This Service Agreement (the “Agreement”) are entered into by and between Les Solutions XPERCA Inc.(“XPERCA”) and the client (“Client” or “you”). By subscribing to XPERCA web-based application platform (the “Service”), the client agrees to the terms and conditions contemplated in this Agreement, which Agreement shall govern the provisions of the Service. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement.
Grant of Rights
During the term of this Agreement, XPERCA grants the client a non-exclusive,
personal, non-transferable, non-sublicenseable right and license to
use the Service for its internal business purposes only. The client
may not access, use, subscribe to or purchase the Service: (a) if it
is a direct competitor of XPERCA, as determined by Les Solutions XPERCA
Inc., in its sole discretion; or (b) for purposes of monitoring availability,
performance or functionality, or for any other benchmarking or competitive
purposes.
Service
Les Solutions XPERCA Inc. agrees to use commercially reasonable efforts
to operate and maintain the Service generally available 24 hours a
day, 7 days a week, except for: (i) planned downtime (which XPERCA
shall schedule to the extent reasonably practicable during evening
and weekend hours); or (ii) downtime caused by circumstances beyond
XPERCA’s reasonable control, including, but not limited to, any Internet
or telecommunications failure transmission limitations or interruptions,
legislative action, act of God, action of the elements, serious fire,
labour disturbance, delays in transportation, shortage of materials
or supplies, government restrictions, war, riots, flood, earthquake,
epidemic, or other conditions beyond the control of Les Solutions XPERCA
Inc. (“Force Majeure”). Les Solutions XPERCA Inc. shall not be responsible
for delays nor failures of performance resulting from any downtime,
transmission limitations or interruptions, as well as any case of Force
Majeure. Nothing in this Agreement shall be interpreted as an undertaking
on the part of XPERCA to provide Internet access or telecommunication
lines or infrastructure.
CLIENT RESPONSABILITIES
The client agrees to use the Service solely for its internal business
purposes as contemplated by this Agreement and further agrees that
it will: (i) have sole responsibility for the accuracy, quality, integrity,
legality, reliability and appropriateness of all client data; (ii)
use commercially reasonable efforts to prevent unauthorized access
to, or use of, the Service, and notify XPERCA promptly of any such
unauthorized use; (iii) comply with all applicable local, state, provincial,
federal and foreign laws in using the Service; (iv) collect and maintain
any personal information from users (the “Users”) which have entered
into a User Agreement (the “User Agreement”) with XPERCA and are registering
or enrolling in the web-based program offered by Les Solutions XPERCA
Inc , and the Beneficiaries (as this term is defined in the User Agreement),
in accordance with all applicable laws; (vi) defend, indemnify and
hold harmless XPERCA, its shareholders, directors, officers, employees,
agents and representatives from and against any and all claims, actions
or lawsuits related to or arising from (1) the use by an employee,
officer, consultant or representative of the client of XPERCA’s services,
and (2) the collection, transmission, use, storage or disclosure of
any personal information of any Users and Beneficiaries, and will not:
(i) license, sublicense, sell, resell, rent, lease, assign, distribute,
timeshare or otherwise commercially exploit or make the Service available
to any third party, other than as contemplated by this Agreement; (ii)
send spam or otherwise duplicative or unsolicited messages in violation
of applicable law; (iii) send or store infringing, obscene, threatening,
libellous or otherwise unlawful or material which gives rise to a delict
or is otherwise tortuous, including material violating third party
rights including, but not limited to, privacy of rights; (iv) send
or store material containing software viruses, worms, Trojan horses
or harmful computer codes, files, scripts, agents or programs; (v)
interfere with or disrupt the integrity or performance of the Service
or the data contained therein; (vi) attempt to gain unauthorized access
to the Service or its related systems or networks; (vii) modify, copy
or create derivative works based on the Service or the XPERCA Technology
(as defined herein); (viii) create internet “links” to or from the
Service, or “frame” or “mirror” any content forming any part of the
Service other than on the client’s own intranets for the purposes hereof
or otherwise for its own internal business purposes; or (ix) disassemble,
reverse engineer or decompile the Service or the XPERCA Technology
for any purpose or reason.
Intellectual Rights
In providing the Service, XPERCA utilizes (i) certain audio and visual
information, documents, software and other works of authorship and
(ii) other technology, software (source code, object code and documentation),
products, processes, algorithms, user interfaces, know-how and other
trade secrets, techniques, designs, inventions (patentable or not)
and other tangible or intangible technical material and information
(collectively, the “XPERCA Technology”), which is covered by intellectual
property rights owned by or licensed to XPERCA (collectively, the “XPERCA
IP Rights”). Other than as is expressly set forth in this Agreement,
no license or other rights in or to the XPERCA Technology or the XPERCA
IP Rights are granted to the client, and all such licenses and rights
are expressly reserved. The client grants to Les Solutions XPERCA Inc.
a royalty-free, fully paid, worldwide, perpetual, irrevocable, fully
transferable and fully sub-licenseable right and license to use, develop,
improve, modify, incorporate and commercialize into the Service any
suggestions, ideas, enhancement requests, feedback, recommendations
or other information provided by the client relating to the Service.
Client Data
All client data, inputted or uploaded, is the sole and exclusive property
of the client. The client, on its behalf, grants to XPERCA a royalty-free,
fully paid, worldwide, perpetual, irrevocable, fully transferable and
fully sub-licenseable right and license to use the client data in connection
with the use, operation and commercialization of the Service in accordance
with all applicable privacy legislation.
The service is provided on an ‘’as is’’ and ‘’when available’’ basis and Les Solutions XPERCA Inc. makes no representations and warranties relating to the service. Without limiting the foregoing, XPERCA makes no warranty of any kind, whether expressed, implied, statutory or otherwise with respect to the service, The XPERCA Technology and the XPERCA IP Rights. XPERCA disclaim all implied warranties, including any warranty of merchantability or fitness for a particular purpose or use, to the maximum extent permitted by applicable Law. No person is authorized to make any other warranty or representation concerning the performance of the service other than as provided in this agreement. Without limiting the foregoing, XPERCA does not warrant the service is error free, will meet the client requirements or expectations, or the performance or the results that may be obtained by using the service.
Neither XPERCA, its Affiliates, Directors, Shareholders, Officers, Employees or Assigns shall be liable for any indirect, incidental, special, punitive, collateral or consequential damages or for any lost or imputed profits or revenues or lost data or costs of cover arising from or related to the service or this agreement, Regardless of the legal theory under which such liability is asserted and regardless of whether a party has been advised of the possibility of any such liability, loss or damage. Finally, in the event of a ‘’Force Majeure’’, Les Solutions XPERCA Inc. shall have no liability to the client.
The customer ‘’Client’’ or user of the platform XPERCA hereby agrees to declare any conflict of interest that may arise or grow in relationship with the different information that is disclosed on the platform XPERCA.
PUBLIC DISCLOSURE
The client agrees to grant XPERCA the right to reference the client
on the client section of XPERCA’s public web site until such time
the client use of the Service is discontinued. For the purposes above,
the client grants to the right and license to publish, on its public
web site or third party web site, the information about the client
activities and use the client’s name and trademarks. The client shall
not use the name, Service marks or trademarks of Les Solutions XPERCA
Inc. or its affiliates without XPERCA’s prior written consent
LINKS
It is forbidden to establish links with this website in the prior written
consent of XPERCA. It is possible that this website contains hyperlinks
to access sites operated by third parties. These links are provided
solely for the convenience of the user. XPERCA disclaims any responsibility
for the content and information found on these web sites operated
by other companies and their consultation is made the customer's
risk.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed exclusively in accordance
with the laws of the Province of Québec, and the federal laws of Canada
applicable therein, The Parties hereby attorn to the exclusive jurisdiction
of the Courts of the Province of Québec, Canada, District of Montréal.
USE
If you have problems viewing any page of the site or for additional information
regarding this website, please contact us at the following address: info@xperca.com
ENTIRE AGREEMENT
This Agreement contains the sole and entire agreement and understanding
between Les Solutions XPERCA Inc. and the client with respect to the
use of the Service.
SEVERABILITY
If any provision of this Agreement is held by a court of competent jurisdiction
to be contrary to law, the provisions shall be modified by the court
and interpreted so as best to accomplish the objectives of the original
provision to the fullest extent permitted by law, and the remaining
provisions of this Agreement shall remain in effect.
AMENDMENTS
Les Solutions XPERCA Inc. may modify this Agreement at any time by posting
the revised XPERCA Master Service Agreement Terms and Conditions on
XPERCA web site. The continued use of the Service shall constitute
the client acceptance of such revised XPERCA Master Service Agreement
Terms and Conditions.
THIS AGREEMENT WAS WRITTEN IN FRENCH (CAN). TO
THE EXTENT ANY TRANSLATED VERSION OF THIS AGREEMENT CONFLICTS WITH
FRENCH VERSION, THE FRENCH VERSION CONTROLS.
