Conditions de service
Dernière mise à jour: 3 juin 2021
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These terms of service shall be binding on the operator of the Fourwaves Platform (the “Platform”), Les Technologies Informatiques Fourwaves Inc. (“Fourwaves”) and the person or entity purchasing the right to use the Platform (“Customer”) once accepted by Customer.
Details of Customer’s right to access the Platform are set forth in an Order Form executed by the parties.
In this Agreement, capitalized terms shall have the meaning indicated in the relevant provision or in Schedule A.
In case of an inconsistency between the provisions of these Terms of Service and the Order Form, the Order Form shall take precedence.
Access to the Platform
Subject to Customer’s and Authorized Users’ compliance with this Agreement, Fourwaves agrees to allow the Authorized Users to access and use the Platform through the Fourwaves Infrastructure for the duration of the Term. Customer’s rights to access and use the Platform are purchased by Customer for one or several Events. Purchasing access rights permits all Authorized Users to access and use the Platform in connection with certain Events, subject to restrictions set forth in the Order Form.
Only Authorized Users are authorized to use the Platform.
To access the Platform, the Customer can add Authorized Users and establish Authentication IDs (an email address). Customer shall control and maintain the security of all Authentication IDs. Customer shall be solely responsible for all instructions, commitments and other actions or communications taken under any of its Authentication IDs. Customer shall promptly report to Fourwaves any errors or irregularities in the Platform or any unauthorized use of any part thereof and inform Fourwaves immediately if any Authentication ID becomes known to any third person who is not authorized to possess such password.
For the purpose of this Agreement any use of the Platform under a Customer Authentication ID shall be deemed to be used by Customer.
Customer’s use of the Platform is limited to the features included in the Documentation. Customer is not authorized to use the Platform for any other purpose without the prior written consent of Fourwaves, which consent may be withheld at Fourwaves’s absolute discretion.
Customer shall not:
- use the Platform for unlawful purposes;
- include, or knowingly allow others to include, any Objectionable Content or introduce Malicious Code to the Fourwaves Infrastructure on into the Platform;
- intercept or attempt to intercept any messages transmitted to and from the Fourwaves Infrastructure that are not intended for Customer or any of its Authorized Users;
- access or attempt to access other Fourwaves customers’ data;
- take any action that imposes an unreasonable or disproportionately large load on the Fourwaves Infrastructure;
- use the Platform or the Platform to develop any derivative works or any functionally compatible or competitive software;
- reverse engineer the Platform or the Platform, except reverse engineering expressly permitted by applicable law which may not be excluded contractually;
- copy the Platform or any other software used by Fourwaves to provide the Platform; or
- remove any copyright or other proprietary rights notice on the Platform, the Documentation or other materials provided by Fourwaves or any copies thereof.
Customer shall be responsible for any breach of the prohibitions listed above by its employees, officers, agents or contractors.
Audit by Fourwaves
Fourwaves may monitor and audit Customer’s, Authorized Users’ and Participants’ use of the Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Fourwaves or a third party authorized by Fourwaves, at its own expense.
If Fourwaves’ monitoring activities or audit reveals that Customer’s or any Participant’s use of the Platform is in breach of this Agreement, including any use in breach of any applicable laws, Fourwaves may immediately suspend the availability of the Platform to Customer or to one or several Participant(s), without advance notice to Customer. Fourwaves shall use reasonable efforts to limit any restriction of the Platform to what is necessary to protect its rights hereunder. Fourwaves shall notify Customer of any suspension as soon as reasonably possible, which notice shall set out the circumstances of the suspension. If Customer rectifies the situation to Fourwaves’s satisfaction, then Fourwaves will reinstate the access to the Platform. If Customer does not rectify the situation within a reasonable period of time, then it shall be deemed a material breach of this Agreement and Fourwaves shall be entitled to terminate this Agreement in accordance with Section 7.
Customer shall procure and maintain computer systems and an internet connection meeting the technical requirements set out in the Documentation and/or in the Order Form, where applicable.
Customer agrees that the Platform may be hosted by third-party service providers, that the Fourwaves Infrastructure may be provided in whole or in part by third-party service providers and that the Customer Data may be hosted and processed by third-party service providers. Fourwaves may select its third-party hosting providers at its sole discretion.
Fourwaves provides no warranty and makes no undertaking with respect to the performance of third-party hosting providers. Performance metrics dependent on hosting hardware such as uptime, downtime, processing speed and latency and technical security measures are under the responsibility of third-party hosting providers and are not guaranteed by Fourwaves except where specifically provided herein.
From time to time, it will be necessary for Fourwaves to perform maintenance on the Fourwaves Infrastructure and/or the Platform. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of the Fourwaves Infrastructure or upgrading, updating or enhancing the Platform or Fourwaves Infrastructure. Fourwaves shall use commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the Platform to Customer. To the extent Fourwaves is able, Fourwaves shall notify Customer in advance of any scheduled maintenance by posting a message on the website or by sending an e-mail to the designated Customer of the scheduled maintenance time and the anticipated duration of such maintenance.
Fourwaves shall provide Authorized Users with support in response to Incidents only. Any additional support, training, configuration services, integration services or any other professional services shall be subject to a separate agreement between the Parties.
Fees, payment terms and invoicing are as set out in the Order Form.
Customer shall pay all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on Fourwaves’ income.
Where Customer fails to pay any amount in accordance with the payment terms set out in the Order Form, Fourwaves shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of 1.5% per month calculated daily, compounded monthly (18% per annum) both before and after any court judgement in respect of the same from the date such payment was due.
Customer acknowledges and agrees that, as between Customer and Fourwaves, Fourwaves owns all worldwide right, title and interest, including all Intellectual Property Rights, in and to: (i) the Fourwaves Infrastructure; (ii) the Platform; (iii) the “look and feel” and the user interface of the Platform; (iv) Documentation; and (v) any modifications, enhancements, upgrades, updates or customization to the Platform or Documentation (“Modifications”), including those Modifications made at the request or at the expense of Customer and Modifications involving Customer’s participation. Customer does not acquire any right, title or ownership interest of any kind, express or implied, in any of the foregoing other than the authorization to use the Platform granted herein, subject to all restrictions set forth herein.
Feedback from Customer
If Customer, including any employee, officer, agent or contractor of Customer, contacts Fourwaves about improvements to the Platform (“Feedback”) Customer authorizes Fourwaves to use the Feedback without restriction. Customer warrants that the Feedback contain no information that is confidential or proprietary to third parties and agrees that (i) Fourwaves has no expressed or implied obligation of confidentiality with respect to the Feedback; (ii) Fourwaves is authorized to use or disclose (or choose not to use or disclose) the Feedback for any purpose, in any way, on any medium, anywhere in the world; (iii) Fourwaves may already have considered or be in the process of developing elements identical or similar to those mentioned in the Feedback; and (iv) Customer will not be compensated in any way with regards to Fourwaves’s use of the Feedback.
Fourwaves acknowledges and agrees that as between Customer and Fourwaves, all worldwide right, title and interest, including all Intellectual Property Rights in and to the Customer Data, shall be the exclusive property of Customer. Fourwaves does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data, other than the license granted herein.
This Agreement does not afford Customer any right on Participant Data. Fourwaves enters into an agreement with each Participant independently from Customer. Customer may enter into an agreement with Participants to Customer’s Events at Customer’s discretion.
License on Customer Data
Customer hereby grants Fourwaves the right to use, copy, store, transfer and display the Customer Data solely for the purpose of enabling Fourwaves to make the Platform available to Customer under this Agreement. Fourwaves may disclose Customer Data to third-party providers involved in providing elements of the Fourwaves Infrastructure.
Fourwaves may generate Analytics Data from Customer’s, Authorized Users’ and Participants’ use of the Platform. Fourwaves shall retain ownership of the Analytics Data and shall have no obligation to share Analytics Data with Customer.
Fourwaves shall, and shall cause its employees, officers, agents and contractors to hold Confidential Information of Customer in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of Customer’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care. Fourwaves agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, officers, agents and contractors of Fourwaves who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement and which agreed in writing to keep Confidential Information confidential.
Fourwaves shall implement commercially reasonable technical and organizational security measures to ensure that Customer Data under its control is not subject to unauthorized disclosure, modification, or destruction. Customer acknowledges that security measures and the information security standards used by Fourwaves may change based on requirements or changes in the practices of third-party service providers.
The processing of personal data by Fourwaves and the Customer shall be governed by the Fourwaves Data Processing Agreement, which is incorporated herein by reference.
Data Retention Policy
Unless otherwise directed by Customer, Fourwaves shall retain Customer Data associated with an Event for a period of 12 months after the end of the Event.
Fourwaves reserves the right to delete Customer Data without prior notice after such period or if Customer is not active on the Platform for a period of 6 months.
TERM, RENEWAL AND TERMINATION
This term of this Agreement and the rights and obligations of the Parties hereto shall commence as of the Effective Date and shall continue for such period set forth in the Order Form (or in absence of such designated duration, for the duration of Customer’s use of the Platform) (“Term”) unless terminated earlier in accordance with the provisions contained herein.
Either party shall have the option to terminate this Agreement immediately, upon giving written notice to the other Party if:
- The other party becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors;
- The other party applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property or such receiver, trustee or similar officer is appointed without the consent of said party;
- The other party institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment or debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against a party and is not dismissed within sixty (60) Business Days;
Termination by Customer
Customer may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Fourwaves:
- breaches any material provision of this Agreement and such breach continues for a period of twenty (20) Business Days after delivery of a written notice by Customer requiring Fourwaves to correct such breach;
- breaches its obligations under Sections 6, thereby causing material harm to Customer;
The Parties exclude Sections 2125 to 2129 of the Civil Code and agree that this Agreement may not be terminated for convenience by Customer and may only be terminated by Customer pursuant to this Section 7.3.
Termination by Fourwaves
Fourwaves may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if:
- Customer fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of ten (10) Business Days after delivery of a written notice by Fourwaves requiring Customer to correct such failure;
- Customer, an Authorized User or a Customer employee, officer, agent or contactor infringes the Intellectual Property Rights of Fourwaves, including by the breach of Customer’s obligations under Section 6 or acts in any manner reasonably jeopardizing Fourwaves’s Intellectual Property Rights;
- Customer or an Authorized User engages in any prohibited use of the Platform;
- Customer materially breaches any other provision of this Agreement and such breach continues for a period of 30 days after delivery of a written notice by Fourwaves requiring Customer to correct such failure;
Fees upon Termination
Unless this Agreement is terminated by Customer pursuant to paragraph 7.3, upon termination of this Agreement, all Fees payable during the current Term will become immediately eligible, notwithstanding payment terms set out in the Order Form.
Obligation Upon Termination
Upon termination of this Agreement, at Customer’s request, Fourwaves shall certify to Customer in writing that it does not retain any copy of the Customer Data.
Fourwaves may permanently delete Customer Data in accordance with its retention policy stated at Section 6.8 or thirty (30) days after the termination of this Agreement.
Notwithstanding the termination or expiration of this Agreement for any reason, accrued rights, indemnities and all rights and obligations that by their nature shall survive the termination of the Agreement shall survive any such termination or expiration.
Fourwaves represents and warrants that for the duration of the Term, the Platform will substantially operate in accordance with, and have the features set out in the Specifications.
Customer sole and exclusive remedy with respect to the warranty provided by Fourwaves is the correction of the Platform by Fourwaves in order for the Platform to conform to the warranty at no extra cost to Customer. In the event that the correction is not possible, Customer sole remedy shall be to obtain a refund for the portion of the fees paid to Fourwaves concerning the portion of the Platform which did not conform to the warranty.
Limitation of Warranty
Except as expressly provided in this Agreement, Fourwaves offers no warranty of any nature regarding the Platform or the Fourwaves Infrastructure. The Platform is provided to Customer “as is” and “with all faults”. Fourwaves offers no warranty with respect to the results obtained by Customer by using the Platform, nor with respect to the accuracy of the results obtained by using the Platform. Fourwaves disclaims any implied warranty that may be applicable to the Platform.
LIMITATION OF LIABILITY
Exclusion of Consequential Damages
Subject to the restrictions of public order provided by law, Fourwaves shall not be liable for indirect, consequential, special or punitive damages arising out of Customer or Authorized Users’ use of the Platform or the provision of services by Fourwaves or from the inability to use the Platform, including without limitation, loss of business opportunities, loss of profits, loss of anticipated savings, damages for loss or corruption of data and the cost of substitute goods or services, whether such damages are based on contract, fault, tort, negligence, strict liability or any other legal theory, even if Fourwaves has been advised of the possibility of damages.
Monetary Limitation of Liability
Subject to the restriction of public order provided by applicable law which cannot be excluded contractually, and without limiting Fourwaves’s indemnification obligation set forth at Section 10.1, Fourwaves’s liability and/or responsibility to Customer under this Agreement and related to the Platform or Customer inability to use the Platform shall be strictly limited to the Fees paid by Customer to Fourwaves during the Term.
Indemnification by Fourwaves
Fourwaves shall defend at its own expense any claim, proceeding or suit (a “Claim”) brought against Customer or any of its Authorized Users to the extent such Claim alleges that any of the Platform (specifically excluding Customer Data and Participant Data) or the Documentation provided by Fourwaves to Customer infringes any copyright, patent or registered trademark of a third party within the Customer’s jurisdiction or in Canada and will indemnify and pay all damages which by final judgment or settlement may be assessed against Customer or an Authorized User on account of such infringement, provided that:
- Fourwaves is given prompt written notice of the Claim or of any allegations or circumstances known to Customer which could result in a Claim;
- Fourwaves is given all reasonable information and assistance from Customer, at Fourwaves’s expense, which Fourwaves may require to defend the Claim;
- Fourwaves is given sole control of the defense of the Claim, and all negotiations for the settlement or compromise thereof; and
- the alleged infringement does not result or arise from (i) any use other than the permitted use pursuant to this Agreement, (ii) alterations, modifications or enhancements carried out by Customer or on its behalf by a third person without authorization from Fourwaves, or (iii) Customer’s use of the Platform after being notified by Fourwaves about potential infringement.
If such Claim has occurred, or in Fourwaves’ opinion is likely to occur, Fourwaves may, at its option and expense, either procure for Customer the right to continue using the Platform, the Platform and Documentation or modify the same so that it becomes non-infringing without loss of functionality, or, at Fourwaves’ option, discontinue the Platform and use of the Platform and refund to Customer any pre-paid and unused portion of the Fees paid by Customer in respect of use of the Platform. The foregoing states the entire obligations of Fourwaves with respect to the infringement of Intellectual Property Rights by the Platform, the Platform or the Documentation.
Indemnification by Customer
Customer shall defend at its own expense any Claim brought against Fourwaves, its affiliates, directors, officers, employees and agents, to the extent such Claim: (i) alleges, directly or indirectly, that any Customer Data infringes any copyright, patent or registered trademark of a third party; (ii) alleges, directly or indirectly, that Customer Data contains any Objectionable Content; or (iii) arises from Customer’s or its Authorized Users’ unauthorized or negligent use of the Platform, provided that Customer is given:
- prompt written notice of the Claim or of any allegations or circumstances known to Customer which could result in a Claim;
- all reasonable information and assistance from Fourwaves, at Customer’s expense, which Customer may require to defend the Claim; and
- sole control of the defense of the Claim, and all negotiations for its settlement or compromise thereof.
Fourwaves may assign or otherwise transfer its rights and obligations under this Agreement without Customer’s prior consent in the context of the sale of the totality or quasi-totality of its assets required to provide the Platform, provided that such assignment does not diminish Customer’s rights hereunder. Customer may not assign or otherwise transfer its rights and obligations under this Agreement without Fourwaves’ prior consent.
Successors and Assigns
All references to the parties mentioned under this Agreement are deemed to also include, if applicable, a reference to their successors and respective permitted assigns. These provisions shall be binding and shall also benefit these successors and assigns.
This Agreement cannot be amended, modified, replaced, canceled, renewed or extended, and its provisions may only be subject to a waiver of their performance by a written document signed by all the Parties hereof, or in the case of a waiver to exercise any of its provisions, by the waiving party. A Party failing or neglecting to require the performance of any obligation hereunder at any time shall not affect their right to demand performance at a later time.
Any rights, remedies and any repairs enforceable by Fourwaves under this Agreement are cumulative and may be exercised simultaneously or separately.
Invalidity of Provisions
To the extent possible, each provision of this Agreement must be interpreted so as to be enforceable and valid under applicable law, but in the event that any of its provisions is deemed invalid, illegal or unenforceable for any reason whatsoever under the applicable law or regulation in any jurisdiction, this invalidity, illegality or unenforceability shall not affect the validity of the other provisions of this Agreement.
Applicable Law and Jurisdiction
This Agreement is subject to the laws in force in the Province of Quebec. The parties agree to submit any dispute concerning this Agreement to the exclusive jurisdiction of the courts sitting in the judicial district of Montreal, province of Quebec. The Parties waive any right, if any, to claim that the aforementioned jurisdiction is not appropriate, including under the doctrine of forum inconveniens or a similar legal theory.
This Agreement cancels and replaces any previous agreements between Fourwaves and Customer concerning the Platform, the Platform including any previous oral or written services offers, orders and agreements. Customer acknowledges and declares that other than as set out in this Agreement, it is not relying on any representations from Fourwaves or any other Person regarding the performance or features of the Platform or the Platforms.
“Agreement” means the Agreement between Customer and Fourwaves with respect to Customer’s use of the Platform formed by the Order Form, these Terms of Service and any document referenced herein.
“Analytics Data” means usage data, metadata and other data generated by Fourwaves about the use of the Platform by Authorized Users and Participants and data not originating from Customer used in the performance of services by Fourwaves, excluding Customer Data, more specifically excluding any data derived from the content of Customer Data.
“Authentication ID” means a security mechanism by which an Authorized User or Participant identifies herself or himself to the Platform and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Fourwaves from time to time.
“Authorized User” means an end-user authorized by Customer to access and use the Platform on behalf of Customer.
“Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in Canada.
“Confidential Information” means confidential and/or proprietary information concerning a Party and/or its business, products, customers or services that is designated as confidential or that would be considered confidential by a reasonable person given the nature of the information and the circumstances of the disclosure, including but not limited to information and/or documents concerning: (i) financial information, strategic business plans, policies and/or methods; (ii) marketing, claims, sales, and decision making processes; (iii) pricing and/or profit information; (iv) lists of actual or prospective customers; (v) proprietary and/or confidential intellectual property; and/or (vi) IP of third parties.
“Customer Data” means collectively any data, files, documentation or other information: (i) that Customer or any of its Authorized Users may upload to the Platform, (ii) any data derived or obtained from the content of such data or information submitted by the Customer through the Platform.
“Documentation” means the human-readable documents, user manuals and guides with respect to the operation, use and functions of the Platform, which may be amended or updated by Fourwaves from time to time.
“Effective Date” means the date designated as such in the Order Form or at the latest the date on which Customer starts using the Platform;
“Event” means an event, activity organized by the Customer and for which the Platform is used.
“Fees” means the Fees payable by Customer for the Platform, as set out in the Order Form or invoice sent to Customer.
“Fourwaves Infrastructure” means the servers and such devices and peripherals, including all computer hardware, software, network components, and electrical and telecommunications infrastructure operated or controlled by Fourwaves, either itself or through a service provider.
“Governmental Authority” means any domestic, foreign or supranational government, whether federal, provincial, state, territorial or municipal; and any governmental agency, ministry, department, tribunal, commission, bureau, board or other instrumentality, including international institutions, exercising or purporting to exercise legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
“Incident” means an unscheduled event or occurrence originating from Fourwaves, the Platform or a third-party hosting provider that negatively and substantially affects the Customer’s use of the Platform, subject to exceptions provided by this Agreement.
“Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; or (vii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, product knowledge, know-how, including without limitation, trade secrets, and other materials or things.
“Malicious Code” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users, including, without limitations, viruses, worms, cancelbots, trojan horses, harmful contaminants (whether self-replicating or not) and nuisance-causing or otherwise harmful applets.
“Objectionable Content” means content that infringes any applicable laws or third-party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any person’s Intellectual Property Rights.
“Order Form” means the written document, including proposals, order forms, purchase orders, subscription forms, outlining the details of Customer’s purchase of access rights to the Platform and accepted by Customer and Fourwaves. For the avoidance of doubt, an Order Form is subject to Fourwaves’s acceptance.
“Participant Data” means collectively any data, files, documentation or other information: (i) that is uploaded to the Fourwaves Infrastructure by a Participant, (ii) any data derived or obtained from the content of such data.
“Participant” means an individual using the Platform to participate in an Event organized by Customer.
“Party” means either Fourwaves or Customer; and “Parties” means both of them.
“Person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, Governmental Authority or other entity or organization and includes any successor to any of the foregoing.
“Personal Data” means information about an identifiable individual.
“Platform” means the Fourwaves Platform, including third-party software included thereto, which is accessible via a distant connection to the Fourwaves Infrastructure.
“Specifications” means, with respect to the Platform, the technical specifications for the performance, operation and use of the Platform, as set out in the Order Form.