3 Wave Fitness & Health Ltd. website terms of use

Acceptance

By using any 3 Wave Fitness & Health Ltd.-related software, or by using or visiting the 3 Wave Fitness & Health Ltd. Website (collectively the "Website Service"), you agree to both these Terms and Conditions ("Terms of Use") and the Terms and Conditions of the 3 Wave Fitness & Health Ltd. Website Privacy Policy, which are incorporated herein by reference. If you do not agree to any of these terms, please do not use the Website Service. These Terms of Use apply to all users of the Website Service, including users who are contributors of video content, information, and other materials or services on the Website.

Website Access

3 Wave Fitness & Health Ltd. hereby grants you permission to use the Website Service in accordance with these Terms of Use, provided that:

1. your use of the Website Service is solely for your personal use;

2. you will not copy or distribute any part of the Website Service in any medium or manner inconsistent with these Terms of Use without 3 Wave Fitness & Health Ltd.'s prior written consent;

3. you will not alter or modify any part of the Website Service other than as may be reasonably necessary to use the Website Service for its intended purpose; and

4. you will otherwise comply with these Terms of Use.

In order to access some features of the Website Service, you will have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify 3 Wave Fitness & Health Ltd. immediately of any breach of security or unauthorized use of your account. Although 3 Wave Fitness & Health Ltd. will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of 3 Wave Fitness & Health Ltd. or others due to such unauthorized use.

3 Wave Fitness & Health Ltd. reserves the right to establish data transfer restrictions and/or limit the total amount of data transfer associated with your account. User accounts may be closed by 3 Wave Fitness & Health Ltd. should the total amount of data transfer exceed an amount deemed excessive in 3 Wave Fitness & Health Ltd.’s sole discretion.

You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website Service in a manner that sends more request messages to the 3 Wave Fitness & Health Ltd. servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, 3 Wave Fitness & Health Ltd. grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. 3 Wave Fitness & Health Ltd. reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website.

Intellectual Property Rights

The content on the 3 Wave Fitness & Health Ltd. Website, including the text, software, scripts, graphics, photos, sounds, music, videos, and interactive features ("Content") and the trademarks, trade names, service marks and logos contained therein ("Marks"), are owned by or licensed to 3 Wave Fitness & Health Ltd., subject to copyright and other intellectual property rights under Canadian law and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without prior written consent and/or payment of the applicable licence fee to the owners. 3 Wave Fitness & Health Ltd. reserves all rights not expressly granted in and to the Website Service and the Content. You agree not to engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions (as hereinafter defined) by third parties obtained through the Website. You agree not to circumvent, disable or otherwise interfere with security related features of the 3 Wave Fitness & Health Ltd. Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the 3 Wave Fitness & Health Ltd. Website or the Content therein.

User Submissions

The Website Service may permit the submission of videos or other communications submitted by you and other users ("User Submissions") and the hosting, sharing, and publishing of such User Submissions. 3 Wave Fitness & Health Ltd. may also establish categories for User Submissions based on intended use, such as Private where User Submissions are not shared, Invited where there is an invitation to view and/or share and Public. You understand that whether or not such User Submissions are published and regardless of category, 3 Wave Fitness & Health Ltd. does not guarantee any confidentiality with respect to any such submissions. You also understand and agree that 3 Wave Fitness & Health Ltd. may place advertising on the Website in conjunction with User Submissions.

You are solely responsible for your own User Submissions and the consequences of posting or publishing them. For all User Submissions you submit which are intended for public use, you represent and warrant that:

1. you own or have the necessary licenses, rights, consents, and permissions to use and authorize to use all copyright, trademark, trade name, service mark, logos and intellectual property and other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website Service and these Terms of Use; and

2. you have the written consent, release or permission of each and every identifiable individual person in the User Submission to use their name or likeness to enable inclusion and use of the User Submissions in the manner contemplated by the Website Service and these Terms of Use. You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to 3 Wave Fitness & Health Ltd. for public use, you hereby grant 3 Wave Fitness & Health Ltd. a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Website Service and 3 Wave Fitness & Health Ltd.'s business, including without limitation for promotion and redistribution of part or all of the Website Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the 3 Wave Fitness & Health Ltd. Website a non-exclusive license to access your User Submissions, if submitted for public use, through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website Service and under these Terms of Use.

For User Submissions you submit, you further agree that you will not:

1. submit material that is copyrighted, protected by trade mark or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant 3 Wave Fitness & Health Ltd. all of the license rights granted herein;

2. publish falsehoods or misrepresentations that could damage 3 Wave Fitness & Health Ltd. or any third party;

3. submit material that is unlawful, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offence, give rise to civil liability, violate any law, or is otherwise inappropriate;

4. post advertisements or solicitations of business; or

5. impersonate another person.

3 Wave Fitness & Health Ltd. does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and 3 Wave Fitness & Health Ltd. expressly disclaims any and all liability in connection with User Submissions. 3 Wave Fitness & Health Ltd. will remove all Content and User Submissions if properly notified that such Content or User Submission infringes another's intellectual property rights. 3 Wave Fitness & Health Ltd. also has sole discretion to decide whether Content or a User Submission is appropriate and complies with these Terms of Use as concerns pornography, obscene or defamatory material, or excessive length. 3 Wave Fitness & Health Ltd. reserves the right to remove Content and User Submissions without prior notice and to terminate a User's access to the Website Service, if such User is in violation of these Terms of Use. 3 Wave Fitness & Health Ltd. reserves the right to discontinue any aspect of the Website Service at any time.

You understand that when using the Website Service, you will be exposed to User Submissions from a variety of sources, and that 3 Wave Fitness & Health Ltd. is not responsible for and makes no warranties concerning the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you hereby waive any legal or equitable rights or remedies you may have against 3 Wave Fitness & Health Ltd. with respect thereto.

Third Party Websites

The 3 Wave Fitness & Health Ltd. Website may contain links to third party websites that are not owned or controlled by 3 Wave Fitness & Health Ltd. and 3 Wave Fitness & Health Ltd. assumes no responsibility for these third party websites. By using the Website, you expressly discharge 3 Wave Fitness & Health Ltd. from any and all liability arising from your use of any third-party website.

Warranty and Indemnity

You agree that your use of the 3 Wave Fitness & Health Ltd. Website Service is at your sole risk. 3 Wave Fitness & Health Ltd. makes no warranty concerning bugs, viruses, Trojan horses or similar problems which may be transmitted to or through the Website Service by any third party, or concerning damage of any kind incurred resulting from use of the Website Service. 3 Wave Fitness & Health Ltd. does not endorse and is not responsible for any product or service advertised or offered by a third party through the Website Service or any hyper-linked website.

In no event shall 3 Wave Fitness & Health Ltd., its officers, directors, employees or agents be liable to you for any direct, indirect, incidental, special, punitive or consequential damages resulting from any claim, injury or damage incurred by you from your use of the Website, Content or software.

You agree to defend, indemnify and hold harmless 3 Wave Fitness & Health Ltd., its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from:

1. your use of and access to the 3 Wave Fitness & Health Ltd. Website Service;

2. your violation of any aspect of these Terms of Use;

3. your violation of any third party right, including without limitation any copyright, property, or privacy right; or

4. any claim that one of your User Submissions caused damage to a third party. This defence and indemnification obligation will survive these Terms of Use and your use of the Website Service.

General

You confirm that you are either at least 18 years of age, or possess legal parental or guardian consent, and are fully able to enter into the terms, conditions, obligations, representations, and warranties described in these Terms of Use, and to abide by and comply with them.

You agree that the 3 Wave Fitness & Health Ltd. Website shall be deemed solely based in British Columbia, Canada and that these Terms of Use shall be governed by the laws of the Province of British Columbia, Canada, whose courts shall have exclusive jurisdiction. You agree that any cause of action in relation to the 3 Wave Fitness & Health Ltd. Website Service must be commenced within one (1) year after the cause of action accrues, or such cause of action is permanently barred.

AGREEMENT FOR WEBSITE SERVICES

(Includes Privacy Policy, Terms of Use, and Acknowledgments)

NOTE: By agreeing to this document, you’re waiving certain legal rights, including the right to claim any compensation from 3 Wave Fitness & Health Ltd. or other related parties. Please read before agreeing.

This agreement is made as of today’s date between you (the “Client”, “You” or “Your”) and 3 Wave Fitness & Health Ltd., a company duly incorporated under the laws of the Province of British Columbia, having its registered and records office at 510-1040 West Georgia Street, Vancouver, British Columbia, Canada V6E4H1 (“3Wave”).

WHEREAS 3Wave is in the business of hosting a web-based fitness and health service and you (the Client) desire to utilize 3Wave’s services.

IN CONSIDERATION of the sum of $2 paid by each of the parties to the other (the receipt and sufficiency of which is hereby acknowledged by each party), the mutual covenants contained in this agreement and other good and valuable consideration, 3Wave grants to You (the Client) the right, during the term of this agreement, to access and use the Platform (as defined in the “Definitions” section) subject to the following terms, covenants and conditions to which the parties agree:

1. Definitions

In this Agreement:

(a) “Business Day” means any day other than a Saturday, Sunday or statutory holiday in the province or state where You (the Client) is located as set forth on the first page of this Agreement;

(b) “Client Data” means any data, information or material that You (the Client) processes, stores, or transmits using the Platform and Services;

(c) “Documentation” means the training materials, user guides, and release notes made available from time to time by 3Wave in connection with the Platform and Services, either in hard copy or as electronic media;

(d) “Error” means a reproducible defect in the Platform, when accessed and used from equipment meeting the System Requirements that causes the Platform or Services not to perform substantially in accordance with the Documentation;

(e) “Fees” means the fees described in Schedule B and any other fees or costs owing or paid to 3Wave under this Agreement;

(f) “Harmful Component” means any virus, trojan horse, worm, time bombs, back doors or any similar device, mechanism, code or routine that manifests harmful, contaminating, destructive or disabling properties;

(g) “Licence” means the licence granted under section 2.1;

(h) “Services” means the services to be provided by 3Wave relating to You (the Client)’s access to and use of the Platform as described in this Agreement, including Support;

(i) “Support Request” means a telephone or e-mail support request as set out in section 4;

(j) “Support” means those support and maintenance services provided by 3Wave under this agreement as described in section 4;

(k) “System Requirements” means the minimum requirements for ancillary software, computers, internet connections and other hardware and equipment needed to access and use the Platform and Services, as set out in the Documentation from time to time;

(l) “Platform” means the hardware, software (including all data structures, data relationships, views, user-defined functions, stored procedures, system data and graphical user interfaces forming an integral part of that software, and including any updates, bug fixes, enhancements and releases) and equipment comprising the “Auto-Mates” automated vehicle auction software platform hosted by 3Wave, and any related documentation and materials;

(m) “Term” is defined in section 15.1;

(n) “Third-Party Products” is defined in section 11.2;

(o) “Website” means the website that 3Wave makes available to You (the Client) to access the Platform, the URL of which 3Wave may change upon 30 days’ written notice to You (the Client).

2. 3Wave’s Obligation to Provide Access to Platform

2.1 Licence. Subject to this Agreement’s terms and conditions, 3Wave hereby grants to You (the Client) a non-exclusive, non-transferable licence (the “Licence”) during the Term to access and use the Platform and Services online through the Website solely for you (You (the Client))’s personal purposes, provided that You (the Client) unconditionally agrees to access and use the Platform and Services in accordance with this Agreement and the Terms of Use of the Platform as updated from time to time.

2.2 Documentation. You (the Client) may make a reasonable number of copies of the Documentation for your own use. You (the Client) will have no right to use the Documentation for another purpose without 3Wave’s prior written consent.

2.3 Reserved Rights. 3Wave exclusively retains all rights in and to the Platform and Services that are not expressly licensed to You (the Client) under this Agreement.

2.4 Upgrades. Any upgrades, enhancements, modifications or new versions of the Platform and Services provided or made available to You (the Client) will be considered part of the Platform and Services subject to the Licence and this Agreement.

2.4 Authorized User. Only You (the Client) may access the Platform and Services. This contract is not assignable or transferrable by You (the Client).

2.5 Intellectual Property. As between the parties, 3Wave’s trademarks, logos, trade-names and other intellectual property are proprietary to 3Wave and may only be used as 3Wave may authorize in writing.

2.6 Licence Compliance Audits. 3Wave may at any time and from time to time audit and review any aspect of Your (the Client)’s access to and use of the Platform and Services to ensure compliance with this Agreement, and You (the Client) will cooperate with providing assistance reasonably required to facilitate that audit. If 3Wave discovers any discrepancies that are not corrected within such period that 3Wave deems appropriate and notifies You (the Client) of in writing, 3Wave may immediately on written notice to You (the Client) (a) terminate the Licence and this Agreement, or (b) suspend access to the Platform and Services under section 15.4. If 3Wave discovers any material breach of this Agreement through an audit, You (the Client) will bear the costs of the audit; otherwise, 3Wave will bear the cost of the audit.

3. 3Wave’s Services

3.1 Platform and Services. 3Wave will provide the Services and access to and use of the Platform as set out on the service option page of the website or platform that has led You (the Client) to this agreement.

3.2 Hosting. 3Wave will host the Platform on production servers using cloud services and commercial-grade data centres, connected to the internet through multiple connections. 3Wave will maintain the production servers and will take commercially reasonable measures to keep the production servers operational and secure. 3Wave will provide You (the Client) with access to the latest supported version of the Platform and Services through the internet from 3Wave’s production servers.

3.3 Availability. 3Wave will make commercially reasonable efforts to keep the Platform available continuously each hour of each day of the week.

3.4 Downtime. 3Wave will make commercially reasonable efforts to schedule any downtime for maintenance, upgrade and repair of the Platform and Services at times that will minimize disruption in their operation. However, You (the Client) acknowledge and agree that there may be downtime during times You (the Client) wish to utilize the Platform and Services. 3Wave will make reasonable efforts to give You (the Client) at least 2 days’ notice of downtime, but will have no liability regarding any unscheduled downtime or scheduled downtime of which You (the Client) did not receive notice.

3.5 Service Providers. 3Wave may use service providers as it considers appropriate from time to time to carry out its obligations under this Agreement, and 3Wave will bear the cost of these service providers unless specifically agreed otherwise.

3.6 Client Responsibilities. You (the Client) will cooperate with 3Wave and provide all information and assistance needed to provide the Platform and Services promptly following any request by 3Wave. You (the Client) acknowledge and agree that 3Wave’s provision of the Platform and Services may depend on matters solely within Your (the Client’s) control, and that 3Wave will not bear any liability or otherwise be responsible for any delays or variations in the provision of the Platform or Services caused by any such matter, including any failure to provide timely instructions, information, responses to inquiries, or approvals.

4. Support

4.1 Support. 3Wave will make reasonable efforts to support Your (the Client’s) use of the Platform and Services and to respond to You (the Client)’s support requests promptly. Support for platform-based inquiries will be available by e-mail. Further support for services on the platform can be made by email or video / phone can be purchased through the platform.

4.2 Error Correction. 3Wave will take reasonable measures to correct Errors in the Platform or Services as soon as reasonably practicable, as determined by 3Wave in its sole discretion taking into account the severity and effects of the Error.

4.3 Upgrades. 3Wave may from time to time in its sole discretion, but has no obligation to, create and upload patches, fixes, upgrades and improvements to the current functionality of the Platform and Services. 3Wave reserves the right to develop and make available for additional fees for new functionality and features, provided that You (the Client) will have no obligation to implement or pay for new functionality and features that they do not wish to use.

4.4 Modifications. From time to time 3Wave may in its sole discretion add new features to the Platform or Services or otherwise modify or change the Platform or Services (including their functionality, visual design and “look and feel”), provided that these modifications or additions do not impair the Platform’s and Services’ pre-existing features, or provided that 3Wave replaces any pre-existing features with new features or services that 3Wave deems more appropriate to its market.

5. Fees and Payment

5.1 Fees. You (the Client) shall pay 3Wave the Fees set out on the platform, plus all applicable taxes, in one of the accepted currencies of the payment processor used by 3Wave. You (the Client) will complete and sign the attached Credit Card Authorization provided by 3Wave’s payment provider, for the first month’s fee. All subsequent monthly subscription payments will be withdrawn from Your (the Client’s) account directly by 3Wave’s chosen payment processor via the terms laid out herein.

5.2 Invoicing and Payment. The Fees will be invoiced by 3Wave and shall be paid by You (the Client) on the same day of every consecutive month as when You (the Client) first entered into this Agreement. Your (the Client’s) account will be debited by 3Wave’s payment processor in the full amount of such invoice on such day. You (the Client) will have access to copies of the monthly invoices via the Platform.

5.3 NSF Protocol. If a transaction is not successful due to non-sufficient funds (“NSF”), You (the Client) will be reminded and directed to pay the outstanding amount via an email or Push Notification for a period of 14 days. After 15 days of non-payment, You (the Client) will be denied services on the Platform until the outstanding payment is paid. 3Wave also reserves the right to charge a $25 NSF fee on any account with repeated non-successful payment attempts or shut down the account without further notice to You (the Client) per section 5.5 of this agreement.

5.4 Suspension. 3Wave reserves the right to suspend You (the Client)’s access to and use of the Platform and the Services immediately under section 15.4 if 3Wave does not receive timely payment in accordance with this Agreement.

5.5 Fee Adjustment. 3Wave may review its Fees annually and may adjust any Fees with a minimum of ninety (90) days’ notice.

6. Computer Equipment and Connections

6.1 You (the Client) will, at its sole expense, be solely responsible for supplying, configuring and maintaining the hardware, software and licences, telecommunication and internet equipment, connections and services necessary for accessing and using the Platform and Services in accordance with the System Requirements. 3Wave will not be responsible for, nor obligated to provide Support for, interruptions, Errors, deficiencies or other problems with the Platform or Services arising from Your (the Client’s) failure to comply with the System Requirements.

6.2 3Wave has no responsibility for the functioning of Your (the Client’s) computer and telecommunications equipment and networks, any other computer equipment or software You (the Client) uses, or Your (the Client’s) internet access. You (the Client) acknowledges and agrees that the operation and availability of equipment and systems used for accessing and interacting with the Platform and Services, including public telecommunication networks, computer networks and the internet (whether supplied by 3Wave, You (the Client) or a third party) can be unpredictable and may from time to time interfere with or prevent You (the Client)’s access to or use of the Platform or Services. 3Wave is not in any way responsible for any such interference with or prevention of Your (the Client’s) access to or use of the Platform or Services.

7. Client Data

7.1 While using 3Wave’s services or platform, You (the Client) may be asked to provide certain personally identifiable information that can be used to contact or identify you. Types of Data that 3Wave collects are email addresses, first and last name, phone numbers, address (including state/province, ZIP/postal code, City, Country), cookies and usage data, and Personal Health Information as well as any personal information provided in the course of using the Platform.

3Wave may also collect information that your browser sends whenever You (the Client) visits the Service or when You (the Client) accesses the Service by or through a mobile device (“Usage Data”).

This Usage Data may include information such as Your (the Client’s) computer’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of 3Wave’s Service that You (the Client’s) visit, the time and date of Your (the Client’s) visit, the time spent on those pages, unique device identifiers and other diagnostic data.

Usage Data: When You (the Client) access the Service by or through a mobile device, this Usage Data may include information such as the type of mobile device You (the Client) use, the mobile device unique ID, the IP address of the mobile device, the mobile operating system, the type of mobile Internet browser used, unique device identifiers and other diagnostic data.

Tracking & Cookie Data: 3Wave uses cookies and similar tracking technologies to track the activity on the Service & Platform and hold certain information. Cookies are files with a small amount of data which may include an anonymous unique identifier. Cookies are sent to your browser from a website and stored on Your (the Client’s) device. Tracking technologies also used are beacons, tags, and scripts to collect and track information and to improve and analyze 3Wave's Service.

You (the Client) can instruct a browser to refuse all cookies or to indicate when a cookie is being sent. However, if You (the Client) does not accept cookies, You (the Client) may not be able to use some portions of the Platform or Service.

Examples of cookies used:

• Session cookies — Session Cookies are used to operate the Service.
• Preference cookies — Used to remember Your (the Client’s) preferences and various settings.
• Security cookies — Security Cookies are used for security purposes.

7.2 As between the parties, You (the Client) owns and has control over Your (the Client’s) Data. 3Wave does not own Client Data, may not sell Client Data, and will only have the right to use Client Data in aggregated and anonymous form for purposes of providing and enhancing the Platform and Services or as otherwise specified in this Agreement.
Use of Data: 3Wave uses the data collected to provide and maintain the service and platform, to notify users of the service and platform of any changes to the service or platform, to allow You (the Client) to participate in interactive features of our service or platform when you choose to do so, to provide customer care and support, to improve the platform and service, monitor usage or detect, prevent or address technical issues.

7.3 You (the Client) grants to 3Wave a royalty-free, nonexclusive, worldwide, right and licence (with the right to sublicense through multiple tiers) to use, copy, store, process, transmit and display Client Data as necessary to perform its obligations under this Agreement. You (the Client) acknowledges and agrees that: (i) the Platform and Services may require Client Data to be transferred to a country outside of Your (the Client’s) country or the country where Your (the Client's) Data originated, and that applicable laws in those other countries might permit foreign governments, courts, law enforcement or regulatory agencies to access Client Data in those countries, and (ii) 3Wave may share Client Data with its affiliates and business partners for the sole purpose of providing to You (the Client) the Platform and Services under this Agreement.

7.4 Unless otherwise expressly agreed in writing, 3Wave will have no obligation to store Client Data beyond any period specified in this agreement and 3Wave has no obligation to retain Client Data following 30 days after this Agreement terminates or expires. You (the Client) will have 30 days after this agreement terminates or expires in which to request a copy of its Client Data, which 3Wave will make available to You (the Client) in the same format maintained by 3Wave. You (the Client) represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to You (the Client) Data as may be necessary to permit the use contemplated under this Agreement. You (the Client) bears all responsibility and liability for the accuracy and completeness of Your (the Client's) Data and 3Wave’s access, possession and use of Your (the Client's) Data as permitted under this Agreement.

7.5 You (the Client) hereby consents to 3Wave analyzing, maintaining and grouping data, including all of Your (the Client's) Data, so long as the resulting data (the “Aggregated Data”) no longer identifiably references You (the Client) or an individual person. Notwithstanding this Agreement’s confidentiality provisions or any other wording in this Agreement, 3Wave owns the Aggregated Data and 3Wave and its affiliates may create, use, modify, disclose, sell and otherwise exploit Aggregated Data in any way they see fit and for any purpose, including the creation of derivative works.

7.6 Links to other sites: The Service may contain links to other sites that are not operated by 3Wave. If You (the Client) click on a 3rd party link, you will be directed to that 3rd party’s website. You (the Client) are strongly advised to review the policies and practices of any 3rd party site or service.

7.7 3Wave’s Service does not address anyone under the age of 18 (“children”).

3Wave does not knowingly collect personally identifiable information from anyone under the age of 18. If a parent or guardian is aware that a child or “minor“ has provided 3Wave with Personal Data, that parent or guardian will contact 3Wave. If 3Wave becomes aware that Personal Data from children without verification of parental consent has been collected, 3Wave will take steps to remove that information from its servers.

8. Security

8.1 3Wave will take measures that are commercially reasonable in light of the Fees paid by You (the Client) under this Agreement to keep the Platform, Services and Client Data secure.

8.2 You (the Client) will:

(a) take commercially reasonable measures to maintain the confidentiality and security of all usernames and passwords issued to You (the Client), and You (the Client) will be responsible for all activities conducted under their usernames and passwords;

(b) impose and maintain on all of its computer systems and equipment that You (the Client) uses to access and use the Platform and Services up-to-date industry-standard security measures; and

(c) immediately notify 3Wave in writing if it becomes aware of any unauthorized use of any username or any other security breach regarding the Platform or Services.

8.3 You (the Client) acknowledges and agrees that, as with all systems that permit file upload or transmission over the internet, the Platform and Services carry with them the risk that You (the Client) may send, receive, upload, download or transmit a file that contains Harmful Components, and that Harmful Components may damage You (the Client)’s computers, systems and electronic files, and may spread and damage other persons’ computers, systems and electronic files.

8.4 You (the Client) acknowledges and agrees that the Platform, Services and Documentation contain 3Wave’s proprietary and confidential information, and You (the Client) will use at least reasonable means to protect the Platform, Services and Documentation from unauthorized access, use or copying.

9. Additional Obligations and Restrictions

9.1 Client’s Responsibilities. In addition to You (the Client)’s other obligations under this Agreement, You (the Client) will:

(a) access and use the Website, Platform and Services in accordance with any operating instructions or procedures that 3Wave may issue or amend from time to time and with any policies posted on the Website from time to time;

(b) make reasonable efforts to report to 3Wave all Errors it discovers in the Platform or Services; and

(c) cooperate with 3Wave, respond to all reasonable requests from 3Wave in a timely way, and provide 3Wave with all reasonably requested information in a timely manner.

(d) will be of legal age in Your (the Client’s) country or territory.

9.2 Client’s Restrictions. You (the Client) will not, directly or indirectly, and will not permit others to:

(a) access and use the Website, Platform and Services in any manner or for any purpose not expressly specified in this agreement or otherwise consented to by 3Wave in writing;

(b) rent, resell, lease, lend, license, sub-license, allow access to, publish, transfer rights to or distribute the Platform or the Services;

(c) modify, translate, or create derivative works based on the Platform or Services;

(d) remove, interfere with, obstruct, delete or alter any proprietary notices or disclaimers contained in the Platform or Services (including on any Documentation relating thereto);

(e) use the Platform or Services in any manner contrary to applicable law;

(f) attempt to compromise, circumvent or invalidate any security device or protection for the Website, Platform or Services;

(g) unless expressly allowed by law, reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Platform or Services;

(h) upload to or transmit from or through the Platform or Services anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, harmful or invasive of anyone’s privacy, may violate any law (including copyright, trade-mark and privacy laws), or may give rise to civil or other liability;

(i) upload or transmit, or permit anything to be uploaded or transmitted, to the Platform or Services any data file or software that contains any Harmful Component;

(j) use the Platform or Services for spamming, other advertising, other bulk message transmission, or other similar activity objectionable to 3Wave in its sole discretion;

(k) attempt to access any of 3Wave’s systems, programs or data that are not licensed under this Agreement; or

(l) interfere with or attempt to interfere with the proper operation of the Platform and Services.

9.3 Unauthorized Use. You (the Client) will take reasonable measures to maintain the confidentiality and security of all usernames and passwords issued to You (the Client). If You (the Client) has been advised or becomes aware of any unauthorized use of the Platform or Services, You (the Client) will notify 3Wave immediately in writing, and will take all reasonable steps to stop such unauthorized use.

9.4 Accuracy of Information. You (the Client) acknowledges that the program will be tailored to You (the Client) based on information provided by You (the Client). You (the Client) agrees to provide accurate information to 3Wave when requested by 3Wave. You (the Client) acknowledges that any exercise program is subjective and based on the commitment of You (the Client). Results are not guaranteed.

10. Proprietary Rights

As between the parties, 3Wave and its licensors own all rights, title and interest (including all intellectual property rights) in and to all aspects of the Website, Platform and Services, including the software code and architecture, the graphical design and “look and feel” of the user interface and code libraries (including classes and functions). Without limiting the previous sentence, 3Wave shall have sole title and ownership of all work product previously held by 3Wave and created or developed by or for 3Wave in the provision of the Platform and Services and all intellectual property rights therein, including all copyrights, moral rights, patents, trademarks, trade names, service marks, design rights, database rights, rights to domain names, and other similar intellectual property rights (whether registered or not) and applications for such rights as may exist anywhere in the world.

11. Warranties

11.1 Support Services. Subject to section 11.5, 3Wave warrants that the Support services will be performed in a diligent, competent and professional manner using qualified personnel. If any Support service fails to conform to this warranty, 3Wave will re-perform the Support service. This is You (the Client)’s sole remedy for any breach of the warranty set out in this section 11.1.

11.2 Third-Party Products. 3Wave provides no warranties with respect to any third-party hardware, software, materials or products provided separately or incorporated into the Platform or Services (collectively, “Third-Party Products”). They are provided “as is”.

11.3 Platform. Subject to section 11.5, 3Wave warrants that:

(a) to the best of its knowledge, the Platform and Services do not contain any virus or disabling code that will adversely affect the operation of the Platform or Services; and

(b) the Platform and Services will perform substantially without Errors, provided that: (i) You (the Client) promptly notifies 3Wave of the Error after it is discovered; (ii) all Fees then due to 3Wave have been paid; and (iii) You (the Client) is not otherwise in breach of its obligations under this Agreement.

11.4 Warranty Remedy. If 3Wave breaches the warranty set out in section 11.3 then upon prompt written notification from You (the Client), 3Wave will either:

(a) cause the Platform and Services to perform substantially in accordance with 3Wave’s then-current Documentation by correcting Errors in accordance with section 4.2; or

(b) terminate the Agreement with 30 days’ advance notice without any further obligation to pay Fees.

You (the Client) acknowledges and agrees that this section 11.4 sets out You (the Client)’s sole and exclusive remedies, and 3Wave’s only obligations, under the warranty set out in section 11.3.

11.5 Exclusions. The warranties in section 11.1 and 11.3 do not apply, and 3Wave will not otherwise be responsible for any deficiencies or problems in the Platform or Services that arise due to:

(a) You (the Client)’s failure to use equipment, software and connections that comply with the System Requirements to access and use the Platform and Services;

(b) any Third-Party Products;

(c) any failure to use the Platform, Website or Services in accordance with the Documentation or from any misuse of the Platform, Website or Services;

(d) a modification or extension to the Platform, Website or Services made by anyone other than 3Wave or as 3Wave authorizes in writing;

(e) any Client Data;

(f) the combination of the Platform, Website or Services with any other software or hardware;

(g) any act or default of You (the Client); or

(h) if You (the Client) does not provide 3Wave with (i) any necessary access to the Platform, Website or Services, including remote access, (ii) sufficient test time and (iii) reasonable assistance.

12. Infringement Claims

12.1 Infringement Claims. Subject to the remainder of this section 12 and to the limitations in section 14.5, 3Wave will defend You (the Client) against, and pay the amount of any adverse final judgement (or settlement to which 3Wave consents) resulting from, any third-party claim during the Term that You (the Client)’s access to or use of the Platform or Services in accordance with this Agreement infringes any intellectual property right enforceable in Canada (each a “Claim”), provided that: (a) You (the Client) promptly notifies 3Wave in writing if any Claim is threatened or commenced; (b) 3Wave has sole control of the defence of the Claim and all negotiations for its settlement, and its settlement; and (c) You (the Client) provides reasonable assistance (at 3Wave’s expense) in the defence and settlement of the Claim.

12.2 Limitation. 3Wave has no obligations regarding any Claims based on or arising out of: (a) any use of the Platform or Services not in accordance with this Agreement or the Documentation; (b) use or combination of the Platform or Services with other products, equipment, software or data not supplied by 3Wave which but for such combination would not have given rise to the Claim; (c) any modification of the Platform or Services by any person or entity other than 3Wave or its agents or subcontractors authorized to make such modifications; (d) any activities of You (the Client) after 3Wave has notified You (the Client) that such activities may result in a Claim; or (e) You (the Client)’s negligence or intentional misconduct.

12.3 3Wave’s Options. If any Claim arises, 3Wave may in its sole discretion and at its sole expense: (a) procure the right to access and use the Platform and Services; (b) modify the Platform and Services so that they are not infringing, provided that the modifications do not materially impair the Platform’s and Services’ ability to conform to and perform in accordance with the Documentation; (c) replace the infringing portion of the Platform or Services with a non-infringing alternative with substantially similar functionality; or, if after reasonable commercial efforts 3Wave is unable to perform any of the foregoing alternatives, (d) 3Wave may terminate the Licence.

12.4 Sole Remedy. You (the Client) acknowledges and agrees that any defence and payment under section 12.1 will be You (the Client)’s sole and exclusive remedy against 3Wave with respect to any Claim.

13. Client Indemnity

You (the Client) hereby irrevocably and unconditionally agrees to indemnify, defend and hold fully harmless 3Wave, its affiliates, and their respective directors, officers, employees, agents and representatives from and against any and all third-party actions, proceedings, losses, damages, liabilities, obligations, costs, claims, charges and expenses, including legal counsel fees, suffered or incurred by any of those indemnified parties of whatsoever nature arising out of or in connection with: (a) You (the Client)’s use of the Platform and Services provided by 3Wave to You (the Client) under this Agreement; and (b) You (the Client)’s breach of any representation, warranty or covenant made under this Agreement.

14. Disclaimer and Limitation of Liability

14.1 Except as expressly stated in this Agreement, 3Wave provides the Platform and Services on an “as is” and “as available” basis, with all faults. To the fullest extent permitted by applicable law, 3Wave makes no, and expressly disclaims all, warranties, conditions, representations or guarantees of any kind, express, statutory or implied, regarding the Platform and Services, including those regarding merchantability, fitness for purpose, design, condition, quality, title or non-infringement. 3Wave does not warrant that the Platform and Services will meet You (the Client)’s requirements or that the performance and provision of the Platform and Services will be free from interruption, damage or error, that the results that may be obtained from the Platform and Services will be accurate or reliable, that errors in the Platform and Services will be identified and corrected, that the Platform and Services will operate in conjunction with equipment, third-party software or services that You (the Client) may obtain outside of this Agreement, or that the Platform and Services will not affect the usability of third-party software, applications or services. You (the Client) accesses and uses the Platform and Services at You (the Client)’s own discretion and risk, and is solely responsible for any consequences of such access and use.

14.2 Without limiting the previous paragraph, You (the Client) acknowledges that security risks cannot be eliminated and that the internet is not a secure medium. 3Wave does not represent or warrant that any Client Date stored on the Platform, or messages sent or received through the Platform and Services by You (the Client), are free of Harmful Components and does not represent or warrant that any data or electronic messages transmitted to, from or through the Platform or Services will be received in a timely way or at all.

14.3 You (the Client) acknowledges that 3Wave will not be bound by any representations, warranties, conditions or guarantees, whether express or implied by law or custom, other than those explicitly set out in section 11 or elsewhere in this agreement.

14.4 Without limiting the other provisions of this section 14, 3Wave will not be responsible for any deficiencies or problems in the Platform or Services that arise due to:

(a) You (the Client)’s failure to use equipment, software and connections that comply with the System Requirements;

(b) any third-party hardware, software, materials or products provided separately or incorporated into the Platform and Services;

(c) any failure to use the Platform and Services in accordance with 3Wave’s Documentation or from any misuse of the Platform and Services;

(d) a modification or extension to the Platform or Services made by anyone other than 3Wave or as 3Wave authorizes in writing;

(e) any Client Data;

(f) the combination of the Platform or Services with any other software or hardware; or

(g) any act or default of You (the Client), employees, contractors or agents.

14.5 Limitation of Liability.

(1) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, FOR (a) LOST PROFITS, BUSINESS, OPPORTUNITIES, OR REVENUES OF ANY KIND, (b) LOST SAVINGS; (c) LOST SOFTWARE OR DATA; (d) LOSS OF USE OF HARDWARE, SOFTWARE, PLATFORMS OR DATA; OR (e) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT LOSS OR DAMAGE; WHETHER THAT LIABILITY IS ASSERTED ON THE BASIS OF INDEMNITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(2) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL 3WAVE’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY 3WAVE UNDER THIS AGREEMENT DURING THE CALENDAR YEAR IN WHICH YOU (THE CLIENT) MAKES ITS FIRST CLAIM FOR DAMAGES.

15. Term, Termination and Suspension

15.1 Term. This Agreement and the Licence will commence on the date of acceptance of this Agreement by You (the Client) (the “Effective Date”) and will continue for an initial term of 1 month, unless terminated earlier under section 15.2. This Agreement will automatically renew for subsequent one-month renewal terms unless either party gives the other party written notice of non-renewal prior to the end of the then-current term. (The initial term and any renewal terms are collectively the “Term”.)

15.2 Early Termination. 

(1) For failure to pay: 3Wave may terminate this Agreement immediately upon written notice if any payment is overdue and You (the Client) fails to pay the outstanding amount in full within 10 days after 3Wave’s written demand to do so.

(2) For cause: Either party may terminate this Agreement immediately upon written notice to the other party if: (a) the other party breaches any of its material obligations under this agreement and fails to remedy the breach within 30 days after receiving notice of the breach; or (b) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property.

(3) For convenience by 3Wave: 3Wave may terminate this Agreement at any time and for any reason upon 30 days’ notice to You (the Client).

15.3 Actions on Termination/Expiration. Upon this Agreement’s termination or expiration for any reason: (a) the Licence will automatically terminate; (b) You (the Client)’s right to access and use the Platform and Services will immediately terminate and Client will immediately cease all access to and use of the Platform and Services; (c) You (the Client) will immediately pay all sums owing to 3Wave and all reasonable out-of-pocket expenses that 3Wave incurs or will incur under its contractual relationships with third parties in connection with the Platform and Services; and (d) sections 5.4, 7.5, 9.2, and 15.3, and 10 (Proprietary Rights), 13 (Client Indemnity), 14 (Disclaimer and Limitation of Liability) and 16 (General), and all other provisions necessary to give effect thereto, will survive this Agreement’s expiration or termination.

15.4 Suspension. Without limiting any of 3Wave’s other available rights or remedies, if any act or omission of You (the Client) gives rise to a breach or potential breach of this Agreement then 3Wave may, acting reasonably, immediately suspend You (the Client)’s rights to access and use the Platform and Services pending 3Wave’s investigation of the breach or suspected breach and implementation of a resolution satisfactory to 3Wave, and any such suspension will in no way give rise to any right of termination by You (the Client) nor any claim by You (the Client) for breach of 3Wave’s obligations under this Agreement

16. General

16.1 Notices

(1) All notices required by this agreement shall be in writing and shall be sent by facsimile transmission, or delivered in person or by prepaid courier, or mailed by certified or registered mail, return receipt requested, with postage prepaid. Notice shall be addressed to the parties at the addresses first written above.

(2) All notices so sent shall be deemed to have been received by the recipient on the date of the facsimile transmission, or on the date of delivery or on the second business day following the mailing thereof, whichever is applicable. The above address of either 3Wave or You (the Client) may be changed by giving the other party written notice of the new address.

(3) If postal service is interrupted, or threatened to be interrupted, or is substantially delayed, any notice shall only be sent by facsimile transmission or delivered by courier.

16.2 Force Majeure. Neither party will be held responsible for damages caused by delay or failure to perform its obligations under this Agreement (other than its payment obligations) to the extent caused by events or circumstances beyond the non-performing party’s reasonable control.

16.3 Partial Severability. If any part of this agreement is held or rendered invalid or illegal, the remainder of this agreement continues to apply.

16.4 Waiver. 3Wave’s failure to enforce, on any one or more occasions, any of the terms or conditions of this Agreement, will not be construed as a waiver of the future performance of any such terms or conditions

16.5 Headings. The headings in this agreement are for convenience only and shall not in any way limit or be deemed to construe or interpret the terms and provisions of this agreement.

16.6 Representations. Each party hereby represents and warrants to the other party that (i) it has the power and authority to enter into this Agreement; and (ii) it is not subject to any other agreement that would conflict with its ability to perform its obligations under this Agreement.

16.7 Reference. You (the Client) will act as a customer reference for 3Wave. 3Wave may refer to You (the Client) as a customer in 3Wave’s promotional materials, including on 3Wave’s website, and may use You (the Client)’s name and logo for that purpose.

16.8 Time of the Essence. Time is of the essence of this agreement and of all provisions of it.

16.9 Governing Law; Jurisdiction. This Agreement will be performed and interpreted in accordance with the laws of the province of British Columbia (and the federal laws of Canada applicable therein), without regard to conflict of laws principles, and the parties hereby irrevocably submit to the exclusive jurisdiction of the British Columbia courts, provided that 3Wave may apply to a court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction.

16.10 Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties with regard to the matters herein, and replaces any and all prior agreements and understandings, whether written or oral, in any way relating to the subject matter of this agreement. This Agreement does not and will not include any representation, promise, warranty or duty, implied or otherwise, other than those expressly set out herein. This Agreement cannot be modified except in writing signed by each of the parties

16.11 Assignment. 3Wave may at any time assign this agreement or any of its rights under it to a third party. You (the Client) may not assign or license this Agreement or any of its rights or obligations under this Agreement to any third party without 3Wave’s prior written consent.

16.12 Enurement. This agreement shall enure to the benefit of and be binding on the parties and their respective heirs, executors, successors and assigns.

16.13 Counterparts. This Agreement may be signed in counterparts, by fax or pdf, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.

17. Risk

YOU (THE CLIENT) ARE AWARE AND FULLY UNDERSTAND THAT ANY PHYSICAL ACTIVITY INVOLVES MANY RISKS, DANGERS AND HAZARDS, INCLUDING BUT NOT LIMITED TO THE RISK OF SERIOUS INJURY, DEATH OR PROPERTY DAMAGE. YOU (THE CLIENT) ACKNOWLEDGE THAT YOU (THE CLIENT) ARE VOLUNTARILY PARTICIPATING IN THE SERVICES & ACTIVITIES PROVIDED BY 3WAVE. YOU (THE CLIENT) FREELY ACCEPT AND FULLY ASSUME ANY AND ALL OF THE RISKS, DANGERS AND HAZARDS INVOLVED AND THE POSSIBILITY OF INJURY, DEATH OR PROPERTY DAMAGE, WHETHER CAUSED BY THE NEGLIGENCE OF 3WAVE OR OTHERWISE.

By clicking “Accept” You (the Client) are agreeing to all of the terms and conditions set forth in this binding document.