TRANSFOCUS TERMS OF SERVICE

    

Last updated: February 1, 2022


This Terms of Service (the “TOS”) is entered into between you and TransFocus Consulting Inc. (“TransFocus”) and applies to TransFocus services, including but not limited to the TransFocus website transfocus.ca and its subdomains (the “Website”), and services provided by TransFocus, including but not limited to on demand webinars and live interactive sessions (collectively, the “Service”).


BY CLICKING “I AGREE” OR SIMILAR CONFIRMATION OR BY PURCHASING A SUBSCRIPTION THAT REFERENCES THE TOS OR BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THE TOS.


IF YOU ARE PURCHASING OR USING THE SERVICE ON BEHALF OF AN ORGANIZATION, YOU” AND “YOUR” IN THE TOS REFER TO THE ORGANIZATION AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION TO THE TOS AND ARE AGREEING TO THE TOS FOR THAT ORGANIZATION.  



1) Description of the Service


TransFocus provides on demand webinars and live interactive educational sessions on gender diversity for a wide range of audiences such as employees, leaders, human resource professionals and inclusion specialists. As part of the Service, TransFocus may provide you various educational materials including but not limited to quizzes, tests, reflection questions, articles, news, and other information (the “Materials”).


2) Access to the Services


2.1. Subscription.  TransFocus hereby grants you: (a) a non-transferrable, limited subscription to access and use free portions of the Website and paid portions of the Service pursuant to a paid subscription (altogether, the “Subscription”); and (b) a non-sublicensable, non-transferrable, revocable, limited license to download the Materials for personal educational purposes only and to print no more than one copy of the Materials, provided that no modifications are made to the Materials (except that you may complete any template Materials that are provided with instructions requesting completion).


2.2. Age of Access.  You must be at least 18 years old or the age of majority in your jurisdiction (whichever is older) in order to use the Service and you represent and warrant that you have the right and authority to enter into and comply with this TOS.


2.3.  Accounts and Login Information.  Access to the Service requires each user to register an account with Thinkific.com (“Thinkific”), a third party online course provider (an “Account”). Thinkific may require you to submit your name and email address and select a username and password (“Login Information”) as part of registering an Account. You are responsible for managing and ensuring the security, confidentiality and authorized use of your Account’s Login Information and are prohibited from sharing your Login Information or your Account. TransFocus strongly recommends that you keep your Login Information confidential, and you shall notify TransFocus promptly of unauthorized access or use of your Account. If TransFocus, in its sole discretion, considers your Account to be unsecure or to have been used inappropriately, then TransFocus may immediately cancel the Account without any notice to you.


2.4. Third Party Services.  TransFocus may contain or integrate third party software and services (“Third Party Services”), including but not limited to Thinkific.  In addition to the TOS, providers of Third Party Services may impose their own set of terms applicable to the use of such Third Party Services.  Failure to agree to or comply with terms governing such Third Party Services may render the Service inoperable or limit Service functionality.  Third Party Services may also collect personal data about your online activities over time and across different websites and services.  We strongly recommend that you read the terms of Third Party Services before using the Service. TransFocus makes no representations or warranties regarding Third Party Services or continued availability of software integration with Third Party Services. You agree that TransFocus is not liable for any claim, loss or damage relating to Third Party Services.


2.5.  Privacy Policy and Privacy Law Compliance.  Use of the Service is governed by a Privacy Policy detailing how TransFocus collects, uses and discloses personal and anonymous data about you and is available at https://www.transfocus.ca/privacy-policy.  You must agree to the Privacy Policy in order to use the Service.  You represent and warrant that your use of the Service complies with applicable privacy laws and are permitted to share personal data you choose to share with TransFocus, including but not limited to any information concerning your employees, contractors or agents. If at any time you disagree with the Privacy Policy, you shall immediately stop use of the Service and contact TransFocus at [email protected].


3) Fees and Payment


3.1.  Fee.  You and TransFocus shall agree on the scope of the paid Subscription, associated fees (the “Fee”) and additional terms prior to TransFocus granting you the paid Subscription and providing associated Services, and TransFocus may require full payment upfront or a deposit. For recurring Fees, TransFocus may increase the Fee upon at least 14 days’ notice, such increase to take effect on the subsequent Fee billing cycle. 


3.2.  Payment.  You shall provide TransFocus with a valid method of payment acceptable to TransFocus. You shall immediately notify TransFocus of any change to your payment information. TransFocus, or any third party acting on its behalf, is authorized and has the right to automatically charge the Fee using the payment method you provided. 


3.3. Taxes. The Fee excludes taxes, duties and charges, which you shall pay as well. If TransFocus pays or collects taxes on your behalf, you shall pay TransFocus the applicable amount, which you shall pay on the same terms as the Fee.


3.4.  Failure to Pay.  Failure to timely pay the Fee will result in TransFocus ceasing your access to the Service until you pay any outstanding Fee in arrears. TransFocus reserves the right to charge interest on any overdue Fee.


3.5.  Cancellation.  You may cancel the Service by providing TransFocus at least 14 business days written notice prior to the schedule date of applicable Service to [email protected], with “Cancellation” as the subject line. Upon cancellation, you remain liable for all charges accrued up to the date of cancellation and you shall not receive a refund for any Service already performed, partially or in full. 


3.6. Suspension.  TransFocus or agents of the Third Party Services may suspend or terminate your access to the Service and/or Account, without notice or refund, at any time for any reason (or for no reason) including but not limited to technical issues or non-compliance with the TOS or the terms of the Third Party Services. Whether a suspension will be lifted is at the sole decision of TransFocus or the agents of the Third Party Services. 


3.7. Refunds.  TransFocus shall only provide a refund if: (a) the Services are not yet performed or delivered (partially or in full); and (b) you provide notice of cancellation pursuant to Section 3.5., in which case TransFocus shall provide a 50% refund for the Fee paid for the applicable cancelled Services. If you believe that you are entitled to a Refund, other than as automatically provided to you upon termination, you may request a Refund by emailing TransFocus to [email protected], including the email header “REFUND REQUEST” and describing in the body of the email how you qualify for a Refund and other relevant details of your request.


4) Term and Use of the Service


4.1. Term.  Unless otherwise specified in writing by TransFocus, this and continues until terminated pursuant to the TOS (the “Term”).

4.2.  Authorized Use.  TransFocus is dedicated to educating the public about gender diversity, and TransFocus will not tolerate any form of discrimination, hate speech or any forms of hate crime. During your use of the Service, you shall not:

  1. knowingly provide false of inaccurate information to TransFocus;
  1. decompile, disassemble or reverse engineer the Service;
  1. use the Service in any manner that violates the TOS;
  1. export or share content provided by TransFocus outside the Service unless explicit written consent is provided;
  1. misrepresent or misuse the affiliation or any trademark of TransFocus;
  1. use any automated system (bot, spider or any similar technology) to access the Service;
  1. reproduce, rearrange, modify, change, alter, translate, create derivative works from, display, perform, publish, or distribute the Materials or the Service;
  1. break, disrupt or attempt to break or disrupt any device used to support the Service or other’s experience of the Service or knowingly exploit a flaw or bug in the Service;
  1. store or transmit material that is infringing, libellous, unlawful or in violation of any person’s rights or a group of people’s rights;
  1. use the Service to provide information or data to a competitor of TransFocus;
  1. harass, abuse, stalk, threaten or impersonate any person or group of people, including any TransFocus contractor, employee or agent;
  1. use hate speech, hate terms, homophobic speech, homophobic terms, transphobic speech, transphobic terms, racist speech, racist terms or any other words or symbols that signify hate towards any person or group of people, including derogatory comments against minority communities;
  1. sell, rent, lease or sublicense the Service or access thereto, unless expressly permitted by TransFocus;
  1. promote, encourage or undertake illegal activity; or
  1. infringe or violate third-party rights including but not limited to: (i) contractual rights; (ii) copyright, patent, trademark or trade secret rights; (iii) privacy rights; (iv) publicity rights; or (v) confidential information,

as determined by TransFocus in its sole and absolute discretion.

4.3.  Termination.  The Agreement terminates upon the earliest of:

  1. your failure to pay any overdue Fee within seven days after receipt of notice from TransFocus; 
  1. your non-compliance with the TOS and Privacy Policy and failure to remedy such non-compliance after receiving notice;
  1. at your option, pursuant to Section 3.5 of the TOS; 
  1. immediately, upon TransFocus ceasing to offer the Service and that may occur at any time without notice; or
  1. at your option, when you deliver a written notice to [email protected] requesting termination of your access to the free portions of the Website.

4.4.   Effect of Termination.  Upon suspension or termination, you acknowledge and agree that TransFocus shall immediately cease your access to the Service. TransFocus may store data related to your Account and associated data for up to three years after the date of Termination after which TransFocus may permanently delete all data related to your Account, subject to the terms of Third Party Services.

5) Hyperlinks

Links to external websites are provided solely as a convenience to you. TransFocus is not responsible for any of these sites or their content. If you decide to access any of the external websites linked on the Website or provided as part of the Service, you do so entirely at your own risk.

6) Ownership Rights


6.1.  TransFocus’ Rights.  All right, title and interest in and to the Materials and the Service including but not limited to copyrights, patents, trademarks, trade secrets, trade names, computer code (source and object), as well as presentations, recordings, slides, blogposts, educational videos, educational content, concepts, settings, and themes are owned by or licensed to TransFocus. TransFocus reserves all rights in the Service. The TOS does not convey any right, title or interest in, or constitute the sale of any right to, the Service or any related products.


6.2. User Rights; License.  You retain ownership of all right, title and interest in information or content you may provide to TransFocus as part of the Service (“User Content”). The TOS does not convey any right, title or interest in, or constitute the sale of any right to, User Content, and you represent and warrant that all consents, licenses and rights necessary to license User Content are obtained prior to the sharing any of User Content with TransFocus. TransFocus shall not use or access User Content stored with us except when you request that TransFocus use User Content in order to facilitate your use of the Service and only as reasonably limited by your request, and in such cases you hereby grant TransFocus a limited and revocable license to User Content under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, display, modify, record, translate, transmit or otherwise exploit in order to facilitate the provision of the Service to you and no more.


6.3. Third Party Rights.  All right, title and interest in and to the Third Party Services including but not limited to copyrights, patents, trademark, trade secrets, trade names, computer code (source and object), are owned by or licensed to the respective Third Party Services providers. The TOS does not convey any right, title or interest in, or constitute the sale of any right to, the Third Party Services.


6.4.   Feedback; Survey.  Unless otherwise agreed to in writing, TransFocus may use your name (only if explicit consent is given) and other communications in TransFocus marketing and promotional materials in the limited context of surveys, reviews, rating and comments that you provided TransFocus through the Service (“Feedback”).  By submitting Feedback, you agree that: (a) your disclosure is voluntary, free, unsolicited, and without restriction; (b) your Feedback does not contain the confidential or proprietary information of third parties; and (c) we are free to use the Feedback without any compensation to you and to disclose the Feedback on a non-confidential basis or otherwise to anyone.


7) Disclaimer, Limitation of Liability and Indemnity


7.1.   DISCLAIMER.  THE SERVICE IS PROVIDED TO YOU “AS IS” AND TRANSFOCUS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, “REPRESENTATIVES”), DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR COMPLIANCE WITH LAWS WITHIN YOUR JURISDICTION.  WITHOUT LIMITING THE FOREGOING, TRANSFOCUS MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICE WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS HELD BY A THIRD PARTY.  FURTHER AND WITHOUT LIMITING THE FOREGOING, TRANSFOCUS AND ITS REPRESENTATIVES MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE, SERVICES PERFORMED AND MATERIALS PROVIDED BY TRANSFOCUS OR OTHER THIRD PARTIES, WILL COMPLY WITH APPLICABLE LAWS WITHIN YOUR JURISDICTION, MEET YOUR REQUIREMENTS, NOT CAUSE DAMAGE OR HARM TO YOU, YOUR PROPERTY, USER CONTENT OR PROPERTY OF OTHERS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM YOUR COMPUTER OR MOBILE DEVICE OR RESULT IN LOST DATA.  NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY TRANSFOCUS AND ITS REPRESENTATIVES WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SERVICE.


7.2. LIMITATION OF LIABILITY.  TRANSFOCUS AND ITS REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE SERVICE OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION DIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES.  TO THE EXTENT THAT THE ABOVE LIMITATION OF LIABILITY IS NOT APPLICABLE IN YOUR JURISDICTION, ANY CLAIM THAT YOU MAY HAVE AGAINST TRANSFOCUS AND THE REPRESENTATIVES MUST BE COMMENCED NO LATER THAN 6 MONTHS AFTER THE DAY ON WHICH THE CLAIM IS DISCOVERED OR OUGHT TO HAVE BEEN DISCOVERED BY YOU. 


7.3. MAXIMUM AGGREGATE LIABILITY.  NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TERMS OR WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES AND, IF ANY DISCLAIMER OR LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE, VOID OR DOES NOT FULLY SHIELD TRANSFOCUS AND ITS REPRESENTATIVES FROM LIABILITY, YOU AGREE THAT TRANSFOCUS’ (AND ITS REPRESENTATIVES’) MAXIMUM AGGREGATE LIABILITY IN ANY CASE WHATSOEVER WILL BE THE TOTAL AMOUNT PAID BY YOU TO TRANSFOCUS IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION.


7.4.   INDEMNITY.  YOU REPRESENT AND WARRANT, WITH RESPECT TO USER CONTENT, THAT SUCH RIGHTS GRANTED TO COMPANY ARE FREE AND CLEAR, AND THAT YOU HAVE THE FULL POWER TO GRANT SUCH RIGHTS, AND THAT USER CONTENT DOES NOT VIOLATE INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER RIGHT OF ANY THIRD PARTY, NOR WILL THE USE OF USER CONTENT BY COMPANY VIOLATE ANY SUCH RIGHT. YOU SHALL INDEMNIFY AND HOLD HARMLESS   TRANSFOCUS AND ITS REPRESENTATIVES AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST TRANSFOCUS AND ITS REPRESENTATIVES IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING CLAIMS THAT TRANSFOCUS, THE SERVICE, OR YOU: (A) INFRINGE OR MISAPPROPRIATE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) VIOLATE ANY APPLICABLE LAW, INCLUDING ANY FAILURE TO OBTAIN THE REQUIRED LEGAL DOCUMENTATION, INCLUDING APPLICABLE CONSENT DOCUMENTATION, PRIOR TO USING THE SERVICE; (C) CAUSE BODILY HARM OR DEATH; (D) VIOLATE THE TERMS OF A THIRD-PARTY AGREEMENT TO WHICH YOU ARE BOUND; OR (E) COMMIT AN ACT OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.  YOUR OBLIGATION TO INDEMNIFY TRANSFOCUS AND ITS REPRESENTATIVES ARISES SO LONG AS TRANSFOCUS: (X) PROMPTLY GIVES WRITTEN NOTICE OF THE CLAIM AGAINST TRANSFOCUS; (Y) GIVES YOU SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM EXCEPT THAT YOU SHALL NOT ENTER ANY SETTLEMENT OR DISPOSITION THAT ATTRIBUTES LIABILITY OR CONFERS A FINANCIAL OBLIGATION ON TRANSFOCUS WITHOUT TRANSFOCUS’ ADVANCE WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED; AND (Z) GIVES ALL REASONABLE ASSISTANCE, AT YOUR EXPENSE.


8) Dispute Resolution


8.1. Initial Dispute Resolution.  Most disputes between you and TransFocus can be resolved without resort to legal action.  If you have any dispute with TransFocus, you agree that you will contact us at [email protected], and provide a brief, written description of the dispute and your contact information.  You and TransFocus agree to use commercially reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.


8.2.   Binding Arbitration.  If the parties cannot come to a resolution within 30 days after the time an informal dispute resolution is initiated, you agree to that any disputes or claims between you and TransFocus, including the Representatives, shall be resolved by confidential, final and binding arbitration to be conducted in British Columbia and administered by the Vancouver International Arbitration Centre.  The arbitration shall be commenced and conducted in accordance with its International Arbitration Rules (the “Rules”).  Your arbitration fees and your share of the arbitrator’s compensation shall be governed by and, where appropriate, limited by the Rules.  BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS LIMITED BY APPLICABLE LAW.


9) General


9.1.   No Joint Relationship.  Nothing in the TOS shall be construed to create any joint partnership, joint venture, employer-employee or agency relationship between you and TransFocus.  


9.2.   Governing Law.  The TOS and Privacy Policy are governed by the laws of the province of British Columbia and the laws of Canada, without reference to principles of conflicts of laws. The parties irrevocably attorn to the jurisdiction of the appropriate provincial and federal courts of the province of Vancouver, British Columbia to hear any proceedings related to the TOS or Privacy Policy.


9.3.  Severability and Waiver.  If any provision of the TOS or Privacy Policy is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law with remaining provisions of the TOS in full force and effect.  No failure or delay by a party in exercising any right, power or remedy under the TOS constitutes a waiver.  


9.4. Force Majeure.  Except for any Fee payment obligations, neither you nor TransFocus shall be liable for failure to perform any obligation under the TOS to the extent such failure is caused by a force majeure event (including acts of God, epidemics, pandemics (including government-imposed recommendations and restrictions due to a pandemic), natural disasters, war, civil disturbance, action by a government entity, strike, and other causes beyond reasonable control).  The party affected by the force majeure event shall provide notice to the other party within a commercially reasonable time and shall use commercially reasonable efforts to resume performance as soon as practicable.  Obligations not performed due to a force majeure event shall be performed as soon as reasonably possible when the force majeure event concludes.


9.5.   Assignment.  TransFocus may assign the TOS without your consent or notice to you. You cannot assign the TOS.


9.6. Survival.  Sections 2.4, 3.7, 4.3, 4.4, 5, 6, 7, 8, and 9 survive termination of the TOS.


9.7. Entire Agreement.  The TOS, together with the Privacy Policy, constitute the entire agreement between you and TransFocus with respect to the subject matter hereof and supersedes any prior oral or written agreements, communications, representations or undertakings provided.  In the event of a conflict between the TOS and estimate or proposal, the latter controls.


9.8. Updates.  TransFocus reserves the right to modify the TOS at any time (each, an “Update”) and shall make each Update available on the Website.  You are deemed to accept any Update by continuing to use the Service. Unless TransFocus states otherwise, an Update is automatically effective 30 days after posting on the Website.