Last Updated: February 2022
This Agreement (the “Agreement”) creates a binding legal agreement between you (“Customer”) and Redworks Communication (“Redworks”). Redworks provides a certain Service (as defined below) through the website located at https://redworkscoaching.com, https://redworkscoaching.ca, https://redworkscommunications.com, https://redworkscommunications.ca, and https://powerupyourretirement.com (collectively referred to as the “Site”).
Redworks may update this Agreement at any time, without notification to you. Your continued use of the Service will be deemed irrevocable acceptance of any such revisions. Before you continue, you should print or save a local copy of this Agreement for your records.
1. DEFINITIONS. As used in this Agreement:
(a) “Agreement” means this Terms of Service Agreement;
(b) “Confidential Information” means all information regarding Redworks’ business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, including Intellectual Property disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that Customer knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes information derived from or concerning the Service and the terms of this Agreement;
(c) “Content” means any and all content, data and other materials including, without limitation, videos, music, sounds, images, live streams, documentation, reports, materials, files, text, images, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials;
(d) “Customer” means the Customer who has subscribed to the Service through this Agreement;
(e) “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Service or provided by Customer to Redworks as part of the Service;
(f) “Documentation” means any user manuals, handbooks, videos, online materials, specifications or forms furnished by Redworks that describe the features, functionality or operation of the System;
(g) “Fees” is defined in Section 4;
(h) “Indemnified Parties” is defined in Section 9;
(i) “Intellectual Property” means inventions, discoveries, or improvements (whether patented or able to be patented and whether or not reduced to practice), including patents, patent applications, certificates of invention, utility models, continuations, continuations-in-part, provisional, divisions, reissues, renewals, re-examinations and extensions thereof; trade secrets, know-how, designs, methodologies, processes, rights in data, and similar rights; semiconductor chip protection and mask work right; the protection of works of authorship or expression and copyright (whether or not registered); trademark, trade names, service marks, logos, domain names and trade dress; and similar rights under any laws or international conventions throughout the world, whether now existing or hereafter arising or developed, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce, and obtain damages;
(j) “Intellectual Property Rights” means any rights pertaining to Intellectual Property;
(k) “Order Form” means, collectively, the order documents, if any, representing the initial subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time, and includes the online subscriptions (“Web Enrollment”);
(m) “Redworks” means Redworks Communications;
(n) “Redworks Content” is defined in Section 6;
(o) “Service” means the on-line service delivered by Redworks to Customer using the System, as made available by Redworks from time-to-time as specified in the Order Form, including use of the Site, Content and Documentation, including but not limited to, use of website content and access to coaching services;
(p) “Site” has the meaning as first set out above;
(q) “Software” means any software products used in connection with delivering the Service, and may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable;
(r) “System” means the technology, including hardware and software, used by Redworks to deliver the Service to Customer in accordance with this Agreement;
(s) “UserID” is defined in Section 3(a);
(t) “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose; and
(u) “Web Enrollment” means the online process by which a Customer may subscribe to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time).
2. THE SERVICE.
(a) Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; and (b) cooperating with the reasonable requests of Redworks, Redworks hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Redworks constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Redworks with respect to future functionality or features.
(b) Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Redworks shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Redworks will not have an obligation to provide a correction for all such nonconformities.
(c) Internet Security Disclaimer. Customer acknowledges and agrees that Redworks exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Redworks’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
(d) Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Redworks under this Agreement, Redworks may suspend, terminate or limit (in Redworks’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Redworks from harm to its reputation or business. Redworks will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Redworks will restore Customer’s access to the Service when Redworks determines the event has been resolved. Nothing in this Agreement will limit Redworks’s right to take any action or invoke remedies, or will act as a waiver of Redworks’s rights in any way with respect to any of the foregoing activities. Redworks will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2(d).
3. CUSTOMER’S USE OF SERVICE.
(a) Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Redworks for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Redworks of any actual or suspected unauthorized use of the Service. Redworks may require that a UserID be replaced at any time.
(b) Necessary Equipment to Use the Services. The Customer is responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment and services required to connect to, access, and use the Service. Except as specifically set out in an Order Form, Redworks shall not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.
(c) Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 3, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:
(i) use the Service other than as permitted by this Agreement;
(ii) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(iii) use the Service in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(iv) use the Service to impersonate a Redworks employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(v) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
(vi) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(vii) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service;
(viii) license, sell rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service;
(ix) access the Service or Redworks Content in order to develop a competing product;
(x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Service;
(xi) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware; or
(xii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
4. FEES, PAYMENT AND SUSPENSION.
(a) Fees. As consideration for the subscription to the applicable Service, Customer will pay Redworks the fees (“Fees”) set forth in and in accordance with the Order Form during enrolment. Unless otherwise set forth in the relevant Order Form, you will be billed in advance. All fees are non-cancellable and non-refundable, other than as set out herein, and are based on Service subscriptions purchased and not actual usage. For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Service. All Fees will be billed in advance on an annual basis, are non-refundable, and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less.
(b) Payment. Customer shall reimburse Redworks for all expenses (including reasonable attorneys’ fees) incurred by Redworks to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement.
(c) Suspension. Redworks reserves the right (in addition to any other rights or remedies Redworks may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. CONFIDENTIAL INFORMATION.
(a) Obligation. Customer agrees: (a) to hold the Confidential Information in strict confidence, (b) to limit access to the Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use the Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, Customer will not be in violation of this Section 6 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that Customer gives Redworks prior written notice of such disclosure in order to permit Redworks to seek confidential treatment of such information.
(b) Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which: (a) is or becomes a part of the public domain through no act or omission of Customer, (b) was in Customer’s lawful possession prior to the disclosure, as shown by Customer’s competent written records, (c) is independently developed by Customer without reference to the Confidential Information, as shown by Customer’s competent written records, or (d) is lawfully disclosed to Customer by a third party without restriction on disclosure.
(a) System and Technology. Customer acknowledges that Redworks retains all right, title and interest in and to the System, Content, Software and Documentation used by Redworks or provided to Customer in connection with the Service (the “Redworks Content”), and that the Redworks Content is protected by intellectual property rights owned by or licensed to Redworks and applicable intellectual property and other laws. Other than as expressly set forth in this Agreement, no license or other rights in the Redworks Content are granted to the Customer, and all such rights are hereby expressly reserved by Redworks. Redworks shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
(b) Customer Data. Customer retains all right, title and interest in and to the Customer Data. Redworks will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Redworks all necessary licenses in and to such Customer Data solely as necessary for Redworks to provide the Service to Customer. Redworks will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Redworks will access and use such Customer Data only as required to perform requested services on behalf of Customer.
8. TERM AND TERMINATION.
(a) Term. The term of this Agreement will commence on the Effective Date and will continue indefinitely, unless otherwise agreed to in the Order Form, until terminated by either party as set forth in this Section 8.
(b) Termination for Convenience. Redworks may terminate this Agreement for any reason by giving the other party at least thirty (30) days’ prior written notice.
(c) Termination for Default. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within thirty (30) days’ after written notice of such breach.
(d) Effect of Termination. Upon the termination of this Agreement for any reason, (a) any amounts owed to Redworks under this Agreement before such termination will become immediately due and payable; and (b) Customer will return to Redworks all property (including any Confidential Information) of Redworks in its possession or control. Redworks agrees that upon any early termination of this Agreement, Redworks will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Redworks) for up to thirty (30) days’ days after termination. Thereafter, Redworks will remove all Customer Data from the System and all Customer access to or use of the System and Service will be immediately suspended. Upon termination or expiration of the Term, all licenses and rights granted under this Agreement shall immediately terminate, except for the rights and obligations of the parties under those Sections which should, by nature of their terms, survive termination.
(e) THE SERVICE IS PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. REDWORKS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. REDWORKS DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, REDWORKS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
(f) REDWORKS IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICE UTILIZED BY REDWORKS, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY REDWORKS.
(g) THE SERVICE ARE OFFERED AND CONTROLLED BY REDWORKS FROM ITS FACILITIES IN CANADA. REDWORKS MAKES NO REPRESENTATIONS THAT THE SERVICE ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
(a) Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Redworks and its affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost or liability (including reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement or the Service, including without limitation in relation to: (a) Customer’s use, non-use or misuse of the Service; (b) Customer’s violation or alleged violation of this Agreement; (c) Customer’s violation of any rights, including Intellectual Property Rights, of a third party and otherwise as set out herein; or (d) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property rights or other rights of a third party or otherwise causes harm to a third party. Redworks reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Redworks and Customer agrees to cooperate with Redworks’s defense of these Claims. Customer agrees to not settle any matter without the prior written consent of Redworks. Redworks will use reasonable efforts to notify you of any such Claims upon becoming aware of them.
(b) Possible Infringement. If Redworks believe the Service infringe or may be alleged to infringe a third party’s intellectual property rights, then it may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Service so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Customer’s use of the affected Service (with a pro-rata refund of prepaid fees for the Service).
10. LIMITATION OF LIABILITY. The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) Amount. REDWORKS’ TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY REDWORKS UNDER THIS AGREEMENT IN the TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL REDWORKS’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) Type. IN NO EVENT SHALL REDWORKS BE LIABLE TO CUSTOMER FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL REDWORKS BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
(c) No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
(d) Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than twelve (12) months from when such claim first arose.
11. GENERAL PROVISIONS.
(a) Publicity. Redworks may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Redworks to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Redworks and user of the Service.
(b) Assignment. Customer may not assign this Agreement to a third party without Redworks’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Redworks may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section (b) shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
(c) Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Saskatchewan and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(d) Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Redworks, by email at firstname.lastname@example.org or by certified mail at 8B – 320 – 3110 8th St. East, Saskatoon, SK S7H 0W2; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
(e) Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
(f) Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
(g) Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.