Terms of use for ITESLIVE solution

 

BETWEEN GROUPE ITES CANADA INC., having a place of business at 5-750 16e Avenue, Pointe-aux-Trembles, Quebec  H1B 3M7 (hereinafter “ITES”) AND the Client, including any End User. ITES offers a cloud software solution (SaaS) for displaying of customized digital signage (the “Solution”). By subscribing and accessing ITES’s Solution, you agree to the following terms and conditions (the “Terms of Use”).

We reserve the right to update and change these Terms of Use from time to time. A copy of the amended Terms of Use will be posted on our website at the following address: https://support.itesmedia.tv/en/terms-and-conditions/. We encourage you to review them periodically. If we make any substantial changes to the Terms of Use, we will notify you by posting a prominent notice when you log in to our Solution or via an email sent to the address of (a) the Client’s account administrator and/or b) the billing contact person. If you do not agree to or cannot comply with these Terms of Use as amended, you are not authorized to use the Solution. You will be deemed to have accepted these Terms of Use, as amended, if you continue to use the Solution after any such changes. Any new functionalities that improve or enhance the current Solution, including new tools and resources, are subject to the Terms of Use. If you wish to cancel your Subscription because you do not agree with the Terms of Use as amended, you may do so by giving a written notice to such effect to ITES within thirty (30) days of the official notice of change of the Terms of Use.

 

1. DEFINITIONS

1.1  Subscription” shall mean the subscription to the Solution purchased by the Client for a set number of screens (seats) that can access the Solution simultaneously;

1.2  Purchase Order” shall mean the purchase order between the Client and ITES in which the Solution’s scope and Subscription’s terms and conditions are set forth, including the number of screens (seats). The Purchase Order may be amended from time to time by mutual agreement between the parties;

1.3  Client” shall mean the company that has a Subscription and, if applicable, the one that signed the Purchase Order. As appropriate, this term may also include End Users;

1.4  “Content” shall mean any form of information, image, trademark registered or not, text, graphic document, visual or audio content, digital or otherwise created or provided by the Client and broadcast via the Solution or as part of its use of the Solution;

1.5  Contract” shall mean the agreement entered into between the Client and ITES via these Terms of Use, the Purchase Order, any applicable support agreement and/or service-level agreement and, if applicable, any additional agreement entered into between ITES and the Client;

1.6  Defect” shall mean any coding defect or error interfering with the Solution’s normal operation, taking into account its intended use. This term does not include minor irritants and malfunctions or the Client’s functional or cosmetic preferences, both for functionalities themselves and the appearance of the screens or Interface. It also excludes problems caused to the Solution by a virus, a breakdown of the Client’s hardware (except for hardware provided by ITES, in which case the manufacturer’s warranties on its hardware shall apply), the Solution being used on hardware that does not comply with the technical requirements set for the Solution, or mishandling or improper handling of the Solution by Client;

1.7 Collateral Damages” has the meaning ascribed to such term in Subsection 16.2 hereby.

1.8 Data” shall mean information entered by Client in the Solution via the Interface and other data related to the Client’s business activities and created by using the Solution;

1.9  “Intellectual Property Rights” shall mean, without limitation, any present or future rights, titles and interests pertaining to (a) patent, trademark, domain name, copyright, system, software, source code, object code, compilation, know-how, information, invention, technology, right to use, procedures, development, technical information, databases, algorithms, engineering and reverse engineering; (b) the registration or any application to register any of the foregoing intellectual property rights; and c) the Solution;

1.10  “Term” shall mean the duration of the Subscription as set forth on the Purchase Order, where applicable, or, in the absence of such information, the period beginning the moment a Client’s End User first accesses the Interface and ending when the Client’s last End User stops accessing the Solution;

1.11  Statement of Work” has the meaning ascribed to such term in Subsection 5.1 hereby;

1.12  “Interface” shall mean the interface to access and use the Solution with which the End Users may access the Data and manage and deploy the Content that will be broadcast via the Solution;

1.13 Professional Services” has the meaning ascribed to such term in Subsection 5.1 hereof;

1.14  “Solution” shall mean the cloud solution offered and developed by ITES to digitally display the Client’s Content and Data and any other related service provided by ITES to End Users in accordance with this Contract, and available by Subscription;

1.15 Specifications” shall mean the technical specifications required to access and use the Solution correctly, including any necessary hardware, as more fully detailed on the Purchase Order, when applicable, or as disclosed on our website at the following address: https://www.itesmedia.tv/; and

1.16  “End User” shall mean all end users who use the Solution in compliance with a valid Subscription. For the purposes hereto, this term also includes the Client.

 

2. SOLUTION DESCRIPTION 

2.1  ITES shall provide the Solution from servers secured and managed exclusively by ITES and which the Client is not authorized to access. Subject to specific provisions set forth in this Contract, ITES shall provide to Client access and use of the Solution according to best practices and in compliance with the specifications related to its use and functions, and free of any Defect. Notwithstanding the foregoing, the parties may have agreed that the Solution, Data and Content will be hosted, in whole or in part, by the Client; in which case, the Client, and not ITES, is solely responsible for the security and management of its servers.

2.2  When the Solution, Data and Content hosting is exclusively under ITES’s control, ITES is responsible for backing up the Client’s Data and Content regularly; Subscription to the Solution includes a 24-hour contingency plan, and ITES undertakes to secure the Data and Content to prevent any disclosure of private information to unauthorized parties. Notwithstanding the foregoing, when the Solution, Data and Content are hosted by the Client, in whole or in part, the Client is solely responsible for backing up and securing Data and Content under its control.

2.3  ITES shall activate the Subscription following the acceptance of the Purchase Order by the Client or any other method recognized by ITES, and shall provide access to the Solution to End Users, based in part on the number of screens (seats) agreed upon. End Users must sign in and provide the required information when they access the Solution. End Users are responsible for maintaining the confidentiality of their respective login credentials. Losing login credentials may preclude any access to the Solution.

2.4  The Solution allows End Users to access and create Content and manage the Content remotely from a computer or mobile device via the Interface using a Web browser that meets the Specifications.

2.5   When hosting is ITES’s sole responsibility, the Client and each End User hereby acknowledge that the Data and Content are hosted on servers located in Canada, unless otherwise stated on the Purchase Order, when applicable. The Client and each End User also acknowledge that the Data and Content may be processed by ITES’s third party providers to allow ITES to properly provide the Solution.

2.6  ITES shall store the Data and Content created through the Interface a) until the end of the Subscription’s validity; b) for the retention period, as set forth on the Purchase Order; or c) as agreed upon in writing with the Client, whichever comes first. If the Client wishes to, it may ask for a copy of its Data (media data only), which will be given in the format then available and within a reasonable period of time following the request to that effect. If no Data transfer agreement is reached with the Client within thirty (30) days of the Contract’s termination, ITES shall have the right to delete the stored Data and Content.

2.7   The Client and each End User authorized to access the Solution agree that the Solution, or a part thereof, may be provided by a third party, including, without limitation, and when applicable, storage of the Data and Content backed up by the Solution. Notwithstanding the foregoing, ITES shall remain liable for the performance of all such third party.

 

3. TERM

3.1  Provided that the Client has a valid support and maintenance agreement, ITES grants to Client and each of its authorized End Users a temporary, unassignable right to access the Solution during the Term of this Contract. The Client acknowledges that it may not terminate this Contract before the expiry of the Term, except as provided in Subsection 10.2 hereof.

3.2  If the Solution has been subscribed to by means of a Purchase Order, the Term shall automatically renew for an additional term of twelve (12) months upon expiry (and so on for any additional Term), the whole subject to price adjustment pursuant to Subsection 11.5 hereof, unless either party gives notice in writing to the other party of its intention not to renew this Contract, between the ninetieth (90th) and the sixtieth (60th) day preceding the end of the current Term.

 

4. CLIENT'S AND END USERS' RESPONSIBILITIES AND OBLIGATIONS 

4.1 To ensure that the Solution works properly, the Client and End Users agree to comply with the Specifications, instructions and directives contained herein and in the documentation integrated into the Solution, and communicated from time to time by ITES to the Client and End Users.

4.2  The Client and End Users are solely liable for the content of their Data and Content created or broadcast via the Solution, ITES acting only as a passive intermediary so that the Client and the End Users may digitally display Data and Content as part of their business. Use of the Solution (including transmitting Data and Content stored through the Solution) is subject to all applicable local, state, provincial, national and international laws and regulations (including, without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities, and false advertising). The Client and End Users each undertake to comply with these laws and regulations and not to (a) use the Solution illicitly; (b) transmit or store material that may violate intellectual property rights or other rights of any third party, or illegal, illicit, tortuous, defamatory, sexual, violent or otherwise explicit content, or content that violates a third party’s privacy or integrity; (c) give false information or information that could mislead the recipient; (d) transmit or store Data or Content belonging to a third party without first obtaining the required authorization; (e) transmit Data or Content containing computer viruses or other dangerous codes, files or computer programs such as Trojan horses, worms or delayed bombs; (f) disrupt or interfere with the servers of the network related to the Solution; (g) try to access the Solution, other users’ accounts, systems or computer networks related to the Solution without authorization; or (h) otherwise misuse or use the Solution against its intended purpose.

4.3 For End Users to be able to send and receive information of their choice, the Solution uses the Internet. Therefore, End Users’ behaviour is subject to the Internet’s rules, policies and procedures, which End Users understand and agree to comply with. Each End User further agrees not to attempt to gain unauthorized access to other computer systems. End Users shall not interfere with another end user’s or a third party’s use and enjoyment of the Solution.

4.4 Furthermore, the Client agrees that it must (a) obtain and pay for all hardware and third-party services (e.g., Internet access, computer and peripherals, if applicable) required to access and use the Solution in compliance with the Specifications; (b) keep secure its personal login credentials, password and other confidential information relating to its access to the Solution; and (c) to the full extent permitted by applicable law, be responsible for all fees resulting from its use of the Solution, including unauthorized use, and taking steps to prevent any reoccurrence, except in cases where the unauthorized use of the Solution is caused by security issues ascribed to ITES, its agents or third parties hired by ITES.

4.5  In order to enable ITES to better serve the Client and End Users, the Client and each End User hereby undertake to fully cooperate with ITES and to provide, upon request, any information required to provide the Solution properly. Any delay caused by the acts or omissions of the Client or End Users, if applicable, with respect to the delivery of any required information may affect the access and use of the Solution, with no liability to ITES. The Client and each End User, if applicable, undertake to provide accurate, precise, exact and complete information to ITES when it is requested by ITES so that ITES may keep up-to-date information during the Term of this Contract.

4.6 The Client shall communicate to ITES and update regularly a list of all its End Users authorized to use the Solution and act on behalf of the Client when using the Solution.

4.7 The Client acknowledges that monthly or annual fees paid in advance are non-refundable even if the Solution is used only partially or not at all during the relevant period.

 

5. PROFESSIONAL SERVICES

5.1 The Client may obtain professional services from ITES which are not covered by these Terms of Use or the Purchase Order, including without limitation any customized development or personalized functionality adapted to the Client’s specific need (the “Professional Services”). Any Professional Service to be rendered by ITES requires a Statement of Work (“SOW”) duly accepted by both parties.

5.2 The SOW shall define the Professional Services to be rendered and the corresponding delivery dates. If no specific period is set forth, the SOW will automatically terminate upon completion of the Professional Services described therein and acceptance of all Professional Services by Client.

5.3 The Client, acting reasonably, shall have ten working days following the completion of the SOW to accept or refuse the Professional Services rendered, provided that such refusal is made in writing and lists all items that do not comply with the SOW. ITES shall act diligently to correct items that do not comply with the SOW. If the Client does not send any (approval or rejection) notice within ten working days following the date when ITES delivered the Professional Services, they shall be deemed accepted as submitted. The Client may terminate a SOW at any moment by paying ITES the applicable fees related to the Professional Services rendered up to the actual termination date and all expenses incurred up to this date and which are non-refundable.

5.4  All creations, designs, proprietary software, inventions, discoveries, copyrighted work, data, processes, or other work that was or is designed, created or reduced to practise by or for ITES (alone or with others) following a SOW and integrated in the Solution shall remain ITES’s sole property. If in the course of performing the Professional Services, ITES incorporates material belonging to Client, including without limitation a logo, trademark or written content, Client shall retain ownership of the material and grant to ITES a non-exclusive, royalty-free, irrevocable, perpetual, and worldwide licence (with the right to sublicense to any downstream tiers) to use, copy, make, have made, modify, distribute, publicly perform, sell, display and publish such Client material. Notwithstanding anything to the contrary herein, the Client shall remain liable for any material provided in connection with the provision of Professional Services and undertakes to indemnify ITES for any damage related to the integration of the Client’s material in the Solution.

 

6. PROHIBITION TO RESELL OR USE THE SOLUTION FOR OTHER PURPOSES

The rights hereby granted to the Client and End Users are strictly personal, and are granted to them solely in executable format, for internal business purposes and to be accessed and used within the country where the Solution is provided. The Client and End Users undertake not to transfer, sublet, resell or use the Solution for any other purpose than their own personal benefit.

 

7. RESTRICTIONS ON USE

7.1 End Users may not use or allow third parties to use the Solution in any manner prohibited by these Terms of Use. Prohibited uses include, without being limited to: (a) transferring, sublicensing, distributing, renting, permitting concurrent use of or otherwise granting their rights in the Solution; (b) modifying, disassembling, reverse assembling, reverse engineering or creating derivative works based on the Solution; (c) duplicating the Solution except to make one copy for backup purposes; (d) providing use of the Solution to users who are not authorized by ITES or otherwise authorized under a commercial agreement with ITES; and (e) using the Solution for any purpose other than as expressly provided for in this Contract. The Solution or underlying information or technology may not be downloaded, installed or otherwise exported or re-exported where prohibited by the laws of the jurisdiction in which you are located.

 

8. AUDIT RIGHTS

ITES shall have audit rights over metadata and usage logs to verify that how the Client and End Users use the Solution complies with these Terms of Use. Without limitation, ITES reserves the right to verify certain Data, Content or information at any moment in order to investigate (a) any misuse, real or presumed, of the Solution, to which the Client and End Users explicitly hereby consent; or (b) any technical problems or Solution failure at the Client’s or one of its End Users’ request.

 

9. OWNERSHIP

9.1 The Client and each End User hereby acknowledge that ITES is the exclusive owner of all Intellectual Property Rights relating to the Solution, whether registered or not, which may be granted or recognized pursuant to any law or principle of equity. The Client and each End User benefit from the Solution only under Subscription for their business operations.

9.2 Any improvement, modification, request or suggestion to this effect, regarding ITES’s Intellectual Property Rights in the Solution and made, suggested by or coming from the Client is ITES’s exclusive property, the Client hereby assigning to ITES any and all intellectual property rights, titles and interests that Client could claim in ITES’s Intellectual Property Rights, whether or not the intellectual property is developed as part of these Terms of Use and the Client further waives any moral right that it may claim to have on ITES’s Intellectual Property Rights.

9.3 Notwithstanding the foregoing, the Client or the End Users, as the case may be, shall retain ownership rights relating to the Data and Content, it being understood that ITES shall have a limited licence, throughout the Term of this Contract, to access, process and audit such Data and Content for the purposes set forth under this Contract and to provide the Solution.

 

10. CANCELLATION, SUSPENSION AND TERMINATION

10.1 Subject to a 48-hour prior written notice to such effect (or immediately in case of emergency), ITES may, at its sole discretion, suspend or cancel immediately the access to the Solution during the Term, in case of a material failure by the Client or one of the End Users to comply with any provision of this Contract or in case of misuse of the Solution. The Solution shall be restored only when the Client cures fully the default or, as the case may be, when ITES receives from the Client and concerned End Users a written undertaking to cease any misuse of the Solution to ITES’s reasonable satisfaction. In the event where the Client or one of the End Users are still in default under the Contract at the end of a thirty-day (30-day) period, ITES may then terminate the Contract without any further delay or prior notice or block access to the Solution for the concerned End Users. ITES’s right of termination is in addition to, and without prejudice to, any other rights and remedies available to ITES. It is understood that in such a case, ITES shall be entitled to the remaining fees of the current Subscription and any outstanding amounts, subject always to applicable taxes.

10.2 The Client may terminate this Contract at any time during the Term (a) if ITES materially breaches its contractual obligations and that such breach is not cured within thirty (30) days of a written notice to such effect; OR (b) at Client’s entire discretion and without cause following a ninety-day (90-day) prior written notice sent to ITES. If the Client terminates this Contract before the end of the Term pursuant to (b) above, (i) the Client expressly undertakes to pay to ITES, as a precondition to terminate the Contract for convenience, when applicable, the remaining fees of the current Subscription and any outstanding amounts, subject always to applicable taxes; and (ii) for any fees paid in advance, the Client hereby expressly waives any right to demand a refund of amounts already paid to ITES.

10.3 Upon termination, the Client’s and End Users’ rights to use the Solution shall terminate. The provisions of sections and subsections 1, 6, 7, 9, 10, 16 to 19 shall survive the termination of this Contract.

 

11. RATES AND PAYMENT FOR THE SOLUTION

11.1 Payment Deadline: The Subscription must be paid in advance to ITES according to the terms set in the Purchase Order (monthly or annually), net 30. If the Client exceeds the agreed upon bandwidth, a surcharge shall be billed to the Client the month following the excess use.

11.2 Taxes: The prices mentioned in this Contract do not include applicable taxes.

11.3 Currency: Unless otherwise specified in the Purchase Order, the prices mentioned herein are in Canadian dollars.

11.4 Interest: Any late payment will carry interest at the rate of one and a half percent (1.5%) per month (eighteen percent (18%) per year) on any outstanding balance until the date on which full payment is received by ITES.

11.5 Price Modifications: ITES reserves the right to modify its prices following prior written notice to such effect to the Client. It is understood that any changes to the monthly or annual fees shall only apply from the date of the Term renewal. Should the Client not agree with the revised price, the Contract will not be renewed upon the end of its Term and will instead terminate at the end of the current Term.

 

12. DISCONTINUANCE AND MODIFICATIONS TO THE SOLUTION

12.1 ITES reserves the right to discontinue the operation of the Solution following a six-month (6-month) prior written notice to such effect to the Client. ITES shall not be liable to the Client, the End Users or any third party should ITES exercise its right to discontinue the Solution.

12.2 The Client has the right to have access to new functionalities added to the Solution when ITES, at its sole discretion, makes them available during the Term.

12.3 ITES may, at its sole discretion, improve its product and services. In order to optimize the Solution, ITES reserves the right, at its sole discretion, to add, modify or delete functionalities from the Solution at any time and without notice.

12.4 ITES may occasionally, at its sole discretion, establish and maintain general usage practises in order to optimize the Solution’s use and availability and prevent any misuse. As part of its practices, ITES reserves the right to monitor its system, implement technical solutions and modify these Terms of Use to fix or prevent any problem, if and when necessary.

 

13. CONFIDENTIALITY, PROTECTION OF THE DATA AND PRIVACY

13.1 When accessing and using the Solution, information concerning the Client and End Users who use the Solution may be collected. This information makes it possible to optimize the Solution’s functionalities.

13.2 ITES shall not disclose Data to third parties, except in accordance with the Solution and its functionalities and, if applicable, in compliance with any confidentiality agreement between the Client and ITES. In the event where ITES is required to disclose information or provide a copy of the Data to a governmental authority under law or pursuant to a court order, ITES shall attempt to notify the Client beforehand, to the extent, however, that it is legally authorized to do so. ITES agrees to disclose or provide only the information or Data required under any such law or court order. The Client undertakes to hold harmless and indemnify ITES for any damages or liability with respect to any such disclosure or transfer of Data made in accordance with this Subsection.

13.3 ITES is under no obligation to monitor the Solution’s use or the Content and/or Data transmitted or stored through the Solution.

13.4 ITES may also use cookies or similar technologies. Cookies, including log files, allow ITES, among other things, to gather information relating to the use of the Solution and to recognize End Users and their browsing preferences. The settings related to cookies may be managed directly in the browser used. However, if some cookies are disabled or deleted, some parts of the Solution might not work properly.

 

14. LIMITED WARRANTIES

ITES’s warranty is limited to providing the Solution. ITES agrees to notify the Client of any Solution failure. Subject to the foregoing, ITES makes no other warranty, including no warranty of Data or Content integrity or Solution availability or in the event where the Client or End Users do not meet the Specifications or any other configuration requirements set forth in the Purchase Order, when applicable, or as specified from time to time by ITES, or if they fail to follow the instructions provided from time to time by ITES with respect to the access and use of the Solution.

 

15. WARRANTY EXCLUSION

SUBJECT TO PROVISIONS IN SECTION 14 OF THESE TERMS OF USE AND ANY APPLICABLE SERVICE-LEVEL AGREEMENT, THE SOLUTION AND ALL THIRD-PARTY SOLUTIONS, WHEN APPLICABLE, ARE SUPPLIED “AS IS” AND “ACCORDING TO AVAILABILITY” WITH ALL THEIR FLAWS. ITES, ITS BENEFICIARIES AND ITS LICENSORS SUPPLY THE SOLUTION WITHOUT ANY WARRANTY OF ANY KIND, WRITTEN OR VERBAL, STATUTORY, EXPRESS OR IMPLICIT, INCLUDING WITHOUT LIMITATION WARRANTIES OF COMPLIANCE, ABSENCE OF INFRINGEMENT, MERCHANTABILITY, FITNESS TO A PARTICULAR purpose, ACCURACY, NON-INTERFERENCE, COMPATIBILITY WITH COMPUTER SYSTEMS, INTEGRATION, SECURITY, RELIABILITY, PUNCTUALITY, PERFORMANCE OF THE SOLUTION, INCLUDING WARRANTIES ARISING FROM COMMERCIAL ACTIVITIES AND THE EXCLUSION OF SUCH WARRANTIES. ITES, ITS BENEFICIARIES AND ITS LICENSORS DO NOT GUARANTEE THAT THE SOLUTION WILL WORK WITHOUT INTERRUPTION, BE FREE OF ERRORS OR SAFE. NEITHER ADVICE NOR ANY INFORMATION SUPPLIED BY ITES, ITS BENEFICIARIES, ITS LICENSORS, ITS SUBSIDIARIES, ITS AGENTS, ITS SUBCONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL MODIFY THE TERMS AND CONDITIONS OF THIS CONTRACT NOR WILL THEY SERVE AS WARRANTY. ITES, ITS BENEFICIARIES AND ITS LICENSORS DECLINE ANY AND ALL LIABILITY IN CASE OF DEFORMATION, MISUSE, MALICIOUS OR INAPPROPRIATE USE, NEGLIGENCE, INAPPROPRIATE ELECTRICAL CURRENT OR TENSION, REPAIRS CONDUCTED BY A THIRD PARTY, ALTERATIONS, MODIFICATIONS, ACCIDENTS, FIRES, FLOODING, ACTS OF VANDALISM OR NATURAL DISASTERS. EXCEPT FOR THE TERMS, CONDITIONS AND DEFINITIONS CONTAINED HEREIN, THERE SHALL BE NO OTHER REPRESENTATION, WARRANTY OR COMMITMENT WITH RESPECT TO THE SOLUTION, EXCEPT IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY ITES.

 

16.     LIMITATION OF LIABILITY

16.1 ITES exerts no control over and declines any and all liability with respect to the Data or Content created or accessible through the Solution. The Client and each End User agree not to use the Solution for high-risk activities where an error could result in serious personal damage or death.

16.2 ITES’s responsibility is limited to providing and making available the Solution. ITES cannot be held liable for (a) speeds when accessing its servers; (b) slowdowns not caused by its servers; (c) poor transmissions caused by a failure or malfunction of external networks; and (d) an End User’s poor Internet connection.

16.3 ITES and its licensors cannot be held liable for accessory, indirect, exemplary or punitive damages or damages related to loss of trust (in the context of contractual, tort or other liability), which includes, without limitation, damages related to loss of profit, revenue, goods or equipment, technological loss, loss of rights or services, loss of data, or interruption or loss of access to the Solution or hardware (collectively the “Collateral Damages”), to the exclusion however of Collateral Damages resulting from ITES’s negligence or willful misconduct.

16.4 ITES’s or its licensors’ liability, resulting from access and use of the Solution or in any other situation resulting from or related to the Solution or this Contract, as well as the exclusive remedy of all parties with respect to any damages suffered, including any incidental damages, by the Client or its End Users, as the case may be, shall be limited to the smallest value between x) the provable amount of real damages directly suffered by the Client or the concerned End User, as the case may be, and y) the net monthly amount actually paid by the Client to ITES for the Solution, over the twelve-month (12-month) period preceding the claim.

 

17. OTHER LIMITATIONS

17.1 ITES declines any and all liability in case of deletions or failures pertaining to the Solution. ITES reserves the right, by providing prior written notice, to temporarily suspend the Client’s access to the Solution in the event that the Client breaches the Terms of Use, in accordance with Subsection 10.1 herein.

17.2 The Client and each End User are solely liable for their use of the Solution and Data and Content transmitted or stored through the Solution and undertake to hold harmless and indemnify ITES in that regard in accordance with Section 18 of these Terms of Use, except in the case of negligence or willful misconduct on the part of ITES.

17.3 Notwithstanding any other provision to the contrary, ITES cannot be held liable for any and all momentary interruptions in the Solution resulting from force majeure, telecommunication failure, equipment failure, reasonable planned maintenance, maintenance associated with critical problems or any other element outside of ITES’s reasonable control.

17.4 The Client and each End User agree that ITES may, at any time, without prior notice and without liability, limit the Solution’s use or availability for maintenance purposes or in case of emergency.

 

18. INDEMNITY

18.1 The Client, on its own behalf and on behalf of the End Users, shall defend, hold harmless and indemnify ITES, its affiliated companies, directors, managers, employees and agents against all claims, demands, costs, damages, losses, liabilities and third party expenses, including reasonable lawyers’ fees, issued by third parties in relation to the use of the Solution from the Interface and arising from the nature of the Data or Content transmitted or stored via the Solution by the Client, including any End User, including but not limited to any breach of this Contract. The Client, on its own behalf and on behalf of the End Users, shall also defend, hold harmless and indemnify ITES, its affiliated companies, directors, officers, employees and agents against all claims relating to the use of the Solution by telecom partners or of any other telecommunication or Internet company.

18.2 ITES shall defend, hold harmless and indemnify the Client and its End Users, parent corporations, subsidiaries, directors, managers, employees and agents against all claims, demands, costs, damages, losses, liabilities and third party expenses, including reasonable lawyers’ fees, issued by third parties in relation to any breach by ITES of the provisions of this Contract.

 

19. GENERAL PROVISIONS

19.1 Entire Agreement and Precedence. This Contract is the complete, exclusive and final statement of the agreement between the Client and ITES relating to the access and use of the Solution. If there are inconsistencies between these Terms of Use and any other agreement or document in effect between the Client and ITES, the provisions of these Terms of Use shall prevail.

19.2 Notices. All notices, requests or other communications (a “Notice”) required hereunder shall be in writing and shall be sent: (a) by registered mail to the civic address set out in the Purchase Order; or (b) by electronic mail to the electronic mail addresses set out in the Purchase Order. Any Notice shall be deemed to have been given, delivered or received (a) if by registered mail, on the day of its receipt; or (b) if by electronic mail, on the day the sender receives a delivery receipt by return electronic mail from the recipient, if such day is a business day and if such confirmation is received prior to 5 p.m. local time of the recipient’s location; otherwise, on the business day following the day such confirmation is received.

19.3 Jurisdiction and Applicable Law. The Client agrees and acknowledges that this Contract shall be governed and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein, regardless of conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, if applicable; and the Client and ITES hereby irrevocably consent to the exclusive jurisdiction and venue of the courts of the Province of Quebec, District of Montreal, Canada for all disputes arising out of or relating to this Contract. The parties waive all defences of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

19.4 Unassignability. This Contract cannot be assigned by the Client without ITES’s prior written consent, which cannot be unreasonably withheld by ITES. ITES may assign its rights under this Contract without prior consent.

19.5 Invalidity. If any provision of this Contract is held to be invalid, such provision shall be severed from this Contract and the remaining provisions shall remain in full force and effect.

19.6 Successors. This Contract shall be binding upon and inure to the benefit of the parties hereto and to their successors and permitted assigns.

19.7 No Waiver. No waiver of any breach or infringement of this Contract by the Client or End Users, as the case may be, or ITES shall be deemed to be a waiver by the said party of the exercise of that right for any other subsequent breach or infringement.

19.8 Force Majeure. Either party cannot be held responsible towards the other party for any failure or delay in performance caused by circumstances beyond its control, including, without limitation, any force majeure event, natural disasters, fires, flooding, pandemics, labour disputes, riots, interventions by civil or military authorities, acts of war, declared or not, terrorism, failures of utilities and public services, failure of telecommunications services and other unpredictable events.

19.9 Advertising. The Client hereby grants to ITES the right to identify the Client as a client on ITES’s websites and commercial documents, and for such purpose only, the Client hereby grants unto ITES the limited, non-exclusive and royalty-free right to display the Client’s name and logo. The Client may withdraw its consent at any time by sending to ITES a written notice to such effect, but such withdrawal cannot apply retroactively.

 

SCHEDULE “A”

SUPPORT AND SERVICE-LEVEL AGREEMENT

This support and service-level agreement (the “Agreement”) is effective during the Term of the Client’s Subscription to the Solution.

 

1. DEFINITIONS

The following definitions shall apply to this Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Terms of Use.

Service Credit” means the following:

Monthly Uptime Percentage

 

Service Level Credit

< 99.9% - >= 99.0%

 

25% of service fees calculated on a monthly basis and paid by Client to ITES

< 99.0% - >= 95.0% 

 

50% of service fees calculated on a monthly basis and paid by Client to ITES

< 95.0% 

 

100% of service fees calculated on a monthly basis and paid by Client to ITES

Downtime” means a period of time when an End User is unable to access the Solution, such period beginning upon the moment that ITES has been made aware of any such problem and ending once Client is provided with a solution that gives it access to the Solution.

Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. 

 

2. TECHNICAL SUPPORT

ITES’s technical support is given by email or telephone. For this purpose, the Client must assign two (2) individuals who will be in charge of contacting ITES. The Client can reach ITES’s technical support team with the following contact information, based on the paid support level:

 

STARTER Support
Email response 24 h
Mon. - Fri. (7:30 a.m. - 5:30 p.m.)

PRO Support
Email - Telephone response 24 h
7 days (7:30 a.m. to 10 p.m.)

PREMIUM Support
Email - Telephone response 4 h
7 days (7:30 a.m. to 10 p.m.)

 

3. PROCEDURE

Before reporting a problem to ITES’s technical support team, the Client shall have completed all of the following steps and procedures:

    1. Ascertain that the failure being experienced is with the Solution; and
    2. Record details of the failure.

 

4. TECHNICAL SUPPORT FRAMEWORK

      1. In providing technical support, ITES shall:
        1. Answer questions on the use, application, configuration, and compatibility of the Solution;
        2. Answer questions on the compatibility requirements, limitations and known problems of the Solution;
        3. Perform diagnosis and troubleshooting of problems related to the Solution;
        4. Attempt to reproduce the problem being experienced by Client if required and possible; and
        5. Provide access to relevant documentation.
    5. SCOPE
      1. Technical support excludes the recovery and manipulation of Data and Content and the connection to the Client’s local networks and Internet connection. Phone support excludes maintenance of ITES’s hardware, if applicable, and is carried out remotely via the Internet; all travel to the Client’s location will be invoiced automatically. Technical support also excludes Client’s preferences for alternative functions (e.g. another path for the same function) and any cosmetic preference.
      2. Problems that cannot be resolved directly by ITES’s technical support team shall be escalated to ITES’s engineering department, which will then
        1. Diagnose the problem; and
        2. Provide a workaround or a correction for a Defect in the Solution.
      3. Any additional services will be provided according to the following price and terms, which are available on ITES’s website and may be updated from time to time:
        Service Type 2020 Hourly Rate

        Customized coding

        Customized content development

        Diagnosis of client’s hardware

        $150
      4. In the case where the Solution is hosted by the Client, in whole or in part, the Client undertakes to grant to ITES the required access rights, and any delay to do so may impact the response time; in such case, the Client agrees that ITES cannot be held liable for any delay caused by the Client.

     

    6. SERVICE CREDIT

    During the Term of the Subscription, the Solution will be operational and available to Client at least 99.9% of the time in any calendar month. If ITES does not meet the service level set forth here, and if the Client meets its obligations under the Terms of Use, including this Agreement, the Client will be eligible to receive the Service Credits described above. This Agreement states Client’s sole and exclusive remedy for any failure by ITES to meet its service-level obligations.

    In order to receive any of the Service Credits described above, the Client must notify ITES within thirty (30) days from the time the Client becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Client’s right to receive a Service Credit. 

     

    7. MAXIMUM SERVICE CREDIT

    The aggregate maximum number of Service Credits to be issued by ITES to the Client, and ITES’s sole liability under this Agreement, for all Downtime that occurs in a single calendar month shall not exceed 100% of fees (Subscription) actually paid by the Client to ITES. Service Credits may not be exchanged for, or converted to, monetary amounts. 

     

    8. EXCLUSIONS

    The Agreement does not apply to any services that are expressly excluded by the Terms of Use or any performance issues caused by: (a) factors under the force majeure category; (b) a breach by the Client of a provision of this Agreement or the Contract, including the Terms of Use; (c) the Client’s or a third party’s hardware; (d) telecommunication failure which is due to an event beyond ITES’s reasonable control; or (e) reasonable planned maintenance, maintenance associated to critical problems or any other factor outside of ITES’s reasonable control.