Terms and Conditions


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Terms and Conditions a.k.a. The Fine Print
(revised 3 December 1999)

THIS AGREEMENT is BETWEEN:

BellaCoola Software Corporation, a company incorporated under the laws of the province of British Columbia, Canada, and having an office at 2346 Hamiota Street, Victoria, British Columbia, Canada, V8R 2N2 ( “BellaCoola”)

AND

the company or individual specified in the accompanying electonic order form (“Client”), having an office as specified on said form.

BACKGROUND

BellaCoola offers web-tracking products and services to its clients, often using proprietary systems developed by or for BellaCoola (the “Systems”), and often offered and/or delivered through BellaCoola’s website at http://www.bellacoola.com (the “BellaCoola Website”). The Systems often use software proprietary to BellaCoola (the “Software”). One or more of those Systems relates to compiling data regarding viewership of content on the Internet, and involves pieces of HTML code provided by BellaCoola to its clients (the “Tracker Code”), the Tracker Code installed by BellaCoola’s clients onto those items (eg. web pages, advertising banners, outgoing links, newsgroup postings, etc.) for which the clients wish to measure viewership, so as to “tag” those items for monitoring by one or more of the Systems (each time a tagged item is viewed is considered an “impression” for the purposes of this Agreement).
Client wishes to retain BellaCoola to provide web-tracking services in accordance with one or more of the Systems.
BellaCoola and Client wish to enter this Agreement in order to establish the terms and conditions under which BellaCoola will permit Client to use the Systems and under which BellaCoola will otherwise provide web-tracking products and/or services to Client.

AGREEMENTS

For good and valuable consideration, the receipt and sufficiency of which each party acknowledges, the parties agree as follows:

Defined Terms. In this Agreement, the following words will have the following meanings:

“Intellectual Property” means all proprietary rights in, to, and associated with the Systems, the Software, the Tracker Code, and related materials and documentation (the “Documentation”), including (without limitation) copyright, moral rights, trade secrets, confidential information, inventions, patents, industrial designs, algorithms, databases, goodwill, trademarks, and service marks, whether or not registered or otherwise perfected; and

“Representatives” of a party means that party’s directors, officers, employees, servants, agents, independent contractors, and other representatives.

Tracker Code . Upon execution of this Agreement and Client’s compliance with sections 4 and 5 below, Client will be entitled to access the “client section” of the BellaCoola Website, where the following will be available to Client:

Tracker Code;
instructions to Client regarding how to install Tracker Code so as to tag items of Client’s content for monitoring under the Systems; and
any further products, services, or other deliverables included in the pricing plan selected by Client pursuant to section 4 below,

each of which may have been generated or customized by BellaCoola and/or the Systems specifically for Client, and each of which, except for third party commercial software, will be treated by Client as the confidential and proprietary information of BellaCoola and protected in accordance with this Agreement.

Installation of Tracker Code. Client will install Tracker Code in accordance with BellaCoola’s instructions in as many items of Internet content as Client wishes monitored under the Systems, subject to section 9 of this Agreement. Client will not modify Tracker Code, or make any copies of Tracker Code other than as required for tagging items of Internet content for monitoring by the Systems. BellaCoola reserves the right to verify the placement, non-modification, and correctness of its Tracker Code through any means, and Client will cooperate with BellaCoola in this regard.

Pricing Plan. Client will select a pricing plan from those listed at the BellaCoola Website, each of which typically includes both a monthly subscription charge (covering up to a prescribed number of impressions per month) and a charge for each impression over the prescribed number covered by the monthly subscription charge. The pricing plans are subject to change from time to time in BellaCoola’s own absolute discretion. Client may change to a different pricing plan listed at the BellaCoola Website at any time by giving BellaCoola written notice in accordance with this Agreement, said change in pricing plan to take effect at the beginning of the following month.

Method of Payment . Client will establish an account with BellaCoola by selecting a method of payment from those listed at the BellaCoola Website, each of which involves pre-authorization to charge a credit card and/or advance payments into Client’s account sufficient to cover expected charges (and applicable taxes) for at least the following month. In respect of large advance payments, BellaCoola may give Client “bonus dollars” in accordance with the terms and conditions set out in the BellaCoola Website in this regard, which terms and conditions are subject to change from time to time in BellaCoola’s own absolute discretion. The monthly subscription charge payable under Client’s pricing plan will be payable upon the initial establishment of Client’s account under this section and at the beginning of each month afterwards, and this charge will be collected by BellaCoola at those times. The charge for impressions over the prescribed number covered by the monthly subscription charge will be payable as such charges are incurred, and will be collected by BellaCoola at a time convenient to BellaCoola. Client will pay, and BellaCoola will collect, all applicable taxes on all charges payable by Client to BellaCoola.

Remedies for Non-Payment/Breach. If Client’s account balance ever becomes negative, this will constitute a Default under section 14 below, and BellaCoola will be entitled to deny Client access to information collected by the Systems until such time as Client’s account balance becomes non-negative. For up to 30 days after Client’s account balance becomes negative, BellaCoola will allow the Systems to continue collecting information on behalf of Client, but BellaCoola is entitled to deny Client access to that information until the account balance has been made non-negative. If Client’s account balance remains negative for greater than 30 days, in addition to BellaCoola’s right to terminate this Agreement under section 15 below, BellaCoola will be entitled to deactivate Client’s account and cause the Systems to discontinue collecting information on behalf of Client. In addition:

if Client fails to pay any amount when due, BellaCoola is entitled immediately to charge to and collect from Client late charges of the lesser of 1-1/2% per month or the maximum amount allowable by law; and

if Client fails to pay, when due, any amount payable under this Agreement or otherwise fails to fully perform its obligations under this Agreement, Client agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by BellaCoola in enforcing this Agreement including but not limited to all expenses of any legal proceeding related thereto and all reasonable lawyer's fees incurred in connection therewith; and no failure by BellaCoola to request any such payment or to demand any such performance shall be deemed a waiver by BellaCoola of Client’s obligations hereunder or a waiver of BellaCoola's right to terminate this Agreement.

Ownership Rights / Trade Secrets. Client agrees and acknowledges that:

BellaCoola owns all right, title, and interest throughout the world in and to the Systems, Software, Tracker Code, and Documentation; and
BellaCoola owns all right, title, and interest throughout the world in and to the Intellectual Property; and
the Systems, Software, Tracker Code, and Documentation are proprietary trade secrets of BellaCoola.

Client will not do anything to diminish, challenge, or impair the interest of BellaCoola in the Intellectual Property or in the Systems, Software, Tracker Code, or Documentation, and Client will hold and use each of these items in strict confidence.

License to Software/Tracker Code/Documentation. Client will be permitted to use the Software, Tracker Code, and Documentation as part of one or more of the Systems pursuant to a revokable, non-exclusive, non-transferable license in accordance with the terms and conditions in this Agreement. Client will use the Software, Tracker Code, and Documentation only to allow monitoring of Internet content under one or more of the Systems, and Client will not use or permit to be used the Software, Tracker Code, or Documentation in any other manner or for any other purpose. Nothing in this Agreement gives Client any right in or to BellaCoola’s Intellectual Property other than as expressly set out in this Agreement, or as otherwise agreed by the parties in writing. Without limitation, nothing in this Agreement gives Client any right to use BellaCoola’s name, trademarks, logos, databases, websites, or other property.

Specific Restrictions. Without limiting the general restrictions on use contained in the preceding sections, Client will comply with the following specific prohibitions:

Client will not copy Systems, Software, Tracker Code, or Documentation except as expressly permitted above;

Client will not permit anyone to use or have access to Systems, Software, Tracker Code, or Documentation other than bona fide employees and contractors who do so on behalf of Client to fulfil Client’s obligations under this Agreement;
Client will not reverse-engineer, decompile, disassemble, reconstruct, decrypt, debug, modify, update, enhance, supplement, translate, or adapt the Systems, Software, or Tracker Code, and it will not permit anyone else to do so; and
Client will not install Tracker Code on any sites, banners, newsgroups, e-mail messages, or any other Internet content that:

contain or relate to pornography or have links to pornographic sites;
encourage illegal activity or racism, or provide instructions or discussions about performing illegal activities;
engage in libellous, scandalous, or harassing activities;
promote or utilize software or services designed to deliver unsolicited e-mail; or
are otherwise inappropriate.

BellaCoola reserves the right, in its own absolute discretion, to require Client to remove Tracker Codes from sites, banners, newsgroups, e-mail messages, or any other Internet content of which BellaCoola disapproves.

Safeguards. Client will take reasonably diligent precautions to prevent Systems, Software, Tracker Code, and Documentation in its care and control from being duplicated, disclosed, distributed, stolen, or used for unauthorized purposes, which precautions will include but not be limited to obtaining agreements from all individuals whom it permits to have access to Systems, Software, Tracker Code, or Documentation to comply with the terms and conditions of this Agreement relating to confidentiality and the use and protection of Software, Tracker Code, and Documentation, in a form satisfactory to BellaCoola. All information and materials provided by BellaCoola to Client may be proprietary and confidential; Client represents and warrants that it is not a competitor of BellaCoola and agrees not to disclose or allow the disclosure of such information and materials to BellaCoola’s competitors or to other third parties.

Inspection Right. Client will permit BellaCoola to enter all premises where it is using or storing Systems, Software, Tracker Code, or Documentation to observe and inspect Client's use of, and facilities for storing, those items.

Protection of Client’s Data. BellaCoola will provide to Client a password (the “Password ”) for accessing, through the BellaCoola Website, information collected by Systems on Client’s behalf. BellaCoola will take reasonably diligent precautions to prevent such information from being accessed other than by those who know the Password. BellaCoola will not disclose, or allow to be disclosed, the Password to third parties. Further, BellaCoola will not distribute Client’s e-mail addresses to third parties without Client’s permission. Notwithstanding anything else in this Agreement, BellaCoola will not be in breach of this Agreement or be liable to Client in any way whatsoever for disclosing information, the Password, e-mail address, etc. if BellaCoola is required to do so to comply with an order of a court or regulatory body of competent jurisdiction or otherwise to comply with a law.

Term of Agreement. This Agreement will come into effect on the date shown on the first page of this Agreement, and will subsist until terminated in accordance with sections 15 or 16.

Default . Each of the following events will constitute a material default (“Default”) under this Agreement on the part of the party who commits or is responsible for it:

any material failure by the party to perform or observe any of its material obligations under this Agreement, or a material misrepresentation in this Agreement by that party, and the defaulting party failing to correct the default or misrepresentation in all material respects within 30 days after receiving a written notice from the nondefaulting party requesting that the default or misrepresentation be corrected; or
if a party is wound-up, or liquidated, or becomes insolvent, or if a custodian, receiver, or a receiver-manager is appointed for its business or any of its property, or if the party makes an assignment, proposal, or arrangement for the benefit of creditors, or if it files or has filed against it a petition in bankruptcy that is not dismissed within 30 days, or if the party discontinues its business.

Termination for Cause. If a party commits a Default, then the non-defaulting party may terminate this Agreement for cause by giving the defaulting party written notice of termination, which will be effective upon receipt by the defaulting party.

Termination Without Cause. Either party may terminate this Agreement without cause by giving the other party written notice of termination, setting out a date of termination which will be at least sixty (60) days after the date on which the notice of termination is delivered.

Events Following Termination. Upon termination of this Agreement for any reason:

Client will immediately remove Tracker Code from all Internet content items under the control of Client or its Representatives, and otherwise will immediately cease all use of Systems, Software, Tracker Code, and Documentation;

at its own expense, Client will return to BellaCoola the Systems, the Software, Tracker Code, and Documentation and destroy or permanently erase all other copies or facsimiles thereof in Client’s possession or control including copies stored in computer memory, and deliver to BellaCoola a sworn declaration that this has been done;
BellaCoola will be entitled to retake possession of Systems, Software, Tracker Code, and Documentation, and other materials that will have been provided by BellaCoola to Client or its Representatives, or be in transit, at the time of termination, and Client will assist and cooperate with BellaCoola in that regard;
in addition to all other rights and remedies available to BellaCoola, and with or without notice or legal process, BellaCoola or its Representatives will be entitled to enter Client's premises or any other place where Client may be storing any Systems, Software, Tracker Code, or Documentation and other copies or facsimiles of same and remove them, in which event Client will cooperate with BellaCoola and its Representatives and will peaceably surrender such items;

any outstanding balance in Client’s account will become immediately due and payable; and
the parties will be released from the performance of further obligations under this Agreement after the effective date of the termination, except for the following, which will survive termination of this Agreement:

obligations relating to the protection of the Systems, Software, Tracker Code, Documentation, Intellectual Property and confidential information, including sections 7, 9, 10, and the confidentiality obligations in section 12;
Client’s indemnity obligations under section 18;
the disclaimers and limitations of liability in section 20;
Client’s payment obligations under section 5;
further monthly and usage charges payable by Client that accrue until such time as all Tracker Code has been removed from Internet content controlled by Client or its Representatives; and
all other accrued obligations or liabilities and the provisions which by their nature are intended to endure beyond such termination.

Upon Client’ s compliance with all of its obligations under this section, including (without limitation) all payment obligations, BellaCoola will refund to Client any remaining balance in Client’s account, other than bonus dollars credited to the account, which are non-refundable; under no circumstances will BellaCoola be liable for more than the difference between the monies actually paid by Client (not including bonus dollars) and the stated value of the services requested by Client.

Indemnification by Client. Client will indemnify and hold BellaCoola and its Representatives harmless from and against all liabilities, obligations, costs, expenses (including lawyers’ fees and disbursements on a solicitor-and-own-client basis), claims, and proceedings relating to or resulting from Client’s breach of this Agreement or relating to the Internet content on which Client has installed Tracker Code being alleged or found to infringe, violate, or misuse trade secrets, proprietary information, trademarks, trade names, copyright, patent rights, industrial designs, or other intellectual property rights, proprietary rights, privacy rights, or other legal or beneficial rights of any third party.

No Restrictions. Each party represents and warrants to the other party that the execution and delivery of this Agreement and the performance of the covenants and agreements contained in this Agreement by the first party are not limited or restricted by, and are not in conflict with or a violation of, any law, regulation, decree, judgement, or contract, agreement, or other instrument to which the first party is a party or by which it is bound.

Disclaimers and Limitations of Liability.

EACH PARTY SHALL BE LIABLE TO THE OTHER PARTY AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO THE OTHER PARTY, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR NEGLIGENCE.

CLIENT USES THE SYSTEMS, THE SOFTWARE, THE TRACKER CODES, AND DOCUMENTATION AT ITS OWN RISK. ALTHOUGH BELLACOOLA WILL MAKE A REASONABLE EFFORT TO PROVIDE A HIGH STANDARD OF QUALITY FOR ITS PRODUCTS AND SERVICES, BELLACOOLA MAKES NO WARRANTY OF ANY KIND REGARDING THE DEPENDABLITY, ACCURACY, OR TIMELINESS OF THE PRODUCTS/SERVICES PROVIDED BY BELLACOOLA. WITHOUT LIMITATION, BELLACOOLA MAKES NO WARRANTY THAT ACCESS TO THE BELLACOOLA WEBSITE AND/OR CLIENT’S INFORMATION WILL BE AVAILABLE AND/OR UNINTERRUPTED.
BELLACOOLA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, NOT CONTAINED HEREIN, INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF QUALITY, PERFORMANCE, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY COMMERCIAL, ECONOMIC, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGE, HOWSOEVER ARISING, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF, OR FORESEES THE POSSIBILITY OF, ANY OF THESE DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION ANY LOST REVENUE, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, INABILITY TO USE ANY COMPUTER PROGRAM, OR FOR ANY CLAIMS MADE BY A THIRD PARTY, OTHER THAN UNDER SECTION 18 OF THIS AGREEMENT.
() IN NO EVENT SHALL THE AGGREGATE OF BELLACOOLA’S LIABILITY FOR DAMAGES EXCEED A SUM EQUAL TO THE MONIES PAID BY CLIENT TO BELLACOOLA UNDER THIS AGREEMENT FOR THE PRODUCTS OR SERVICES THAT CAUSED THE DAMAGES OR THAT IS THE SUBJECT MATTER OF THE CLAIM. CLIENT ACKNOWLEDGES THAT BELLACOOLA’ S PRICING REFLECTS THE ALLOCATION OF RISKS UNDER THIS AGREEMENT AND THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION OR DEMAND, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, AND SHALL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT, OR OF ANY REMEDY CONTAINED IN THIS AGREEMENT.
No action, regardless of form, arising out of this Agreement or related to the services provided by BellaCoola hereunder may be brought by either party more than two (2) years after the cause of action has arisen.

Remedies. All rights and remedies conferred under this Agreement or by any other instrument or law will be cumulative and may be exercised singularly or concurrently. The exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies.

Governing Law. This Agreement will be governed by and construed in accordance with British Columbia law and applicable Canadian law, and will be treated in all respects as a British Columbia contract.

Communications. Unless the parties agree otherwise, any communication to be given under this Agreement will be in writing and will be delivered by hand, facsimile, e-mail, or double-registered mail to the other party at the address set out above, or to such other addresses or fax numbers as any party may designate by giving notice to the other parties in the manner set out above in this section. Proof of delivery in a manner set out in this section will constitute proof of receipt.

Further Assurances. The parties will execute and deliver all other appropriate supplemental agreements and other instruments, and take any other action necessary, to give full effect to this Agreement, and to make this Agreement legally effective, binding, and enforceable as among them, and as against third parties.

Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.

Severability. If any term of this Agreement is partially or wholly invalid or unenforceable, the remainder of this Agreement will not be affected, and each remaining term will be separately valid and enforceable.

Amendments to Terms/Conditions. BellaCoola is entitled to amend the terms and conditions of this Agreement at any time, and from time to time, by giving Client notice of such amended terms/conditions at least 60 days prior to such amendments taking effect. Without limitation, and notwithstanding section 23, posting the amended terms on the BellaCoola Website will be sufficient to constitute notice to Client under this section 27. If such amended terms/conditions are not acceptable to Client, Client may exercise its right to terminate this Agreement according to section 16.

General. No party may assign this Agreement without the prior written consent of the other party. This Agreement will bind and benefit each of the parties including their respective successors and permitted assigns. This Agreement constitutes the entire agreement between the parties and supersede any prior agreements, dealings, understandings, and expectations of the parties. Neither party is bound by any warranty, representation, condition, or agreement not included in this Agreement. In particular, no such warranty, representation, condition, or agreement of a party not expressed in this Agreement is to be implied. Subject to section 27, this Agreement may be amended or supplemented only by a written agreement signed by each party and that agreement need not be executed under seal.

BellaCoola®, WebHound® and Adios® are registered trademarks of BellaCoola Software Corporation.