Nutrioso - Terms of Services
These Terms of Services constitute legal Terms of Services between the entity or the professional (as applicable) that agrees to these Terms of Services (the “Customer”; “you”) and Nicole Doucet Communications Inc., with a registered address at 5046 Notre-Dame-de-Grâce avenue, Montreal (Québec), H4A 1K1 (“NDC”, “we”, “us”, “our”).
Please read the following Terms of Services carefully before accessing or using our Services (as defined below), as they contain important information on your obligations while using the Services. The Terms of Services also inform you on 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 of Services. Continued use of any of our Services indicates your continued acceptance of the Terms of Services. If you do not agree with these Terms of Services, you must not use our Services.
, these Terms of Services define the legal relationship between you and us in connection with the Services. If you have any questions related thereto, you can reach us at or call us directly at: 1-877-583-1175.
In these Terms of Services, terms beginning with a capital letter, but not defined, have the meanings given to them in the above terms.
“Account” means the account(s) that you acquire as part of your subscription.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to these Terms of Services. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Anonymized Data” means any Usage Data, Customer Data and other data generated by the Services which have been processed through an industry-standard de-identification technology or method and which, as a result, does not relate anymore to an identified or identifiable natural or moral person. For the avoidance of doubts, Anonymized Data does not include Personal Data.
“Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including proprietary information and trade secrets. Confidential Information must be indicated as confidential information, or it must be clear at the time of the disclosure that the information ought to be handled as Confidential Information.
“Customer Data” means any (i) Personal Data; (ii) data generated by or submitted through the Services by Customer (including by End Users). Notwithstanding anything to the contrary in these Terms of Services, Anonymized Data and Usage Data shall not be considered Customer Data.
“End User(s)” means each user who is authorized by you to use and access the Services via your Account, including you if you are an individual.
“Intellectual Property” means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and any and all proprietary rights provided under patent law, copyright law, trade mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“NDC Documentation” means the documentation and other material made available to Customer (and End Users) in connection with our provision of the Services, including Services specifications and descriptions that are publicly available on our website.
“Notification Email Address” means the email address provided by you in the Order Form, which address is designated to receive notices from us.
“Open Source Licence Terms” means the licensing and/or distribution models commonly known as “open source software” or “free software” or any other licensing and/or distribution models pursuant to which software is made generally available to the public in source code form under terms that permit modification and redistribution of such software. By way of example only and without limitation, Open Source Licence Terms include any versions of the following Terms of Services, licences or distribution models: (i) the GNU General Public Licence (GPL); (ii) Lesser/Library GPL (LGPL); (iii) the Common Development and Distribution Licence (CDDL); (iv) the Artistic Licence (including without limitation PERL); (v) the Netscape Public Licence; (vi) the Sun Community Source Licence (SCSL) or the Sun Industry Standards Licence (SISL); (vii) the Apache Licence; (viii) the Common Public Licence; (ix) the Affero GPL (AGPL) and (x) the Berkeley Software Distribution (BSD).
“Open Source Software” means any software licenced under the Open Source Licence Terms.
“Order Form” means an order form executed by you and us or accepted through a purchase order. The Order Form describes in further details the Services, the Fees and the Term.
“Personal Data” means any information that would meet the definition of “personal information” or “personal data” (or similar nomenclature) under applicable Law and that is (i) submitted through the Services by you or your End Users or (ii) collected or generated by the Services about End Users.
“Representatives” means a party’s affiliates, subsidiaries, resellers, agents and subcontractors, as well as the respective employees, directors, officers and developers of each of these third parties, and those of the concerned party, as the case may be;
“Security Breach” means any act or omission that materially compromises the security, confidentiality or integrity of Personal Data.
“Services” means the software-as-a-service platform known as Nutrioso, made available by us through or in connection with the website available at www.nutrioso.app, which includes web tools and platform for Registered Dietitians and Nutrition Professionals to simplify complex tasks, such as management and analysis of nutritional information of their clients such as recipes, enable case management, nutritional assessment of the clients, planning, analysis and creation of food plans, online appointment booking, evolution and recording of weight, and direct and permanent communication and follow-up with the client's, and much more (as further detailed in the NDC Documentation). In addition to these functionalities, the most distinctive feature of the service relates to the fact that it eases and improves the nutritional monitoring and follow-up of the Client by the Nutrition Professional. The Services include all technologies developed by us (software, hardware, algorithms, code, processes, user interfaces, know-how, techniques, models, designs and other technical or information material, whether tangible or intangible). The Services also include (i) system administration, hosting, system management and system monitoring activities performed by us in connection with the web interface made available by us and (ii) technical support and maintenance, substantially as described in Article 5 hereof.
“Terms of Service” means these Terms of Services and the Order Form.
“Third-Party Claim” means any third-party claim, lawsuit, action, or proceeding.
“Urgent Security Issue” means any (i) use of the Services in contravention of these Terms of Services by an End User; (ii) Security Breach; or (iii) situation reasonably requiring NDC to act immediately to prevent or mitigate security risks, including to install important security patches.
“Usage Data” means data captured and/or generated by the Services about statistics, trends, performance and analytics, such as page views, performance statistics, errors occurrences, and electronic attributes of devices, such as browser name and version, operating system and country. Usage Data is generally used to improve our Services, monitor performance and understand popular features.
Subject to and conditioned on your payment of applicable Fees and compliance with these Terms of Services, 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 of Services.
Only Registered Dietitians, nutritionists and other nutrition professionals who are certified, registered and/or accredited members of the professional body or association (as applicable) in place in the jurisdiction in which they provide their services are eligible to create an Account, and consequently, to access and use our Services.
We represent and warrant that the Services will be substantially conform to the Documentation and will be performed in a professional manner.
You represent and warrant that (i) you are a certified/registered/accredited member of the professional body or association (as applicable) of nutrition professionals in place in the jurisdiction in which you provide your services; and (ii) all your End Users are at least fourteen (14) years of age to access and use the Service.
Modifications to Services
We reserve our rights to make changes to the Services. In case of a 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 of Services.
We may need to modify these Terms of Services to adapt to new technologies, functionalities, regulatory requirements or otherwise based on our legitimate business needs. If we need to amend these Terms of Services, 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 we cannot agree to a mutually acceptable modification, you may exercise your right to termination with cause pursuant to Section 21.
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 of Services.
your OBLIGATIONS AND RESPONSIBILITIES
You hereby represent and warrant that, while using our Services and during the Subscription Term, to only adopt behaviours that do not infringe applicable Laws or damage, in any way, legally protected positions and, in particular, to strictly comply with all respects to the code(s) of ethics, deontological code(s), or any other ethics guidelines in force and applicable to members of your professional body or association (as applicable) in your jurisdiction(s).
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 of Services if taken by you will be deemed a breach of these Terms of Services 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:
that is prohibited by Law or regulation or our policies made available to you, including these Terms of Services;
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 of Services 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);
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;
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;
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;
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;
that involves penetrating our security, including, without limitation:
by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;
by interfering with the proper working of the Services;
by attempting to hack any security requirements or processes in the use of the Services;
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;
by attempting to disrupt in any manner the operation of the Services, its servers or network;
by disobeying any requirements, procedures, policies or regulations of your network connected to the Services;
by manipulating identifiers to disguise the origin of any content transmitted or uploaded on to the Services, or the source of any content;
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 3(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.
You are responsible for maintaining your Account credentials confidential, and NDC shall not be responsible if an Account is compromised. If credentials have been compromised, you must block these credentials and trigger a reset of the credentials as soon as practicable 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.
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 are the settings and privileges for such End User. NDC shall not be responsible for managing End Users, settings and controls available as part of the Account.
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.
INTERRUPTION AND SUSPENSION OF SERVICES
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.
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 through a form available on Customer’s Nutrioso Dashboard, and within the Services. You can also e-mail us at firstname.lastname@example.org. Support requests that require follow-ups and maintenance work are classified per priority. Some requests may be addressed in subsequence releases of our Services, such as minor bug fixes and technical issues with reasonable workarounds. We respond to support requests available during office hours (8AM to 6PM ET), excluding statutory holidays.
ORDER FORM; FEES; TAXES;
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 (a) upon acceptance of the Order Form by the issuance of a Purchase Order by Customer corresponding to the Order Form; (b) upon signature or acceptance of the Order Form in writing or (c) 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.
Change Order are issued by NDC and are approved by Customer (a) upon the issuance of a Purchase Order by Customer corresponding to the Change Order or (b) 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 NDC.
Notwithstanding anything to the contrary in these Terms of Services, NDC may revise the Fees before each Renewal Subscription Term. If NDC decides, at its sole discretion, to modify the Fees, NDC shall notify Customer at least sixty (60) days before the end of the then-current Subscription Term by sending an email to the Notification Email Address.
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 Article 6 and the payment terms set forth in the Order Form (the “Fees”). All Fees are in Canadian dollars, unless indicated otherwise.
In order to access and/or use the Services, Customer shall pay the Fees when subscribing to the Services via Paypal payment platform (payment procedure is further detailed in the Order Form). 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, on your credit cards or on your Paypal account. Your further represent and warrant that you will inform us without undue delays of any changes to your financial information that would refrain us from doing so. You shall be responsible for any fees resulting from your failure to inform us of any changes, or for the fees engendered by NDC if your payment is refused for any reason. Notwithstanding the foregoing, NDC 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 at your Notification Email Address at least thirty (30) days in advance.
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 NDC is required by Law or by administration thereof to collect any applicable taxes from Customer, Customer shall pay such taxes to NDC concurrent with and in addition to the payment of the Fees (and any other financial considerations payable pursuant to these Terms of Services), 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 NDC, deliver to NDC such certificates, elections or other documented required by Laws or the administration thereof to substantiate and effect the exemption claimed by Customer. Where NDC 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 NDC upon request.
Customer shall make all payments under these Terms of Services 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 NDC’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 NDC 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 NDC 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 time 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”).
In the event that NDC 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 30 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 of Services 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 of Services 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 of Services during your Trial Period.
We shall remain the sole and exclusive owner of all right, title, and interest, including all Intellectual Property, in and to the Services and the NDC Documentation and in our and to our Confidential Information. Notwithstanding anything to the contrary, NDC shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its End Users) to NDC, so long as they relate to the Services (the “Feedback”), and Customer hereby assign to NDC, without limitation of any kind, all of its rights, titles and interests therein, NDC 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 Licence Terms associated with such Open Source Software.
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 of Services 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 of Services. 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 of Services (including for backups and business continuity purposes).
Obligation upon Termination
Upon the termination of these Terms of Services 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.
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.
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.
Licences to Customer Data
You hold all rights, title and interest in and to all Customer Data, provided that you hereby grant us an revocable (but only pursuant to these Terms of Services), fully-paid, non-exclusive, royalty-free, limited and worldwide licence 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 of Services.
Notwithstanding anything to the contrary in this Agreement, you agree and acknowledge that NDC shall hold all rights, title and interest in Anonymized Data and Usage Data, which may be used for business intelligence purposes.
Licences to Reports
The Services may include the provision of reports or similar outputs (each a “Report”). Unless otherwise set forth in an Order Form, NDC 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 of Services and for your and your Representatives’ business purposes. This licence shall survive the Term.
Licenses to the Services
Subject to these Terms of Services, 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 of Services) 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 NDC. End Users may only use the Services provided Customer remains liable for its End Users.
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 Article 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.
REPRESENTATIONs and WARRANTIES
We represent and warrant that the Services will be substantially conform to the NDC Documentation and will be performed in a professional manner.
In addition to the other representations and warranties provided for in these Terms of Services, you represent and warrant that (i) all of your End Users are at least 16 years of age and (ii) you are have not previously been suspended or removed from the Services; (iii) you are and will remain, during the Subscription Term, a certified, registered and/or accredited member of the professional body or association (as applicable) of nutrition professionals in place in the jurisdiction in which you provide their services and have all the required training, certification and other qualifications to provide the services you will provide through the Services.
Each party represents and warrants that (x) it has the power and authority to enter into these Terms of Services and (z) it will comply with all applicable Law in connection with the provision or use of the Services, as the case may be.
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 of Services, including any breach of Section 3(a) and 8; and (ii) your negligence, fraud and willful misconduct.
Except as provided in these Terms of Services, (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) NDC 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 of Services, 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.
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, (a) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services and (b) 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.
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 of Services, 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 of Services, 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.
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 disaster, strike or other labor 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.
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 or 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 this Agreement.
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 of Services to the other party, if such breach remains uncured at the expiration of such period; (ii) immediately upon a written notice if
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
Customer refuses a modification to these Terms of Services as further described under Section 2(b);
Customer or an End Users commits an Abuse as described under Section 3(a), if NDC has conducted a reasonable inquiry confirming that the Abuse was committed;
In case of a violation of Anti-Corruption Laws, as described under Section 20.
If Customer fails to pay overdue Fees as described under Section 6(b).
If there is no reasonable change that the material breach of these Terms of Services by the other party can be resolved within the thirty (30) days notice referred to in Section 21(a)(i).
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 of Services without cause subject to a ninety (90) days written notice to you.
If the Services are terminated for any reason, Customer agree to pay to NDC, 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).
Effects of Termination
If these Terms of Services are terminated for any reason or expire, then: (i) except as otherwise set forth in these Terms of Services, 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 1, 9, 10, 11, 13, 15, 16, 17 and 21 hereof will survive the Term or the termination of these Terms of Services for any reason.
GOVERNING LAW; DISPUTE RESOLUTION
The validity, construction and performance of these Terms of Services 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 of Services 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 of Services 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 of Services 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 of Services 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. Judgement 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.
These Terms of Services is subject to changes at our sole discretion. When we change these Terms of Services, we will update the “Latest update” above. Changes to these Terms of Services will only affect your and our respective rights and obligations from and after the effective date of such changes. Order Forms can only be amended by a change order executed by both parties. If your Notification Email Address changes, you shall advise us without delay of such change.
The waiver of a breach of any provision of these Terms of Services will not operate or be interpreted as a waiver of any other or subsequent breach.
If any provision of these Terms of Services 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 of Services describe the entire understanding of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.
The parties have required that these Terms of Services 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 of Services, 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 of Services, 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 of Services 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.