PRIVACY POLICY
Thalamus Medical Media Inc. (“Thalamus”, “we”, “us”) has created this Privacy Policy (“Privacy Policy”) in order to set out how we collect, use, and disclose personal information through our website located at www.thalamus.com , including its subpages, (collectively, the “Website”) and via our subscription services which enable access educational and entertainment video and other content via supported platforms and devices on the terms of our Terms of Service (the “Thalamus Services”). By access or using the Website and/or the Thalamus Services (collectively referred to herein as the “Services”) in any manner, you acknowledge that you accept the practices and policies outlined in this Privacy Policy and you hereby consent to the collection, use and disclosure of your Personal Information in accordance with this Privacy Policy.
This Privacy Policy covers our collection, use and disclosure of information about identifiable individuals and information which can be used to identify an individual (“Personal Information”). Personal Information may be collected about users and visitors to the Website, as well as our customers and their end users who use and interact with the Services.
This Privacy Policy covers the activities of Thalamus and does not apply to the practices of third parties that we do not own or control, including third parties that may be featured in advertisements in Licensed Content. You are responsible for ensuring that you have obtained the necessary authorizations and consents for any Personal Information you make available to us for use in accordance with this Privacy Policy.
3.1 Account Information. In order to browse the Website you do not need to have a user account. However for any users who wishes to subscribe to use the Thalamus Services, you must have a valid access code and account to log in to use the managed features of the Services (an “Account”). When you register for the Services or create an Account, we collect certain personal information from you (collectively, “Account Information”). This Account Information includes your name, user names, email address and other contact information..
Thalamus may also request your age to verify that you are old enough to and use the Services. We do not knowingly collect Personal Information from individuals under the age of 13. If we learn that we collected Personal Information from a child under 13, we will delete that information from our records.
3.2 Services Information. Thalamus collects your IP address while you are using the Website in order to screen for fraudulent activity and optimize your use of our Services.
3.3 Use of Personal Information. Thalamus uses Account Information, Services Information and other personally identifiable information collected in connection with the Services to :
When you visit the Website, we automatically collect certain information about your device, including information about your web browser, IP address, time zone, and some of the cookies that are installed on your device. Additionally, as you browse the Site, we collect information about the individual web pages or products that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. We refer to this automatically-collected information as “Device Information”.
We collect Device Information using the following technologies:
The Website uses "cookies" to collect information and improve our products and services. A cookie is a small data file that is stored on your device. Cookies cannot be used to see any other data on your computer, nor can they determine your email address or identity.
We may use "persistent cookies" to save your registration ID and login password for future logins to our service. We may use "session cookies" to enable certain features of our service, to better understand how you interact with our service and to monitor aggregate usage and web traffic routing on our service. We also use session cookies to verify your age, keep track of items you have viewed and store such items in your cart while you are browsing.
The Website may also use technologies such as beacons, scripts, and tags. These technologies may be used for analyzing trends, administering the website, tracking users’ movements around the website, and gathering demographic information about our user base as a whole. Various browsers may offer their own management tools for removing these types of tracking technologies. We may also use third-party ad companies to help provide some of our advertising services. These third parties may place cookies on your computer and collect data about your online activities across websites or online services when you are logged into the third-party service, including for targeted advertising.
For more information about how targeted advertising works, you can visit the Network Advertising Initiative’s (“NAI”) educational page at http://www.networkadvertising.org/understanding-online-advertising/how-does-it-work.
You can opt out of targeted advertising by using the links below:
Additionally, you can opt out of some of these services by visiting the Digital Advertising Alliance’s opt-out portal at: http://optout.aboutads.info/.
Thalamus processes and stores its data, including Personal Information, on servers located in Canada. and the United States. Thalamus also transfers data to certainthird-party service providers (“Sub-Processors”). By submitting Personal Information or otherwise using the Services, you agree to this transfer, storing or processing of your Personal Information in Canada and United States. You acknowledge and agree that your Personal Information may be accessible to law enforcement and governmental agencies in Canada and the United States under lawful access regimes or court order.
6.1 Service Providers and Business Partners. We may from time to time employ third parties to perform tasks on our behalf and we may need to share Account Information and other Personal Information with them to provide certain services. Unless we tell you differently, such third parties do not have any right to use the Personal Information we share with them beyond what is necessary for them to provide the tasks and services on our behalf. The third parties we currently engage includes third party companies and individuals employed by us to facilitate our services, including the provision of database management, payment processing and customer relationship management tools, including the Sub-Processors.
6.2 Business Transfers. If our business (or substantially all of our assets) are acquired by a third party, or if we go out of business, enter bankruptcy, or go through some other change of control, Personal Information may be made available or otherwise transferred to the new controlling entity, where permitted under applicable law.
6.3 With Your Consent. If we need to use or disclose any Personal Information in a way not identified in this Privacy Policy, we will notify you and/or obtain consent as required under applicable privacy laws.
6.4 As Required by Law. We may disclose your Personal Information to third parties without your consent if we have reason to believe that disclosing this information is necessary to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) our rights or property, other users, or anyone else (including the rights or property of anyone else) that could be harmed by such activities. Further, we may disclose Personal Information when we believe in good faith that such disclosure is required by and in accordance with the law.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:
The above may include exchanging information with other companies and organizations for fraud protection and spam/malware prevention. Notwithstanding the general terms of this policy, the collection, use, and disclosure of Personal Information may be made outside of the terms herein to the extent provided for in any applicable privacy or other legislation in effect from time to time, or pursuant to court orders.
We will keep your Personal Information for as long as it remains necessary for the identified purpose or as required by law, which may extend beyond the termination of our relationship with you. We may retain certain data as necessary to prevent fraud or future abuse, or for legitimate business purposes, such as analysis of aggregated, non-personally-identifiable data, account recovery, or if required by law. All retained Personal Information will remain subject to the terms of this Privacy Policy.
If you are visiting the Website or using the Services from outside of Canada, please note that you are agreeing to the transfer of your information to Canada and the United States and for it to be processed globally by our third-party subprocessors. By providing your information you consent to any transfer and processing in accordance with this Policy.
You have the right to access the Personal Information we hold about you in order to verify the Personal Information we have collected in respect to you and to have a general account of our uses of that information. Upon receipt of your written request, we will provide you with a copy of your Personal Information, although in certain limited circumstances, and as permitted under law, we may not be able to make all relevant information available to you, such as where that information also pertains to another user. In such circumstances we will provide reasons for the denial to you upon request. We will endeavor to deal with all requests for access and modifications in a timely manner.
We will make every reasonable effort to keep your Personal Information accurate and up to date, and we will provide you with mechanisms to update, correct, delete or add to your Personal Information as appropriate. As appropriate, this amended Personal Information will be transmitted to those parties to which we are permitted to disclose your information. Having accurate Personal Information about you enables us to give you the best possible service.
We may amend this Privacy Policy from time to time. Use of Personal Information we collect is subject to the Privacy Policy in effect at the time such information is collected, used or disclosed. If we make material changes or changes in the way we use Personal Information, we will notify you by posting an announcement on our Website or sending you an email prior to the change becoming effective. You are bound by any changes to the Privacy Policy when you use the Website or Services after such changes have been first posted.
Questions regarding this Privacy Policy or Thalamus’ privacy practices should be directed to our Privacy Officer:
support@thalamusmedia.com
To support Thalamus in delivering the Services, Thalamus engages third-party service providers as sub-processors. This page identifies our sub-processors if any, describes where they are located, lists what services they provide to us and identifies the type of personal information processed.
Our business needs may change from time to time and Thalamus will periodically update this page to provide notice of additions and removals to our list of sub-processors.
Last Updated: September 1, 2021
AFFILIATE DASHBOARD TERMS OF SERVICE
The Thalamus software-as-a-service Terms of Service (the “Terms of Service”) form an agreement between the program affiliate accessing, installing or otherwise using the Thalamus Affiliate Dashboard (such customer, the “Program Affiliate”) and Thalamus Medical Media Inc. (“Thalamus”), the supplier of the Thalamus Affiliate Dashboard. The Parties have separately entered into the Thalamus Affiliate Program Sign-Up Form and the Thalamus Program Affiliate Program Terms & Conditions (the “Thalamus Affiliate Program Terms & Conditions”). Together, the Thalamus Affiliate Program Terms & Conditions, the Thalamus Order Form, and these Terms of Service form the “Agreement”.
These Terms of Service are entered into on the earlier of the date Program Affiliate: (i) first uses any part of the Thalamus Affiliate Dashboard; or (ii) agrees to be bound by the Terms of Service (the “Effective Date”). Each of Thalamus and Program Affiliate shall individually be referred to as a “Party” and jointly as the “Parties”.
These Terms of Service sets forth the terms and conditions that govern the provision and use of: (a) the Thalamus Affiliate Dashboard for Program Affiliate to provide and manage access to the Thalamus Products for Program Affiliate’s prospective customers and Qualified Introductions; and (b) any additional services made available by Thalamus via the Thalamus Affiliate Dashboard.
USING THE THALAMUS AFFILIATE DASHBOARD (INCLUDING THE WEBSITE), PROGRAM AFFILIATE ACKNOWLEDGES THAT PROGRAM AFFILIATE HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 10(k). IF PROGRAM AFFILIATE DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, PROGRAM AFFILIATE WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE THALAMUS AFFILIATE DASHBOARD. PROGRAM AFFILIATE REPRESENTS AND WARRANTS TO THALAMUS THAT PROGRAM AFFILIATE HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF PROGRAM AFFILIATE IS USING THE THALAMUS AFFILIATE DASHBOARD ON BEHALF OF ANOTHER PERSON, PROGRAM AFFILIATE HEREBY REPRESENTS AND WARRANTS TO THALAMUS THAT PROGRAM AFFILIATE HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
(a) Provisioning of the Thalamus Affiliate Dashboard. Subject to Program Affiliate’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Thalamus will make the Thalamus Affiliate Dashboard available to Program Affiliate and Permitted Users on the terms and conditions set out in this Agreement during the Term.
(a) In order for Program Affiliate to access and use the Thalamus Affiliate Dashboard, Thalamus will issueone account (the “Program Affiliate User Account”) to Program Affiliate for use by Program Affiliate and all individuals who are employees or contractors of Program Affiliate that Program Affiliate wishes to have access to and use of the Thalamus Affiliate Dashboard (each, a “Permitted User”).
(b) Program Affiliate will ensure that Permitted Users only use the Thalamus Affiliate Dashboard through the Program Affiliate User Account. Program Affiliate will not allow any Permitted User to share the Program Affiliate User Account with any other person. Program Affiliate will promptly notify Thalamus of any actual or suspected unauthorized use of the Thalamus Affiliate Dashboard. Thalamus reserves the right to suspend, deactivate, or replace the Program Affiliate User Account if it determines that the Program Affiliate User Account may have been used for an unauthorized purpose. Program Affiliate will ensure that all individual users of the Thalamus Affiliate Dashboard, including Permitted Users, are contractually bound to terms and conditions with Program Affiliate that are no less restrictive or protective of Thalamus’ rights than those set forth in this Agreement.
(a) As between Thalamus and Program Affiliate, Program Affiliate retains all ownership and Intellectual Property Rights in and to Program Affiliate Data. Program Affiliate grants to Thalamus a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Program Affiliate Data to:
(i) provide the Thalamus Affiliate Dashboard;
(ii) improve and enhance the Thalamus Affiliate Dashboard and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). As between Thalamus and Program Affiliate, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Thalamus. Thalamus or its licensors retain all ownership and Intellectual Property Rights in and to (i) the Thalamus Property (as defined in the Thalamus Affiliate Program Terms & Conditions); (ii) anything developed or delivered by or on behalf of Thalamus under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii) (collectively “Thalamus Dashboard Property”).
(b) Program Affiliate grants to Thalamus and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Thalamus Affiliate Dashboard, any suggestion, enhancement request, recommendation, correction or other feedback provided by Program Affiliate or Permitted Users relating to the operation of the Thalamus Affiliate Dashboard or any of Thalamus’ affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Program Affiliate or Permitted Users and without any obligation to the Program Affiliate or any Permitted User. Thalamus is not obligated to use any Feedback.
(c) All rights not expressly granted by Thalamus to Program Affiliate under this Agreement are reserved.
Program Affiliate understands that personal information, including the personal information of Permitted Users, will be treated in accordance with Thalamus’ privacy policy located at thalamusmedia.com/legal
Program Affiliate will generally have access to Thalamus’ technical support services as provided on the Thalamus Affiliate Dashboard.
(a) Program Affiliate Warranty. Program Affiliate represents and warrants to and covenants with Thalamus that the Program Affiliate Data will only contain Personal Information in respect of which Program Affiliate has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Thalamus to provide the Thalamus Affiliate Dashboard, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Thalamus and to or from all applicable third parties.
(b) GENERAL DISCLAIMER. THALAMUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY THALAMUS TO PROGRAM AFFILIATE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THALAMUS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THALAMUS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO PROGRAM AFFILIATE IN CONNECTION WITH PROGRAM AFFILIATE’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY PROGRAM AFFILIATE FOR ANY PURPOSE WHATSOEVER.
AFFILIATE PROGRAM TERMS & CONDITIONS
The Thalamus Affiliate Program Sign-Up Form (“Sign-Up Form”) and these terms (collectively the “Agreement”) apply to affiliates participating in the Thalamus Affiliate Program. The term “Program Affiliate” refers to the organization agreeing to the Agreement. This Agreement is a binding legal agreement between Thalamus Medical Media Inc. (“Thalamus”) and Program Affiliate.
BY APPLYING TO PARTICIPATE IN THE THALAMUS OR PARTICIPATING IN THE THALAMUS AFFILIATE PROGRAM, PROGRAM AFFILIATE ACKNOWLEDGES THAT PROGRAM AFFILIATE HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13.5. IF PROGRAM AFFILIATE DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT OR ANY AMENDMENTS, PROGRAM AFFILIATE WILL IMMEDIATELY CEASE ANY FURTHER PARTICIPATION IN THE THALAMUS AFFILIATE PROGRAM.
As used in this Agreement, the following words have the meanings set out below:
“Applicable Law” means any applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Disqualified Introduction” means any prior or current Thalamus customers.
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Thalamus, Program Affiliate, Thalamus Products or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of, and other entities created by, such entities.
“Marks” means trademarks, service marks, brand names, trade names, corporate names, business styles, trade dress, logos, insignia and other commercial symbols.
“Net Revenue” means, for each Qualified Introduction, the amounts received by Thalamus from the Qualified Introduction in respect of monthly plans for Thalamus Products less:: (a) any fees paid by Thalamus to third parties for content; (b) any set-up fees or add-on features; (c) any other revenue generated from the Qualified Introduction other than pursuant to monthly plans for the applicable Thalamus Products; or (d) any discounts, rebates, or credits provided to the Qualified Introduction.
“Parties” means Thalamus and Program Affiliate, and “Party” means either Thalamus or Program Affiliate.
“Promotional Materials” means any advertising and promotional materials provided by Thalamus to Program Affiliate from time to time, including videos, source code, language, and images.
“Thalamus Program Affiliate Dashboard” means the partner dashboard provided by Thalamus to Program Affiliate.
Thalamus hereby engages Program Affiliate, and Program Affiliate hereby accepts such engagement, to act as Thalamus’ non-exclusive referrer with respect to referral of sales of the Thalamus Products to Qualified Introductions during the term of the Agreement, solely in accordance with the terms and conditions of this Agreement. Thalamus may in its sole discretion engage any other person or company to sell any Thalamus Products.
3.1 During the Term, Program Affiliate will:
(a) promote, advertise, and refer potential customers to Thalamus Products during the Term of this Agreement, at the prices communicated by Thalamus from time to time, on a non-exclusive basis;
(b) ensure all prospective customers and Qualified Introductions agree to and comply with the then current Thalamus terms of use for Thalamus Products, as provided by Thalamus at thalamusmedia.com/legal; and
(c) take all commercially reasonable steps to preserve and protect the goodwill and reputation of Thalamus.
3.2Program Affiliate will not:
(a) make any representations, warranties or guarantees with respect to the Thalamus Products that are deceptive, misleading or otherwise inconsistent with any materials that are made publicly available by Thalamus or represent to any third party that it is an agent of Thalamus or has the power to bind Thalamus in any way;
(b) make any introduction to Thalamus of any Disqualified Introductions;
(c) engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Thalamus Products including any product disparagement;
(d) charge the Qualified Introductions any fees or other amounts, or otherwise require compensation for, access to or use of the Website Videos; or
(e) do anything that suggests that the Thalamus Products belong to Program Affiliate or anyone other than Thalamus.
4.1 A prospective customer that is referred to Thalamus by Program Affiliate qualifies as a “Qualified Introduction” if such customer:
(a) uses the referral code or subscription link provided by Thalamus to Program Affiliate;
(b) provides its domain name, practice name, and practice email to Program Affiliate for authorization by Thalamus;
(c) once authorized, enters into binding agreement, with Thalamus for a subscription to the Thalamus Products (“Binding Agreement”); and
(d) is not a Disqualified Introduction as of the date of the referral.
4.2 Notwithstanding Section 4.1, Thalamus reserves the right to reject a prospective customer as a Qualified Introduction at its discretion, including by refusing a domain authorization. Thalamus reserves the right to suspend or terminate the provision of Thalamus Products to any Qualified Introduction at any time. Upon such rejection, suspension, or termination, Thalamus will not have any obligation towards Program Affiliate with respect to the Qualified Introduction, including paying any Referral Fee.
4.3 In consideration for Program Affiliate’s performance of its obligations in this Agreement, Thalamus will pay the Referral Fee to Program Affiliate for each Qualified Introduction on a twice-yearly basis for the duration of the Term. The “Referral Fee” will be, for each Qualified Introduction, an amount equal to: (a) 10% multiplied by (b) Net Revenue received by Thalamus from the Qualified Introduction, commencing from the effective date of the applicable Binding Agreement with the Qualified Introduction[1] .
4.4 Thalamus[2] will pay the Referral Fees on a quarterly basis. A[3] [CP4] ny Referral Fees will be paid in Canadian dollars. Any fees, deductions, or charges incurred by Thalamus to convert payments into Canadian dollars or to transfer Referral Fees to Program Affiliate will be deducted from the Referral Fees.
4.5 On a monthly basis, a report will be made available to Program Affiliate on the Thalamus Program Affiliate Dashboard specifying the Referral Fees owed for the preceding month. If Program Affiliate believes Thalamus has paid Program Affiliate incorrectly, Program Affiliate must contact Thalamus no later than 30 days from having received the report in which the error or problem appeared in order to receive an adjustment. In the event a dispute is pending resolution, Thalamus is under no obligation to pay disputed amounts.
4.6 Program Affiliate will be responsible and liable for all applicable taxes, goods and services taxes, use taxes, and similar taxes imposed on the amounts or other consideration paid by Thalamus to Program Affiliate. Thalamus will reasonably co-operate with Program Affiliate to minimize Thalamus’ liability for applicable taxes and Program Affiliate will provide Thalamus with any requested certificates or documents for such purpose. Thalamus will have the right to deduct and remit any withholding taxes on any fees payable under this Agreement.
4.7 Neither Party will be responsible for any expenses of the other Party in the course of the performance of its obligations hereunder unless such expenses have been previously approved in writing.
4.8 Program Affiliate may not object to any decisions made by Thalamus regarding the terms or conditions of a particular relationship negotiated or entered into with any Qualified Introduction. The prices, terms, and conditions under which Thalamus offers or sells any Thalamus Products shall be determined by Thalamus in its sole discretion. Thalamus shall have the authority to control all discussions and negotiations regarding any proposed or actual offering or sale of Thalamus Products.
5.1 Thalamus will provide Program Affiliate with (a) access to the Thalamus Program Affiliate Dashboard, which access will be subject to the Thalamus Affiliate Dashboard Terms of Service; (b) a unique URL to share with prospective customers; (c) an active promotional code for Program Affiliate to subscribe to the Thalamus Products on its own behalf; (d) access to monthly reports and data related to Qualified Introductions through the Thalamus Program Affiliate Dashboard; and (e) access to a pre-live URL for each Qualified Introduction.
5.2 For each Qualified Introduction, Program Affiliate will use the Thalamus Program Affiliate Dashboard to (a) add and remove domains of prospective customers for authorization by Thalamus; (b) provide prospective customers and Qualified Introductions with the Website Videos; (c) provide the Qualified Introduction with access to the Thalamus Products and manage such access; and (d) for Program Affiliate’s internal business purposes, including communicating with Thalamus and managing the Program Affiliate's payments and reports.
5.3 For each prospective customer who is not a Qualified Introduction, Program Affiliate will use the Thalamus Program Affiliate Dashboard to: (a) add and remove domains of the prospective customer for authorization by Thalamus; and (b) provide the prospective customer with the Website Videos. Program Affiliate acknowledges that until a prospective customer becomes a Qualified Introduction, the prospective customer will only have access to Thalamus’ standard Website Videos for the prospective customer’s website with no other features or functionality, including configuration capabilities, which additional features or functionality will require the access and use of the corresponding Thalamus application.
5.4 Thalamus grants to the Program Affiliate a non-exclusive, royalty-free, fully paid-up, non-transferable, non-sublicensable, and revocable license during the Term to make available the Website Videos to the Qualified Introductions and prospective users for their use and display on such Qualified Introductions’ and prospective users’ websites.
5.5 Program Affiliate acknowledges and agrees that (a) any domains deactivated from the Thalamus Program Affiliate Dashboard will be archived by Thalamus; and (b) Program Affiliate will not have access to all information collected by Thalamus about Qualified Introductions.
6.1 Any use by a Party of the other Party’s Marks must be approved in writing by the other Party prior to such use. Subject to the foregoing, the Party that owns the applicable Marks grants to the other Party a non-exclusive, royalty-free, fully paid-up, non-transferable, non-sublicensable, and revocable license during the Term to use and display such Marks solely for such approved use.
6.2 Each Party acknowledges the validity, and the other Party’s ownership, of the other Party’s Marks and agrees that any and all goodwill, rights or interests that might be acquired by the use of the other Party’s Marks will inure to the sole benefit of the other Party. All goodwill arising from the use, advertisement and display of the other Party’s Marks pursuant to this Agreement will enure to the sole benefit of the other Party.
6.3 Unless otherwise approved in writing by the Party that owns the Marks, each Party will comply with the branding and trademark guidelines that the other Party provides in writing.
7.1 Thalamus may provide Program Affiliate with Promotional Materials to assist Program Affiliate in fulfilling its obligation under this Agreement.
7.2 All rights, title and interest, including intellectual property rights, in and to the Marks of Thalamus, Thalamus Products, Promotional Material, the Thalamus Affiliate Dashboard, Thalamus Confidential Information, or any other information provided by Thalamus, as well as any update, adaptation, translation, customization, modifications, enhancements or derivative work thereof, will remain exclusively with Thalamus (or Thalamus’ third party suppliers and licensors, if applicable) (collectively “Thalamus Property”). All rights not expressly granted to Program Affiliate in this Agreement are reserved.
7.3 Program Affiliate represents and warrants that will not download, copy, modify, host, decompile, reverse engineer, or attempt to discover the composition, components, or attributes of any of the Thalamus Property.
7.4 All rights, title and interest, including intellectual property rights, in and to the Marks of Program Affiliate and any update, adaptation, translation, customization, modifications, enhancements or derivative work thereof, will remain exclusively with Program Affiliate (or Program Affiliate’s third party suppliers and licensors, if applicable). All rights not expressly granted to Thalamus in this Agreement are reserved.
7.5 This Agreement will in no way limit Thalamus’ right to sell, market, advertise, and promote Thalamus Products directly or indirectly to any current or prospective customers.
7.6 Thalamus will have, and Program Affiliate grants, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual right and license to use, modify, create derivate works from, and/or incorporate into the Thalamus Property (and any other applications, products and services of Thalamus) any ideas, suggestions, enhancements, recommendations or other feedback provided by or on behalf of Program Affiliate.
8.1 All non-public, confidential, or proprietary information of Thalamus, including, but not limited to, Promotional Material, reports, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, disclosed by Thalamus to Program Affiliate, whether disclosed orally or disclosed or accessed in written, electronic or other form, or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement, as well as the terms and conditions and the existence of this Agreement, Thalamus Property is confidential (collectively the “Confidential Information”), solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Thalamus in writing.
8.2 Upon Thalamus’ request, Program Affiliate shall promptly return all documents and other materials and Confidential Information received from Thalamus. Thalamus shall be entitled to injunctive relief for any violation of this Section 8.2. This Section 8.2 shall not apply to information that is: (a) in the public domain; (b) known to the Program Affiliate at the time of disclosure; or (c) rightfully obtained by the Program Affiliate on a non-confidential basis from a third party. Program Affiliate may disclose Confidential Information if required to be disclosed pursuant to a lawful order of a court or a person having jurisdiction to make such an order, provided that, if permitted by law, Program Affiliate shall notify Thalamus and provide Thalamus with an opportunity to obtain a protective order regarding the confidentiality of the Confidential Information. For clarity and avoidance of all doubt, Program Affiliate agrees that this Agreement will not be disclosed to others, except with Thalamus’ prior written consent.
9.1 Program Affiliate represents and warrants to, and covenants with, Thalamus that it will comply with, and will remain in compliance with at all times during the Term, all Applicable Law.
9.2 Program Affiliate will defend, indemnify and hold harmless Thalamus and its officers, directors, employees and agents (each, a “Thalamus Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, incurred by a Thalamus Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise, by a third party, directly or indirectly arising from or in connection with any of the following:
(a) Program Affiliate’s breach of any of its obligations, representations, warranties or covenants under this Agreement;
(b) any allegation that the Program Affiliate’s Marks or anything else provided to Thalamus under this Agreement, infringes any third party’s intellectual property rights; or
(c) Program Affiliate’s violation of any Applicable Law.
10.1 To the maximum extent permitted under Applicable Law, in no event will Thalamus’ aggregate liability to Program Affiliate in connection with or under this Agreement, whether in contract, tort (including negligence or gross negligence), or otherwise, exceed the sum of the Referral Fees paid by Thalamus to Program Affiliate in the 12 month period immediately preceding the event giving rise to the claim. The existence of one or more claims under this Agreement will not increase this maximum liability amount.
10.2 To the maximum extent permitted under Applicable Law, neither Party will be liable to the other Party for: (i) special, exemplary, punitive, indirect, incidental or consequential damages; (ii) lost or loss of savings, profit, data, use, or goodwill; (iii) business interruption; (iv) costs for the procurement of substitute products or services; (v) personal injury or death; or (vi) personal or property damage arising out of or in any way connected to this Agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence or gross negligence), or otherwise, and even if notified in advance of the possibilities of such damages.
10.3 Thalamus Products and the Promotional Materials are provided “as is” and “as available”, with all faults and without warranties, conditions, or representations of any kind. to the fullest extent permitted by Applicable Law, Thalamus disclaims all express, implied, collateral or statutory representations, warranties or conditions, whether written or oral, including any warranties or conditions of merchantable quality, fitness for a particular purpose, non-infringement, or any warranties or conditions arising out of course of dealing or usage of trade with respect to Thalamus Products and the Promotional Materials.
11.1 Either Party may terminate this Agreement at any time upon giving the other Party 30[5] days’ Notice.[6] Thalamus’ payment obligations under Section 4 will end with the termination of this Agreement.
11.2 Either Party may terminate this Agreement upon Notice of termination to the other Party, effective immediately, if: (a) the other Party is or becomes insolvent or bankrupt or ceases paying its debts as they mature, or makes or files an assignment in bankruptcy or otherwise acknowledges its insolvency, or a trustee, receiver, liquidator or similar official is appointed for the other Party or any substantial portion of its property and assets, or bankruptcy, insolvency, arrangement or similar proceedings are instituted by or against the other Party; or (b) the other Party commits a material breach of the terms of this Agreement, and such breach is not cured within 15 days following the delivery of Notice thereof in accordance with this Agreement.
11.3 Upon the termination or expiration of this Agreement: (a) Program Affiliate will immediately discontinue all promotion and marketing of Thalamus Products, cease using the Thalamus’ Marks and Promotional Materials, and cease providing access to the Website Videos; and (b) each Party will return to the other Party all property of the other Party in its possession or under its control. Upon request of a Party, the other Party will certify in writing that it has complied with this Section. Termination of this Agreement is without prejudice to any other right, remedy or recourse which either Party may have.
11.4 The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration or which contemplates the performance or observance subsequent to termination of expiration of this Agreement, will survive the expiration or termination of this Agreement for any reason: 7 (Ownership and Other Reserved Rights), 8.2 (Confidentiality), 10 (Limitation of Liability and Disclaimer), 11.3 (Obligations upon Termination), 12 (General) and this Section 11.4.
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Thalamus, to the following Thalamus’ address and email contact: VP of Sales and Development at sales@thalamusmedia.com and (ii) if to Program Affiliate, to the current mailing or email address that Thalamus has on file with respect to Program Affiliate. Thalamus may change its contact information by posting the new contact information on the Website or by giving notice thereof to Program Affiliate. Program Affiliate is solely responsible for keeping Program Affiliate’s contact information on file with Thalamus current at all times during the Term. Any Party may, from time to time, change its address by giving Notice to the other Parties in accordance with this Section
13.1 Assignment. Program Affiliate shall not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Thalamus. Notwithstanding any such approval, Program Affiliate will remain responsible for any subcontractor’s performance of this Agreement. Thalamus may assign any of its rights, or delegate any of its obligations, under this Agreement, without the consent of Program Affiliate, to any third party. Any attempt by either Party to assign its rights or obligations under this Agreement in breach of this Section 13.1 will be void and of no effect. Subject to the foregoing, this Agreement will bind and enure to the benefit of the Parties, their permitted successors and permitted assigns.
13.2 Non-Competition. During the Term and for a period of two years after the expiration or earlier termination of this Agreement, Program Affiliate will not, directly or indirectly, (a) offer any products or services similar to the Thalamus Products) to any Qualified Introduction (“Restricted Business”); (b) have an interest in any person that engages, directly or indirectly, in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, director, manager, principal, agent, trustee, or consultant; or (c) intentionally interfere in any material respect with the business relationships between Thalamus and the Qualified Introductions, other customers, or suppliers of Thalamus.
13.3 Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
13.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all prior statements, representations, discussions, negotiations and agreements, both oral and written.
13.5 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, THALAMUS MAY UNILATERALLY AMEND THESE TERMS IN WHOLE OR IN PART (EACH, AN “AMENDMENT”) UPON NOTICE OF SUCH AMENDMENT TO PROGRAM AFFILIATE. UNLESS OTHERWISE INDICATED BY THALAMUS, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE INDICATED IN THE NOTICE OF SUCH AMENDMENT. IF PROGRAM AFFILIATE DOES NOT ACCEPT AND AGREE TO BE BOUND BY ANY AMENDMENTS, PROGRAM AFFILIATE WILL IMMEDIATELY CEASE ANY FURTHER PARTICIPATION IN THE THALAMUS AFFILIATE PROGRAM.
13.6 Governing Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Thalamus from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
13.7 Public Announcements. Program Affiliate shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of Thalamus.
13.8 Independent Contractors. Program Affiliate is an independent contractor of Thalamus, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Program Affiliate and Thalamus for any purpose. Program Affiliate has no authority (and shall not hold itself out as having authority) to bind Thalamus and Program Affiliate shall not make any agreements or representations on Thalamus’ behalf without Thalamus’ prior written consent.
13.9 Injunctive Relief. Each Party acknowledges that violation of the provisions of Sections 6, 7, or 8.2 would cause irreparable harm to a Party not adequately compensable by monetary damages. Therefore, in addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
13.10 No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
13.11 Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
13.12 Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
13.13 Counterparts. This Agreement may be executed in more than one counterpart and delivered by electronic means. Each counterpart so delivered is deemed an original and all of counterparts together constitute one instrument.
13.14 Further Assurances. Each Party will from time to time execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
