Terms and Conditions of Service Agreement
Last Updated on March 21, 2016
This website (“Site”) is owned and operated by or on behalf of Rainbow Rehabilitation Inc. and/or its affiliates (collectively, “Rainbow”). These Terms and Conditions of Service (the “Terms and Conditions”) contain the terms, covenants, conditions and provisions upon which you may access and use this Site and any education services and related information provided to you by Rainbow (collectively, the “Services”), either through the Site or through other means and media, including but not limited to course instruction (whether online or in–person),student administration and examination services, and all materials (whether in tangible or intangible form, and whether delivered through the Site or otherwise) used in connection with such Services such as course materials, examinations and other publications or documentation, and any associated software and data (collectively, the “Rainbow Materials”). As used herein “you” shall be deemed to refer to you as the individual accessing the Services.
BY INDICATING YOUR AGREEMENT TO THESE TERMS AND CONDITIONS, YOU INDICATE THAT YOU UNDERSTAND AND INTEND THESE TERMS AND CONDITIONS TO BE THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT AND EQUALLY BINDING, AND THAT YOU ACCEPT SUCH TERMS AND CONDITIONS AND AGREE TO BE LEGALLY BOUND BY THEM. Additionally, you confirm your understanding that these Terms and Conditions shall apply to any Rainbow mobile application or Rainbow content on third-party social media services (e.g., a Rainbow Facebook® page) that reference these Terms and Conditions. In such instances, the term “Site” shall include the applicable mobile application or Rainbow content whenever that term is used herein.
RAINBOW RESERVES THE RIGHT TO CHANGE THESE TERMS AND CONDITIONS UPON NOTICE, WHICH MAY BE GIVEN BY RAINBOW POSTING SUCH CHANGE (OR REVISED TERMS AND CONDITIONS) ON THE SITE, BY E-MAIL, OR ANY OTHER REASONABLE WAY. IF A CHANGE IS NOTIFIED BY A POSTING ON THE SITE, IT SHALL BE DEEMED TO TAKE EFFECT WHEN POSTED; IF A CHANGE IS NOTIFIED BY E-MAIL, IT SHALL BE DEEMED TO TAKE EFFECT WHEN THE E-MAIL IS SENT; AND IF A MODIFICATION IS NOTIFIED IN ANY OTHER WAY, IT SHALL BE DEEMED TO TAKE EFFECT WHEN THE RELEVANT NOTICE IS SENT OR ISSUED BY OR ON BEHALF OF RAINBOW. YOUR CONTINUED USE OF THIS SITE AND ACCESS AND USE OF THE SERVICES OR ANY RAINBOW MATERIALS FOLLOWING NOTICE OF SUCH MODIFICATIONS WILL BE CONCLUSIVELY DEEMED ACCEPTANCE OF ANY CHANGES TO THESE TERMS AND CONDITIONS. YOU AGREE THAT NOTICE OF CHANGES TO THESE TERMS AND CONDITIONS ON THE SITE, DELIVERED BY EMAIL, OR PROVIDED IN ANY OTHER REASONABLE WAY CONSTITUTES REASONABLE AND SUFFICIENT NOTICE.
General Terms and Conditions:
- License Grant. The specific Services to be provided by Rainbow pursuant to these Terms and Conditions are those that: i) have been agreed to by Rainbow and you pursuant to an ordering document (whether electronic and provided through the Site, a paper document or otherwise) or an order placed by you via telephone; or ii) have been agreed to pursuant to a separate agreement between Rainbow and your employer or other third-party organization that has arranged for you to be provided with Services (an “Order”). Rainbow hereby grants you a personal, revocable, non-exclusive, non-transferable license to access and use the Rainbow Materials provided as part of the Services contemplated in the relevant Order in the ordinary course of your business. Your license to the Rainbow Materials will expire and terminate at the earliest of: i) two (2) weeks following your completion of the educational Services to which the Rainbow Materials relate; ii) the last day of the course subscription period for the educational Services to which the Rainbow Materials relate (which Rainbow will advise you of at the time of course registration and which will typically be six (6) or twelve (12) months from the date that access is granted to you in the relevant educational Services but may be such other period of time as Rainbow informs you) in the event that the educational Services at issue are online course offerings; or iii) such other date that Rainbow may advise you of. Despite the forgoing, you are permitted to keep one (1) copy of any Rainbow Materials you receive as part of the Services, either electronically or otherwise, for your own personal use and reference to be used in the normal course of your business following the expiration and termination of the license as described above. You may not make any use of any such copies kept following the expiration and termination of the license to the Rainbow Materials other than as set out herein. You agree and acknowledge that any use and/or access to any Services or Rainbow Materials that exceeds the license restrictions set out herein or as set out in any Order is strictly prohibited. You may not modify, create derivatives of, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, or otherwise use any Rainbow Materials or other information or material obtained from or through this Site or as part of the Services unless specifically authorized to do so in writing by Rainbow. Further, you may not post any Rainbow Materials or other content from this Site to forums, newsgroups, list serves, mailing lists, electronic bulletin boards, or other websites, without the prior written consent of Rainbow, which consent may be withheld by Rainbow in its sole discretion. You agree that you will not use the Services, any Rainbow Materials or this Site for any purpose that is unlawful or prohibited by these Terms and Conditions, including but not limited to attempting or actually (i) disrupting, impairing or interfering with this Site; (ii) collecting any information about other users of this Site, including passwords, accounts or other information; (iii) providing any Rainbow Materials to anyone other than you; or, (iv) posting any notice or advertisement or sending any email, of a commercial nature or otherwise, intended to solicit business from other users of Rainbow Site or Services.
- Intellectual Property Rights. The Rainbow Materials and all other materials made available on the Site or otherwise as part of the Services, unless otherwise indicated, are protected by law including, but not limited to, Canadian copyright, trade secret, and trademark law, as well as other state, national, and international laws and regulations. The content, content layout and design of all Rainbow Materials and all other information on the Site are the exclusive property of Rainbow or its licensors and, except as expressly provided herein, Rainbow does not grant any express or implied right in any such materials to you. In particular and without limitation, Rainbow owns the copyright in the Site and the Rainbow Materials as collective works, and in the selection, coordination, arrangement, and enhancement of the content of the Site and the Rainbow Materials . Rainbow, Rainbow Rehabilitation, The Lefaivre Rainbow Effect and all other names, logos, and icons identifying Rainbow and/or Rainbow products and Services are proprietary marks of Rainbow or its licensors. Third-party trademarks displayed on the Site or in the Rainbow Materials are the property of their respective owners. Except for the limited license to use the Rainbow Materials and the Site as set forth herein, all other rights are expressly reserved by Rainbow. Unauthorized use or distribution, transfer or copying of the Rainbow Materials (alone or merged with other content, software, documentation or services), or failure to comply with any restriction herein will result in automatic termination of your license to access the Site, the Services and Rainbow Materials and will make available to Rainbow other legal remedies.
- Orders. Orders placed by you or any third party on your behalf are only valid when accepted by Rainbow. You (or your employer or other third party as may have been separately agreed) will pay Rainbow the fees as specified on the relevant Order, which are due in full prior to access being granted to the Site, Rainbow Materials and/or any Services (unless payment instalments have been expressly agreed to by you, or a third party on your behalf, and Rainbow in writing). Rainbow reserves the right to revise or modify the content of any Rainbow Materials provided as part of the Services sold pursuant to an Order at any time.
- Disclaimers. Rainbow obtains the content of all Rainbow Materials from sources believed by it to be accurate and reliable. However, because of the possibility of human or mechanical error as well as other factors, all Site content and all Rainbow Materials are provided on an “AS IS” and “AS AVAILABLE” basis without representation or warranty of any kind, and THE RAINBOW PARTIES MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO YOU OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, RESULTS, TIMELINESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO SITE CONTENT OR ANY RAINBOW MATERIALS. You acknowledge and agree that in no event shall Rainbow be responsible or liable for the consequences of reliance on any statements, opinions or content presented on the Site, in the Rainbow Materials or provided otherwise as part of the Services.
Rainbow makes no representation or warranty that any Rainbow Materials and/or other content on the Site are appropriate or available for use in any particular locations, and access to them from territories where any such content illegal is prohibited. If you choose to access this Site and/or any Rainbow Materials from such locations, you do so on your own volition and are responsible for compliance with any applicable local laws, rules and regulations. Rainbow may limit the availability of the Site and/or Rainbow Materials, in whole or in part, to any person, geographic area or jurisdiction Rainbow chooses, at any time and in Rainbow sole discretion. You agree and acknowledge that no oral or written information or advice given by Rainbow or any of its employees or agents in respect to the Site or any Rainbow Materials shall constitute a representation or a warranty unless such information or advice is incorporated into these Terms and Conditions by a written agreement. FURTHER, THE RAINBOW MATERIALS AND OTHER CONTENT MADE AVAILABLE ON THIS SITE AND OTHERWISE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THERE MAY BE TIMES WHEN THIS SITE OR ITS CONTENTS AND/OR PARTICULAR RAINBOW MATERIALS ARE UNAVAILABLE. MOREOVER, RAINBOW MAY MAKE MODIFICATIONS AND/OR CHANGES TO THE SITE, TO THE RAINBOW MATERIALS OR TO OTHER CONTENT DESCRIBED OR MADE AVAILABLE ON THE SITE AT ANY TIME, FOR ANY REASON. YOU ASSUME THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE RAINBOW MATERIALS AND ANY OTHER CONTENT MADE AVAILABLE ON THE SITE.
Rainbow’s total liability to you or any other third party arising out of the provision of Services or use of the Site, regardless of the theory of liability, shall be limited to the greater of: i) the actual fees paid for the Services to which any such claim of liability relates during the 12 months immediately preceding the event giving rise to liability; or ii) CAD $100. Except where applicable law mandates otherwise, in no event shall Rainbow or its licensors and affiliates be liable for any indirect, special, incidental, punitive or consequential damages (including but not limited to loss of business, revenue, profits, use, data or other economic advantage), however it arises, whether in an action of contract, negligence, tort or other action, arising out of or in connection with the Site, Services and/or Rainbow Materials even if Rainbow is advised of the possibility thereof. You must use all reasonable endeavors to mitigate any loss or damage whatsoever (and howsoever arising) and nothing in these Terms and Conditions shall be deemed to relieve or abrogate you of any such duty to mitigate any loss or damage.
- Indemnity. You agree to indemnify and hold harmless Rainbow, its licensors and suppliers, all of their affiliates, and all of their respective officers, directors, employees, shareholders, representatives, agents, successors and assigns, from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals’ fees and court costs) arising out of any third party claims based on or related to your use of the Site, your use of the Rainbow Materials, your use of the Services and/or any breach by you of these Terms and Conditions
- Submissions. Rainbow and/or our service providers may make available through the Site (or otherwise during the provision of Services) certain services to which you are able to post comments, information and/or feedback (for example, satisfaction surveys, message boards, blogs, chat features, messaging and/or comment functionalities). Any ideas, suggestions, information, feedback, know-how, material, and any other content (collectively, “Submissions”) posted and/or received through this Site or otherwise, will be deemed to include a worldwide, royalty-free, fully paid-up, perpetual, irrevocable, nonexclusive, transferable and fully sublicensable (through multiple tiers) right and license for Rainbow to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display, (in whole or part) worldwide, or act on such Submissions without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Submissions. You hereby waive: (i) any claim to the contrary; and (ii) any “moral rights” associated with your Submissions. You represent and warrant that you have all rights necessary for you to grant the foregoing license, and that each Submission you provide to the Site complies with all applicable laws, rules and regulations. You are and remain responsible and liable for the content of any Submission. IF YOU DO NOT WISH TO GRANT THE RIGHTS GRANTED IN THIS SECTION, PLEASE DO NOT POST, TRANSMIT OR OTHERWISE MAKE ANY SUBMISSION. ANY SUBMISSIONS MADE ARE DONE SO AT YOUR OWN RISK. Please note, Rainbow does not control any of the user-submitted Submissions, they do not reflect the opinion of Rainbow, and Rainbow does not guarantee their accuracy or endorse any of the opinions expressed. Rainbow is not responsible or liable for: (i) any Submissions, including, without limitation, any errors or omissions in such Submissions, links or images embedded therein, or results obtained by using any of the same; or (ii) any loss or damage caused by the Submissions or resulting from the use (including without limitation republication) or misuse thereof by any third party, including your reliance thereon.
- Export Restrictions. No Rainbow Materials, no software or any other materials associated with the Site and/or Services may be downloaded, obtained or otherwise exported or re-exported to countries or persons prohibited under relevant export control laws, including, without limitation, countries against which the United States has embargoed goods, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from this Site or provided in any other manner by Rainbow, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.
- Dispute Resolution. THIS PARAGRAPH CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE THE RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. PLEASE REVIEW CAREFULLY. Any dispute, controversy or claim arising out of or relating to these Terms and Conditions, including any disputes relating to the content of Site, the Rainbow Materials and/or the provision of Services, whether sounding in contract, tort, statute or otherwise, shall be finally resolved by arbitration. Any claim must be brought in the claimant’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitration shall be conducted by one arbitrator in English and in accordance with the British Columbia International Commercial Arbitration Centre (the “BCICAC”) Canadian Arbitration Shorter Rules for Domestic Arbitrations, which shall administer the arbitration and act as appointing authority (unless another arbitrator is mutually agreed by Rainbow and you). The place of the arbitration shall be Kelowna, British Columbia. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrator may be entered in any court of competent jurisdiction. You agree to submit to the jurisdiction of the provincial and federal courts in British Columbia for the purposes of any judicial proceedings to obtain interim relief and in aid of the arbitration or judicial proceedings to confirm or enforce the award. Notwithstanding the foregoing, Rainbow may seek preliminary injunctive relief from a court of law in the event of a breach by you.
- Term, Termination. These Terms and Conditions will take effect when you first access the Site and/or Services. Rainbow reserves the right at any time and for any reason to deny you access to the Site, Services, the Rainbow Materials or any portion thereof. In the event of any such denial, any fees paid by you or on your behalf related to Services not yet provided will be refunded to you unless such denial is by reason of your breach of these Terms and Conditions or other misuse of the Site, Services and/or Rainbow Materials. Termination will be effective without notice.
- Waiver. Failure to insist on strict performance of any of the terms and conditions of these Terms and Conditions will not operate as a waiver of any subsequent default or failure of performance. No waiver by Rainbow of any right under these Terms and Conditions will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
- Nature of Relationship. No joint venture, partnership, employment, or agency relationship exists between you and Rainbow as a result of these Terms and Conditions or your utilization of this Site and/or the Services.
- Severability. The provisions of these Terms and Conditions are severable. If any provision (or part of any provision) shall be determined to be void or unenforceable, the relevant provision or part of any provision shall be deemed deleted and these Terms and Conditions, and the validity and enforceability of all remaining provisions (and parts of any provisions) of these Terms and Conditions, shall not be affected.
- Governing Law. These Terms and Conditions (and the provision of Services and Site access to which they relate) shall be governed by the substantive laws of the Province of British Columbia, Canada, with regard to its conflicts of laws principles. Any action under these Terms and Conditions (where permitted by the Dispute Resolution provision in section 8 of these Terms and Conditions) shall be brought in the provincial or federal courts located in Kelowna, British Columbia, Canada.
- Passwords. Your use of certain portions of the Site and access to certain Rainbow Materials requires a password. As part of the creation of your student profile, you must select a student name and password and provide Rainbow with accurate, complete and up-to-date information. Anyone with knowledge of your password can gain access to the restricted portions of the Site, the relevant Rainbow Materials and your student profile. Accordingly, you must keep your password secret. By agreeing to these Terms and Conditions, you agree to be solely responsible for the confidentiality and use of your password, as well as for any communications entered through this Site using your password. You will also immediately notify Rainbow if you become aware of any loss or theft of your password or any unauthorized use of your password. Rainbow reserves the right to delete or change a password at any time and for any reason.
- Assumption of Risk. You use the Internet solely at your own risk and subject to all applicable local, provincial, national, and international laws and regulations. While Rainbow and its service providers have endeavored to create a secure and reliable website, please be advised that the confidentiality of any communication or material transmitted to/from the Site over the Internet cannot be guaranteed. Accordingly, Rainbow and Rainbow service licensors and service providers are not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Site, or for the consequences of any reliance on such information. Rainbow and Rainbow licensors and suppliers shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Site.
- Enforcing Security. Actual or attempted unauthorized use of any of the Site, Services and/or Rainbow Materials may result in criminal and/or civil prosecution. For your protection, Rainbow reserves the right to view, monitor, and record activity on the Site without notice or further permission from you, to the fullest extent permitted by applicable law. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site. Rainbow will also comply with all court orders involving requests for information.
- Links to Other Websites. Rainbow and/or its service providers may provide links, in their sole discretion, to other websites on the World Wide Web for your convenience in locating related information and services. These websites have not necessarily been reviewed by Rainbow and are maintained by third parties over which Rainbow exercises no control. Accordingly, Rainbow and its directors, officers, employees, agents, representatives, licensors and suppliers (together, the “Rainbow Parties”) expressly disclaim any responsibility for the content, the accuracy of the information, the quality of products or services provided by or advertised on and/or software downloaded from these third-party websites. Moreover, these links do not imply an endorsement of any third party or any website or the products or services provided by any third party.
- Events Beyond Rainbow’s Control. You expressly absolve and release Rainbow and Rainbow licensors and service providers from any claim of harm resulting from a cause beyond their control, including, but not limited to, the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorism or governmental restrictions.
- Language. Notwithstanding any translation of these Terms and Conditions or any Order, the English language shall control the interpretation of these Terms and Conditions and any Order and all other writings between you and Rainbow. You and Rainbow confirm that you have requested that these Terms and Conditions and all documents contemplated by these Terms and Conditions and the Services be drawn up in English unless otherwise agreed in writing. Les parties aux presents ont exigé que cette entente et tous autres documents envisages par les presents soient rédigés en anglais.