Terms and Conditions
BACK TO SLEEP CONSULTING LTD.
TERMS AND CONDITIONS OF SERVICE
The following terms and conditions govern your use of the Service, as defined below. PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND ACCEPT THESE TERMS AND CONDITIONS, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. WE RESERVE THE RIGHT TO MODIFY THESE TERMS AND CONDITIONS, OR ANY PART OF THEM, AT ANY TIME, WITHOUT PRIOR NOTICE TO YOU.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless there is something in the subject matter or context inconsistent therewith or unless otherwise specifically provided:
- (a) “Agreement” refers to these terms and conditions and the completed Order Form submitted by you to us;
- (b) “BackToSleep”, “we”, “us”, “our” refer to Back to Sleep Consulting Ltd. and our consultants, employees, agents, officers, directors, and successors and assigns;
- (c) “you” and “your” means any person, group or other entity named in an order, enrollment, payment, or signup form completed by that person, group or other entity with respect to the Service, and includes any other person, group, entity or any employee, agent or contractor having access to the Service;
- (d) “Order Form” means any written or electronic order, payment, or signup form completed by you prior to having access to the Service, as such order form may be amended or supplemented by mutual agreement of the Parties from time to time;
- (e) “Consultation” means the initial one (1) hour consultation performed by us regarding the implementation of healthy sleep habits for your child, which at our option may be performed either (i) in person at your home or at another location agreed upon by the Parties or (ii) by teleconference;
- (f) “Content” means, without limitation, the Sleep Plan and all other reports, data, and information provided by us or our licensors to you in connection with the Service, including all information located on our Site;
- (g) “Additional Support” means the applicable level of additional support selected by you on the Order Form, whether in the form of limited email or telephone support, or both, as applicable, in connection with the implementation of the Sleep Plan;
- (h) “Sleep Plan” means the personalized Sleep Plan prepared by us and delivered to you not later than forty-eight (48) hours after the Consultation;
- (i) “Workshop” means any workshop or group consultation performed by us pursuant to Order Form, at various locations selected by us and advertised on the Site;
- (j) “Site” means our website, www.backtosleepconsulting.com;
- (k) “Service” refers individually and collectively to the Consultation, the Sleep Plan, the Content, any Workshop, and/or any Additional Support provided by us to you in accordance with the Order Form, as applicable; and
- (l) “Parties” means BackToSleep and you.
2. OWNERSHIP OF CONTENT
- 2.1 Ownership; Limited Licence. We and our licensors own all right, title and interest in and to the Service and the Content, including without limitation, all copyrights, trade secrets, and other intellectual property rights. We hereby grant you a limited, perpetual, non-transferable licence to use the Content for your personal non-commercial use (the “Limited Licence”). Upon termination of this Agreement unless otherwise provided herein, all of your rights in connection with the Service and the Content, except for the Limited Licence, will terminate.
- 2.2 Trade-marks. The trade-marks, logos and company names of BackToSleep or any of its licensors used as part of the Service and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of BackToSleep or any such affiliate or licensor. Other products, logos and company names mentioned as part of the Service and in the Content, may be the trade-marks of their respective owners.
- 2.3 Proprietary Notices. You agree not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Service and the Content or in or on any related material.
3. TERM AND STANDARDS OF PERFORMANCE
- 3.1 Term of Agreement. This Agreement shall commence upon submission of a completed Order Form to us, including payment in full for the Service as set out on the Order Form, and shall expire upon the completion of the Service as set out on the Order Form.
- 3.2 Standards of Performance – Parties’ Reciprocal Obligations.
- 3.2.1 Within forty-eight (48) hours of the delivery of the Sleep Plan to you, you must review the Sleep Plan and schedule the start date for the implementation of Sleep Plan. If you fail to schedule the start date within this forty-eight hour (48) period, BackToSleep reserves the right to cancel this Agreement and keep the deposit paid by you when you completed the Order Form.
- 3.2.2 After the Consultation, BackToSleep reserves the right to cancel this Agreement for any reason, at any time, in its sole and absolute discretion, by refunding all amounts paid by you in connection with the completed Order Form.3.2.3 Our consultant will spend approximately six (6) hours preparing and consulting with you in the first week of this Agreement; provided further that our consultant will devote a minimum of twenty (20) minutes a day to you during the implementation of the Sleep Plan.
- 3.2.4 All telephone calls will be scheduled in advance. Our consultant will not provide medical advice in any way; however, our consultant may refer you to medical professionals.
- 3.2.5 Our consultant will always endeavor to be on time; however, sometimes due to circumstances beyond his or her control, he or she may be late for your appointment. If our consultant is less than 30 minutes late, a refund or change in appointment are not available. If our consultant is more than 30 minutes late, a refund or change of appointment with no charge will be given at your request.
- 3.2.6 If our consultant needs to cancel your appointment for reasons beyond his or her control, the next available appointments will be offered to you. If the offered dates and/or times are not suitable, you may request a refund.
- 3.3 Refund Policy. We will honour all refund requests until you schedule the Consultation. Upon scheduling the Consultation, you are not entitled to a refund of any amounts paid in connection with the completed Order Form except as otherwise provided in this Agreement.
4. YOUR REPRESENTIONS, WARRANTIES, AND COVENANTS
- 4.1 Duty to Consult with Your Family Doctor. You agree to consult with your family pediatrician or doctor (the “health care practitioner”), about your intention to sleep train and implement the Sleep Plan with your child prior to the implementation of the Sleep Plan. It is your responsibility to rule out any underlying medical conditions with your health care practitioner that may be causing your child’s sleep problems (e.g., sleep apnea, ear infection, allergies, asthma, etc.), as well as to ensure that the health care practitioner has advised that your child is gaining weight appropriately and his healthy, and that it is appropriate to implement the Sleep Plan and/or cease night feedings. You agree to notify us of any medical changes during the sleep training process (e.g., illness, ear infection, etc.) as sleep training should not be implemented unless your child has a “healthy” diagnosis from the health care practitioner. ?
- 4.2 Representations and Warranties Regarding Your Child. By submitting the completed Order Form, you represent and warrant as follows:
- (a) you are the parent/legal guardian of the child in respect of whom you wish to commission the Sleep Plan (“your child”), and you have the legal authority to retain BackToSleep and to enter into this Agreement on behalf of yourself and your child;
- (b) your child is in good health and is not presently, and will not be during the performance of the Service, under a health care practitioner’s care for any medical issue relating to sleep or any other condition that may be negatively affected by the Service; and
- (c) your child does not (or will not during the Consultation) have any pre-existing health conditions, symptoms or congenital defects, which may be aggravated by the Service.
- 5.1 General Disclaimer. The Service and Content provided by BackToSleep is not intended, nor is implied to be a substitute for professional medical advice. You are advised to always seek the advice of your health care practitioner or other qualified health care provider with questions regarding medical conditions, or the health and welfare of the your baby, toddler or child. The consultant will use reasonable efforts to include up-to-date and accurate information in this consult, but we make no representations, warranties, or assurances as to the accuracy, currency, or completeness of the information provided. We shall not be liable for any damages or injury resulting from your access to, or inability to access the information discussed, or from your reliance on any information provided by us. The Service may provide references to other materials and resources, but we will have no responsibility for the content of such other references and shall not be liable for any damages or injury arising from that content. Any references to such third party materials are provided merely as a convenience to you. ?
- 5.2 Warranty Disclaimer. BACKTOSLEEP DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE AND THE CONTENT TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND BACKTOSLEEP AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, BACKTOSLEEP DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE OR THE CONTENT ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, AND BACKTOSLEEP DOES NOT WARRANT THAT USE OF THE SERVICE WILL ACHIEVE ANY PARTICULAR RESULT.
- 5.2 Disclaimer of Liability. IN NO EVENT WILL BACKTOSLEEP, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL BACKTOSLEEP BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO BACKTOSLEEP HEREUNDER. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
- 6.1 Indemnification by You. You shall indemnify, defend and hold BackToSleep, its affiliates or any of their respective directors, officers, employees or agents harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees on a solicitor and own client basis, directly or indirectly resulting from or relating to:
- (a) your use of the Service, the Content or any information received from BackToSleep;
- (b) any allegation that you have engaged in conduct, which if true would breach your warranties or obligations under this Agreement; or
- (c) your negligent or wilful misconduct. BackToSleep reserves the right to participate in the defence of any such claim and to be represented by counsel of its choice.
7. EFFECT OF TERMINATION
- 7.1 Survival of Certain Terms. Articles 2, 4, 5, 6, 8, and all other provisions of this Agreement which by their nature and intent are reasonably required to survive termination based on the terms of this Agreement shall survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
- 8.3 Implied Consent to Use of Personal Information. When you provide us with your personal information, you consent to our collecting it and using it for the reason we have collected it. If we ask for your personal information for a secondary reason, like marketing, we will either ask you directly for your express consent, or provide you with an opportunity to say no. You may not withdraw express consent where doing so would frustrate performance of a legal obligation.
- 8.4 Authorized Disclosure. We may disclose your personal information if we are required by law to do so, or with your consent.
- 8.5 Access to Personal Information. You have the right to access your personal information under our custody or control. A request for access must be made in writing. We may require you to prove your identity before giving you access to your personal information. We will give you your personal information under our control, information about the ways in which your information is or has been used, and the names of the individuals and organizations to which your personal information has been disclosed. PIPA allows use to charge a “minimal” fee for providing an individual with access to his or her personal information. If a fee is required, we will give you a written fee estimate in advance. We may require payment of a deposit or the whole fee before releasing the requested information. We will provide requested personal information within 30 business days after it is requested or we will give written notice if you need more time to respond. In some cases, we may not give you access to certain personal information where authorized or required by PIPA to refuse access. If we refuse an access request, we will tell you in writing, stating the reasons for our refusal and outlining further steps that are available to you (including any internal review by your organization and the right to ask the Office of the Information and Privacy Commissioner for British Columbia to review the decision).
- 8.6 Compliance. The person at BackToSleep who is responsible for compliance with PIPA is Marisa Quan, who may be contacted at email@example.com. If you are not satisfied with our response to your inquiry or complaint, you may complain to the Office of the Information and Privacy Commissioner for British Columbia.
9. LINK POLICY
- 9.1 Third-Party Websites. From time to time, we may post links to other websites on our Site. Such links are provided for your reference only. We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites, or for any other materials, products, or services of third-parties. When you click on any third-party links, you may be directed away from our Site. We are not liable for any harm or damages related to your purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. We encourage you to carefully review any third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
- 10.1 Notices. Any notice required or permitted hereunder will be in writing and may be given by electronic mail to us at firstname.lastname@example.org. Such notice will be deemed to have been received twenty-four (24) hours after it was sent. BackToSleep may deliver notice to you by the mailing addresse(s), electronic mail addresse(s), facsimile number(s) provided by you to BackToSleep at the time you registered to use the Service and such notice will be deemed to have been received twenty-four (24) hours after it was sent.
- 10.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld.
- 10.3 Governing Law. This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
- 10.4 Arbitration. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of Content, proprietary materials or information, or Confidential Information) the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in Victoria, British Columbia in accordance with the Arbitration Act (British Columbia) (the “Act”). Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties shall defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators shall be officers or employees of the parties. Each such arbitrator shall be a lawyer having experience and familiarity with information technology disputes. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators’ fees and reasonable lawyers’ fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be final and binding upon the parties.
- 10.5 Injunctive Relief. You agree and acknowledge that monetary damages may not be a sufficient remedy for any breach of this Agreement and that BackToSleep shall be entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach of the Agreement by you, in addition to any other remedies available at law.
- 10.6 Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
- 10.7 Independent Contractors. The relationship of BackToSleep and you established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (a) give either party the power to direct and control the day to-day activities of the other, (b) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (c) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of BackToSleep and you are the parties’ sole respective responsibilities.
- 10.8 Gender, Plural and Singular. In this Agreement, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa and modifications to the provisions of this Agreement may be made accordingly as the context requires.
- 10.9 Severability. If any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
- 10.10 Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by BackToSleep upon notification to you or by a written modification agreement between both parties. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.