Last modified:  May 16, 2025

These terms of use (these “Terms of Use”), together with the other documents referenced and linked below (collectively, the “Agreement”), constitute a legally binding agreement between you and Cycura Data Protection Corp. (doing business as CYBERWELL – Cyber and Data Solutions) (“CYBERWELL”) regarding your rights and responsibilities as a user (“User”) of the website (“Site”) and the provision of cybersecurity services if procured without a contract (the “Services”). In these Terms of Use, the terms “we”, “our” and “us” refer to CYBERWELL and the terms “you” and “your” refers to a User.

Your visit to the Site constitutes your acceptance of the Agreement.  Therefore, please take the time to review the Agreement carefully. You should also read CYBERWELL’s privacy policy (“Privacy Policy”), which is incorporated by reference into these Terms of Use.

If you do not agree with some or all of these Terms of Use, do not access or use the Site.

1. Use and Accuracy of Information

The Site is provided for general information only.  Although CYBERWELL uses reasonable commercial efforts to ensure that the information contained on the Site is accurate, CYBERWELL does not warrant or make any representation regarding the accuracy or completeness of any information or data provided on the Site.

2. CYBERWELL Terms of Service

If you procure any Services from CYBERWELL without a separate agreement, such Services will be governed by the terms of service appended to as Schedule “A”.  If you enter into a separate agreement or contract with CYBERWELL for the use of Services, in the event of conflict, the terms of such separate agreement shall prevail.

3. Privacy Policy and other policies

You understand and acknowledge that your use of the Site is also governed by our Privacy Policy, which you have read and understand, and to which you agree. You consent to the collection, use and disclosure of your personal information by us and/or third-parties in accordance with the terms of and for the purposes set forth in our Privacy Policy. In addition, you also agree that your use of the Site will also be subject to such other policies and procedures as may be conveyed to you by us from time to time.

4. Ownership

Any use of any of the Materials (hereinafter defined), whether in whole or in part, is strictly prohibited, except only and to the limited extent expressly permitted above.

These Terms of Use provide only a limited license to access and use the Site. Accordingly, CYBERWELL does not transfer any ownership or intellectual property interest or title in and to the Site to you or anyone else in connection with your use of the Site.  All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Site (collectively, the “Materials”) are exclusively owned, controlled, or licensed by CYBERWELL.  CYBERWELL, and all other names, logos, marks, and icons identifying CYBERWELL and its products, or services are owned exclusively by CYBERWELL, and any use of such marks without the prior express written permission of CYBERWELL is hereby expressly prohibited.  Other trademarks or service marks identified on or through the Site may be the trademarks or service marks of third parties.  No part of the Site will be construed as granting any license or right to use any trademarks (whether by implication or otherwise), including our trademarks, except with our express written permission or such other party that may be the owner thereof.  The Materials may be protected under copyright, trademark and other laws of Canada and other countries, and CYBERWELL owns all copyright in the selection, co-ordination, arrangement and enhancement of the Materials. Any use of any of the Materials (whether in whole or in part) is strictly prohibited, except only and to the limited extent expressly permitted above.

5. Submissions

For any content that you submit on the Site, e-mail or any social media platform, you grant CYBERWELL a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you.

All content that you submit on or through the Site (or any social media platform) may be used at CYBERWELL’s sole discretion. CYBERWELL reserves the right to change, condense or delete any content on the Site (or any social media platform) that CYBERWELL deems, in its sole discretion, to violate any provision of these Terms of Use. CYBERWELL reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not CYBERWELL, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of CYBERWELL, its agents, subsidiaries, affiliates, partners, App Providers or third-party service providers and their respective directors, officers and employees.

By submitting content to the Site or through social media, you represent and warrant that you are the sole author and owner of the intellectual property rights in the content and that you waive all moral rights in such content.  You must not submit, publish or otherwise disseminate to CYBERWELL or through the Site (or a social media platform) anything which: (a) defames, libels or invades the privacy of any person; (b) is obscene, pornographic, abusive or threatening; (c) infringes on any intellectual property or other rights of any person or entity; (d) has contaminating or destructive properties (i.e. software viruses); (e) violates any law; (f) advocates or describes any illegal activity; or (g) advertises or solicits funds for goods or services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials.  We may enforce our rights to the fullest extent of the law should you breach any of these terms and conditions.

6. Links

The Site may contain links to other web sites. These links are provided solely as a convenience to you and the inclusion of any link does not imply endorsement, investigation or verification by CYBERWELL of the linked web site or information contained therein.  Your use of such sites and your dealings with the owners or operators thereof, including the App Providers, are at your own risk.

7. Errors and Inaccuracies; Corrections

The Site may contain typographical errors or inaccuracies and may not be complete or current.  We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior or any notice to you.

The Site and the Materials are provided “as is”, “where is”, “as available”, without representations or warranties of any kind by CYBERWELL.  TO THE FULL EXTENT PERMITTED BY LAW, CYBERWELL AND ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF CYBERWELL DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND THE MATERIALS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE OR USE.  Without limiting the foregoing, we do not represent or warrant that the Site and the Materials are accurate, complete, reliable, useful, timely or current or that the Site will operate without interruption or error.  We assume no responsibility, and are not liable for, any damages to your computer equipment, data or other property on account of your access to, use of, or browsing on the Site, or inability to do any of the foregoing.

8. Limitation of Liability

Your use of the Site and the Materials is undertaken at your own risk. Under no circumstances will CYBERWELL or any directors, officers, employees, agents, contractors and suppliers of CYBERWELL, be liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to or use of the Site and the Materials, your reliance on the Site and the Materials or any consequences flowing therefrom. CYBERWELL is not responsible for late, lost, incomplete, illegible, misdirected or stolen messages, unavailable network connections, failed, incomplete, garbled or delayed computer transmissions, on-line failures, hardware, software or other technical malfunctions or disturbances or any other communications failures or circumstances affecting, disrupting or corrupting communications. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS OR FAILURE TO REALIZE ANTICIPATED BENEFITS), WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

If you are dissatisfied with the Site, the Materials or with the Agreement, your sole and exclusive remedy is to discontinue using the Site or the Materials, as applicable.

9. Indemnification

You agree to indemnify and save harmless CYBERWELL and all directors, officers, employees, agents, contractors and suppliers of CYBERWELL (in this section, “we” and “us”) from and against any claim, cause of action, demand, cost, loss, expense or liability (including without limitation reasonable professional fees) brought against or suffered or incurred by us as a result of your use of the Site or the Materials or your breach of the Agreement. If we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of the Agreement.  In addition, in the event we are made a party to any claim, suit or action relating to or arising from any services offered by us that is: (a) initiated by you, which is unsuccessful; or (b) initiated by a third party, who is suing you; you will reimburse us at a reasonable rate for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. This defence and indemnification obligation will survive termination of the Agreement and your cessation of use of the Site.

10. Governing Law and Courts

The Agreement and your use of the Site will be governed by and interpreted exclusively in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable in British Columbia, excluding its conflict of laws rules and all private international laws. You further agree that despite being available from a variety of jurisdictions, the Site will be deemed solely based in the Province of British Columbia, Canada; and that the Site will be deemed to be passive in nature and not giving rise to personal jurisdiction over CYBERWELL in jurisdictions other than the Province of British Columbia. You consent and submit to the exclusive jurisdiction of the Courts located in the Province of British Columbia in all disputes arising out of or relating to your use of or inability to use the Site or the Agreement. However, you agree that nothing herein precludes CYBERWELL’s application for injunctive remedies or other urgent legal relief in any jurisdiction.

11. Severability; Waiver

The terms of the Agreement are severable. If any provision of the Agreement is determined to be unenforceable or invalid, then such provision will be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions.  No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under the Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by both parties.

12. Survival

The provisions of these Terms of Use which by their nature lend themselves to survival after the termination of the Agreement shall continue in full force and effect.

 
13.  Non-Assignment
The Agreement is between you and CYBERWELL and is not assignable or transferable except with the express written consent of CYBERWELL, which may be unreasonably withheld. CYBERWELL may assign or transfer any of its rights or obligations within the Agreement without your consent.

14. Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in our performance under the Agreement, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, pandemic, earthquake, tsunami, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

15. Entire Agreement

The Agreement, together with those documents incorporated or referred to herein, constitute the entire agreement between you and us relating to your use of the Site and the Materials (other than Apps offered by CYBERWELL which may be subject to additional or separate terms), and supersedes any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter, and cannot be amended or modified except by our express and explicit agreement to modify the Agreement in writing, or by us making such amendments or modifications available to you pursuant to a modification of the Agreement as permitted herein. In the event of a conflict between the provisions of these Terms of Use and the provisions of any other document or agreement incorporated or referenced herein, these Terms of Use will govern to the extent of the inconsistency. We reserve the right to unilaterally update or modify (collectively “change”) the Agreement at any time and from time to time, effective as of the date of the change and apply to your use of the Site. We will notify you of any changes to the Agreement by posting notice of such changes on the Site, but you should also periodically review the Agreement as you use the Site. You agree that we have this right, and that your continued use of the Site following notice of such change means that you agree to and accept the amendments.

Questions about the Site, or regarding your rights and responsibilities under the Agreement, can be directed to our privacy officer at privacy@well.company.

Schedule “A”

Terms of Service

These general terms and conditions for services constitute a legally binding and enforceable agreement (these “Terms of Service”) between you (“Customer”), the recipient of the Services (hereinafter defined), and Cycura Data Protection Corp. (“CYBERWELL”), the provider of the Services.

1. Applicability.
   • These Terms of Service may not govern the provision of Services by CYBERWELL to Customer.
   • If CYBERWELL and Customer have executed a separate written agreement governing the provision of Services or the purchase of a product (collectively, the “Master Services Agreement”), then the Master Services Agreement shall exclusively apply. An order form without accompanying terms and conditions shall not constitute a Master Services Agreement.
   • If Customer has engaged CYBERWELL to provide Services or has ordered a product from CYBERWELL and the Parties have not executed a Master Services Agreement, then these Terms of Service shall apply. These Terms of Service, along with any order, shall comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral (the “Services Agreement”).
   • These Terms of Service prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms of Service.
2. Services. CYBERWELL shall provide the services to Customer as described in the Services Agreement or otherwise agreed to by CYBERWELL and Customer (the “Services“) in accordance with the Services Agreement.
3. Performance Dates. CYBERWELL shall use commercially reasonable efforts to meet any performance dates agreed to.
4. Customer’s Obligations. Customer shall:
   • cooperate with CYBERWELL in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by CYBERWELL, for the purposes of performing the Services;
   • respond promptly to any CYBERWELL request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for CYBERWELL to perform Services in accordance with the requirements of the Services Agreement;
   • provide such Customer materials or information as CYBERWELL may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
   • obtain and maintain all necessary licences and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Customer’s Acts or Omissions. If CYBERWELL’s performance of its obligations under the Services Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, CYBERWELL shall not be deemed in breach of its obligations under the Services Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
   • If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. CYBERWELL shall, within a reasonable time after such request, provide a written estimate to Customer of:
     • the likely time required to implement the change;
     • any necessary variations to the fees and other charges for the Services arising from the change;
     • the likely effect of the change on the Services; and
     • any other impact the change might have on the performance of the Services Agreement.
   • Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order“). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 26.
   • Notwithstanding Section 6(a) and Section 6(b), CYBERWELL may, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees set out in the Services Agreement.
   • CYBERWELL may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
   • In consideration of the provision of the Services by CYBERWELL and the rights granted to Customer under the Services Agreement, Customer shall pay the fees set forth in the Services Agreement.
   • Customer agrees to reimburse CYBERWELL for all reasonable travel and out-of-pocket expenses incurred by CYBERWELL in connection with the performance of the Services.
   • Customer shall pay all invoiced amounts due to CYBERWELL within thirty (30) days from the date of CYBERWELL’s invoice. Customer shall make all payments hereunder in Canadian dollars.
   • In the event payments are not received by CYBERWELL within thirty (30) days after becoming due, CYBERWELL may:
     • charge interest on any such unpaid amounts at a rate of eighteen percent (18%) per annum or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
     • suspend performance for all Services until payment has been made in full.

8. Taxes. Customer shall be responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder.
9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, and other materials that are delivered to Customer under the Services Agreement or prepared by or on behalf of CYBERWELL in the course of performing the Services, including any items identified as such in the Services Agreement (collectively, the “Deliverables“) except for any Confidential Information of Customer or Customer materials shall be owned by CYBERWELL. CYBERWELL hereby grants Customer a licence to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, and royalty-free basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
10. Confidential Information.
    • All non-public, confidential, or proprietary information of CYBERWELL, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information“), disclosed by CYBERWELL to Customer, 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 the provision of the Services and the Services Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of CYBERWELL. Confidential Information does not include information that is:
      • in the public domain;
      • known to Customer at the time of disclosure; or
      • rightfully obtained by Customer on a non-confidential basis from a third party.
    • Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
    • CYBERWELL shall be entitled to injunctive relief for any violation of this Section 10.
    • CYBERWELL shall be permitted to disclose Confidential Information pursuant to an investigation or an order from a court or government authority with jurisdiction over CYBERWELL. CYBERWELL shall give Customer notice of such disclosure (if permitted by such order).
11. Representation and Warranty.
    • CYBERWELL represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
    • The CYBERWELL shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to CYBERWELL within ten (10) days of the time when Customer discovers or ought to have discovered that the Services were defective.
    • Subject to Section 11(b), CYBERWELL shall, in its sole discretion, either:
      • re-perform such Services (or the defective part); or
      • credit or refund the price of such Services at the pro rata contract rate.
    • THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
12. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OF TRADE OR OTHERWISE.
13. LIMITATION OF LIABILITY.
    • IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE SERVICE AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    • The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from CYBERWELL’s gross negligence or wilful misconduct and (ii) death or bodily injury resulting from CYBERWELL’s grossly negligent acts or omissions.
14. Termination. In addition to any remedies that may be provided under the Services Agreement, CYBERWELL may terminate the Services Agreement with immediate effect upon written notice to Customer, if Customer:
    • fails to pay any amount when due under the Services Agreement;
    • has not otherwise performed or complied with any of the terms of the Services Agreement, in whole or in part; or
    • becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Insurance. During the term of the Services Agreement and for a period of six (6) months thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than five million Canadian dollars (CA$5,000,00]) with financially sound and reputable insurers. Upon CYBERWELL’s request, Customer shall provide CYBERWELL with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms of Service. The certificate of insurance shall name CYBERWELL as an additional insured. Customer shall provide CYBERWELL with ten (10) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against CYBERWELL’s insurers and CYBERWELL.
16. Waiver. No waiver by CYBERWELL of any of the provisions of the Services Agreement is effective unless explicitly set forth in writing and signed by CYBERWELL. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Services Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Force Majeure. The CYBERWELL shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Services Agreement, for any failure or delay in fulfilling or performing any term of the Services Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of CYBERWELL including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, pandemics, lock-outs, strikes, or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
18. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under the Services Agreement without the prior written consent of CYBERWELL. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Services Agreement.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Services Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms of Service.
21. Governing Law. All matters arising out of or relating to the Services Agreement are governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of British Columbia.
22. Choice of Forum. Any legal suit, action, litigation or proceeding arising out of or relating to the Services Agreement shall be instituted in the courts of the Province of British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. The Parties irrevocably waive and agree not to plead or claim in any such court that any such action, litigation, or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
23. Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under the Services Agreement (other than routine communications having no legal effect) (each, a “Notice“) in writing and addressed to the parties at the addresses set forth in the Services Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment), if delivered by email; (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day; or (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
24. Severability. If any term or provision of the Services Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Services Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms of Service, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Services Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Choice of Forum/Arbitration, and Survival.
26. Amendments and Modifications. This Agreement may only be amended or modified in a writing which specifically states that it amends the Services Agreement and is signed by an authorized representative of each party.