Terms of Service

SEERESULTS NUTRITIONIST USER TERMS

IMPORTANT – BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF SeeResults ONLINE SERVICE, THINKING BIG, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

This is a legal agreement between you ("YOU"), either an individual or an entity, and SeeResults and Thinking Big Information Technology Inc. ("TB"). As part of the Service, TB will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the SeeResults website incorporated by reference herein, including but not limited to SeeResult's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. PRIVACY AND SECURITY.

TB's privacy and security policies may be viewed at http://www.thinkingbig.net. SeeResults reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, SeeResults occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that SeeResults can disclose the fact that you are a paying customer and the edition of the Service that you are using.

2. GRANT OF LICENSE.

TB hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by TB and its licensors. You may not access the Service if you are a direct competitor of the SeeResults application, except with TB's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for your own or internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. YOUR RESPONSIBILITIES.

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state/provincial, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify TB immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to TB immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another TB user or provide false identity information to gain access to or use the Service.

4. ACCOUNT INFORMATION AND DATA.

TB does not own any data, information or material that you submit to the Service in the course of using the Service ("Client Data"). You, not TB, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data, and TB shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. In the event this Agreement is terminated (other than by reason of your breach), TB will make available to you a file of the Client Data within 30 days of termination if you so request at the time of termination. TB reserves the right to withhold, remove and/or discard Client Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Client Data immediately ceases, and TB shall have no obligation to maintain or forward any Client Data.

5. INTELLECTUAL PROPERTY OWNERSHIP.

TB alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the TB Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the TB Technology or the Intellectual Property Rights owned by TB. The SeeResults name, the SeeResults logo, and the product names associated with the Service are trademarks of TB or third parties, and no right or license is granted to use them.

6. THIRD PARTY INTERACTION.

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. TB and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. TB does not endorse any sites on the Internet that are linked through the Service. TB provides these links to you only as a matter of convenience, and in no event shall TB or its licensors be responsible for any content, products, or other materials on or available from such sites. TB provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

7. CHARGES AND PAYMENT OF FEES.

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The charges will be equal to the current number of total Users within your account times the User license fee currently in effect. Payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all Users within your account for the entire Client User License Term, whether or not such Users are actively. You must provide TB with valid credit card or approved purchase order information as a condition to signing up for the Service. Added Users will be subject to the following: (i) added Users will be coterminous with the pre-existing Client User License Term (either Initial Term or renewal term); (ii) the license fee for the added Users will be the then current, generally applicable license fee; and (iii) Users added in the middle of a billing month will be charged in full for that billing month. TB reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party. Data storage fees are included in the Subscription Fee. If the amount of disk storage required becomes excessive, you will be charged the then-current storage fees. SeeResults will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by SeeResults to so notify you shall not affect your responsibility for such additional storage charges. SeeResults reserves the right to establish or modify its general practices and limits relating to storage of Client Data.

8. BILLING AND RENEWAL.

SeeResults charges and collects in advance for use of the Service. SeeResults will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total Users within your account times the license fee in effect during the prior term, unless SeeResults has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. SeeResults fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to provide SeeResults with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Account Owner. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, SeeResults reserves the right to terminate your access to the Service in addition to any other legal remedies.

Unless TB in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in Canada will be billed in Canadian dollars and subject to Canadian payment terms and pricing schemes ("Canadian. Customers"); (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of TB. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

9. NON-PAYMENT SUSPENSION.

In addition to any other rights granted to TB and SeeResults herein collectively, SeeResults reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or SeeResults initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that SeeResults may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. SeeResults reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that SeeResults has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if your account is 30 days or more delinquent.

10. TERM – TERMINATION FOR CAUSE.

This Agreement commences on the Effective Date. The term is indefinite and may be terminated at any time in SeeResults sole discretion. This Agreement will automatically renew for successive renewal terms equal in duration to one month at .SeeResults then current fees. Either party may terminate this Agreement or reduce the number of Users, effective only upon the expiration of the then current License Term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), SeeResults will make available to you a file of the Client Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that SeeResults has no obligation to retain the Client Data, and may delete such Client Data, more than 30 days after termination. Any breach of your payment obligations or unauthorized use of the SeeResults Technology or Service will be deemed a material breach of this Agreement. SeeResults, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, SeeResults may terminate a free account at any time in its sole discretion. You agree and acknowledge that SeeResults has no obligation to retain the Client Data, and may delete such Client Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

11. MUTUAL INDEMNIFICATION.

You shall indemnify and hold SeeResults, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that SeeResults (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release SeeResults of all liability and such settlement does not affect SeeResults business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim. SeeResults shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by SeeResults of its representations or warranties; or (iii) a claim arising from breach of this Agreement by SeeResults; provided that you (a) promptly give written notice of the claim to SeeResults; (b) give SeeResults sole control of the defence and settlement of the claim (provided that SeeResults may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to SeeResults all available information and assistance; and (d) have not compromised or settled such claim. SeeResults shall have no indemnification obligation, and you shall indemnify SeeResults pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, and hardware or business process.

12. WARRANTIES.

SeeResults AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SeeResults AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SeeResults AND ITS LICENSORS.

13. INTERNET DELAYS.

SeeResults SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SeeResults IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

14. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. ADDITIONAL RIGHTS.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

16. NOTICES.

TB may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in SeeResults account information, or by written communication sent by first class mail or pre-paid post to your address on record in SeeResults account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SeeResults (such notice shall be deemed given when received by SeeResults) at any time by sending an email to info@seeresults.ca.

17. MODIFICATION TO TERMS.

SeeResults reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

18. ASSIGNMENT; CHANGE IN CONTROL.

This Agreement may not be assigned by you without the prior written approval of TB but may be assigned without your consent by TB to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of SeeResults directly or indirectly owning or controlling 50% or more of you shall entitle TB to terminate this Agreement for cause immediately upon written notice.

19. GENERAL.

With respect to U.S. Customers, this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. With respect to Non-U.S./Japan Customers, this Agreement shall be governed by the laws of Switzerland, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Switzerland. No text or information set forth on any other purchase order, pre-printed form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and SeeResults or TB as a result of this agreement or use of the Service. The failure of SeeResults or TB to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TB in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and SeeResults and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

20. DEFINITIONS.

As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the SeeResults website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by SeeResults from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Client Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service; "Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter); "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;; "Client User License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Online Order Center" means SeeResults online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service; "SeeResults" means collectively SeeResults and Thinking Big Information Technology a Federal Charlottetown PEI based corporation, having its principal place of business at 35 university avenue, C1A-4P7, Charlottetown Prince Edward Island, Canada; "Technology" means any TB Technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by SeeResults in providing the Service; "Service(s)" means the specific edition of SeeResults online client program management, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by SeeResults, accessible via http://www.seeresults.ca. SeeResults or another designated web site or IP address, or ancillary online or offline products and services provided to you by SeeResults to which you are being granted access under this Agreement, including the Saleforce.com Technology and the Content; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by SeeResults at your request).