END-USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING ANY MATERIALS OR ACCESSING THE LICENSED PLATFORM (AS DEFINED BELOW)
THIS END-USER LICENSE AGREEMENT (this “Agreement”), effective as of at the date of subscribing and pressing “I Agree”, downloading any materials from, or accessing the Licensed Platform (the “Effective Date”), is made and entered into by and between Jeffrey R. Manishen Professional Corporation, a company duly incorporated under the laws of Ontario, with its registered office at 1 King Street West, 10th Floor, Hamilton, Ontario, L8P 1A4, Canada (“JMPC”), and an individual or single entity (You, the “Customer”)
(hereinafter, JMPC and Customer are each individually a “Party” and collectively referred to as the “Parties”).
WHEREAS JMPC operates a subscription website currently located at <www.goodcounselonline.com> (the “Website”) used to deliver its educational services (the “Licensed Platform”) that is made available to legal professionals to access JMPC’s trial advocacy course (the “Course”), including audio-visual and written content as well as community discussion boards;
AND WHEREAS the Customer is prepared to purchase access to and make use of the Licensed Platform in accordance with the terms of this Agreement;
AND WHEREAS this Agreement describes the entire business and legal relationship between JMPC and the Customer regarding the Customer’s utilization of the Licensed Platform;
NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1) Acces to Licensed Platform.
Subject to the terms and conditions of this Agreement, JMPC agrees to provide Customer with access to the Licensed Platform for the full term of this Agreement in exchange for the Subscription Fees stated in section 4.
2) License Grant.
JMPC hereby grants to Customer, subject to all of the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable and revocable license for access to the Licensed Platform via the Internet and to use the Licensed Platform solely in accordance with the terms set out in this Agreement.
3) License Restrictions.
Customer shall not, directly or indirectly:
a. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Licensed Platform.
b. reproduce, modify, translate or create derivative works based on the Licensed Platform or any content contained on, or accessible from, the Licensed Platform;
c. rent, lease, distribute, sell, resell, assign or otherwise transfer rights to the Licensed Platform or any content contained on, or accessible from, the Licensed Platform;
d. use the Licensed Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party;
e. remove any proprietary notices from the Licensed Platform or any content contained on, or accessible from, the Licensed Platform;
f. publish or disclose to third parties any user interface or evaluation of the Licensed Platform without JMPC’s prior written consent; or
g. create any link to the Licensed Platform or frame or mirror any content contained on, or accessible from, the Licensed Platform, other than what is specified in this Agreement.
4) Subscription Fees and Payments.
a. Customer shall make a payment of Subscription Fees based on the plans outlined in Schedule “A” attached hereto.
b. JMPC may, in its sole discretion. increase the Subscription Fees and/or amend any or all of the individual plans set forth in Schedule “A” on thirty (30) days’ prior notice to Customer.
c. Customer authorizes JMPC to charge Customer’s credit card entered into the platform at the Activation Date (as defined in section 12 (b) below) or such other credit card as Customer may enter into the platform after that date for any payments that are due and owing to JMPC by Customer under this Agreement. The Parties hereby agree to the following:
i. the applicable Subscription Fees:
1. with respect to the Initial Term shall be charged to the credit card Customer has entered into the platform immediately upon clicking “Enroll Now”; and
2. with respect to any Renewal Term shall be invoiced and shall be charged to the credit card Customer has entered into the platform fifteen (15) days prior to the commencement of such Renewal Term.
ii. Customer must contact JMPC in writing no later than seven (7) days after payment is made to report a billing error;
iii. all Subscription Fees are stated in Canadian currency and are exclusive of applicable provincial and federal sales and goods and services taxes;
iv. Customer shall be responsible for the payment of any taxes, duties or tariffs applicable to the products or services provided under this Agreement;
v. Customer shall be responsible for updating the credit card information they have entered into the platform and shall update their credit card information in the event of any changes to the credit card account, including, without limitation, applicable account number, cancellation or expiration of the account, billing address, or any other information that may prevent JMPC from charging the account; and
vi. if JMPC does not receive payment from the card issuer, Customer will pay all amounts due, upon demand by JMPC.
5) Copyright and Intellectual Property.
Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any intellectual property rights or other rights, title or interest in or to the Licensed Platform or to any content contained on, or accessible from, the Licensed Platform.
6) User Content License.
Customer acknowledges that certain content shared, posted, or uploaded to the Licensed Platform by Customer, including written contributions made to the community discussion forums (“User Content”), may be protected by intellectual property laws. Notwithstanding section 5 of this Agreement, as between Customer and JMPC, Customer shall own all intellectual property rights in any User Content. Customer hereby grants JMPC an exclusive, worldwide, non-transferable, sublicensable, irrevocable, royalty-free license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such User Content, subject only to JMPC’s compliance with its privacy obligations. Customer hereby waives all moral rights in respect of such User Content in favour of JMPC and its sublicensees.
7) Customer Obligations.
a. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to internally access the Licensed Platform, and for paying all third-party access charges (e.g., Internet Service Providers) incurred while using the Licensed Platform
b. Customer shall be solely responsible for its actions and the actions of its users while using the Licensed Platform and for the contents of its transmissions through the Licensed Platform. In particular, Customer agrees:
i. to abide by all local and international laws and regulations applicable to Customer’s use of the Licensed Platform, including, without limitation, all laws regarding the transmission of technical data exported from Canada through the Licensed Platform;
ii. not to upload or distribute in any way files that contain viruses, corrupted files or any other similar software or programs that may damage the operation of the Licensed Platform or a third party’s computer;
iii. not to use the Licensed Platform for illegal purposes;
iv. not to interfere with or disrupt networks connected to the Licensed Platform;
v. not to post, promote or transmit through the Licensed Platform any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically, or otherwise objectionable material of any kind or nature;
vi. not to transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability; and
vii. to comply with all regulations, policies and procedures of networks connected to the Licensed Platform.
c. Customer acknowledges and agrees that JMPC neither endorses the contents of any Customer communications nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, nor infringement of third-party intellectual property rights arising therefrom or any crime facilitated thereby. JMPC may remove content that violates the terms of this Agreement or that JMPC determines, in its sole discretion, to be irrelevant to the Course.
8) Customer Data and Privacy.
a. As between the Parties, Customer shall own all data, information or material that Customer enters into the Licensed Platform or has entered on its behalf (“Customer Data”). Customer acknowledges and agrees that all Customer Data, with the exception of data, information or material entered for the purpose of subscribing to the Licensed Platform or paying the Subscription Fees, will be visible to and accessible by other users of the Licensed Platform and, as such, cannot be regarded as being and will not be treated as confidential information. CUSTOMER AGREES NOT TO ENTER INTO THE LICENSED PLATFORM ANY DATA, INFORMATION OR MATERIAL THAT IS PRIVILEGED OR CONFIDENTIAL, INCLUDING, WITHOUT LIMITATION, ANY SUCH PRIVILEGED OR CONFIDENTIAL DATA, INFORMATION OR MATERIAL RESPECTING CUSTOMER’S CLIENTS.
b. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data, and JMPC assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Licensed Platform to store any Customer Data.
c. JMPC reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post or transmit on or through the Licensed Platform. Customer shall be responsible for maintaining an archive or back-up copy of all Customer Data, and JMPC shall have no liability for any loss of Customer Data, whether caused by JMPC or any third-party service provider.
d. Customer shall be responsible for compliance with all obligations imposed by the Canadian government, any implementing or amending legislation as may be enacted from time to time, and all obligations imposed by any governing body to which Customer belongs, and Customer shall indemnify, defend and hold JMPC harmless from and against any third-party claims against JMPC resulting from the use and disclosure by the Licensed Platform of personal information consistent with the terms of this Agreement.
9) JMPC’s Obligations.
a. JMPC agrees to comply with all applicable privacy laws and regulations, including, without limitation, the Personal Information and Electronic Documents Act and any applicable provincial health information privacy laws such as Ontario’s Personal Health Information Protection Act in the handling of personal health information.
b. Where Customer has subscribed to the Licensed Platform on either the Pro or Enterprise tier subscription plans, as set out in Schedule A of this Agreement, JMPC shall, within three business days of the Activation Date, reach out to Customer at the email address entered into the Licensed Platform on the Activation Date to:
i. schedule a date and time for Customer’s consultation or workshop with Jeffrey Manishen, as the case may be; and
ii. provide further information and assistance relating to the process for setting up individual user profiles for Customer’s employees, if applicable under Customer’s subscription plan.
10) Maintenance Support Services.
a. During the term of this Agreement, JMPC shall provide the Customer with support services for the Licensed Platform. which shall comprise the following:
i. email support consisting of email access to JMPC and a response;
ii. direct support consisting of the following services:
1. the creation and upload to the Licensed Platform, from time to time, at JMPC’s sole discretion, patches and fixes in respect of the Licensed Platform;
2. the diagnosis of errors in the Licensed Platform and the rectification of such errors by the issue of patches or fixes and the making of all consequential amendments to the Licensed Platform, if any;
3. any other services offered to Customer by JMPC from time-to-time which JMPC may, at its sole discretion, designate as support services; and
4. the issue of new releases of the Licensed Platform.
b. Support services shall not include the diagnosis and rectification of any errors resulting from:
i. any modification of the Licensed Platform made by any person other than JMPC;
ii. minor defects in the Licensed Platform which do not significantly affect or impair the use of the Licensed Platform;
iii. any incorrect or improper use of the Licensed Platform;
iv. any violation of the Terms of Use, as may be updated from time-to-time;
v. the failure by Customer to implement recommendations in respect of any solutions to errors previously advised by JMPC; or
vi. the use of the Licensed Platform for any purpose for which it was not designed.
c. During the term of this Agreement, Customer shall:
i. provide JMPC, so far as Customer is able, with a documented example of any error in respect of which a request for diagnosis and rectification has been made under this Agreement;
ii. cooperate fully with JMPC’s personnel in the diagnosis of any error in the Licensed Platform and perform such tests of the Licensed Platform as JMPC shall request in the evaluation of any request for support services by Customer;
iii. ensure that the Licensed Platform is used in a proper manner by Customer and its designated employee users; and
iv. save as otherwise expressly provided in this Agreement, not make any translation, adaptation, arrangement or any other alteration of the Licensed Platform or make any reproduction, distribution, communication, display or performance to the public of the results of such acts.
11) Passwords and Security.
a. JMPC shall issue to Customer a password for each user authorized to use Customer’s account for whom Customer has paid the applicable Subscription Fees. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities under the Customer's account. Customer agrees to immediately notify JMPC of any unauthorized use of Customer’s account or any other breach of security known to Customer. JMPC shall have no liability for any loss arising from Customer’s failure to comply with these requirements. JMPC will maintain Customer passwords are confidential and will not disclose them to third parties.
b. JMPC will maintain the Licensed Platform at a reputable third-party Internet service provider and hosting facility, where it is subject to commercially reasonable security precautions to prevent unauthorized access to the Licensed Platform. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Licensed Platform. Accordingly, JMPC cannot and does not guarantee the privacy, security or authenticity of any data transmitted over the Internet.12) Term and Termination.
12) Term and Termination.
a. The term of this Agreement is set up in the JMPC platform and commences on the Activation Date for a period of one (1) year (“Initial Term”). This Agreement will renew automatically on each anniversary of the Activation Date for successive one-year periods (“Renewal Term”) until such time as the Licensed Platform is taken offline, unless earlier terminated in accordance with the terms of this Agreement or Customer delivers notice to JMPC of Customer’s intention not to renew this Agreement.
b. The Activation Date for use of the Licensed Platform by Customer under this Agreement shall be the date of payment of the Subscription Fees in respect of the Initial Term made on the platform.
c. Any termination of this Agreement pursuant to this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
d. JMPC shall be entitled to terminate this Agreement upon breach by Customer of any of the terms contained herein.
e. JMPC shall be entitled to terminate this Agreement after giving its customers three (3) months’ notice of the fact that the Licensed Platform will be taken offline.
13) Warranties.
a. JMPC warrants that it is either the sole owner of the Licensed Platform and any content contained on, or accessible from, the Licensed Platform, or has the right to sublicense the same in accordance with this Agreement.
b. JMPC represents and warrants that, to the best of its knowledge, without having conducted searches and without seeking professional opinions, the Licensed Platform and any content contained on, or accessible from, the Licensed Platform do not infringe the intellectual property rights of any third party. Should JMPC receive written notice of any such allegations of infringement, it shall immediately notify Customer thereof.
c. JMPC does NOT warrant that the functionality of the Licensed Platform will meet Customer’s requirements, nor that the Licensed Platform will run uninterrupted or error-free. JMPC is NOT responsible for the results of Customer’s use of the Licensed Platform or for any action taken by Customer or third parties on the basis thereof.
d. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14) Indemnifications.
a. Customer agrees to defend, indemnify and hold JMPC, its parent, subsidiaries, officers, directors, employees, successors and assigns harmless from any claim, demand, damages, costs and expenses, including reasonable legal fees, arising from any third-party claim against JMPC due to or arising out of:
i. any use of the Licensed Platform by Customer, its affiliates, employees, agents, successors and assigns other than in accordance with this Agreement;
ii. any breach of this Agreement by Customer, its affiliates, employees, agents, successors and assigns; or
iii. any unauthorized modification of the Licensed Platform by Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.
15) Limitation of Liability.
a. In no event shall JMPC be liable for direct damages arising out of this Agreement, whether arising under contract, tort, strict liability, breach of warranty or otherwise, in amounts greater than the total Subscription Fees paid by Customer in accordance with section 4. In no event shall JMPC be liable for special or consequential damages, for loss of profits, use, data, or other intangible property, even if JMPC has been advised of the possibility of such damages and notwithstanding the failure of any essential Purpose.
b. NONE OF THE INFORMATION PROVIDED ON OR THROUGH THE LICENSED PLATFORM CONSTITUTES LEGAL OR PROFESSIONAL ADVICE, SHOULD NOT BE CONSTRUED AS SUCH AND MAY NOT BE RELIED UPON AS SUCH. IN NO EVENT SHALL JMPC BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF CUSTOMER’S RELIANCE ON ANY SUCH INFORMATION OR FOR ANY ACTION TAKEN BY CUSTOMER ON THE BASIS THEREOF.
16) Notices.
All notices to a Party shall be in writing and sent to the address specified in this Agreement or provided by Customer at the Activation Date and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
17) General.
a. This Agreement, together with all appended schedules and documents specifically incorporated by reference herein, constitutes the entire agreement between the Parties, and supersedes any and all previous representations, agreements, or understandings, whether written or oral and whether expressed or implied.
b. This Agreement shall be binding on and shall enure to the benefit of the Parties hereto and their respective successors and permitted assigns. Except with respect to wholly owned affiliates, Customer may not assign this Agreement without JMPC’s prior written consent, not to be unreasonably withheld. JMPC may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and JMPC may subcontract any or all of its obligations hereunder but shall nevertheless remain responsible for the performance of its obligations hereunder.
c. This Agreement may not be modified or amended unless such modification or amendment is made in writing and signed by both of the Parties.
d. This Agreement and any disputes arising out of or in relation to this Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the Province of Ontario and the federal laws of Canada applicable therein. The Parties agree that any action arising out of or in relation to this Agreement shall be initiated in the courts of the Province of Ontario. Customer agrees that any cause of action it may have, arising out of or in relation to this Agreement, shall be brought within one (1) year after the cause of action arose, otherwise, such cause of action shall be permanently Barred.
e. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision herein contained.
f. No waiver of any default, condition, or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition, or breach of this Agreement, whether of a similar nature or otherwise.
g. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision herein and such invalid or unenforceable provision shall be deemed to be severed from the remainder of this Agreement.
h. Neither Party shall be in default of their failure to perform any obligation under this Agreement if such failure is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labour disputes, third-party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism, or governmental demands or requirements.
i. By pressing “I Agree”, downloading any materials from, or accessing the Licensed Platform, you are indicating that you are authorized to execute this Agreement on behalf of the Customer and the Customer is agreeing to be bound by the terms and conditions of this Agreement. If you do not have such authority and/or the Customer is not prepared to agree to the terms and conditions of this Agreement, you must not press “I Agree”, download any materials from, or access the Licensed Platform.
Subscription Fees
SCHEDULE “A”
1. The Customer shall have the option to enroll in the Licensed Platform through any of the following subscription models:
2. Anticipating the start of each subsequent Renewal Term, the Customer is obligated to remit an annual access fee as follows:
a. $0.00 for those who have selected a subscription to the Licensed Platform under the Pro or Essential tiers; or
b. $0.00 for every individual user profile if the Customer has elected to subscribe to the Licensed Platform via the Enterprise model.