Terms of Purchase – Digital Wealth Academy
Last Modified: April 2, 2024
1. PARTIES. In consideration of being permitted to use, access and resell the Digital Wealth Academy online course (the “Product”), and the value you will gain by using, accessing and reselling the Product, you hereby agree to these Terms of Purchase. These Terms of Purchase are entered into between you (hereinafter “you” or “Licensee”) and THE DIGITAL WEALTH ACADEMY LLC, a Floridalimited liability company (hereinafter “Company”,“Licensor”, “we” or “us”). You and the Company are collectively referred to herein as the “Parties”.
2. ACCEPTANCE OF TERMS OF PURCHASE. The following Terms of Purchase (“Terms”) govern your use of,access to and reselling of the Product. These Terms are legally binding and it is your responsibility to read them before you begin to use, access, or resell the Product. Your act of purchasing, using, or distributing the Product, whether directly from Company or from an authorized licensee, constitutes your acceptance of these Terms, including any modifications or updates that Company may make to these Terms from time to time. Any such modifications or updates will be effective immediately upon notice to you, which may be given by any reasonable means including via email or through an update posted on a website provided by Company.
3. TERM. These Terms shall be effective on the date of purchase of the Product by Licensee and shall continue in full force until terminated as provided herein. Upon termination or expiration of the term, all rights granted to the Licensee under these Terms, including the right to resell the Product, shall immediately cease and the Licensee shall immediately cease all use, promotion, and sales of the Product. Termination or expiration of these Terms shall not affect any rights or obligations that: (a) are meant to survive termination (including but not limited to indemnification and limitations of liability); and/or (b) have accrued prior to such termination.
4. PAYMENT. In full consideration of Company’s performance, obligations and the rights granted herein, Licensee agrees to either: (1) pay in full in the amount of $497.00 at the time of registration; or (2) pay in 3 monthly installments in the amount of $165.00 per installment, with the first installment paid at the time of registration. Licensee may choose to finance payments through third party companies After Pay or Klarna. All payments made by Licensee to Company are non-refundable. If Licenseeelects to pay in monthly installments, payment shall be automatically collected by Company on a monthly basis. If Licensee elects to pay in monthly installments, Licenseemay not terminate or cancel any future payment obligations. If Licensee elects to pay in monthly installments, Licensee hereby authorizes Company to maintain Licensee’s account and payment information and charge that account automatically in accordance with these Terms. Due to the nature and immediate access to the Product, if Licensee discontinues use of the Product, Licensee hereby agrees to remain responsible for all outstanding payments for the remainder of the Term. Payment will be collected by Company via Credit Card and through the Company’s website. Licensee hereby gives Company authorization to charge its credit/debit card on file for any outstanding fees. Payment failure will result in termination of the license granted herein effective immediately. Licensee agrees and warrants that all payment instruments, credit cards and related information, i.e. billing address, used in connection with Licensee’s purchase of the Product are correct and that Licensee isauthorized to use such payment instrument.
5. LATE FEES. If Company does not receive payment from Licensee within fourteen (14) calendar days of any payment date, then Licensee will be charged a late fee of 1.5% of the outstanding amount per each day that Company does not receive payment.
6. CHARGEBACKS. Licensee to make every attempt to file for a refund prior to attempting a chargeback with afinancial institution. Licensee will remain responsible for amounts due pursuant to these Terms in the event Licenseedisputes payment with a financial institution. In the event of a chargeback attempt, Licensee expressly agrees to forfeit any and all intellectual property licenses and/or deliverables afforded to Licensee in exchange for purchase of the Product. Company reserves the right to present proof of purchase and these Terms to the financial institution investigating the dispute.
7. PRODUCT LICENSE. By purchasing the Product, and only after the Product purchase price is paid in full unless otherwise provided herein, Licensee is granted a non-exclusive license to resell the Product to others with Master Resell Rights. Master Resell Rights allow those the right to resell and redistribute a certain product while retaining the profit from sales. This license does not include any rights to the use or incorporation of the Company’s videos within the online course. This license extends only to the files and text which are included in the Product. If Licensee desires to incorporate videos with its online course, Licensee must incorporate its own videos. Subsequent to Company’s receipt of full payment from Licensee for the Product in the amount of $497.00 or if Licensee opts to make monthly payments to Company through third party companies After Pay or Klarna, Licensee may sell the Product as many times as desired and retain the profits. Licensee is not permitted to modify or alter the product in any way, shape or form unless expressly provided herein. Licensee ispermitted to brand its own sales process and claim ownership over such sales process. Licensee is not permitted to use Company’s branding or intellectual property for any purpose. Licensee may transfer the rights to resell the Product if and only if the Product is sold for the minimum price of $497.00.
8. INTELLECTUAL PROPERTY. All copyrights, patents, trademarks, trade secrets, and other intellectual property rights in the Product are and shall remain the sole and exclusive property of Company/ Licensor. Licensee is granted a non-exclusive, non-transferable, revocable right to resell the Product in accordance with these Terms. These Terms do not convey to the Licensee any rights of ownership in or related to the Product, or any intellectual property rights owned by the Company. The Licensee shall not attempt to register, or assist others in registering, any trademark, copyright, or other intellectual property that is substantially similar to the Company's. In the event the Licensee becomes aware of any potential infringement of the Company's intellectual property rights, the Licensee must promptly notify the Company in writing.
9. LICENSE RESTRICTIONS. Licensee shall not modify, adapt, translate, reverse engineer, decompile, disassembleor otherwise tamper with the Product with the exception of filming and incorporating Licensee’s own videos. Notwithstanding the foregoing, these restrictions include but are not limited to the following: (1) Selling portions of the Product; (2) Renaming the Product; (3) Changing material within the Product; (4) Changing the creator of the Product. Licensee shall not claim ownership of the Product copyright. Licensee shall not impersonate the Company in any way including Company’s business, brand’s name, content, other products, and other intellectual property.
10. RESELLING RESTRICTIONS. Licensee may resell the Product to end users without transferring the Master Resell Rights. Reselling to other resellers is permitted. If reselling the Master Resell Rights of this Product, the Licensee agrees to include these Terms with the product and to ensure that all customers adhere to these Terms. Failure to adhere to these Terms will result in the revocation of the Licensee’s resell rights, termination of Licensee’s license under these Terms, and Company will pursue legal action for damages caused by the misuse of this Product. Licensee is not permitted to give away the Product for free, or as part of a free bundle; however, Licensee may include additional content or opportunities with the Product so long as those opportunities do not conflict with the Product or the Product’s content.
11. MARKETING RESTRICTIONS. Any marketing or promotional activities conducted by the Licensee must accurately reflect the Product's purpose and capabilities. Marketing of the Product under false pretenses, misrepresentation, or any form of deceptive practice is strictly prohibited and constitutes a material breach of these Terms. Licensee shall bear all responsibility and liability for any false, misleading, or inaccurate representations made in relation to the Product. Company does not endorse or permit the use of income claims for the purpose of marketing the Product unless there is an express and written earnings disclaimer prominently featured with such marketing materials. Licensee agrees to indemnify Company from any damages sought from the Licensee that are a direct result from advertising income claims. Licensee agrees that they are responsible for their own business and that Company is not a part of nor endorses the actions of their business entity. On one single occasion per month, Licensee is permitted to offer a promotion of a $50.00 gift card to their customers. Licensee is not permitted to offer a promotion of a gift card in any other circumstances unless expressly provided herein and may not offer a promotion of a gift card for any amount that exceeds $50.00.
12. PAYMENT PLATFORMS. Licensee acknowledges and agrees to use third-party payment platforms ("Payment Platform") for the sale and distribution of the Product.Licensee agrees to comply with all terms, conditions, policies, and guidelines of the Payment Platform and to conduct all transactions in compliance with all applicable laws and regulations. Licensee shall indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, arising from or relating to the Licensee’s use of the Payment Platform, including but not limited to the Licensee’s non-compliance with the Payment Platform's terms, conditions, policies, guidelines, or any applicable laws or regulations. Company is not responsible or liable for any aspect of the Payment Platform, including but not limited to, the availability, accuracy, reliability, or legality of the Payment Platform. Company makes no representations, warranties, or guarantees regarding the Payment Platform. Licensee acknowledges and agrees that any dispute or claim arising out of or in connection with the Payment Platform is between the Licensee and the Payment Platform, and Company shall have no liability or obligation in connection therewith.
13. MINIMUM SALE PRICE. Licensee agrees that the minimum sale price for the Product shall be $497.00("Minimum Sale Price"). Any discounts, promotions, or other pricing strategies employed by the Licensee must maintain the sale price at or above the Minimum Sale Price.In no event shall the Licensee offer or apply any discounts or promotions that would result in the sale price of the Product falling below the Minimum Sale Price. Licensee acknowledges and agrees that failure to adhere to the Minimum Sale Price may result in immediate termination of these Terms and Licensee’s license, at Company’s sole discretion, in addition to any other remedies available to Company under law or equity. Licensee is permitted to offer gifts or bonuses as part of the promotion of the Product, provided that these offerings do not function as a discount on the Product's sale price. Licensee acknowledges and agrees that any gift or bonus offered must be separate from and not linked to a reduction in the sale price of the Product below the Minimum Sale Price.On one single occasion per month, Licensee is permitted to offer a promotion of a $50 gift card to their customers.
14. AGREEMENT MODIFICATION. Licensee acknowledges and agrees that these Terms constitute the complete and exclusive statement of the agreement between the Licensee and Company, and that it supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of these Terms. Licensee is not permitted to modify or amend these Terms in any manner without the express written consent of Company. Any such unauthorized modification or amendment will be null and void. Licensee agrees not to enter into any other contract or agreement that would supersede, alter, or conflict with these Terms. Any such contract or agreement will be null and void to the extent that it conflicts with these Terms.Licensee acknowledges and agrees that it is their sole responsibility to review these Terms periodically to familiarize themselves with any modifications. Continued use of the Product after any such modifications constitutes the Licensee's agreement to such changes.
15. REFUND POLICY. Licensee acknowledges and agrees that due to the nature of the Product being eligible for download, all sales of the Product are final and non-refundable. Licensee must clearly communicate this return policy to their customers prior to the sale of the Product, ensuring that customers understand that they are purchasing a non-refundable product. Failure to comply with this return policy or any misrepresentation of it to customers may result in immediate termination of these Terms, at the sole discretion of Company, in addition to any other remedies available to Company under law or equity.
16. CONFIDENTIAL INFORMATION. Licensee acknowledges that they may have access to confidential and proprietary information ("Confidential Information") of Company. Confidential Information includes but is not limited to customer lists, business plans, financial data, marketing plans, product specifications, and other proprietary knowledge related to the Product or Company.Licensee agrees that they will not disclose, disseminate, or make available any Confidential Information received from Company, directly or indirectly, to any third party without the prior written consent of Company. Licensee further agrees to take all reasonable precautions to prevent any unauthorized use, disclosure, dissemination, or publication of Confidential Information, including ensuring that any employees, contractors, or other agents who have access to Confidential Information sign a non-disclosure agreement.
17. AUDIT RIGHTS. Company reserves the right to audit, at its sole discretion and at any reasonable time, the Licensee's books, records, and operations related to the use, sale, and distribution of the Product to ensure compliance with these Terms. Company reserves the right to inspect and approve the Product before it is made available to the public.
18. INDEMNIFICATION. Licensee agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party"), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party related but not limited to: (a) any breach or non-fulfillment of any representation, warranty, or covenant contained in these Terms, or any other agreement contemplated hereby, by the Licensee; (b) any use or misuse of the Product by the Licensee or any third party gaining access to the Product through the Licensee; or (c) any infringement of intellectual property rights arising from the Licensee's unauthorized use or modification of the Product.
19. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, directors, employees or its licensors be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, the Product. Under no circumstances will the Company be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Product or the information contained therein beyond $497.00, the purchase price of the Product. To the maximum extent permitted by applicable law, the Company assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from the Licensee's access to and use of the Product; (c) unauthorized access to or use of Company's secure servers and/or any and all personal information stored therein; (d) interruption or cessation of transmission to or from the Product; (e) bugs, viruses, trojan horses, or the like that may be transmitted to or through the Product by any third party; (f) errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Product; and/or (g) user content or the defamatory, offensive, or illegal conduct of any third party.
20. REVOCATION OF LICENSE. Licensee acknowledges and agrees that any violation of these Terms, including but not limited to the unauthorized sale, distribution, modification, or use of the Product, will result in the immediate revocation of the license granted herein. Upon revocation of the license, the Licensee shall immediately cease all use, sale, distribution, and promotion of the Product and all associated materials. The Licensee shall also remove the Product from any and all platforms where it may be available, including but not limited to websites, membership sites, and online stores. Licensee understands and agrees that revocation of the license does not absolve the Licensee of any obligations under these Terms, including but not limited to the obligation to maintain the Minimum Sale Price and to refrain from offering the Product as a bonus or selling it on auction sites. Upon revocation of the license, Company reserves the right to pursue any and all legal remedies available under law or equity.
21. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES. Use of the Product, sending emails to Company, and completing online forms constitute electronic communications. Licensee consents to receiving electronic communications, and Licensee agrees that all agreements, notices, disclosures, and other communications provided to Licensee electronically by Company, via email and on the Product, satisfy any legal requirement that such communication be in writing. LICENSEE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF THE TRANSACTIONS INITIATED OR COMPLETED BY COMPANY OR VIA THE PRODUCT. Licensee hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or others laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
22. FORCE MAJEURE. If either Party hereto is unable to perform any of its obligations, with the exception of payment, by reason of fire or other casualty, strike, act or order of public authority, global pandemic, administrative order by governmental authority, act of God, or other cause beyond the control of such Party (hereinafter, a “Force Majeure Event”), then such Party shall be excused from such performance during the pendency of such cause. COVID-19 and any related governmental orders or shutdowns are known phenomena and not Force Majeure events. The Party suffering a Force Majeure Event shall give written notice within five (5) days of the Force Majeure Event to the other Party, stating the period of timethe occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
23. PRIVACY. Licensee agrees that all information provided to Company to purchase the Product, including, but not limited to, through the use of any interactive features on the Company’s website, is governed by Company’s Privacy Policy, and Licensee consents to all actions takenb by Company with respect to Licensee’s information consistent with Company’s Privacy Policy.
24. WARRANTIES DISCLAIMER. Licensee’s use and resale of the Product is at Licensee’s own risk and is provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
25. EARNINGS DISCLAIMER. While Company may reference certain results, outcomes or situations in connection with the Product, Licensee understands and acknowledges that Company makes no guarantee as to the accuracy of third-party statements made or the likelihood of success as a result of these statements. Licensee understands that individual results and outcomes will vary. Company cannot guarantee Licensee’s success merely by Licensee’s use and resale of the Product. Any results provided in connection with the Product are not guaranteed or typical.
26. TECHNOLOGY DISCLAIMER. Company makesreasonable efforts to provide Licensee with modern, reliable technology. However, in the event of a technological failure, Licensee accepts and acknowledgesCompany’s lack of responsibility for said failure. Company cannot guarantee that all information provided in connection with the Product is completely accurate, complete or up to date, and disclaim liability for any such errors or omissions.
27. WARRANTIES AND REPRESENTATIONS. Parties represent and warrant to each other that each is free to enter into and agree to these Terms and that this engagement does not violate the terms of any agreement between either Party and any third party. The Parties represent and warrant to each other that each is at least 18 years of age at the time of agreement to these Terms.
28. ASSUMPTION OF RISK. By using and reselling the Product, whether paid or unpaid, Licensee assumes the risk of such access and any subsequent actions that Licenseechooses to take as a result of the informational or educational materials provided to Licensee.
29. WAIVER. The failure by Company to enforce any provision of these Terms will not constitute a present or future waiver of such provision nor limit Company’s right to enforce such provision at a later time. All waivers by Company must be in writing to be effective.
30. LIMITATION ON TIME TO FILE CLAIMS. Any cause of action or claim Licensee may have arising out of or relating to these Terms of Purchase or the Product must be commenced within one (1) year after the cause of action accrues; otherwise such cause of action or claim is permanently barred.
31. SEVERABILITY. If any portion of these Terms is held to be invalid or unenforceable, the remaining portions of these Terms will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms, but the rest will remain in full force and effect.
32. NOTICES. All notices, claims, and demands made upon Company under these Terms must be in writing and addressed to Company at the email address set forth below. A notice by a Party is effective only if the Party giving the Notice has complied with the requirements of this Section.
Notice to Company:The Digital Wealth Academy LLC
Attention: Rachell Jova
Rachell@digitalwealthacademy.biz
33. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule.
34. MEDIATION. In the event a dispute shall arise between the Parties that is related to or arises out of these Terms, the Parties agree to attempt to resolve the dispute through mediation. The mediation will take place in Hollywood, Florida or remotely via Zoom. The Parties agree to cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. For a mediation, the parties will agree to use commercially reasonable efforts to begin the mediation within 15 business days of the selection of the mediator and to conclude the mediation with 30 days of the start of the mediation. The costs of the mediation will be equally split between the Parties. If the Parties fail to agree at the completion of the mediation, the requesting part may commence legal proceedings to resolve the dispute.
35. JURISDICTION AND VENUE. If the Parties cannot resolve any dispute for any reason, including, but not limited to, the failure of either party to agree to enter into mediation or agree to any settlement proposed by the mediator, either party may file suit in a court of competent jurisdiction in the state or federal courts of Florida and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
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The UBC JV
Master Reseller Agreement
among
THE UBC JV
and
PARTIES PURCHASING THE PRODUCTS
dated as of
MARCH 1, 2024
MASTER RESELLER AGREEMENT
This Reseller Agreement (the "Agreement"), dated March 1, 2024, is entered into by and between UBC JV., a joint venture comprising 12316421 CANADA INC. and 10574104 CANADA INC. (jointly, the "Supplier"), and the Reseller party identified as such in each purchase email, ("Reseller", and together with Supplier sometimes may be referred to as the "Parties", and each, a "Party").
WHEREAS, Supplier is in the business of selling and marketing the Products (as defined below); and
WHEREAS, Reseller is in the business of marketing and reselling the Products; and
WHEREAS, Reseller wishes to purchase the Products from Supplier and resell these Products to End Users (as defined below), subject to the terms and conditions of this Agreement; and
WHEREAS, Supplier wishes to sell the Products to Reseller and appoint Reseller as a non-exclusive reseller under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
Definitions
Capitalized terms have the meanings set out in this ARTICLE I, or in the Section in which they first appear in this Agreement.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at law, in equity or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person.
"Claim" means any Action made or brought against a Person entitled to indemnification under ARTICLE XV.
"Confidential Information" has the meaning set out in Section 13.01.
"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract or otherwise.
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"Effective Date" means the date first set out above.
"End User" means the final purchaser that (a) has acquired a Product from Reseller for (i) its own [and its [Affiliates']] internal use and for possible resale, remarketing or distribution or (ii) incorporation into its own products.
"Governmental Authority" means any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or
"HST" means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax.
"HST Act" means Part IX of the Excise Tax Act (Canada).
"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) industrial designs and industrial design registrations; (f) Trade Secrets and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction in any part of the world.
"Law" means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
"Notify" means to give Notice.
"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates and patent utility models).
"Person" means any individual, partnership, corporation, trust, unlimited liability company, unincorporated organization, association, Governmental Authority, or any other entity.
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"Personnel" means agents, employees, or subcontractors engaged or appointed by Supplier or Reseller.
"Representatives" means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, counsel, third-party advisors, successors, and permitted assigns.
"Reseller Contract" means any [material] contract or agreement to which Reseller is a party or to which any of its material assets are bound.
"Supplier's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Supplier.
"Supplier's Trademarks" means all Trademarks owned by or licensed to Supplier.
"Taxes" means any commodity tax, including sales, use, excise, value-added, HST, consumption or other similar tax, including penalties or interest, imposed, levied, or assessed by any Governmental Authority.
"Trademarks" means all rights in and to Canadian and foreign trademarks, service marks, trade dress, trade names, business names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
ARTICLE II
Appointment as Reseller
Section 2.01 Non-Exclusive Appointment. Supplier appoints Reseller, and Reseller accepts the appointment, to act as a non-exclusive reseller of Products to End Users in accordance with the terms and conditions of this Agreement. Supplier may in its sole discretion sell the Products to any other Person, including resellers, retailers and End Users subject to the terms and conditions hereof.
ARTICLE III
No Franchise Agreement, No Guarantee
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Section 3.01 No Franchise. The Parties are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Supplier and Reseller. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their Personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, Canada Pension Plan contributions, employment insurance premiums, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Reseller has the sole discretion to determine Reseller's methods of operation, Reseller's accounting practices, the types and amounts of insurance Reseller carries, Reseller's Personnel practices, Reseller's advertising and promotion, Reseller's customers and Reseller's service areas and methods. The relationship created hereby between the Parties is solely that of supplier and reseller.
Section 3.02 No Guarantees. The Parties acknowledge and accept that while the Product may provide the opportunity to generate income, the Supplier makes no guarantees regarding financial success that any Reseller or End User may achieve using the Product. Individual success may vary and depends on various factors, including skill, effort, market conditions, and the demand for the Product. Any testimonials or examples of income displayed on websites or other promotional materials are exceptional cases and do not represent a guarantee of future earnings.
Section 3.03 Business Risk. Engaging in any business, including the sale of the Product, involves inherent risks. Supplier makes no guarantee as to financial results or that the Product will generate profits of any kind. Parties acknowledge that there are risks associated with running a business, and assume full responsibility for any outcomes or losses resulting from use or sale of the Product.
Section 3.04 Income Potential. The income potential associated with the Product is highly subjective and can vary significantly from person to person. Success depends on various factors, such as marketing strategies, target audience, competition, and economic conditions. Supplier cannot predict or guarantee your individual results.
ARTICLE IV
Terms of Agreement Prevail
This Agreement is expressly limited to the terms of this Agreement. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Reseller's general terms and conditions issued by Reseller.
ARTICLE V
General Reseller Performance Obligations
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Section 5.01 Marketing and Reselling Products. Reseller shall, in good faith and at its own expense:
(a) market, advertise, promote, and resell the Products to End Users in accordance with good business practice;
(b) develop and execute a marketing plan sufficient to fulfil its obligations under this Agreement;
(c) observe all of Supplier's reasonable directions and instructions in relation to the marketing, advertising and promotion of the Products;
(d) market, advertise, promote, and resell Products and conduct business in a manner that at all times reflects favourably on Products and the good name, goodwill, and reputation of Supplier;
(e) only resell any software or accessories sold, bundled or packaged with any Product on those terms and conditions as Supplier may, from time to time, require.
Section 5.02 Authority to Perform Under this Agreement. Reseller shall, at its own expense, obtain and maintain required certifications, credentials, licences, and permits necessary to conduct business in accordance with this Agreement.
Section 5.03 Limited End User Support. Following the sale of a Product to any End User, Reseller shall, at its own expense:
(a) respond to the End Users regarding the general operation and use of the Product, including:
(i) acting as a liaison between the End User and Supplier in matters requiring Supplier's participation;
(ii) providing general Product information and configuration support on standard protocols and features; and
Except as explicitly authorized in this Agreement or in a separate written agreement with Supplier, Reseller may not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Products it sells to End Users.
Section 5.04Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Reseller nor Reseller Personnel shall:
(a) make any representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments:
(i) actually, apparently or ostensibly on behalf of Supplier, or
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(ii) to any End User regarding the Products, which representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then existing representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Supplier to Reseller;
(b) engage in any unfair, competitive, misleading or deceptive practices respecting Supplier, Supplier's Trademarks or the Products, including, but not limited to, the following:
(i) offering the Product as part of disparagement or "bait-and-switch" practice;
(ii) Offering any rebates or cashback offers to incentivize purchase of the Product;
(iii) Offering any discounts to the Product;
(iv) Offering any incentives or bundled offerings of the Product,
including, but not limited to, add on products, “sneak peaks" or
"template" offerings;
(v) Offering any modified version of the Product;
(vi) Use or sell this product in a dime sale event;
(vii) Offer for sale, the Product on an auction site (such as eBay.com);
(c) sell, either directly or indirectly, or assign or transfer, any Products to any Person when Reseller knows or has reason to suspect that the Person may resell any or all of the Products to a third party where such third party may breach this Agreement.
ARTICLE VI
Supplier Performance Obligations
Section 6.01Supplier Performance Obligations. During the Term, the Supplier may:
(a) provide any information and support that may be reasonably requested by Reseller regarding the marketing, advertising, promotion, and sale of Products sold to Reseller under this Agreement; and
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ARTICLE VII
Agreement to Purchase and Sell the Products
Section 7.01 Terms of the Sale. Supplier shall sell Products to Reseller at the Prices and on the terms and conditions set out in this Agreement.
Section 7.02 Availability; Changes in Products. Supplier may, in its sole discretion: (a) remove Products without Notice to Reseller;
(b) add to the Products without Notice to Reseller; and
(c) without Notice to Reseller, effect changes to any Products,
in each case, without obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications.
ARTICLE VIII
Order Procedure
Section 8.01Purchase Request. Once Reseller has sold a program to an End User, the Reseller shall provide invite link to the End User where End User requests access. In order to be approved, the End User must forward an email receipt to info@ubcmrr.com; and answer the membership questionnaire (who was course purchased from; did you forward receipt as required; what is email).
Section 8.02 Supplier's Right to Accept or Reject Purchases. Supplier may, in its sole discretion, accept or reject any purchase request. Supplier may accept any Purchase request by confirming the order or by making the Products available, whichever occurs first.
ARTICLE IX
Price and Payment
Section 9.01Price. Reseller shall purchase the Product from Supplier and End User shall purchase the Products from Reseller at the prices set out in Supplier's reseller price list in effect as of the date hereof (the "Prices") and Reseller shall only list for sale the Products for the same price.
Section 9.02 Taxes.
The Prices are exclusive of all applicable Taxes (including HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable taxes, duties, and levies levied on that Party from time to time in relation to this Agreement.
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ARTICLE X
Resale of the Products
Section 10.01 Resale Prices. Reseller adopts the resale price set by the Supplier and terms of this Agreement regarding the Product provided, however, Supplier reserves the right to establish the minimum prices at which the Products may be resold and reserves the right to enforce compliance with this Agreement at its sole and absolute discretion.
ARTICLE XI
Compliance with Laws
Section 11.01 General Compliance with Laws Representation and Warranty. Reseller represents and warrants to Supplier that it is in compliance with all Laws and Reseller Contracts applicable to this Agreement, the Products, and the operation of its business.
Section 11.02 General Compliance with Laws Covenant. Reseller shall at all times comply with all Laws.
ARTICLE XII
Intellectual Property Rights
Section 12.01 Ownership. Subject to the express rights and licences granted by Supplier in this Agreement, Reseller acknowledges and agrees that:
(a) any and all Supplier's Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors;
(b) Reseller shall not acquire any ownership interest in any of Supplier's Intellectual Property Rights under this Agreement;
(c) any goodwill derived from the use by Reseller of Supplier's Intellectual Property Rights enures to the benefit of Supplier or its licensors, as the case may be;
(d) if Reseller acquires any Intellectual Property Rights in or relating to any product (including any Product) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either Party; and
(e) Reseller shall use Supplier's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Supplier.
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Section 12.02 Supplier's Trademark Licence Grant. This Agreement does not grant either Party the right to use the other Party's or their Affiliates' Trademarks except as set out under this Section 12.02. Subject to the terms and conditions of this Agreement, Supplier hereby grants to Reseller a non-exclusive, non-transferable and non
sublicensable licence to use Supplier's Trademarks solely on or in connection with the promotion, advertising and resale of the Products in accordance with the terms and conditions of this Agreement. Reseller will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with regard to the Products when requested by Supplier. Other than the express licences granted by this Agreement, Supplier grants no right or licence to Reseller, by implication, estoppel or otherwise, to the Products or any Intellectual Property Rights of Supplier.
Section 12.03 Prohibited Acts. Reseller shall not:
(a) take any action that interferes with any of Supplier's rights in or to Supplier's Intellectual Property Rights, including Supplier's ownership or exercise thereof;
(b) challenge any right, title or interest of Supplier in or to Supplier's Intellectual Property Rights;
(c) make any claim or take any action adverse to Supplier's ownership of Supplier's Intellectual Property Rights;
(d) register or apply for registrations, anywhere in the world, for Supplier's Trademarks or any other Trademark that is similar to Supplier's Trademarks or that incorporates Supplier's Trademarks in whole or in confusingly similar part;
(e) use any mark, anywhere, that is confusingly similar to Supplier's Trademarks;
(f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Products) or any Supplier Trademark;
(g) misappropriate any of Supplier's Trademarks for use as a domain name without prior written consent from Supplier; and
(h) alter, obscure, or remove any of Supplier's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Products), marketing materials or other materials that Supplier may provide.
Section 12.04 Supplier's Trademark Notices. Reseller shall ensure that all Products sold by Reseller and all related quotations, specifications, and descriptive literature, and all other materials carrying Supplier's Trademark, are marked with the appropriate trademark notices.
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ARTICLE XIII
Confidentiality
Section 13.01 Protection of Confidential Information. From time to time, Supplier (as "Disclosing Party") may disclose or make available to Reseller (as "Receiving Party") information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, Trade Secrets, third-party confidential information, personal information of End Users and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" constitutes "Confidential Information" hereunder. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence:
(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this ARTICLE XIII by Receiving Party or any of its Representatives;
(b) is or becomes available to Receiving Party on a non-confidential basis from a third-party source; provided that such third party is not and was not prohibited from disclosing such Confidential Information;
(c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
(d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
(e) must be disclosed under applicable Law.
Receiving Party shall of such Confidential Information:
(i) protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(ii) not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
(iii) not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
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Receiving Party shall be responsible for any breach of this ARTICLE XIII caused by any of its Representatives. The provisions of this ARTICLE XIII shall survive termination or expiration of this Agreement for any reason for a period of one (1) year after such termination or expiration.
In the event of any conflict between the terms and provisions of this ARTICLE XIII and those of any other provision in this Agreement, the terms and provisions of this ARTICLE XIII will prevail.
ARTICLE XIV
Representations and Warranties
Section 14.01 Reseller's Representations and Warranties. Reseller represents and warrants to Supplier that:
(a) it is duly licensed or registered to carry on business in every jurisdiction in which such qualification is required for purposes of this Agreement;
(b) it has all necessary power and capacity to enter into this Agreement, to grant the rights and licences granted under this Agreement and to perform its obligations under this Agreement;
Section 14.02 Warranty Limitations. Limited Warranties do not apply where the Product:
(a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Supplier;
(b) has been reconstructed, repaired or altered by Persons other than Supplier or its authorized Representative; or
(c) has been used with any Third-party Product, hardware or product that has not been previously approved in writing by Supplier.
Section 14.03 Warranties Disclaimer; Non-Reliance. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES, (A) NEITHER SUPPLIER NOR ANY PERSON ON SUPPLIER'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER, INCLUDING ANY CONDITIONS OR WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULAR PURPOSE; OR (iii) TITLE; OR (iv) NON-INFRINGEMENT; OR (v) PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE END USER REQUIREMENTS OR EXPECTATIONS, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION, CONDITION OR
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WARRANTY MADE BY SUPPLIER, OR ANY OTHER PERSON ON SUPPLIER'S BEHALF.
Section 14.04 Third-Party Products. Reseller acknowledges and agrees that Products purchased by Reseller under this Agreement may not contain, nor be contained in, nor incorporated into, attached to or packaged together with the products manufactured by a third party (the "Third-Party Products"). Third-Party Products are not covered by the Limited Warranty. For the avoidance of doubt, Supplier makes no representations, conditions, or warranties regarding any Third-Party Products.
ARTICLE XV
Indemnification
Section 15.01 Reseller General Indemnification. Subject to the terms and conditions of this Agreement, Reseller (as "Reseller Indemnifying Party") shall indemnify, hold harmless, and defend Supplier and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, "Supplier Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, disbursements and charges, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, (collectively, the "Losses"), arising out of or relating to any Claim of a third party:
(a) relating to a breach or non-fulfilment of any representation, condition, warranty or covenant under/representation, condition or warranty set out in this Agreement by Reseller Indemnifying Party or Reseller Indemnifying Party's Personnel;
(b) alleging or relating to any negligent act or omission of Reseller Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) relating to a purchase of a Product by any Person purchasing directly or indirectly through Reseller Indemnifying Party and not directly relating to a claim of Limited Warranty breach.
ARTICLE XVI
Limitation of Liability
Section 16.01 No Liability for Consequential or Indirect Damages. IN NO EVENT IS SUPPLIER OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT RESELLERWAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY
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(CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Section 16.02 Maximum Liability for Damages. IN NO EVENT SHALL SUPPLIER'S LIABILITY FOR EACH CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED ONE (1) TIMES THE TOTAL OF THE AMOUNTS PAID TO SUPPLIER UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS APPLY EVEN IF THE SUPPLIER'S
REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
ARTICLE XVII
Miscellaneous
Section 17.01 Entire Agreement.
(a) Subject to ARTICLE IV, this Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, conditions and warranties, both written and oral, regarding such subject matter.
Section 17.02 Notice. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") in writing and addressed to the other Party at the email address last used by them.
Section 17.03 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means the agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set out verbatim herein. Except as otherwise expressly provided in this Agreement, all dollar amounts referred to in this Agreement are stated in Canadian currency.
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Section 17.04 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Section 17.05 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Section 17.06 Amendment and Modification. The Supplier may amendment or modify this Agreement in writing at any point in time at its sole and absolute discretion.
Section 17.07 Waiver.
(a) No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right.
(b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power or privilege, or in enforcing any condition under this Agreement; or
(ii) any act, omission, or course of dealing between the Parties.
Section 17.08 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at Law, in equity, in any other agreement between the Parties or otherwise.
Section 17.09 Equitable Remedies. Reseller acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under ARTICLE XIII would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Reseller of any of these obligations, Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at Law, at equity or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy.
Section 17.10 Assignment. Reseller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Supplier.
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Section 17.11 Successors and Assigns. This Agreement is binding on and enures to the benefit of the Parties and their respective permitted successors and permitted assigns.
Section 17.12 No Third-Party Beneficiaries.
(a) This Agreement benefits solely the Parties and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 17.13 Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto [and all matters arising out of or relating to this Agreement] are governed by and construed in accordance with the Laws of the Province of Ontario, and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the Province of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
