Lasted Updated:  August 15, 2022

 

Please read these Terms of Use (the “Terms”) carefully. These Terms govern your use of the online platform offered by 3032102 NOVA SCOTIA LTD (“MITG”, “we”, “us” or “our”), and any content accessible through the platform including physical activity descriptions and programs (“Activities”). 3032102 NOVA SCOTIA LTD’s online platform, Activities and other content are referred to throughout these Terms as the “Software and/or Services”.

 

YOU ACKNOWLEDGE AND AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SOFTWARE AND/OR SERVICES, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, AND THAT YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) WITH 3032102 NOVA SCOTIA LTD SUBJECT TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SOFTWARE AND/OR SERVICES. 

 

Wherever used in these Terms, “you”, “your” or similar terms means the person or legal entity accessing or using the Software and/or Services. If you are accessing or using the Software and/or Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.

 

1. SOFTWARE AND/OR SERVICES ACCESS

Subject to the terms and conditions of this Agreement, 3032102 NOVA SCOTIA LTD grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the Software and/or Services solely for your personal or internal business purposes.

 

2. MODIFICATION OF SOFTWARE AND/OR SERVICES OR TERMS

3032102 NOVA SCOTIA LTD reserves the right, in its sole discretion, to modify the Software and/or Services (including the addition, modification or removal of functionality, features or content) or these Terms, at any time and without prior notice. If 3032102 NOVA SCOTIA LTD modifies these Terms, 3032102 NOVA SCOTIA LTD will post the changes via the Software and/or Services or otherwise provide you with notice. Your continued use of the Software and/or Services following our posting of the changes or providing you with notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Software and/or Services. If the modified Terms are not acceptable to you, you must stop using the Software and/or Services.

 

3. USER CONDUCT

3.1 You are responsible for your own conduct when using the Software and/or Services. You agree that you will only use the Software and/or Services for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies and guidelines established by 3032102 NOVA SCOTIA LTD in respect of the Software and/or Services from time to time. Misuse or unauthorized use of the Software and/or Services and its related systems or networks, or of any information or material available through the Software and/or Services is strictly prohibited and 3032102 NOVA SCOTIA LTD reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend, limit or terminate access by any user who is using, or who 3032102 NOVA SCOTIA LTD reasonably believes is using, the Software and/or Services in violation of these Terms or any applicable laws, regulations or third party rights, or in a manner which is harmful to 3032102 NOVA SCOTIA LTD, the Software and/or Services, other users or any third parties.

 

3.2 Without limiting Section 3.1, you agree not to use the Software and/or Services to: (a) engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol; (ii) communicate, transmit, upload or post information that is inaccurate, incomplete, misleading, false or libellous; (iii) communicate, transmit, upload or post information or material that infringes intellectual property rights, privacy rights, rights of publicity or any other rights of any person; (iv) communicate, transmit, upload or post material that is obscene, vulgar, pornographic, abusive, defamatory, threatening, racist, sexist or otherwise objectionable; (v) copy any part of the Software and/or Services other than as required for its normal use as permitted by these Terms; (vi) attempt to interfere with or gain unauthorized access to the Software and/or Services or its related systems or networks; (vii) use the Software and/or Services for any commercial or other purposes that are not expressly permitted by these Terms; (viii) use or attempt to use the Software and/or Services to gain unauthorized access to any person’s data or network; (ix) use any robot, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Software and/or Services for any purpose; or (x) otherwise use the Software and/or Services in a manner that could, in the opinion of 3032102 NOVA SCOTIA LTD, adversely affect the ability of other users to use the Software and/or Services or the Internet, including post or transmit information or data containing worms, viruses, Trojan horses or other disruptive components.

 

4. INTELLECTUAL PROPERTY

4.1 You acknowledge and agree that the Software and/or Services, and all information, materials and other content (including Activities, text, images, video and audio that 3032102 NOVA SCOTIA LTD makes available in association with or through the Software and/or Services, collectively, the “3032102 NOVA SCOTIA LTD Content”) constitutes valuable intellectual property of 3032102 NOVA SCOTIA LTD and its third party co-owners, suppliers and licensors, and is protected by Canadian, United States, European and other international laws, including without limitation, copyright and trademark laws and international treaties. All proprietary rights in and to all intellectual and industrial property contained in the Software and/or Services and 3032102 NOVA SCOTIA LTD Content, including any corrections, improvements, upgrades, updates, bug fixes and modifications to such intellectual and industrial property, shall be and remain the exclusive property of 3032102 NOVA SCOTIA LTD and its suppliers and licensors, and you shall have no rights or interests therein except for the right to use as set forth in this Agreement. 

 

4.2 If you submit any suggestions, comments or other feedback (“Feedback“) to 3032102 NOVA SCOTIA LTD regarding the Software and/or Services, you agree that 3032102 NOVA SCOTIA LTD shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products or services, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. For greater certainty, you agree that 3032102 NOVA SCOTIA LTD may use and exploit any Feedback in any way at our discretion, without attribution, compensation, or obligation to you or to any other party.

 

4.3 As between you and 3032102 NOVA SCOTIA LTD, you retain ownership of all information, programs, progressions, materials, and other content that you create, publish, transmit or otherwise make available through the Software and/or Services (“User Content”). You are solely responsible for all your User Content. Without limitation, you represent and warrant that (a) you have the right to publish or otherwise make available any User Content made available by you; and (ii) your User Content (or any portion thereof) will not infringe the intellectual property rights, privacy rights, rights of publicity or any other rights of any person or result in the violation of any applicable law or regulation.

 

5. PRIVACY

Your use of the Software and/or Services, and our use of certain information about you, are subject to our privacy policy available https://worksafersmarter.ca/privacy.php (“Privacy Policy “), which is incorporated by reference into these Terms. Please read the Privacy Policy carefully prior to using the Software and/or Services.

 

6. TERM AND TERMINATION

6.1 This Agreement shall continue until terminated in accordance with this Section.

 

6.2 You may terminate this Agreement at any time by sending us a notice of termination in accordance with Section 11.6.

 

6.3 3032102 NOVA SCOTIA LTD may terminate this Agreement for convenience by providing you with thirty (30) days’ notice. 3032102 NOVA SCOTIA LTD may immediately, without notice, terminate this Agreement if:(I) you have violated these Terms; (ii) you have violated applicable laws, regulations or third party rights; or (iii) 3032102 NOVA SCOTIA LTD determines, in its sole discretion, you have used the Software and/or Services in a manner which is harmful to 3032102 NOVA SCOTIA LTD, the Software and/or Services, other users or any third parties.

 

6.4 Upon termination of this Agreement for any reason: (a) you shall immediately discontinue your use of the Software and/or Services; (ii) any rights or licenses granted to you under these Terms will terminate; and (iii) any amounts paid to 3032102 NOVA SCOTIA LTD will be non-refundable. You are not entitled to a restoration of any of your User Content following termination. 

 

6.5 Any provision of these Terms in favour of 3032102 NOVA SCOTIA LTD or which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.

 

7. DISCLAIMER OF WARRANTIES

YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE AND/OR SERVICES IS AT YOUR SOLE RISK, AND THAT THE SOFTWARE AND/OR SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3032102 NOVA SCOTIA LTD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 3032102 NOVA SCOTIA LTD EXPRESSLY DISCLAIMS THAT: (I) THE SOFTWARE AND/OR SERVICES WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE SOFTWARE AND/OR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SAFE, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE AND/OR SERVICES WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE AND/OR SERVICES WILL BE CORRECTED.

 

8. LIMITATION OF LIABILITY

8.1 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3032102 NOVA SCOTIA LTD AND ITS AFFILIATES AND REPRESENTATIVES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 3032102 NOVA SCOTIA LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) YOUR ACCESS TO OR USE OF THE SOFTWARE AND/OR SERVICES, INCLUDING ANY CONTENT, PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE SOFTWARE AND/OR SERVICES; (II) ANY PERSONAL INJURY RESULTING FROM OR RELATED TO YOUR USE OF THE SOFTWARE AND/OR SERVICES,  (III) ANY ERRORS OR OMISSIONS IN THE SOFTWARE AND/OR SERVICES OR ANY CONTENT; (IV) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SOFTWARE AND/OR SERVICES; (V) ANY INTERRUPTION TO OR CESSATION OF THE DELIVERY OF THE SOFTWARE AND/OR SERVICES OR FAILURE OF OUR SYSTEMS; (VI) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VII) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VIII) STATEMENTS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY USING THE SOFTWARE AND/OR SERVICES; (IX) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SOFTWARE AND/OR SERVICES BY ANY THIRD PARTY; OR (X) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE SOFTWARE AND/OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SOFTWARE AND/OR SERVICES, OR WITH ANYTHING RELATED TO THE SOFTWARE AND/OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SOFTWARE AND/OR SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6.

 

8.2 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF 3032102 NOVA SCOTIA LTD WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. 

 

9. INDEMNIFICATION

You agree to defend, indemnify and hold us, and our Affiliates and Representatives, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your access to or use of the Software and/or Services or any User Content; (ii) your violation of these Terms; or (iii) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with 3032102 NOVA SCOTIA LTD in the defense of any claim. 3032102 NOVA SCOTIA LTD reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

 

10. THIRD PARTY SERVICES

The Software and/or Services may enable you to access third party websites, applications or materials linked to or accessible through the Software and/or Services (“Third Party Services”). 3032102 NOVA SCOTIA LTD provides access to Third Party Services as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals, or verification by 3032102 NOVA SCOTIA LTD of such Third-Party Services. You acknowledge that the use of Third-Party Services may be subject to the terms and conditions of such Third-Party Services, and that any contract entered into, or transaction completed through Third Party Services is between only you and the relevant third party.

 

11. GENERAL

11.1 Governing Law. You agree that these Terms, and your use of the Software and/or Services, are governed exclusively by the laws of the Province of Ontario and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). Any contract formed through the use of the Software and/or Services will be deemed to have been formed and executed within the Province of Ontario, Canada. To the extent it which it would otherwise apply, the application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.

 

11.2 Dispute Resolution

(a) Means of Resolution. You and 3032102 NOVA SCOTIA LTD agree that any disputes arising under these Terms or otherwise in connection with your use of the Software and/or Services will be resolved through arbitration under the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, as amended from time to time.  Arbitration will be held in Ottawa, Ontario Canada, and conducted in the English language.  Notwithstanding the foregoing, you agree that: (a) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) 3032102 NOVA SCOTIA LTD may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.

(b) Class Waiver. You acknowledge and agree that you and 3032102 NOVA SCOTIA LTD are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and 3032102 NOVA SCOTIA LTD otherwise agree in writing, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 11.2 will be deemed void.

 

11.3 Jurisdiction and Venue. If Section 12.2 is deemed to be void or is otherwise inapplicable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in Ottawa, Ontario Canada, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.

11.4 Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, disease or other disaster, acts of government including orders of municipal, provincial or federal governments or civil authorities, strike, lockout, power failures, pandemics, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.

 

11.5 Assignment. You may not assign any of your rights or obligations under these Terms without our prior written consent. 3032102 NOVA SCOTIA LTD may freely assign our rights and obligations under these Terms, either in part or in full, without notice to you.

 

11.6 Notice. 3032102 NOVA SCOTIA LTD may communicate with you about the Software and/or Services or these Terms, including any changes to these Terms, by email or by posting notices via the Software and/or Services. Unless expressly prohibited by law, you consent to receive communications relating to the Software and/or Services or our business relationship from 3032102 NOVA SCOTIA LTD electronically, and agree that all notices, waivers, agreements, disclosures, and other communications satisfy any legal requirements that such communications be in writing. You may provide legal notice to 3032102 NOVA SCOTIA LTD at support@momentumitgroup.com.

 

11.7 Nature of Relationship. Nothing in these Terms or from your use of the Software and/or Services will create or be deemed to create any partnership, joint venture, agency, franchise, or other business relationship between you and 3032102 NOVA SCOTIA LTD, even if your use of the Software and/or Services is for a commercial purpose which has been authorized by us. You and 3032102 NOVA SCOTIA LTD will, at all times, be and remain independent, third-party contractors.

 

11.8 Severability. The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable, or contrary to applicable law, such provision shall be construed, limited, altered, or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.

 

11.9 Entire Agreement. These Terms, including the Privacy Policy, together with any changes published by 3032102 NOVA SCOTIA LTD via the Software and/or Services or otherwise communicated to you, constitute the entire agreement between you and 3032102 NOVA SCOTIA LTD governing your use of the Software and/or Services. 

 

11.10 Waiver. The failure by 3032102 NOVA SCOTIA LTD to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.

 

11.11 Contact. If you wish to contact 3032102 NOVA SCOTIA LTD with any questions, comments or concerns regarding the Software and/or Services or these Terms, please email support@momentumitgroup.com.