suppliers and subcontractors) disclaims any implied warranties or conditions of merchantable quality, satisfactory quality, merchantability, durability, fitness for a particular purpose and/or non-infringement. Tranquility (including its affiliates, licensors, suppliers and subcontractors) does not represent or warrant that the Platform and Services will meet any or all of Client’s particular requirements, that the Platform will operate error-free or uninterrupted or that all errors or defects in the Service can be found or corrected.
b) Security. Information sent or received over the Internet is generally unsecure and Tranquility cannot and does not make any representation or warranty concerning security of any communication to or from the Tranquility Platform or any representation or warranty regarding the interception by third parties of personal or other information.
9) INDEMNITY AND RELEASE
a) Client agree to indemnify, defend and hold harmless Tranquility its shareholders, members, principals, partners, owners, transferees, directors, managers, officers, employees, servants, successors, agents, attorneys, distributors, vendors, suppliers and representatives (collectively, the “Tranquility Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) arising from: (i) Client’s use of and access to the Platform and Services; (ii) Client’s violation of any of the terms of this Agreement; (iii) Client’s violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that Client’s content, data or information caused damage to a third party.
b) CLIENT HEREBY WAIVES, RELEASES, AND IRREVOCABLY DISCHARGES the Tranquility Parties from any and all actions, causes of action, liabilities, suits, debts, obligations, dues, accounts, bonds, covenants, contracts, claims, demands, indemnities, losses, costs (including professional fees), damages and proceedings whatsoever, whether in law or in equity, which Client has ever had or may hereafter have, whether known or unknown, including but not limited to, liability arising from any acts or omissions of any kind, misconduct, negligence or fault of the Tranquility Parties or of a third party, which cause any death, disability, personal injury, or property damage to Client or a third party during Client’s use of the Tranquility Platform and Services.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL TRANQUILITY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR ECONOMIC DAMAGES INCURRED OR SUFFERED BY CLIENT ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF TRANQUILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF TRANQUILITY FOR ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, OR TO ANY ACT OR OMISSION OF TRANQUILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED $500 CDN.
a) Term. This Agreement shall be in force beginning on the Effective Date and continuing until the expiration of the initial subscription period set out in the Order Form Following the initial subscription period, this Agreement shall automatically renew in accordance with the renewal terms set out in the Order Form unless either party gives the other party at least 30 days’ notice of its intent not to renew.
b) Material Breach. Tranquility may, by notice in writing to Client, terminate this Agreement in the case of a material breach by Client which has not been cured to Tranquility’s satisfaction within ten (10) days of a written request for the same.
c) Effect of Termination. Upon termination, Client will have no further rights to access the Platform or Services. Each Party agrees that it will destroy any Confidential Information disclosed to it by the other Party within 10 days of termination. The following terms will survive termination of this Agreement: Sections 6 (Proprietary Rights), 7 (Confidentiality), 8 (Disclaimer), 9 (Indemnities) and 10 (Limitation of Liability).
Neither Party may assign or transfer its interest in this Agreement without the written consent of the other Party (such consent not to be unreasonably withheld). Notwithstanding the foregoing, Tranquility may assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties hereto. This agreement is governed by the laws in effect in the province of Nova Scotia and constitutes the entire agreement between the Parties with respect to the subject matter herein. The provincial and federal courts located in Halifax, Nova Scotia shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. No partnership shall be deemed to have been created between the Parties. All additions or modifications to this agreement must be made in writing and must be signed by both Parties. If any part of this agreement is held to be invalid or otherwise unenforceable, the provision shall no longer form part of this agreement. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver of such right, power or privilege. It is not intended that any agency or partnership relationship be created by this agreement.