BackPocket Knowledge Corp. - Subscriber Agreement

BackPocket Knowledge Corp. (“BackPocket”, “we”, “us”, “our”) provides a technology platform whereby the subscriber (“Subscriber”, “you”, “your”) may obtain information and seek advice on marketing and business matters from BackPocket advisors (“BackPocket Advisors”) in real-time (together, the “BackPocket Service” or “Service”). 

1. Acceptance:

By registering, paying or otherwise using the BackPocket Service, website or software applications, or accessing any content or material that is made available by BackPocket through the Service, website or software applications (the “Content”), you are entering into a binding contract with BackPocket.

Your agreement with BackPocket includes this Subscriber Agreement, our Terms and Conditions of Use [https://yourbackpocket.co/terms-conditions], our Privacy Policy [https://yourbackpocket.co/privacy-policy], as amended by BackPocket in its sole discretion from time to time, and any additional terms that you agree to from time to time (collectively, the “Agreements”). You acknowledge that you have read and understood the Agreements, accept these Agreements and agree to be bound by them. If you do not agree with (or cannot comply with) the Agreements, then you may not use the Service or the Content.

When we make material changes to the Agreements, BackPocket will provide you with prominent notice as appropriate under the circumstances, e.g. by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through the Customer Contact Form [https://yourbackpocket.co/contact]

You hereby accept the terms and conditions herein with respect to all aspects of the Service selected by you from time to time through the BackPocket website or otherwise.

Please read the Agreements carefully. They cover important information about BackPocket Services provided to you and any charges, taxes and fees we bill you.

2. Rights Granted:  

The BackPocket Service and the Content are the property of BackPocket or BackPocket’s licensors. Subject to the terms and conditions of the Agreements, BackPocket grants you a limited, non-exclusive, revocable licence to make use of the BackPocket Service, and a limited, non-exclusive license to make personal, non-commercial use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or BackPocket.

The BackPocket software applications and the Content are licensed, not sold, to you and BackPocket and its licensors retain ownership of all copies of the BackPocket software applications and Content even after installation or download thereof on personal computers, mobile handsets, tablets, and/or other devices (“Devices”).

All BackPocket trademarks, service marks, trade names, logos, domain names, and any other features of the BackPocket brand (“Brand Features”) are the sole property of BackPocket or its licensors. The Agreements do not grant you any rights to use any Brand Features whether for commercial or non-commercial use. Except for the rights expressly granted to you in these Agreements, BackPocket grants no right, title, or interest to you in the BackPocket Service or Content and you agree to not use the BackPocket Service, Content or any part thereof in any manner not expressly permitted by the Agreements.

 3. Restrictions on Use of Services:  

(a)        The Service is provided solely and exclusively for your use on a subscription or pay-per-use basis set forth on BackPocket Fees [https://yourbackpocket.co/pricing]. You shall not provide access or use of the service to other persons or entities.

(b)        You may not remarket or sublicense the Service nor in anyway grant rights to the Service to any other party.

(c)         You shall not save or permit any third party from saving the Content, data or other output from the Service for the purposes of data aggregation or dissemination.

(d)       You shall not alter the contents or format of the Service nor merge it with other data or reports for commercial resale.

4. Subscriber Responsibilities:  

(a)         You shall be responsible for acquiring, installing, operating and maintaining, at your own risk and expense, computer(s), any communications facilities and communications equipment, or software required to access the Service from the internet.

(b)        You shall be responsible for protecting the user identification code/user name (“UIC”) and associated password provided by BackPocket from unauthorized disclosure or use. You shall immediately notify BackPocket of any unauthorized use of the UIC or other security breach relating to the Service.

(c)         You shall be responsible for ensuring that the restrictions on use of the Service are followed.

(d)        You shall cooperate with BackPocket and other authorities in the investigation of suspicious or potentially illegal use of the Service.

(e)         You shall pay BackPocket’s fees and charges as posted on BackPocket Fees [https://yourbackpocket.co/pricing] or as separately agreed between the parties. You shall be liable for all charges incurred from the use of your UIC and confidential password whether authorized by you or not.

(f)         You are solely responsible for ensuring the accuracy and completeness of any electronic forms or other input prepared and submitted by you through the Service.

5. Charges and Fees:  

(a)         The fees for the Service (the “Fees”) are posted on BackPocket Fees [https://yourbackpocket.co/pricing]. Unless otherwise specifically stated, fees quoted by BackPocket do not include applicable taxes. Unless you are exempt from taxation and you provide reasonable proof to BackPocket of such exemption, you hereby agree to pay all applicable taxes on the charges and fees payable under this Subscriber Agreement.

(b)        You shall pay the Fees for the Service selected by you, using the method indicated on your application to open an account. You authorize BackPocket to process credit card transactions pursuant to the payment information you provided for any applicable charges incurred against your BackPocket account.

(c)        You shall pay any costs incurred by BackPocket in collecting any amount owed by you, including bank charges, collection fees and reasonable legal fees.

(d)          BackPocket may change the price of the Fees. Price changes for monthly or annual subscriptions (the “Subscription Accounts”) will be communicated to you in advance and, if applicable, how to accept those changes. Price changes for Subscription Accounts will take effect at the start of the next subscription period following the date of the price change. You accept the new price by continuing to use BackPocket Service after the price change takes effect. If you do not agree with the price changes you have the right to reject the change by unsubscribing from the BackPocket service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully. 

(e)        If any function of the Service, used in accordance with the applicable instructions, fails to function through no fault of your own then BackPocket will permit you to repeat the failed function. If you are charged for the failed function and BackPocket is unable to rectify the problem within fifteen (15) days, then upon receiving a written request BackPocket shall rebate the charges made by BackPocket to you. BackPocket will not provide a rebate or refund under any other circumstances for charges incurred against your BackPocket account for use of the Service.

6. Release of Information:  

(a)        You hereby authorize and warrant that you have authority to release to BackPocket for usage in providing the Service and as set out in paragraph 6(b) (to which uses you hereby consent to), all pertinent information related to users of the Service, including:

i) User’s company name, address and website;

iii) User’s name, contact information and address; and   

ii) Any other information released in respect of the user’s business or business operations.

The authorization and warrant includes and relates to any permission required under any applicable information or privacy legislation anywhere in Canada.

(b)        You authorize BackPocket to disclose or share any information collected hereunder to authorized third parties, including but not limited, to BackPocket Advisors who may be acting in their capacity as independent contractors, for the purpose of delivering the Service. Third parties who receive information collected under subsection 6(a)(iii) from BackPocket for the purpose of delivering the Service shall only receive such information upon executing an intellectual property and confidential information agreement setting forth their obligations with respect to the protection and non-disclosure of such information, subject to certain exceptions.

 7. Indemnification: 

You agree to indemnify and save harmless BackPocket, its officers, directors, employees, consultants, agents and suppliers from and against all claims, demands, losses, costs, damages, actions, suits, or other proceedings by any person made, sustained, brought or prosecuted in any manner based upon or attributable to anything done or omitted to be done by the Subscriber or its officers, directors, employees, agents and contractors in connection with your obligations under the Agreements.

8. WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITIES:  

(a) Subject to this Section 8, BackPocket warrants that it has the right to grant the right to use the BackPocket Service.

(b)  The Content or any other data obtained using the Service shall be obtained from BackPocket Advisors who act as independent contractors to BackPocket.

BACKPOCKET DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, CONTENT AND DATA, INCLUDING THOSE OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT FUNCTIONALITY AND PERFORMANCE OF THE SERVICE OR THE QUALITY OF THE CONTENT WILL MEET SUBSCRIBER’S  REQUIREMENTS. BACKPOCKET PROVIDES THE SERVICE, CONTENT AND ALL DATA “AS IS”, AND DOES NOT WARRANT THAT THE SERVICE OR THAT THE OPERATION OF THE SERVICE WILL BE:

A) UNINTERRUPTED, OR

B) FREE FROM LIBELOUS CONTENT OR CONTENT WHICH IS AN INVASION OF PRIVACY, OR

C) IDENTICAL TO THE ORIGINAL SOURCE FROM WHICH THE DATA WERE OBTAINED, OR

D) ACCURATE, OR

E) COMPLETE, OR

F) CURRENT, OR

G) FREE FROM ANY SOFTWARE VIRUS OR OTHER HARMFUL COMPONENT.

(c)         BACKPOCKET SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACTS OR OMISSIONS IN PROVIDING THE SERVICE, AND/OR PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE CONTENT, BY BACKPOCKET, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS AND SUPPLIERS.

(d)        BACKPOCKET SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF THE SUBSCRIBER OR OF ANY THIRD PARTY CLAIMED AGAINST THE SUBSCRIBER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS, HOWEVER DERIVED, EVEN IF BACKPOCKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(e)         THE EXPRESSION “BACKPOCKET” IN THIS SECTION SHALL BE DEEMED TO INCLUDE ANY LICENSORS OR THIRD-PARTY CONTRACTORS TO BACKPOCKET AND ITS AFFILIATES, AND ALL PROVIDERS OF CONTENT OR DATA THROUGH BACKPOCKET TO THE SUBSCRIBER.

(f)        IF ANY PART OF THE SERVICE MALFUNCTIONS OR FAILS TO OPERATE PROPERLY OR IF THERE IS AN INTERRUPTION OF ACCESS OR OTHER DELAY, THEN SUBSCRIBER’S EXCLUSIVE REMEDY SHALL BE THE RESUBMISSION OF THE FAILED OR MALFUNCTIONING TRANSACTION.

(g)        IN NO EVENT SHALL BACKPOCKET, ITS AFFILIATES AND/OR CONTRIBUTORS BE LIABLE TO SUBSCRIBER FOR ANY CLAIM(S) RELATING IN ANY WAY TO SUBSCRIBER’S INABILITY OR FAILURE TO PERFORM THE WORK OR BUSINESS ACTIVITIES OF THE SUBSCIRBER, EVEN IF ASSISTED BY BACKPOCKET, ITS AFFILIATES OR CONTRIBUTORS, OR FOR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE UPON THE CONTENT, DATA OR THE SERVICE.

9. Termination/Revocation of Rights:  

(a) BackPocket may terminate this Agreement, including Subscriber’s rights to use the Service, effective immediately:

i. If the Subscriber commits any default or breach of Article 3 (Restrictions on Use of Service); or

ii. If the Subscriber fails to pay any monies due on the due date or neglects or fails to perform or observe any other provision of the Agreement, which is not cured within thirty (30) calendar days following written notice from BackPocket; or

iii. If Subscriber becomes insolvent or voluntarily bankrupt; if an involuntary petition in bankruptcy against Subscriber is not dismissed within ninety (90) calendar days of filing; if a receiver assignee or other liquidating officer is appointed for all or substantially all of Subscriber’s business; if Subscriber makes an assignment for the benefit of creditors; or, if Subscriber ceases to carry on business in the normal course.

(b)  Subscriber may terminate this Agreement for convenience at any time upon written notice to BackPocket.

(c)  BackPocket may terminate this Agreement for convenience upon ninety (30) calendar days’ notice to a Subscriber with a Subscription Account.

(d)  BackPocket may terminate this Agreement at any time should it receive regulations, directives or similar instructions from a governmental authority or other agency requiring it to cease offering or amend its Service such that it is no longer able to provide the Service in a commercially reasonable manner.

(e)  Upon termination Subscriber shall remit all monies owing to BackPocket and shall cease using the UIC and password provided to it by BackPocket. BackPocket shall disable the UIC and password of Subscriber to prevent further use.

10. General:  

(a) Governing Law – This Agreement shall be governed by and construed in accordance with the substantive laws in force of the Province of Ontario, Canada, without regard to its rules or laws in respect of the conflict of laws, and the federal law of Canada applicable in Ontario.

(b) Arbitration

(b.1) Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to:

i) this Agreement,

ii) the Service or Content,

iii) oral or written statements, advertisements or promotions relating to the Agreements or to the Service or Content, or

iv) the relationships which result from this Subscriber Agreement (including relationships with third parties who are not signatories to this Agreement) (collectively the “Claim”), will be referred to and determined by arbitration (to the exclusion of the courts). Subscriber agrees to waive any right Subscriber may have to commence or participate in any class action against BackPocket and any Affiliate (hereinafter defined) related to any Claim and, where applicable, Subscriber also agrees to opt out of any class proceedings against BackPocket and any Affiliate.

(b.2)    If Subscriber has a Claim, Subscriber should give written notice to arbitrate to BackPocket at the address specified in Section 10(m). Arbitration of Claims will be conducted in such forum and pursuant to such rules as Subscriber and BackPocket agree upon, and failing agreement will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration under the Arbitration Act in the Province of Ontario that are in effect on the date of the notice to arbitrate.  No Claim shall be brought by either party arising out of or pertaining to the Service more than two (2) years after the discovery of the alleged cause of action by the party, or after such time as it should reasonably have been discovered by the party.

(c) BackPocket maintains the right to retain transactional information for a minimum period of 6 months in order to fulfil subscriber requests, including but not limited to the storage of reports and communications made between subscribers and BackPocket Advisors through use of BackPocket website and/or software applications. By utilizing the “Service”, the Subscriber agrees to such record retention.

(d) Severability – Any provision of this Agreement which is invalid or unenforceable shall be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this Agreement without invalidating or affecting the remaining provisions of this Agreement, which remaining provisions shall remain in full force and effect.

(e) Waiver – No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and be signed by the party to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.

(f) Electronic Agreement – The use of Subscriber’s UIC and password shall be equivalent to Subscriber’s written signature and is equally binding on Subscriber.

(g) Survival – Any terms which by their nature are intended to survive the termination of this Agreement shall continue in full force and effect after termination, which terms shall include, but not be limited to Article 3 (Restrictions on Use of Services), Article 6 (Limitation of Liabilities), Article 7 (Indemnification) and Article 8 (Disclaimer).

(h) Changes in Terms and Conditions of this Agreement – BackPocket may from time to time, in its sole discretion change the content, format or functionality of the Service.  The terms and conditions of this Subscriber Agreement may also be changed from time to time in BackPocket’s sole discretion upon notice to Subscriber posted on the website at [https://yourbackpocket.co/terms-conditions].  The current version of the Subscriber Agreement will be available on the website.  Continued use of the Service after any changes by BackPocket shall be considered acceptance of the amended Agreement.

(j) Assignment – This Agreement and any rights arising from this Agreement may not be assigned in whole or in part by Subscriber without the prior written consent of BackPocket.  BackPocket may assign or transfer the Agreement and/or rights or obligations hereunder to any Affiliate of BackPocket or such Affiliate-assignee may assign or transfer this Agreement and/or any rights or obligations hereunder to any third-party successor to all or substantially all of the business or assets of BackPocket, in each case without the prior consent of Subscriber.

(k) Privacy – BackPocket is in compliance with Federal legislation governing the use, collection and disclosure of personal information.  In order to maintain expected levels of customer service. Please click [https://yourbackpocket.co/privacy-policy] for further details on BackPocket’s privacy policy, which may be amended from time to time by BackPocket in its sole discretion by posting of notice on [https://yourbackpocket.co/privacy-policy]

(l) Force Majeure – Neither Subscriber nor BackPocket shall be responsible for any delay in or failure to deliver or perform it obligations (other than with respect to the performance of payment) to the extent that such failure or delay is due to events or circumstances outside of its control, including but not limited to war, terrorism, fire, flood, acts of God, strikes, lockouts, labour disputes, acts of third parties, acts of governmental authority or any agency or commission thereof, or similar causes beyond either party’s reasonable control.

(m) Affiliate -- Affiliate means (i) any entity that from time to time, directly or indirectly controls, is controlled by, or is under common control with BackPocket, or that is a successor (including, without limitation, by change of name, dissolution, merger, consolidation, reorganization, sale or other disposition) to any such entity or its business or (ii) the respective direct or indirect subsidiaries of BackPocket.  An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.

(n) Notice

Except as otherwise provided herein, all notices must be in writing (including email):

- to BackPocket at:

            42 Bloomfield Avenue
            Toronto, Ontario
            M4L2G3
            or: hello@yourbackpocket.co

- and to the Subscriber at the most recent address in BackPocket’s records.

Notice shall be deemed delivered three business days after posting in the Canadian postal system, or one business day after posting online by BackPocket or BackPocket’s licensor, or sending by either party by email or by commercial courier.

(o) Entire Agreement – The Agreements constitute the entire agreement and understanding between the parties. All previous agreements, understandings and representations, whether written or oral, between the parties have been superseded by the Agreements. There are no conditions, covenants, agreements, representations, warranties or other provisions, expressed or implied, collateral, statutory or otherwise, relating to the subject matter contained herein other than those set forth in the Agreements.

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Last updated: February 5, 2019