TERMS OF SERVICES
Latest Update: November 2020
These Terms of Services constitute legal Terms of Services between the entity or professional (as applicable) that agrees to these Terms of Services (the “Customer”; “you”) and Universonal Conversion Technologies Inc. with a registered address at 1250 René-Lévesque Blvd. West (33rd floor), Montreal (Quebec) H3B 4W8 (“UCT”, “we”, “us”, “our”).
These Terms of Services, together with any applicable Order Form (as defined below) (collectively, the “Terms”), define the legal relationship between you and us in connection with the Services (as defined below). Please read the following Terms carefully before accessing or using our Services, as they contain important information on your obligations while using the Services. The Terms also inform you of our liability towards you and the warranties or disclaimers that apply to our Services.
If you wish to use our Services, you must accept and agree to be bound by and comply with these Terms. Continued use of any of our Services indicates your continued acceptance of the Terms. If you do not agree with these Terms, you shall not use our Services.
If you have any questions related thereto, you can reach us at firstname.lastname@example.org or call us directly at: +1 514 989-3141 or +1 888 989-3141 (toll-free).
In these Terms, words beginning with a capital letter, but not defined elsewhere, shall have the following meanings:
2. Our Services
a) Services Eligibility
Subject to and conditioned on your payment of applicable Fees and compliance with these Terms, we will provide the Services and make the Services available to you during the Subscription Term, as applicable, the whole substantially in accordance with these Terms.
Our Services shall not be used by any individual under the age of 16.
b) Modifications to Services
We reserve our rights to make changes to the Services. In case of material changes, we will notify you using the Notification Email Address. Modifications to the Services shall not materially and adversely affect the performance of the Services in accordance with these Terms.
We may need to modify these Terms to adapt to new technologies, functionalities, regulatory requirements or otherwise based on our legitimate business needs. If we need to amend these Terms, we will advise you through the Notification Email Address. If you continue to use the Services after such notice, we will consider that you accept the amendments to these Terms of Services. You may object to such modifications to these Terms of Services by reaching out to us at email@example.com and if you cannot agree to a mutually acceptable modification, you may exercise your right to termination with cause pursuant to Section 21.
c) Upgrades; New Features
We may, from time to time, develop new modules, versions, functionalities or features to the Services (each an “Upgrade”). Upgrades are generally included with your subscription to the Services, except if we indicate otherwise (the “Excluded Upgrade”). Excluded Upgrades can be added to an Order Form through a Change Order and may be subject to additional fees and terms and conditions. Excluded Upgrades shall not include security patches and updates that are required for the Services to function substantially as described in these Terms.
3. Your Obligations and Responsibilities
a) Acceptable Use
You represent and warrant that you will use the Services only for lawful purposes and in accordance with the foregoing rules. You agree that you will deploy commercially reasonable efforts to cause your End Users to use the Services in accordance with these rules. You shall remain entirely liable for all acts and omissions by your End Users, and any act or omission by such End User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you.
You hereby represent and warrant that, unless expressly authorized in writing by us, you and your End Users will not use the Services in any manner:
i) that is prohibited by Law or regulation or our policies made available to you, including these Terms;
ii) that will disrupt third parties’ use or enjoyment of the Services, including if this use results in automated, constant and repeated requests for data other than as permitted under these Terms and has a negative effect on our systems or network, including abnormal usage that overloads servers or causes portions of our network to be blocked (e.g., denial-of-services and distributed-denial-of-services attacks);
iii) that uses the Services to create, transmit, distribute or store material that violates Intellectual Property, privacy, publicity or other personal rights of individuals, export control, or that can otherwise be threatening, abusive, hateful or constitutes or encourages conduct that would be considered a fraud, a criminal offence or likely to give rise to civil liability;
iv) that results in (A) the sharing of credentials, identifiers and passwords among End Users or among End Users and third parties; and (B) the distribution, disclosure or use of any of the Services in any format to or by unauthorized third parties (i.e., other than End Users), including through any time-sharing service, service bureau, network or by any other means;
v) that involves using any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms, or methodology to access, acquire, copy or monitor the Services or any portion of the Services;
vi) that involves decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or ideas or algorithms of any of the Services underlying technology by any means whatsoever;
vii) that involves penetrating our security, including, without limitation:
A) by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;
B) by interfering with the proper working of the Services;
C) by attempting to hack any security requirements or processes in the use of the Services;
D) by attempting to access any part of the Services (or any of their related systems, networks, servers or other equipment) which you are not authorized to access;
E) by attempting to disrupt in any manner the operation of the Services, its servers or network;
F) by disobeying any requirements, procedures, policies or regulations of your network connected to the Services;
G) by manipulating identifiers to disguise the origin of any content transmitted or uploaded on to the Services, or the source of any content;
H) by modifying or altering the Services in any unauthorized manner.
(collectively, the “Abuses”).
You hereby agree and acknowledge that an indirect or attempted violation of this Section 2.a) shall be considered an Abuse. If we discover that you (or your End Users) are about to commit any Abuse (including by facilitating an Abuse), we may suspend part or all of the Services pre-emptively with or without prior notice. If no prior notice was given, we will send you a written notice as soon as practicable and will conduct an inquiry to reasonably determine if the suspension of Services should be maintained.
End Users must have an Account to access and use the Services. End Users are responsible for maintaining their credentials confidential, and UCT shall not be responsible if an Account is compromised. If credentials have been compromised, Administrators must block these credentials and trigger a reset of the credentials as soon as practicable for the concerned End User(s) and contact us to advise us that credentials have been compromised so that we can conduct reasonable inquiries. You agree to collaborate with us for such inquiries.
c) Administration of Services
You are responsible for understanding the settings, privileges and controls for the Services and for controlling whom you permit to become an End User and what the settings and privileges are for such End User. UCT shall not be responsible for managing End Users, settings and controls available as part of the Admin Console.
You agree to notify us without undue delay if your Notification Email Address changes. If you fail to do so, we shall have no liability for notices or communications that are not received by you.
d) Administrator Access and End User Authorization
Administrators, in accordance with the Order Form in effect with you, will have the ability to access all of your End User Accounts, and will be able to, for example, view, monitor, use, modify, store and disclose data accessible to End Users via their End User Accounts. You shall obtain and maintain all necessary consents from your End Users to authorize: (i) the Administrators to have the access described in these Terms; and (ii) provision of the Services to End Users.
e) Third-Party Services
You hereby agree to comply with third party terms and conditions when using the Services, including those applicable to websites, sites and applications from third parties made available from time to time to you as part of our Services, including integration partners that may be available through Application Programming Interface (“API”) developed and owned by third parties. You agree and understand that we are not responsible for these third parties, and that you use such third parties at your sole risks. They are not service providers of UCT.
f) Application Programming Interfaces
UCT may make available to you APIs that belong to third-party services or APIs that are developed by UCT (“UCT API”), and which, as between you and us, are UCT’s Intellectual Property. Your use of UCT APIs must be in compliance with these Terms and with the Documentation, which may be modified from time to time to account for technical and operational environmental changes.
You shall use the UCT APIs to utilize the Services on your website or inside your mobile applications. You shall not use the API for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us.
4. Interruption and Suspension of Services
a) Urgent Security Issues
Notwithstanding anything to the contrary, we reserve our rights to suspend, with or without notice, part or all of the Services for Urgent Security Issues, including any Accounts involved in such Urgent Security Issue, if applicable.
b) Suspension to Comply with Law
We may, at our sole discretion and at any time, suspend the provision of the Services if necessary to comply with any applicable Law.
We provide technical support with regard to your use of the Platforms, through email at firstname.lastname@example.org and by phone at +1 514 989-3141 or +1 888 989-3141 (toll-free). Support requests that require follow-ups and maintenance work are classified per priority. Some requests may be addressed in subsequence releases of our Platforms, such as minor bug fixes and technical issues with reasonable workarounds. We respond to support requests available during office hours (9AM to 5PM ET), excluding statutory holidays.
6. Order Form; Fees; Taxes
a) Order Form; Change Order
The Order Form shall contain a description of the Services delivered to be delivered to the Customer, the Subscription Term, the payment terms (including frequency, amounts and method(s) of payment).
The Order Form is approved (i) upon acceptance of the Order Form by the issuance of a Purchase Order by Customer corresponding to the Order Form; (ii) upon signature or acceptance of the Order Form in writing; or (iii) upon Customer accessing the Services following the issuance of the Order Form (“Order Form Approval”).
Order Form shall have precedence over these Terms of Services in case of a conflict between the Order Form and the Terms of Services.
Customer may add End User Accounts through the Admin Console, in which case, the Order Form shall be considered amended automatically to include the End User Account, and each new End User Account shall be paid for in proportion of the time remaining in the then-current Subscription Term. For the avoidance of doubt, each additional End User Account subscription shall renew at the same time than the Services, at the end of the then-current Subscription Term. Customer may also add End Users Accounts through a change order to the Order Form (a “Change Order”). Additional End Users Account are invoiced at the then-current Fees.
Change Order is issued by UCT and is approved by Customer (i) upon the issuance of a Purchase Order by Customer corresponding to the Change Order; or (ii) upon signature or acceptance of the Change Order in writing by Customer. Change Order can also be used to modify an Order Form on a case-by-case basis, as required by Customer and accepted by UCT.
Notwithstanding anything to the contrary in these Terms of Services, UCT may revise the Fees before each Renewal Subscription Term. If UCT decides, at its sole discretion, to modify the Fees, UCT shall notify Customer at least sixty (60) days before the end of the then-current Subscription Term either (i) by sending an email to the Notification Email Address; or (ii) by posting a notice in the Admin Console.
b) Fees; Payments; Reimbursements
You agree to pay us the fees as described in the Order Form as consideration for our provision of the Services, the whole in accordance with this Section 5 and the payment terms set forth in the Order Form (the “Fees”). All Fees are in Canadian dollars, unless indicated otherwise.
Customer agrees to pay the Fees within thirty (30) days of the invoice date. After this period, UCT shall issue a notice of late payment. If the situation is not resolved within sixty (60) days from the initial invoice date, UCT may suspend the Services at the end of this sixty (60) days period without further notice, and until all past invoices are paid. If the suspension lasts more than an additional sixty (60) days, UCT may terminate these Terms of Services (or a specific Order Form) for cause, and shall have no obligation to provide the Services until all invoices are paid. Any unpaid portion of the Fees past the due date are subject to interests of 1,5% monthly (18% annually). Customer shall be liable for all reasonable costs (including attorney’s fees) that UCT may incur to recover unpaid Fees. The foregoing shall not apply if a portion of the Fees is disputed in good faith, including if the matter is submitted to mediation pursuant to Section 22.b) or to arbitration pursuant to Section 22.c).
If payment through direct debit in your bank account or through credit cards is selected or authorized as a method of payment for the Fees, you hereby authorize us to debit the Fees from your bank account or credit card, as the case may be, and represents and warrants that you have provided us with accurate and truth financial information as required for us to debit the Fees in your bank account or on your credit cards. You further represent and warrant that you will inform us without undue delays of any changes to your financial information. You shall be responsible for any fees resulting from your failure to inform us of any changes, or for the fees engendered by UCT if your payment is refused for any reason. Notwithstanding the foregoing, UCT shall have no obligation to make such payment methods available to Customer, and different payment methods may be available to Customer depending on the terms and conditions on the Order Form. We may change our billing options at any time by advising you through the Admin Console or the Notification Email Address at least thirty (30) days in advance.
If you pay the Fees directly to one of our Resellers, the payment terms are subject to the Resellers’ terms and conditions. We are not responsible for any dispute with a Reseller regarding the Fees.
Subject to applicable laws, and except of the Services are terminated by you for cause pursuant to Section 21, the Services are non-reimbursable, and we have no obligations to refund any Fees already paid by you to us for any reasons whatsoever.
If UCT is required by Law or by administration thereof to collect any applicable taxes from Customer, Customer shall pay such taxes to UCT concurrently with and in addition to the payment of the Fees (and any other financial considerations payable pursuant to these Terms), unless Customer qualifies for an exemption from any such applicable taxes, in which case, Customer shall, in lieu of payment of such applicable taxes to UCT, deliver to UCT such certificates, elections or other documented required by Laws or the administration thereof to substantiate and effect the exemption claimed by Customer. Where UCT is not required by Law or the administration thereof to collect applicable taxes, Customer shall pay such taxes directly to the appropriate taxing authority and shall provide evidence of such payment to UCT upon request.
Customer shall make all payments under these Terms without any deduction or withholding for or on account of any taxes (“Tax Deduction”) unless a Tax Deduction is required by Law. If a Tax Deduction is required by Law then (i) where such Tax Deduction relates to any tax other than an income tax imposed on UCT’s net income, the relevant amount payable by Customer hereunder shall be increased to the amount that would, following any required Tax Deduction, result in UCT receiving the amount that would have been received if no Tax Deduction were required; (ii) Customer shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify UCT accordingly; and (iii) Customer shall timely remit the amount of such Tax Deduction to the appropriate taxing authorities. Customer will use commercially reasonable efforts to mitigate, reduce, or eliminate any Tax Deduction (including, but not limited to, by taking advantage of any reduced rate of tax provided for by any applicable international agreement for the avoidance of double taxation then in force).
The term of these Terms of Services begins upon the Order Form Approval or upon the beginning of the Trial Period and continues for as long as an Order Form is active or for the duration of the Trial Period if no Order Form is signed thereafter (the “Term”).
The subscription term begins on the date stipulated in the Order Form and ends at the end of the period stipulated in the Order Form (the “Subscription Term”). The Subscription Term shall renew automatically for one (1) year (or for one (1) month for monthly plan), unless indicated otherwise by either party at least thirty (30) days (or at least three (3) days for monthly plans) before the end of the then-current Subscription Term (each a “Renewal Term”).
8. Free Trial
In the event that UCT agrees to provide you with a free trial of the Services, you will be entitled to use and access the Services for a period of fourteen (14) consecutive days or as agreed otherwise in writing between the parties (the “Trial Period”). Unless indicated otherwise in writing, no fees will be charged for the Services during the Trial Period.
You may terminate the Services at any time during the Trial Period and have no obligation to sign an Order Form after the expiration of the Trial Period. To terminate your use of the Services, you can either (i) cease to use the Services, in which case these Terms will expire automatically upon the end of the Trial Period; or (ii) write to us at email@example.com so that we can terminate your access immediately, in which case, and notwithstanding anything to the contrary, these Terms will terminate immediately.
To the maximum extent permitted by Law, we shall have no liability whatsoever to you or your Representatives, including any loss of profits, special, direct, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services or these Terms during your Trial Period.
9. Intellectual Property
Except as expressly provided for in these Terms, we shall remain the sole and exclusive owner of all right, title, and interest, including all Intellectual Property, in and to the Services, the Documentation and our Confidential Information. Notwithstanding anything to the contrary, UCT shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its End Users) to UCT, so long as they relate to the Services (the “Feedback”), and Customer hereby assigns to UCT, without limitation of any kind, all of its rights, titles and interests therein, UCT accepting such assignment. At our reasonable request and expense, you will complete and execute all necessary documents and take such other actions as we may reasonably require in order to assist us to acquire, develop and maintain our Intellectual Property in the Feedback.
Customer shall remain the sole and exclusive owner of all right, title, and interest into its Intellectual Property.
The Services may contain Open Source Software. The terms and conditions governing your use of such Open Source Software shall be in accordance with the Open Source License Terms associated with such Open Source Software.
a) Licenses to Customer Data
You hold all rights, title and interest in and to all Customer Data, provided that you hereby grant us a revocable (but only under these Terms), fully-paid, non-exclusive, royalty-free, limited and worldwide license to aggregate, reproduce, distribute, and otherwise use and display the Customer Data as may be necessary for us to provide the Services to you or to exercise our rights and obligations under these Terms.
Notwithstanding anything to the contrary in these Terms, you agree and acknowledge that UCT shall hold all rights, title and interest in Anonymized Data and Usage Data, which may be used for any purposes, including business intelligence purposes.
b) Licenses to Reports
The Services may include the provision of reports or similar outputs (each a “Report”). Unless otherwise set forth in an Order Form, UCT hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited license to reproduce, print, download and use all such Reports solely in accordance with this Terms and for your and your Representatives’ business purposes. This license shall survive the Term.
c) Licenses to the Services
Subject to these Terms, including the payment of applicable Fees, we hereby grant you, for the Subscription Term, a non-exclusive, non-sublicensable, non-transferable, revocable (but only pursuant to these Terms) right and license to access and use (and allow your End Users to access and use) the Services for legitimate business purposes. All rights not expressly granted hereunder are reserved by UCT. End Users may only use the Services provided Customer remains liable for its End Users.
11. Confidential Information
Confidential information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure; or (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party.
The Receiving Party acknowledges and agrees that the Confidential information is proprietary information of the Disclosing Party, and may constitute Intellectual Property of the Disclosing Party, whether or not any portion thereof is or may be validly copyrighted or patented. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes set forth in these Terms and shall protect such Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own confidential information.
The Receiving Party shall take all reasonable steps necessary to ensure that the Confidential Information of the Disclosing Party is not made available or disclosed by it or by any of its Representatives to any third person except (i) as required by applicable Law, including a valid court order; (ii) with the prior written consent of the Disclosing Party; or (iii) as authorized or reasonable inferred from these Terms. The Receiving Party will use due diligence to ensure that its Representatives are subject to the same obligations of confidentiality as it does.
The Receiving Party shall not make copies or reproductions of the Confidential Information of the Disclosing Party (in any medium) except as required for the purpose of these Terms (including for backups and business continuity purposes).
c) Obligation upon Termination
Upon the termination of these Terms for any reason, the Receiving Party shall promptly either return all Confidential Information in its possession to the Disclosing Party or destroy such Confidential Information, at the option of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party is authorized to keep copies as required to comply with applicable Law, for its corporate records or as part of business continuity, in which case, the Receiving Party shall ensure the confidentiality and integrity of such Confidential Information as long as it is under the Receiving Party custody and securely delete such Confidential Information as soon as reasonably possible.
12. Personal Data
a) Collection, Use and Disclosure of Personal Data
We will deploy commercially reasonable efforts to assist you to respond to individual privacy rights requests, such as the right to access or correct Personal Data. If we receive such requests about your End Users, we will advise you without further delay. The parties agree to collaborate in good faith as necessary to respond to such requests in accordance with the Law, and as otherwise required to comply with the Law.
b) Security Breach
In the event of a Security Breach, we will notify you without undue delay upon becoming aware of a Security Breach affecting Personal Data through the Notification Email Address, providing you with sufficient information to allow you to meet your obligations to report or inform individuals or the authorities. If such information is not available at the time of such notice, we will follow up as the information becomes available. We may notify third parties directly without first obtaining your prior written consent, if we are required to do so pursuant to applicable Law or if this method of notification is more appropriate in the circumstances.
13. Information Security
Taking into account factors such as the nature, scope, context and purpose of the use, collection and disclosure of the Customer Data, as well as the risks inherent to such use, collection and disclosure, including to the rights and freedoms of individuals, UCT shall implement appropriate administrative and technical safeguards to ensure a level of security appropriate to the risks to Customer Data.
Customer agrees that it will exercise commercially reasonable care and diligence not to pass any computer virus, worm, bug, or other computer infection to the Services. Customer is solely responsible for providing awareness and training to its End Users as well as for securing its own network, technologies and assets used to access the Services.
By subscribing to any of our Platforms, you hereby agree that we may (i) publicly use your name and logo alongside the names and/or logos of other customers on our website, client lists, proposals, investor presentations and sales presentations; and (ii) that each party will get the prior written consent of the other party before issuing any press release.
You can reach us at firstname.lastname@example.org to withdraw your consent provided pursuant to this Section 13.
You hereby consent to our use of subcontractors to deliver part of the Services, to the extent that we shall remain liable for any acts or omissions of our subcontractors as if the acts or omissions were committed by us. You agree and acknowledge that subcontractors may use, collect or disclose Personal Data to deliver and/or perform the Services.
16. Representations and Warranties
We represent and warrant that the Services will substantially conform to the Documentation and will be performed in a professional manner.
In addition to the other representations and warranties provided for in these Terms, you represent and warrant that (i) all of your End Users are at least 16 years of age; and (ii) you have not previously been suspended or removed from the Services.
Each party represents and warrants that (i) it has the power and authority to enter into these Terms; and (ii) it will comply with all applicable Law in connection with the provision or use of the Services, as the case may be.
17. Indemnity; Remedies
You hereby agree to indemnify us, defend us and hold us harmless (including our Representatives) from and against any and all claims, penalties, fine, cost, expenses (including reasonable attorney’s fees), actions, damages, losses or liabilities directly or indirectly arising out of, related to, in connection with or resulting from: (i) your access to, use of, or alleged use of, the Services in a manner not authorized by the Terms, including any breach of Sections 2 and 15; and (ii) your negligence, fraud and willful misconduct.
Except as provided in these Terms, (i) we do not warrant that the Services will be uninterrupted or error-free; (ii) we do not make any warranty as to the results that may be obtained from the use of the Services; (iii) UCT is the sole authorized person to make any representations or warranties on its behalf; (iv) we do not warrant that the Services will be conform to representations by Resellers that are not compliant with the Documentation; (v) the Services are provided on an “as is”, “where is” and “as available” basis; (vi) to the maximum extent permitted by Law, we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, quality, reliability or completeness of any outputs or information (including a Report) provided as a by or as a result of using the Services; and (vii) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in these Terms, you hereby waive your rights in any of the foregoing warranties, representations or conditions, whether express or implied.
Customer is solely responsible for the accuracy, truthfulness and quality of Customer Data and any content, advice or information directly or indirectly delivered through or passed through the Services by Customer (or its End Users). We exercise no control over and accept no responsibility for the accuracy, truthfulness and quality of such advices and of Customer Data, including, without limitation, violations of Intellectual Property, applicable Law and privacy rights.
Unless specifically included in the Services under the applicable Order Form, UCT is not in the business of providing legal, financial, insurance, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
You acknowledge and agree that any outputs (including Reports) produced by or obtained from the Services (or the use thereof) are for informational purposes only. We do not have any liability whatsoever for business or professional decisions resulting from such outputs. You must ensure the outputs are accurate and consistent.
We do not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Services. Accordingly; (i) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services; and (ii) we cannot guarantee the privacy or security of wireless data transmissions.
No other oral advices, written or electronically delivered information given by us or our Representatives shall create any warranty.
The Services may contain links to third-party websites or content. We are not responsible for third-party websites or content.
19. Limitation of Liability
To the maximum extent permitted by Law, neither party shall be liable to the other party or its Representatives for any loss of profits, or special, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services, or the performance of any other obligations under these Terms, even if a party is aware of the possibility of occurrence of such damages.
Notwithstanding anything to the contrary, to the maximum extent permitted by Law, our total liability to you for any damages arising out or in connection with these Terms, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by you pursuant to an Order Form during the twelve (12)-month period preceding the event which gave rise to such damages.
20. Force Majeure
Except as it relates to the payment of the Fees, neither party shall be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disasters, strike or other labour disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”). Any delay resulting from a Force Majeure will result in an extension of the corresponding obligation for a period equal to the time lost by reason by such cause. For instance, if the Services are unavailable for a period of two (2) weeks as a result of a Force Majeure, then the Subscription Term shall automatically be extended by two (2) weeks. The parties shall advise each other as soon as possible in the event of a Force Majeure.
21. Export Control; Anti-Corruption
Each party shall comply with all applicable anti-bribery and anti-corruption Laws, including, without limitation, the Canadian Corruption of Foreign Public Officials Act, as amended from time to time (“Anti-Corruption Laws”). Neither party nor its Representatives is or has been the subject of any investigation or inquiry by any authorities with respect to potential or actual violations of anti-bribery Law. If a party has been subject to such investigation or inquiry, it represents and warrants that it has not been found in breach of applicable Law and that no charge has been retained against this party. Notwithstanding anything to the contrary, if either party takes any action that could constitute a violation of Anti-Corruption Laws, the other party may immediately terminate these Terms.
Customer acknowledges that the Services may be subject to Canadian and United States export laws, statutes and regulations and to export laws, statutes and regulations of other countries, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder.
Customer represents and warrants that neither it nor any of its Representative will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto, directly or indirectly, to any country for which the competent authorities (including the Canadian and United States governments entities) require an export license, other governmental approval or letter of assurance, without first obtaining such license, approval or letter, including, without limitation, any countries on Canada’s Area Control List or subject to the Canadian Economic Sanctions.
Customer represents and warrants that neither it nor any of its Representatives will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto for an end use that is directly or indirectly related to the research, development or production of chemical, biological, or nuclear weapons or any missile programs for such weapons, or that otherwise disrupt international peace or is contrary to any restriction on End Users set for in applicable Law.
Either party may suspend or terminate the Terms of Services (or an Order Form, if there are more than one active) for cause (i) upon a thirty (30) day prior written notice of a material breach of the Terms to the other party, if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if:
A) Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
B) Customer refuses a modification to these Terms as further described under Section 2;
C) Customer or an End Users commits an Abuse as described under Section 2, if UCT has conducted a reasonable inquiry confirming that the Abuse was committed;
D) In case of a violation of Anti-Corruption Laws, as described under Section 20;
E) If Customer fails to pay overdue Fees as described under Section 5.b);
F) If there is no reasonable chance that the material breach of these Terms by the other party can be resolved within the thirty (30) days notice referred to in this Section 21.a).
For greater precision, if an Order Form is terminated and no other Order Form or Trial Period is active, these Terms of Services shall also be terminated.
Customer hereby irremediably and expressly renounce to articles 2125 and 2126 of the Civil Code of Quebec.
We may terminate these Terms without cause subject to a ninety (90) days written notice to you.
If the Services are terminated for any reason, Customer agrees to pay to UCT, in proportion to the agreed Fees in the Order Form, the actual work performed up to the termination date of the Terms of Services (or the relevant Order Form).
b) Effects of Termination
If these Terms are terminated for any reason or expire, then: (i) except as otherwise set forth in these Terms, the rights granted by one party to the other shall terminate immediately; (ii) you shall have a limited access to the Services for a limited period of thirty (30) days during which you may extract your Customer Data; and
The provisions of Sections 9, 10, 11, 12, 13, 16, 17, 18, 19, 21, 22, 23 and 24 hereof will survive the Term or the termination of these Terms for any reason.
23. Governing Law; Dispute Resolution
a) Governing Law
The validity, construction and performance of these Terms and the legal relation between you and us shall be governed by and constructed in accordance with the Law of Quebec, Canada, and the federal Law applicable therein, without giving effect to any choice or conflict of law provision or rule (whether in Quebec or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Quebec, Canada. Specifically excluded from application to the Terms is that law known as the United Nations Convention on the International Sale of Goods.
Subject to Sections 22.b) and 22.c) hereunder, any legal suit, action or proceeding, arising out of the Terms or any transactions hereunder shall be instituted exclusively in Montreal, Quebec, Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Any dispute between the parties arising from the application or interpretation of the Terms that is not resolved within thirty (30) days from a written notice of dispute being given by one party to the other party shall be referred to mandatory mediation. The parties must participate in good faith in at least one (1) mediation session by delegating a person in authority to participate. The mediator shall be selected jointly by the parties acting reasonably. The mediation shall be conducted in French or English in the City of Montreal, Province of Quebec, or through electronic means as agreed upon between the parties. The parties shall be responsible for their own costs relating to the mediation and shall share equally the other costs associated with the mediation, such as professional fees.
If the Parties settle the dispute through mediation, they shall jointly draft a document setting out the terms of such settlement. This document, once signed, will be irrevocably binding on the parties, and may be subject to homologation by a competent court in Montreal, Quebec, Canada.
Subject to the mediation provisions set out above, if any dispute, controversy or claim arising out of or relating to these Terms including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of arbitration shall be Montreal, Québec, Canada (unless agreed otherwise in writing between the parties). The language of the arbitration shall be French or English, at the parties’ choice. There shall be a sole arbitrator selected jointly between the parties, or if the parties cannot agree, by a judge of the Superior Court of Québec, in Montreal, Quebec, Canada. The arbitrator shall have at least five (5) years of experience in commercial law and in the field of technology such as software-as-a-service.
The arbitrator must select its award from one of the final offers made by each of the Parties, in its entirety and without modification. The arbitrator must provide detailed reasons for its award. An oral hearing need not be held, and the parties may submit their observations in writing. There will be no appeal from the decision of the arbitrator on questions of fact, law or mixed fact and law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. The costs of the arbitration shall be divided equally between the parties, and each party shall bear its own costs of representation. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
The arbitration proceedings and awards shall be considered Confidential Information.
24. GENERAL PROVISIONS
The waiver of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach.
If any provision of these Terms is in violation of any Law, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.
These Terms describe the entire understanding of the parties and supersede all oral and written agreements or understandings between them related to its subject matter.
The parties have required that these Terms and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.
We may assign these Terms, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign these Terms, or part of it, to any other person without our prior written approval, which shall not be withheld unreasonably. Any attempt by you to assign these Terms without our consent is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.