Legal — Fifth Element

Terms & Conditions + Privacy policy

terms & conditions

These Terms and Conditions apply to your use of the Fifth Element Human Performance Coaching Inc. (operating as “Fifth Element”) website, located at www.thefifthelement.ca (the “Website”), and the services offered by The Fifth Element (the “Services”) to our users and customers (the “User” or “You”). By using any of Fifth Element’s Services, visiting the Website, or completing a sign-up or purchasing process on the Website, you are deemed to have read and agreed to the following terms and conditions:

About the Service

Fifth Element is an executive coaching firm that partners with high potential individuals and influencers to develop best practices and improve leadership capacities. We offer a variety of services including performance coaching, in-person workshops, public speaking engagements, assessments, and surveys. Fifth Element provides our Services to Users in the Province of Ontario, throughout Canada, and internationally, where permissible by local law. If you are accessing our Website or Services from a jurisdiction outside Canada, you hereby acknowledge agree that your use of the Website or Services shall, to the greatest extent permitted by applicable law, remain at all times subject only to the laws of Ontario and Canada. To the extent permitted by applicable law, we reserve the right to deny or terminate service to any User at our discretion.

Fifth Element makes every effort to ensure materials on the Website are displayed accurately with the same colours and images across different computers and devices. However, Fifth Element cannot guarantee that your computer or device will accurately or consistently display image colours and sizing.

User Options

Fifth Element offers Users a variety of options to engage with our Services and Website. Users can download online resources produced by Fifth Element through the “Store” page on the Website (the “Web Store”). Users can also purchase Fifth Element merchandise through the Web Store. In order to access archived content, Users must create a member profile through the “Sign Up” page on the Website (the “Member Profile”). Fifth Element’s clients for our coaching services will also be granted access to a client portal through the Website (the “Client Portal”).

The Web Store

Individual and commercial Users are welcome to visit the Fifth Element website to learn more about our company, discover our catalogue of online resources, and shop our available merchandise. The Web Store is accessible to all Users and features online resources and merchandise for sale by Fifth Element.

Online resources comprise video, audio, and/or written materials produced by Fifth Element (“Online Resources”). Online Resources are developed by our team and are provided “as is” without warranty, as further described herein. We update, add, and remove Online Resources from time to time at our sole discretion. In order to purchase an Online Resource, the User must provide their first name, last name, email address, and credit card information. Once a purchase is complete and the corresponding payment has been successfully processed, the User will receive an email with a link to the Online Resource, which will remain active for forty eight (48) hours from the time the email is sent.

Users can also purchase merchandise through the Web Store (the “Merchandise”). All merchandise is provided “as is” and without warranty, as further described herein. Merchandise is available from time to time at our sole discretion and based on availability. In order to purchase Merchandise from the Web Store, the User must provide their first name, last name, email address, shipping address, and credit card information. Pricing for Merchandise shall be displayed on the Website and is subject to change at any time at our sole discretion. User will also be required to pay additional shipping fees for the Merchandise, which fees may vary based on the User’s chosen shipping location. Merchandise will be shipped to the User’s delivery address once the purchase is complete and the corresponding payment has been successfully processed.

Member Profiles

In order to register for a Member Profile, Users must provide their first name, last name, email address, and chosen password on our “Member Sign-Up” page. Within the Member Profile account, Users can access archived material and purchase online resources and merchandise from Fifth Element.

Client Portal

Individual and corporate clients to whom Fifth Element provides coaching services will be given access to the Client Portal by their assigned coach. Within the Client Portal, the User can upload files to their coach and view and download past uploads.

Interacting with the Website

When using the Website and our Services, you acknowledge and agree that you will (1) provide true, accurate, current and complete information about yourself as prompted by the Website (“Registration Data”); (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (3) enter valid payment information. You must at all times provide accurate and truthful information regarding your identity when completing a purchase through the Website and may not complete a purchase for another individual without their explicit written permission. Fifth Element reserves the right to suspend or cancel your access to the Services at its sole discretion at any time and for any reason upon notice to you.

You are responsible for updating your account access passwords regularly. It is strongly recommended that passwords or login information or any other confidential information not be shared by email unless encrypted.

Users are responsible to ensure that all User generated content (“User Content”) complies with our Site Content Standards detailed herein. User Content will be stored using our secure cloud server for all active Users but may be deleted upon termination of the Services. User Content will never be shared or utilized by Fifth Element other than as necessary for the provision of its Services. User Accounts may be accessed via third party web browser access at www.thefifthelement.ca.

Fifth Element also reserves the right to suspend or end the Services if you are found to be in breach of these Terms and Conditions, or for any other reason subject to these Terms and Conditions.

Fees

All service agreements must be entered directly between the User and Fifth Element. Fees for Online Resources and Merchandise are specified on our Website and are subject to change at any time in our sole discretion. Fees for all other Services are set individually with the client and specified in a client contract. Additional fees may apply for some Services. Fees may vary due to tax rates in various provinces across Canada and internationally. If you desire a quote for a custom product or service, please contact us at info@thefifthelement.ca.

All prices are shown in Canadian Dollars (CAD) and are exclusive of applicable taxes and shipping costs.

Fifth Element accepts no liability to complete any transaction which cannot be cleared by Fifth Element’s payment processor, whether due to insufficient funds or otherwise. If such situation occurs, you will receive an error message and the transaction will be denied. Moreover, we may suspend your access to your Account and contact you to provide valid alternative credit card information. Such suspension shall not relieve you from your obligation to pay any fees owed to Fifth Element.

All User payments must be paid immediately at the time of purchase or in accordance with your contract with Fifth Element. Payments may be processed through a third-party payment processing service from time to time. Users shall make all payments in accordance with the fees, charges, and billing terms in effect at the time of purchase. Fifth Element reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by email delivery to the User, subject to any agreed-upon terms in a signed contract with Fifth Element.

Taxes

You take sole responsibility for the payment of any sales tax and any related penalties or interest to the relevant tax authority if you fail to pay the sales tax for the Services (the “Sales Tax”). You hereby indemnify Fifth Element for any liability or expense we may incur in connection with such Sales Taxes. You may be required to provide Fifth Element with evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Fifth Element is permitted to pass to its Users, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

Cancellation and Refund Policy

Fifth Element reserves the right to terminate any Services for any reason at any time, including the ending of services that are already underway, subject to the terms in a signed contract with Fifth Element. If any payment processing request is rejected at any time for any reason, the Services shall be immediately terminated and you will be notified of the termination within ten (10) business days thereafter.

Online Resources are non-refundable. Our Services may only be cancelled subject to the terms in a signed contract with Fifth Element. No refunds shall be offered where a Service is deemed to have been completed by Fifth Element in its sole discretion, reasonably exercised. Refunds may also be available on a case-by-case basis at Fifth Element’s sole discretion by contacting info@thefifthelement.ca. Merchandise may be returned in its original condition within thirty (30) days of purchase for a refund of the purchase price, minus shipping and handling.

Intellectual Property Rights and Ownership

Except as otherwise provided, subject to your compliance with these Terms and Conditions, and in consideration of your adherence to these terms and payment of any applicable Fees, Fifth Element grants to you a revocable, personal, non-exclusive, non-assignable and nontransferable license for personal, non-commercial purposes, except where explicitly provided otherwise, to (i) access the Website (ii) cause the Website to be displayed from a computer and/or mobile device and (iii) use the Website, including content downloaded from the Website, solely as permitted under these Terms and Conditions (iv) view the Online Resources (the “License”). Fifth Element and its affiliates and licensors reserve all rights not expressly granted to you in these Terms and Conditions. Your rights herein are only as described above for this limited License. The License granted under this Section may be terminated by Fifth Element for any reason at Fifth Element’s sole discretion.

You understand and agree that the Website and its entire contents, features, and functionality, including but not limited to all Online Resources, information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by Fifth Element, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.

You further understand and agree that upon accessing an Online Resource, you are being granted a perpetual, royalty-free, worldwide, non-exclusive right and license (the “Download License”), to freely display the audio, text, image, and video content contained in the Online Resource, and to retain copies of such audio, text, and video content for your personal, noncommercial use. The Download License does not include Fifth Element’s background intellectual property, which are retained by their respective creators outside of this Terms and Conditions. The Download License also does not grant you any right in the content, features, functionality, software, code, text, servers, databases, confidential information, displays, graphics, photographs, text, video, and audio, and the design, presentation, selection, and arrangement thereof, which comprise an Online Resource and are exclusively and solely owned by Fifth Element.

The “Fifth Element” name, Fifth Element logo, and all related names, logos, product and service names, designs, images and slogans are trademarks of Fifth Element or its affiliates or licensors. You must not use such marks without the prior written permission of Fifth Element.

Other names, logos, product and service names, designs, images and slogans mentioned or which appear on this Website are the trademarks of their respective owners. Use of any of Fifth Element’s intellectual property, except as expressly authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action. You may only use the Website for your personal and non-commercial use. You shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website or from the Online Resources, in any form or medium whatsoever except:

(a) Your computer and browser may temporarily store or cache copies of materials being accessed and viewed; and

(b) a reasonable number of copies for personal use only may be printed, keeping any proprietary notices thereon, which may only be used for non-commercial and lawful personal use and not for further reproduction, publication, or distribution of any kind on any medium whatsoever.

Users are not permitted to modify copies of any materials from the Website nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Website. You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you print off, copy or download any part of our Website in breach of these Terms and Conditions, your right to use our Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. You have no right, title, or interest in or to the Website or to any content on the Website, and all rights not expressly granted are reserved by Fifth Element. Any use of the Website not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other intellectual property laws.

Conditions of Use and Site Content Standards

Definitions:

For the purposes of this Section, the following definitions shall apply:

a. “Business/Service Interruption” means any delay or stoppage to the Services forced upon Fifth Element by reasons which could not have been reasonably foreseen or prevented;

b. “Computer Security” means the programs and software Fifth Element utilizes to protect its and its User’s Data;

c. “Cyber Extortion” means any direct or indirect attempt to coerce Fifth Element or its representatives through online or electronic means into any form of exchange to prevent a threatened action by the coercing party;

d. “Data” means any electronic information, text, image, video or other code provided to, or in the possession or control of, Fifth Element.

e. “Force Majeure” includes, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, pandemics or epidemics, government-mandated lockdowns, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services;

f. “Information” includes Personally Identifiable Information, Data, and any other documentation which could be reasonably foreseen as having intrinsic or economic value to the User and/or Fifth Element;

g. “Malicious Code” means any code in any part of a software system or script that is intended to cause undesired effects, security breaches or damage to a system.

h. “Personally Identifiable Information” means any information that alone or in combination with other information held by Fifth Element can be used to specifically identify a User;

i. “Security Breach” means any compromise of Fifth Element’s personal or corporate accounts, computers, or any other password-protected information, that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to protected data transmitted, stored or otherwise processed.

Fifth Element takes our User’s security extremely seriously. While we endeavour to take every reasonable precaution to protect your information, certain events outside of our control, including but not limited to cyber extortion, hacking, business/service interruptions, and force majeure events, may result in the disclosure, damage, or destruction of such information and further subsequent damage. In such event, Fifth Element shall not be held responsible or liable for any theft, damage, loss or unauthorized disclosure of personally identifiable information or third party information or business or tax records or any other information or records that are in the care, custody or control of Fifth Element.

Further, in such event, Fifth Element shall not be held liable or responsible for any interruption to the Website or the Services that is a direct or indirect result of:

a. The plagiarising of any other User’s data;

b. The alteration, corruption, destruction, deletion, or damage to data stored on Fifth Element’s computer systems;

c. Data loss, damage or inability to access data and/or intellectual property infringement that is caused by a security breach, unforeseen or reasonably unpreventable computer hardware, software or firmware failure, or satellite or internet failure;

d. The failure to prevent transmission of malicious code from Fifth Element computer systems to computer or network systems belonging to a User or related third party;

e. The failure to prevent a loss or threat caused by cyber extortion.

Fifth Element shall not be held responsible or liable for any damage or loss to a User’s data, intellectual property, or documentation which result from a force majeure event. As a condition of your access and use of the Website or the Online Resources, you agree that you may use the Website and Online Resources only for lawful purposes and in accordance with these Terms and Conditions. Without limiting the foregoing, you warrant and agree that, when using the Website or the Services, you shall not:

a. Violate any applicable federal, provincial, local, or international law or regulation or submit any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and Conditions and our privacy policy;

b. Upload or cause to be displayed on or through the Website any material that is exploitive, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such prohibited ground or be otherwise objectionable;

c. Provide or contribute to any false, inaccurate or misleading information;

d. Impersonate or attempt to impersonate Fifth Element, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses, or screen names associated with any of the foregoing);

e. Transmit, or procure the sending of, any advertisements or promotions, commercial activities or sales, including without limitation any “spam”, “junk mail”, “chain letter”, contests, sweepstakes and other sales promotions, barter, or advertising or any other similar solicitation;

f. Engage in conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Fifth Element or users of the Website or expose them to liability;

g. Promote any illegal activity, or advocate, promote, or assist any unlawful act;

h. Give the impression that content you created originated from or is endorsed by Fifth Element or any other person or entity, if this is not the case;

i. Plagiarize any other User’s content or creations; or

j. Reproduce or use without authorization any copyrighted material.

Availability

Unless otherwise stated, the Services featured on this Website are available within North America and internationally, where permissible by law and subject to local rules and regulations. All advertising is intended solely for the Ontario, Canada market. The User is solely responsible for evaluating the fitness for a particular purpose of any downloads, programs and text available through the Website. Redistribution or republication of any part of the Website or its content is prohibited, including such by framing or other similar or any other means, without the express written consent of Fifth Element. Fifth Element does not warrant that the Services or the Website will be uninterrupted, timely or error free, although it is provided on a best-efforts basis.

Fifth Element endeavours to ensure that the video, audio, image, and text displayed on or available for download through the Website (the “Content”) is complete and current. However, Fifth Element does not warrant as to the quality, accuracy or completeness of Content on our Website. Such information is provided “as is” without warranty or condition of any kind. This Website may include inaccuracies, typographical errors, errors or omissions. Such errors, inaccuracies, typographical errors or omissions may relate to price or to product description or availability. In no event shall Fifth Element be liable for any damages whatsoever, including special, indirect or consequential damages, arising out of or in connection with the use or performance of Content available on the Website.

Force Majeure

Fifth Element shall not be liable for any failure to perform any obligation under any agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, political insurgence, pandemic, epidemic, government-mandated lockdown, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of our control, which causes the termination of the Services or of an agreement or contract entered into with Fifth Element, which termination could have been reasonably foreseen. In such event, Fifth Element shall forthwith inform the User and shall use all reasonable endeavours to comply with the terms and conditions of any agreement entered between the parties.

Third Party Terms of Agreement

You must comply with applicable third party terms of agreement when using the services of a third party contracted by Fifth Element.

Notification of Changes

Fifth Element reserves the right to change these conditions from time to time as it sees fit and the continued use of the site will signify user’s acceptance of any adjustment to these terms. If there are any changes to the privacy policy, Fifth Element will announce that these changes have been made on the homepage and on other key pages on the Site. If there are any changes in how Fifth Element uses Registration Data, notification by e-mail or postal mail will be made to those affected by this change. Any changes to the privacy policy will be posted on the Website 30 days prior to these changes taking place. The User is therefore advised to re-read this Terms and Conditions and Privacy Policy on a regular basis.

Disclaimer of Warranties

You understand and agree that your use of the Services, the Website and its content, the Online Resources, and the merchandise provided by Fifth Element is at your own risk. The Website, its content, and any Services are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.

Neither Fifth Element nor any affiliates nor their respective directors, officers, employees, agents or service providers makes any warranty, representation or endorsement with respect to the completeness, security, reliability, suitability, accuracy, currency or availability of the Website or its contents. Without limiting the foregoing, neither Fifth Element nor any affiliates nor their respective directors, officers, employees, agents or service providers represents or warrants that the Website, its content, or any services or items found or attained through the Website will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, or that the Website or the server that makes it available are free of viruses or other harmful components.

We cannot and do not guarantee or warrant that files or data available for downloading from the internet or the Website will be free of viruses or other destructive code. You are solely and entirely responsible for your use of the Website and your computer, internet and data security. To the fullest extent provided by law, we will not be liable for any loss or damage caused by denial-of-service attack, distributed denial-of-service attack, overloading, flooding, mailbombing or crashing, viruses, trojan horses, worms, logic bombs, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Services, the Website, or your downloading of any material posted on the Website, or on any website linked to it.

Limitation on Liability – User Privacy

FIFTH ELEMENT TAKES USER SECURITY AND PRIVACY VERY SERIOUSLY. WE UTILIZE A NUMBER OF PRECAUTIONS INCLUDING REMOTE MONITORING SOFTWARE, EXTERNAL BACKUPS, AND COMPUTER FIREWALLS. HOWEVER, FIFTH ELEMENT CANNOT AND SHALL NOT BE HELD RESPONSIBLE FOR ANY DAMAGE OR INJURY CAUSED DIRECTLY OR INDIRECTLY BY A DATA BREACH OR ANY OTHER LOSS OF USER DATA WHICH WAS OUTSIDE OUR CONTROL. THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL USER DATA, WHETHER IN ELECTRONIC OR PHYSICAL FORM, AND REGARDLESS OF WHETHER SUCH DATA WAS PRODUCED BY FIFTH ELEMENT OR PROVIDED BY THE USER.

Limitation on Liability – Website & Services

Subject to applicable law, under no circumstance will Fifth Element, its affiliates and their respective directors, officers, employees, agents, or service providers be liable for negligence, gross negligence, negligent misrepresentation, fundamental breach, damages of any kind, under any legal theory, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, breach of privacy or otherwise, even if the party was allegedly advised or had reason to know, arising out of or in connection with (1) your experience while using the Online Resources, (2) your interactions with the Website and Services, (3) your use of Fifth Element Merchandise (4) your use or misuse of information provided to you by Fifth Element, (5) your level of engagement with a particular Online Resource or Service (6) any interruptions to the Services or the Website, (7) your use, inability to use, or reliance on the Website, any linked websites or such other third party websites, (8) your use of any Website content, materials, postings, or information thereon, or (9) the violation of these Terms by you or a third party.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OTHER THAN IN THE EVENT OF A FINDING OF GROSS NEGLIGENCE BY AN ONTARIO COURT, FIFTH ELEMENT’S TOTAL LIABILITY TO YOU SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE TOTAL AMOUNT OF ALL MONIES PAID BY YOU TO FIFTH ELEMENT.

Indemnification

To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Fifth Element, its affiliates, and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your breach of these Terms and Conditions, your interactions with the Online Resources, or your use of the Website, including, but not limited to, your purchase of Merchandise through the Website, your use of third party sites, or any other use of Website content, services, and products other than as expressly authorized in these Terms and Conditions.

Governing Law and Jurisdiction

The Website and these Terms and Conditions will be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule (whether of the laws of Ontario or any other jurisdiction) and notwithstanding your domicile, residence or physical location.

Any action or proceeding arising out of or relating to this Website and under these Terms and Conditions will be instituted in the courts of the province of Ontario and/or the Federal Court of Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.

No Assignment

This Terms and Conditions is not to be assignable except as may be contemplated hereunder but will enure to the benefit of and be binding upon each of the parties and their respective successors and permitted assigns.

Injunctive Relief

Notwithstanding any other provisions of this Terms and Conditions, you acknowledge and agree that Fifth Element may obtain an injunction or other appropriate relief against you if you contravene or fail to comply with any provision of this Terms and Conditions in any way and you further agree that the provisions of this paragraph may be pleaded against you by way of estoppel or defence to a claim by you that an injunction or other appropriate relief should not be granted.

Amendment to Terms

These Terms shall not be amended, modified, varied or supplemented except in writing and signed by duly authorized representatives of Fifth Element.

Independent Legal Advice

By using Fifth Element website, purchasing any items through Fifth Element, or using Fifth Element’s services you acknowledge and agree that you (i) have had sufficient time to review and consider this Terms and Conditions thoroughly; (ii) has read and understands the terms, the nature and the consequences of this Terms and Conditions and the obligations hereunder; (iii) have been given an opportunity to obtain independent legal advice concerning the interpretation and effect of this Terms and Conditions.

No Waiver for Non-Enforcement

No waiver under these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of the party waiving its right. No single or partial exercise of any right, remedy, power or privilege here under precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Failure of Fifth Element to enforce any of the provisions set out in these Terms and Conditions and any agreement, or failure to exercise any option to terminate, shall not be construed as waiver of such provisions and shall not affect the validity of these Terms and Conditions or of any Agreement or any part thereof, or the right thereafter to enforce each and every provision.

Severability

If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

Entire Agreement

The Terms and Conditions and our Privacy Policy constitute the sole and entire agreement between you and Fifth Element regarding the Website and your use thereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

Communications

Fifth Element reserves the right to contact you from time to time for feedback regarding our Products and Services. We will also contact any User who files a complaint with Fifth Element regarding a representative of Fifth Element or the Services overall. Notices to Users will be deemed effective at the time they are sent by Fifth Element or as of the date they are posted on the Website.

Maintenance and Support

Fifth Element is solely responsible for providing any maintenance and support services with respect to the Website when required from time to time or as required under applicable law. If you notice a problem or error on the Website, you can report it to info@thefifthelement.ca.

Company Name and Address

Fifth Element’ contact information for any end-user questions, complaints or claims with respect to our Services is info@thefifthelement.ca.

Arbitration

In the event of any dispute relating to or arising out of your use of these Terms and Conditions, such dispute shall be settled and determined by a single arbitrator in accordance with the Arbitration Act of Ontario. If you and Fifth Element are unable to agree on an arbitrator within fifteen (15) days after Fifth Element is made aware of the dispute, then the parties shall submit the matter to the ADR Institute of Ontario (or is successor), which shall choose the arbitrator.

The decision of the arbitrator shall be final and binding without appeal on questions for law or fact or for any reason whatsoever. Costs of the arbitration shall be shared equally between you and Fifth Element. In the event arbitration is not allowed by law, any other action must be brought only in the courts of Ontario, Canada.

privacy policy

Last updated: July 2021

This Privacy Policy describes Fifth Element Human Performance Coaching Inc.’s (operating from time to time as “Fifth Element”) and its affiliates’ policies for collecting, using, and disclosing your information. You can view Fifth Element’ services and Online Resources (the “Service”), through our website www.thefifthelement.ca (the “Website”), by email, and through third parties. This Privacy Policy applies to all Fifth Element Service and Website users (“You”). This Privacy Policy governs your access to the Services regardless of how you access it, and by using our Services you consent to the collection, transfer, processing, storage, disclosure and other uses of user data, materials, content, and information (“Information”) described in this Privacy Policy.

Herein, “Fifth Element” designates the Fifth Element websites, www.thefifthelement.ca, and the information systems that supports them.

Our Privacy Policy explains what Information we collect through the Website, why we collect it, and how we use that Information. It is our policy to respect the privacy of our Users regarding any Information that we may collect while using our Service.

1) Terms of the Policy

a) It is Fifth Element’s policy to comply with the privacy legislation within our jurisdiction. This Privacy Policy covers all activities subject to the provisions of Canada’s federal and Ontario’s provincial privacy laws, and other international jurisdictions not otherwise specifically addressed by this Policy. The Website and Services are available internationally, and we endeavour to ensure compliance with all applicable privacy legislation in your jurisdiction. Fifth Element provides its services primarily to Canadian markets, and ensures its compliance with all applicable privacy legislation, including but not limited to, the secure storage of user data, disclosing the collection and use of its user data, and only using its users’ data for purposes associated with or ancillary to the Services.

b) The rights and obligations contained in this Privacy Policy may not be available to all individuals or in all jurisdictions. You may contact our Privacy Officer for more information on this Policy at bryson@thefifthelement.ca.

c) Fifth Element does not knowingly collect personally identifiable information from any person under the age of 13. In the case we discover that a child under 13 has provided us with personal information, we immediately delete this from our servers. If you are a parent or guardian and you are aware that your child has provided us with personal information, please contact us at info@thefifthelement.ca so that we may remove your child’s personal information.

d) In order to help Fifth Element maintain and ensure that your personal information is accurate and up to date, you must inform us, without delay, of any change in the information you provided to Fifth Element.

2) Personal Information

a) The personal information Fifth Element collects includes:

i) Your First and Last Name;

ii) Country in which you are Located;

iii) Email Address;

iv) Credit Card Payment Information;

v) Any other information required in accordance with applicable legislation; and

vi) Prior to purchasing Fifth Element Merchandise, you will also be required to provide

your shipping address.

(the “Data”)

b) Fifth Element may collect personal information through the following means:

i) Directly from you/the User;

ii) Electronic Devices;

iii) Third Party Sources; and

iv) Refund Requests

c) Your Data may be used for purposes including but not limited to:

i) Connecting with you to provide the Services;

ii) Providing you access to an Online Resource;

iii) Completing the sale of Merchandise to you;

iv) Processing Refunds or Exchanges;

v) Administering Promotions;

vi) Administering, billing, and collecting funds in relation to your use of Website or the Services;

vii) Protecting against fraud or error;

viii) Communicating with you to fulfill requests and ensure satisfaction;

ix) Fulfilling the terms of a warranty or agreement; or

x) Facilitating a refund or reimbursement;

d) To help us monitor and improve the Website quality, we may collect your computer or mobile phone’s Internet Protocol (IP) address, browser type, the web page visited before you came to our websites, information you search for on the Website, locale preferences, transactions date and time, operating system information, as well as metadata concerning your Data such as software of origin and typology.

e) Fifth Element will always seek your consent before or at the time that we collect personal information. Fifth Element may collect information about you from a third party if you have consented to that third party to release your information, for example, for payment or credit card processing. Fifth Element may also utilize the services of third parties and may receive personal information collected by those third parties in the course of the performance of the Services. Fifth Element requires all third parties to provide confirmation that they are authorized to release your information.

f) Fifth Element is the sole and exclusive owner of the Data and will not sell, share, lease, or otherwise distribute or disclose the Data in any way other than as disclosed by this Policy. Data may be collected through multiple pages on the Website.

3) Cookies

a) To ensure that the Website is optimized for ease of use, we or our service provider(s) may use Cookies to collect standard information about your language preferences, when you visit the Site, your browser type and version, and other similar information. You are not required to accept Cookies from the Website. You can reset your browser to notify you when it has received a Cookie or refuse to accept Cookies. However, if you refuse to accept Cookies, you may limit your viewing and/or not be able to access all features on the website.

b) Fifth Element or its hosting providers may collect traffic information and information about your visit in a log file on a server. Log file information may include, but is not limited to, internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, platform type, date/time stamp, and number of clicks. We or our hosting provider use this information to analyze trends, administer sites, track aggregations of users’ movements, and gather demographic information for aggregate use. IP addresses and other log file information are not connected to personally identifiable information.

c) Fifth Element may also collect information from web beacons which indicate whether you visited a certain page on a website, opened a promotional email, or clicked on an online advertisement.

d) Fifth Element may collect geographic location from your mobile device or IP number to determine the nearest store or suggest specific product shipping offerings.

e) This Website is not designed to recognize “Do Not Track” requests from web browsers.

3) Authorized Disclosure and Use

a) Fifth Element discloses personally-identifying information (“Personal Information”) only to its employees, contractors and affiliated organizations and third parties that need to know that Personal Information to process it on Fifth Element' behalf or to provide the Services, and that have agreed not to disclose it to others. Some of those employees, contractors and affiliated organizations and third parties may be located outside of Canada and/or outside your jurisdiction. By using the Website or the Services, you consent to the disclosure of such information to them for purposes including but not limited to:

i) Providing the Services;

ii) Shipping Merchandise;

iii) Processing your payment;

iv) Managing and administering to User Accounts;

v) Sending marketing and promotional communications;

vi) Conducting feedback and User surveys;

b) Fifth Element may also use your Personal Information, specifically your contact information, including but not limited to your name and email address, with your consent for the following purposes:

i) to send you the Fifth Element newsletter;

ii) to inform you of Fifth Element contests or surveys and provide associated notices and updates;

iii) to inform you of special offers from Fifth Element and its partners and select third parties and to provide associated notices and updates; or

iv) to inform you of updates to the Website and Services;

c) Your personal information may also be used and disclosed:

i) to comply with valid legal proceedings;

ii) to respond to a complaint or dispute;

iii) during an emergency situation where health or safety is at risk;

iv) to protect the rights of Fifth Element;

v) to prevent fraud or abuse of Fifth Element or its Users;

vi) to protect the safety of any individual from injury or death;

vii) as required by our professional advisors;

viii) where the personal information is publicly available; or

ix) with your consent.

In such event, only the minimum amount of personal information required to fulfill the contemplated purpose will be disclosed.

d) Collected Information and Cookies may be used in aggregate form to assess how our users use our Website. Your consent will always be sought prior to Cookies being allowed from the Website.

e) When you contact Fifth Element to obtain support, we may keep a record of your communication to help solve any issues you might be facing and reserve the right to publish it without any way to identify its origin, to help us support other Clients.

f) If we are involved in a merger, acquisition, or sale of all or a portion of our assets, your Data and Information may be transferred as part of that transaction. We will notify you via email and a notice on our websites of any change in control or use of your Data or Information. We will also notify you of choices you may have regarding the Data and Information.

g) We may share aggregated, non-personally identifiable information publicly and with our partners, such as publishers, advertisers or connected sites. For example, we may share information publicly to show trends about the general use of our Service. Fifth Element will never disclose data which may personally identify you without your prior written consent.

h) You may change or withdraw your consent, or update your Personal Information at any time, subject to legal or contractual obligations and reasonable notice by contacting our Privacy Officer in writing to bryson@thefifthelement.ca. Fifth Element may terminate any services to you immediately if you withdraw your consent to the collection of Personal Information. Fifth Element may require that you provide to us sufficient information to identify yourself before we comply with any request regarding Personal Information or Data stored by Fifth Element. Fifth Element will use all reasonable efforts to respond to user requests in a timely manner.

4) Retention of Data and Information

a) You may change or update your privacy preferences by contacting info@thefifthelement.ca. This includes:

i) Updating your address and personal information;

ii) Subscribing or unsubscribing to marketing and promotional communications; and

iii) Updating your credit card information.

b) Fifth Element will retain your information for as long as needed to provide you the Services. We use industry-standard encryption and security standards to protect your information. Once the Services you have purchased are deemed to have been rendered in the sole discretion of Fifth Element, your Data will be deleted automatically within 30 days. If you wish to request the deletion of your Data, you may request such deletion by contacting us at info@thefifthelement.ca.

c) Fifth Element may retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Consistent with these requirements, we will endeavour to delete your information quickly upon request.

Please note, however, that there might be latency in deleting information from our servers and backed-up versions might exist after deletion.

d) If a specific purpose is stated on the Website for the collection of information from you, the information collected will only be stored and used for that stated purpose. Your information will not be used for any other purpose which is not stated explicitly on the Website.

e) Fifth Element will not process personal information in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by you. We generally assume that information that you give to us is accurate. If information you give to us is inconsistent with other information you give to us or with information that is available in public records or from other sources that Fifth Element is permitted by law or agreement to use, Fifth Element will use reasonable efforts to make sure that the information we process is accurate.

f) Fifth Element may refuse to provide access to information to the extent that disclosure is likely to interfere with the safeguarding of important countervailing public interests, such as national security; defense; or public security. Other reasons for denying or limiting access are:

i) Interference with execution or enforcement of the law, including the prevention, investigation or detection of offenses or the right to a fair trial;

ii) Interference with private causes of action, including the prevention, investigation, or detection of legal claims or the right to a fair trial;

iii) Disclosure of personal information pertaining to other individual(s) where such references cannot be redacted;

iv) Breaching a legal or other professional privilege or obligation;

v) Breaching the necessary confidentiality of future or ongoing negotiations, such as those involving the acquisition of publicly quoted companies;

vi) Prejudicing employee security investigations or grievance proceedings;

vii) Prejudicing the confidentiality that may be necessary for limited periods in connection with employee succession planning and corporate reorganizations;

viii) Prejudicing the confidentiality that may be necessary in connection with monitoring, inspection or regulatory functions connected with sound economic or financial management; or

ix) Other circumstances in which the burden or cost of providing access would be disproportionate or the legitimate rights or interests of others would be violated.

5) Third Party Applications

a) Our Privacy Policy does not apply to services offered by other companies or individuals, including products or sites that may be linked from our Services. Our Privacy Policy does not cover the information practices of other companies and organizations who advertise our services, and who may use cookies, pixel tags and other technologies to serve and offer relevant ads.

b) We may share your information with a third party application with your consent, for example for payment processing. We accept no responsibility or liability in respect of any third party. Please refer to the privacy policies published on any third party sites which you may access through our site before submitting personal information to them.

6) Enforcement

We regularly review our compliance with our Privacy Policy. When we receive formal written complaints, we will contact the person who made the complaint to follow up. We work with the appropriate regulatory authorities to resolve any complaints regarding the transfer of Data and Information that we cannot resolve with our Clients directly.

7) Security

The security of your Data and Information is important to us. We follow the generally accepted standards held within our industry to protect the information submitted to us, both during transmission and once we receive it. We store our data on internal, external, and encrypted online servers, protected with firewalls, malware protection, and multiple backup points.

However, no method of electronic transmission or storage is 100% secure. Therefore, we cannot and do not guarantee absolute security. Unless specific contractual arrangements are made with you, Fifth Element may process your Data on a server located outside your jurisdiction.

8) Privacy Officer

The Privacy Officer for Fifth Element is Bryson Forbes. Should you have any questions about this policy, including any complaints, you may contact our Privacy Officer at bryson@thefifthelement.ca or by written notice delivered to P.O. Box 20052, Brant Hills PO, Burlington, Ontario, L7P 0A4

9) Costs

Fifth Element reserves the right to charge a reasonable amount to respond to requests to produce transcripts, copies, or transfers of its Data. You will be notified prior to being assessed a charge for such services.

10) Changes to This Privacy Policy

Our Privacy Policy may change from time to time. We will not reduce your rights under this Privacy Policy without your explicit approval. We will post any privacy policy changes on our websites and, if the changes are significant, we will provide a more prominent notice (including, for certain services, email notification of Privacy Policy changes). We will also keep archived versions of this Privacy Policy for your review. By using the Website, you acknowledge and agree to this procedure.

11) Governing Law

This Privacy Policy is governed by the laws of the Province of Ontario and applicable laws of Canada and these laws apply to the use of the Services by you, notwithstanding your domicile, residency or physical location. The Services are intended for use only in jurisdictions where it may lawfully be offered for use.

12) Enforceability

If any term of this Privacy Policy is deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from this Privacy Policy and the remaining terms will continue to apply.

13) No Waiver

Failure of Fifth Element to enforce any of the provisions set out in this Privacy Policy or failure to exercise any option to terminate shall not be construed as a waiver of such provisions and shall not affect the validity of this Privacy Policy or any part thereof, or the right thereafter to enforce each and every provision.

14) Agreement to Terms of Policy

By using the Website and/or providing information to us, you accept and agree to the collection and use of your personal information for the purposes described hereinabove.

15) Arbitration

In the event of any dispute relating to or arising out of your use of the Privacy Policy, such dispute shall be settled and determined by a single arbitrator in accordance with the Arbitration Act of Ontario. If you and Fifth Element are unable to agree on an arbitrator within fifteen (15) days after Fifth Element is made aware of the dispute, then the parties shall submit the matter to the ADR Institute of Ontario (or is successor), which shall choose the arbitrator.