Thank you for using the website, applications and services offered by Broken Leg Software Inc. d/b/a Odeumate and/or its subsidiaries, group companies and other affiliates (collectively, "Odeumate", "we", "us", "our"). To be eligible to use any Odeumate Services, you must review and accept the terms set forth in this Customer Terms of Service Agreement (this "Agreement") by executing or accepting the applicable ordering documents (including any online forms provisioning or requesting Odeumate Services) issued by Odeumate or its authorized resellers specifying the Odeumate Services to be provided under this Agreement ("Order Forms"). Your authorization to access and use any Odeumate Services is conditioned on your acceptance of and compliance with the terms of this Agreement. You acknowledge that no term in any order or other instrument entered into between Customer and a reseller of Odeumate Services will be deemed to modify this Agreement unless pre-authorized in writing by Odeumate.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING ANY OF THE ODEUMATE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Nothing in this Agreement limits or excludes any rights you may have under applicable Canadian or British Columbia consumer protection law that cannot be waived by agreement.
Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and that you consent to do business electronically.
This Agreement applies to all customers of the Odeumate Services, including, as applicable, paid subscribers, prospective subscribers accessing the Odeumate Services for evaluation purposes and current and prospective subscribers' Users, Account Administrators, Authorized Representatives and any other persons authorized to act on behalf of an entity or other organization with respect to the Odeumate Services (collectively, "Customers"). Customer may authorize or permit its affiliates to access the Odeumate Services by entering into an Order Form, establishing Accounts or otherwise through Customer's Account, subject to compliance with applicable restrictions in the Agreement, at law and as otherwise communicated by Odeumate, and this Agreement will apply as if such affiliate were a party to this Agreement and references herein to "you" or "Customer" shall also refer to such affiliate of Customer. If you are registering for a Odeumate Account or using the Odeumate Services on behalf of an entity or other organization, references to "you" are to such entity or organization and you are accepting this Agreement for that entity or organization and representing to Odeumate that you have the authority to bind that entity or organization to this Agreement (the term "Customer" will also refer to that entity or organization).
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE ODEUMATE SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
Applicable Law
Broken Leg Software Inc. d/b/a Odeumate is a British Columbia corporation subject to the Personal Information Protection Act, SBC 2003, c. 63 ("PIPA"), which is BC's primary private-sector privacy law. The federal Personal Information Protection and Electronic Documents Act (PIPEDA) applies where PIPA does not. This Agreement is governed by the laws of the Province of British Columbia and applicable federal laws of Canada as set out in Section 9.2.
1. Odeumate Services
1.1 Provision of Odeumate Services
(a) Provision of Odeumate Services. Odeumate makes the Odeumate Services available pursuant to this Agreement and any applicable Order Form, the Odeumate User Privacy Policy available at odeumate.com/legal/privacy, the Odeumate Data Processing Addendum available at odeumate.com/legal/dpa (the "Odeumate DPA"), applicable Additional Terms and any supplemental policies or terms referenced herein or which Odeumate may present to you for review and acceptance at the time you subscribe to the applicable Odeumate Service (collectively, "Supplemental Terms"), all of which are hereby incorporated into and form a part of this Agreement. In the event of conflict between the provisions of this Agreement and any Supplemental Terms, the Supplemental Terms will control to the extent of such conflict. "Odeumate Services" means the current and future inventory, human resource, financial, and information technology services and related software and services provided by Odeumate, as well as improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to those services, as developed by Odeumate and made generally available to Customers.
(b) Odeumate Content. Odeumate may make certain functionality available through the Odeumate Services, including (i) asset and inventory management, (ii) sample agreements, policies and other documents ("Templates"), (iii) a platform that third parties may use to develop and provide applications, services, websites or software that complement your use of the Odeumate Services (each, a "Third Party Product"), and (iv) other workplace features, as may be developed by Odeumate from time to time. You acknowledge that Templates and other materials made available by Odeumate through the Odeumate Services constitute "Odeumate Content" and are incorporated into the Odeumate Services. Odeumate may expressly permit you to modify or edit certain Templates, which, once modified, become "Modified Content". Odeumate grants Customer a limited, revocable, non-sublicensable, non-transferable license to use, reproduce, copy, and distribute Odeumate Content contained within the Modified Content, solely for Customer's internal business purposes, subject to Customer's compliance with the terms of this Agreement, including payment terms herein.
(c) Beta Services. From time to time, Odeumate may make available certain products or features of Service to you for evaluation, testing and feedback that are not generally available and that are designated or presented to you and Users as alpha, beta, experimental, pilot, proof of concept, limited release, in development, developer preview, early access, non-production, evaluation, or the like (the "Beta Services"). If you decide to access or use Beta Services, you acknowledge and agree that (i) Odeumate is granting you a limited, revocable, non-exclusive, non-transferable license that Odeumate may terminate at any time; (ii) any Supplemental Terms governing the Beta Services may be updated without notice; (iii) you will provide reasonable cooperation and prompt Feedback; and (iv) Beta Services are provided on an "as-is" and "where-is" basis with no warranty of any kind.
1.2 Additional Services
Without limiting the terms of this Agreement, if you subscribe to or access one or more of the Services governed by additional terms listed at odeumate.com/legal (each, "Additional Terms"), then you also agree to be bound by such Additional Terms. In addition, to the extent you purchase third-party services offered, referred, resold or otherwise made available by Odeumate through any Odeumate Services, you may be subject to the terms of service for that third-party service provider.
1.3 No Professional Advice
You acknowledge that Odeumate is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, technical, compliance, or other professional advice. Any information provided by the Odeumate Services is intended for your general use only and does not constitute legal or other professional advice. You are responsible for any actions taken based upon information received from Odeumate.
1.4 Eligibility and Jurisdiction
The Odeumate Services are only available for persons in those jurisdictions in which they may legally be sold. The technology and software underlying the Service (the "Software") is subject to Export Control Laws. No such Software or data may be downloaded or exported in violation of applicable Export Control Laws. You agree to comply with all local rules and laws regarding your use of the Odeumate Services.
1.5 Users; Limitations and Liability
The Odeumate Services may only be accessed and used by individual personnel or representatives of Customer ("Users") who are (i) at least sixteen (16) years of age in Canada, the European Economic Area, and other jurisdictions where applicable law requires a higher minimum age; and thirteen (13) years of age in the United States and other territories where no higher minimum age applies under applicable law, (ii) authorized by Customer to use the Odeumate Services, and (iii) otherwise not barred from using the Odeumate Services under applicable law. You are liable for all actions and omissions of any User and are responsible for ensuring compliance with this Agreement and the User Terms of Service.
1.6 Mobile Services
The Odeumate Services include certain services available via a mobile device (the "Mobile Services"). Your network service carrier's standard charges, data rates and other fees may apply. By using the Mobile Services, you agree that we may communicate with you by SMS, MMS, or other electronic means.
1.7 Professional Services
Odeumate will provide any purchased professional services during regular business hours as described in the Order Form ("Professional Services"). Professional Services must be completed within three (3) months from the date Customer completes the first phase of implementation or from the date of purchase.
2. Customer Responsibilities
2.1 Consent to Electronic Delivery; Electronic Signature
(a) Electronic Signature. When you execute documents using the e-signature tools in the Odeumate platform ("E-Sign Service"), you consent to electronically sign such documents and agree that your electronic signature is the legal equivalent of your manual signature.
(b) Electronic Delivery. You agree that Odeumate may electronically deliver Service-related documents and disclosures to you.
(c) Withdrawing or Failing to Procure Consent. If you fail to procure electronic authorizations or withdraw consent, Odeumate may terminate your use of the Odeumate Services in whole or in part.
(d) Enforceability. You are solely responsible for determining whether a document requires a manual or handwritten signature.
(e) Document Retention. Odeumate is not responsible for determining how long documents must be retained under applicable laws.
2.2 Accuracy of Customer Information
All Odeumate Services will be based upon information provided to Odeumate by you ("User Representations"). You must ensure such information is accurate, complete, and timely. Odeumate is entitled to rely on all User Representations and bears no responsibility for errors resulting from inaccurate information.
2.3 Customer Data
You represent and warrant that you have the necessary rights to use and distribute Customer Data. By providing Customer Data to Odeumate, you grant Odeumate a nonexclusive, worldwide, royalty-free license to process your Customer Data to provide the Odeumate Services and interoperability with Third Party Products.
2.4 Account Administration; Authorizations
(a) Accounts. You must create an account with an email address and master password ("Credentials"). You are responsible for keeping your Credentials secure and for all actions taken through your Account.
(b) Account Administration. Customer will designate Account Administrators with authority to act on Customer's behalf. Customer is solely responsible for all Authorized Actions.
(c) Account Security. Customer is solely responsible for maintaining Account security. If you suspect compromise, immediately notify support@odeumate.com.
(d) Communications and Notifications. Customer is responsible for reviewing all Materials made available by Odeumate and must notify Odeumate of any inaccuracies.
(e) Authorizations. Provision of login credentials and actions via the Odeumate Services will have the same effect as a written signature.
2.5 Third Party Products
(a) Independent Services. Third Party Products are not Odeumate Services. Odeumate provides no representations or warranties with respect to Third Party Products. When you enable a Third Party Product, you grant Odeumate permission to allow access to Customer Data for interoperation.
(b) Authorizations. You authorize Odeumate to store Account Information, access relevant services, and take necessary actions in connection with Third Party Products.
(c) Management. You are solely responsible for provisioning, matching, and managing Third Party Product accounts.
2.6 Prohibited Activities
You will not (nor permit any User or third party to):
- reverse engineer, decompile, or disassemble the Odeumate Services;
- transfer, resell, lease, or license the Odeumate Services;
- use the Services for purposes other than Customer's bona fide internal business purposes;
- use the Services to build a competitive product or for unauthorized access;
- share Credentials or allow unauthorized access;
- scrape, crawl, or use automated means to copy data from the Odeumate Services;
- tamper with or probe the security of Odeumate's systems;
- use the Services to send payments to sanctioned entities;
- overburden or impair Odeumate's servers or websites;
- engage in harassing, fraudulent, or illegal behavior;
- use the Services in violation of applicable law.
2.7 Enforcement of Customer Instruments
Customer is solely responsible for enforcing its own agreements, documents, invoices, or Modified Content. Odeumate will not adjudicate any disputes arising from Customer Instruments.
3. Term and Termination
3.1 Term
The Agreement commences on the earliest of first acceptance, execution of an Order Form, or first use. Subscription Terms auto-renew unless either party provides thirty (30) days' written notice of non-renewal.
3.2 Termination
Odeumate may terminate for any violation of this Agreement (with 30 days to cure if applicable). Customer may terminate and receive a prorated refund if Odeumate materially breaches and fails to cure within 30 days. Either party may terminate if the other becomes insolvent.
3.3 Suspension
Odeumate may suspend access without prior notice for security threats, disruptive use, Agreement breaches, or overdue payments. Odeumate will provide notice within a reasonable time following any suspension.
4. Service Fees and Charges
4.1 Fees
(a) Payment. Customer agrees to pay fees per the applicable Order Form and authorizes automatic debits. Fees are non-refundable except as expressly provided.
(b) Failed Payments. Odeumate may reattempt failed payments within 30 days and impose a $25 fee per failed transaction. Interest accrues at 1.5% per month on past due amounts.
(c) Third Party Splitting. Customer remains the ultimate responsible party for all payment obligations.
(d) Joint and Several Liability. Customer and its affiliates are jointly and severally liable for all fees.
(e) Dormant Accounts. Abandoned funds may be subject to escheatment in accordance with applicable law.
4.2 Automatic Debits
Customer authorizes Pre-Authorized Debits (ACH, EFT, BECS, etc.) for all applicable charges. This authorization remains in effect until 30 days' written notice to support@odeumate.com.
4.3 Fee Disputes
Customer must provide written notice of fee disputes within 30 days of the applicable charge.
4.4 Taxes and Administrative Fees
All fees are exclusive of Taxes and Administrative Fees, which are Customer's responsibility.
5. Proprietary Rights and Confidentiality
5.1 Odeumate's Ownership Rights
All right, title, and interest in and to the Odeumate Services remain vested in Odeumate. Odeumate trademarks may not be used without express permission.
5.2 Feedback
Odeumate has the full, unencumbered right to use any Feedback you provide in connection with its products and services.
5.3 Customer Data
All right, title, and interest in Customer Data remain vested in you. To the extent Odeumate obtains any rights in Customer Data, Odeumate unconditionally assigns the same to Customer.
5.4 Confidentiality
Each party will protect the other's Confidential Information with the same care it uses for its own, but not less than reasonable care. Disclosure is permitted to personnel, consultants, and professional advisers bound by confidentiality obligations, and as required by law.
5.5 Data Security and Privacy
(a) Data Security. Odeumate will implement and maintain commercially reasonable administrative, physical, organizational and technical safeguards to protect Customer Data.
(b) Data Privacy. Odeumate will process Customer Personal Data in accordance with the DPA. Other User personal information will be used in accordance with the Privacy Policy.
5.6 Third Party Distribution Channels
Software applications may be available through the App Store, Google Play or other Distribution Channels. This Agreement is between you and Odeumate only, and not with the Distribution Channel. Additional Apple-specific terms apply to Apple-Enabled Software.
6. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ODEUMATE SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. ODEUMATE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ODEUMATE DOES NOT WARRANT THAT THE ODEUMATE SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS.
Nothing in this section excludes or limits any warranty or right that cannot be excluded or limited under applicable British Columbia or Canadian law.
7. Indemnification
7.1 Indemnification by You
Customer will defend and indemnify Odeumate against third party claims arising from Customer's or its Users' violation of the Agreement, or any instruction or incorrect information provided by Customer.
7.2 Indemnification by Odeumate
Odeumate will indemnify Customer against third party intellectual property infringement claims relating to the Odeumate Services.
8. Limitation of Liability
ODEUMATE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA. ODEUMATE'S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT OF FEES PAID IN THE EIGHTEEN (18) MONTHS PRECEDING THE CLAIM. THESE LIMITATIONS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Nothing in this Agreement limits our liability for fraud, fraudulent misrepresentation, personal injury caused by negligence, or any other liability that cannot be excluded or limited under applicable law.
9. Miscellaneous
9.1 Assignment; Delegation
This Agreement may not be assigned by you without Odeumate's prior written consent.
9.2 Governing Law; Venue; Jurisdiction
This Agreement is governed by the laws of the Province of British Columbia, Canada. Disputes are subject to the exclusive jurisdiction of the provincial and federal courts of British Columbia.
9.3 Notices
Odeumate may provide notifications via email, mobile messaging, mail, or through the Odeumate Services. Material changes will be notified and become effective no earlier than 30 days after posting. Notices to Odeumate should be sent to the Legal Department, British Columbia, Canada, with a copy to support@odeumate.com.
9.4 Waiver
No waiver of any rights will be effective unless assented to in writing by both parties.
9.5 Relationship
Nothing herein constitutes any association, partnership, agency, or joint venture between the parties.
9.6 Unenforceability
If any provision is held invalid or unenforceable, the remainder shall remain in full force and effect.
9.7 Force Majeure
Neither Party is in breach for delays due to causes beyond its reasonable control.
9.8 Entire Agreement
This Agreement (including all Order Forms, Privacy Policy, DPA, Supplemental Terms and Additional Terms) comprises the entire agreement between the parties. The English language version controls.
9.9 Interpretation
"Including" means "including without limitation." "Day" means calendar days.
9.10 Marketing
Customer agrees that Odeumate may use Customer name and logo in promotional materials, unless Customer opts out at support@odeumate.com.
9.11 Compliance with Laws; DMCA
Each Party will comply with Anti-Corruption Laws, Export Control Laws, and all other applicable laws. DMCA takedown requests should be sent to support@odeumate.com.
9.12 Future Functionality
Customer has not relied on any future functionality in executing this Agreement.
9.13 Construction
This Agreement will be interpreted as prepared jointly by both parties.
10. Agreement to Arbitrate and Class Action Waiver
10.1 First Try Customer Support
You must first try to resolve issues through Odeumate customer support. If unresolved after 60 days, you may pursue the dispute resolution procedures below.
10.2 Agreement to Arbitrate
ANY PAST, PRESENT OR FUTURE DISPUTE OR CLAIM SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, RATHER THAN IN COURT. This arbitration agreement is governed by the Federal Arbitration Act (FAA) and, where applicable, the NY Convention. The arbitrator has exclusive authority to resolve all disputes.
10.3 Exceptions
Intellectual property disputes may be brought in any court with jurisdiction. Either party may bring qualifying claims in small claims court in Chilliwack, British Columbia.
10.4 Details of Arbitration Procedure
(a) Informal Resolution. Prior to arbitration, parties must meet and confer in good faith within 60 days. Contact support@odeumate.com with subject "INFORMAL DISPUTE RESOLUTION REQUEST".
(b) If unresolved, either party may initiate arbitration under AAA's Commercial Arbitration Rules before a single arbitrator in Chilliwack, British Columbia.
(c) Discovery. Each party may obtain non-privileged documents and take one deposition.
(d) Award. Based on the substantive law of the Province of British Columbia and Canada. The prevailing party is entitled to costs and reasonable attorneys' fees.
(e) Final and Binding. Judgment may be entered in any court of competent jurisdiction.
10.5 Class Action Waiver; Bellwether Process
YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, CLASS-WIDE ARBITRATION, AND ANY CLASS ACTION LAWSUIT. A Bellwether Process applies when 25 or more similar claims are asserted.