THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) BETWEEN YOU AND HPJ SOLUTIONS INC. GOVERNS YOUR USE OF YOUR FREE 30-DAY TRIAL OF SERVICES.
IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO APPLY TO YOUR SUBSCRIPTION AND YOUR USE OF THESE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CHECKING A BOX INDICATING THAT YOU ACCEPT IT, OR BY USING OUR SERVICES, YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU ARE SIGNING THIS AGREEMENT IN THE NAME AND ON BEHALF OF A COMPANY OR ANOTHER LEGAL ENTITY, YOU DECLARE YOURSELF AUTHORIZED TO COMMIT THIS ENTITY AND ITS AFFILIATED COMPANIES TO THE PROVISIONS HEREIN, IN WHICH CASE THE TERMS “YOU” AND “YOUR” WILL REFER TO THE SAID ENTITY AND ITS AFFILIATED COMPANIES. IF YOU ARE NOT AUTHORIZED TO DO SO OR IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.
You are not authorized to access the Services if you are our direct competitor, unless you have received our prior consent. In addition, You are not authorized to access the Services to monitor their availability, performance or features, or for any other comparative or competitive purposes.
This Agreement takes effect between You and Us on the date on which You accept it.
“Third-Party Applications” refers to the online Web applications and offline software provided by third parties that communicate and function with the Services but which are not included in these terms and conditions and which are developed by you or third parties.
“Malicious Code” refers to viruses, worms, coded bombs, Trojan horses and other codes, files, scripts, agents or harmful or malicious programs.
“User Guide” refers to the online user guide for the Services, as regularly updated and accessible online.
“We,” "Us” and “Our” refer to HPJ Solutions Inc.
“Services” refers to the online Web applications and the Web platform that We offer, described in the User Guide, including their associated offline components but excluding Third-Party Applications.
“Subscribed Services” refers to the Services that You or Your Affiliated Companies purchase as opposed to those that are provided as part of a free 30-day trial.
“Affiliated Company” refers to, with respect to an entity, any entity which, directly or indirectly, manages the company, is managed by it or is under common control with it. For the purposes of this definition, “control” means the holding or the direct or indirect management of more than 50% of the voting rights of the entity concerned.
“Users” refers to natural persons authorized by You to use the Services, for which a subscription to a Service has been taken out and to whom a user identifier and password have been assigned by You (or by Us at Your request). This term also refers to members or affiliates or your organization to whom you have given access to the Services. Users may include Your employees, consultants, subcontractors, member users and third parties with whom You have business relations.
“You” and “Your” refer to the company or another legal entity for which You accept this Agreement as well as its Affiliated Companies.
“Your Data” refers to all of the data or electronic information submitted by You to the Subscribed Services.
2. FREE 30-DAY TRIAL
We are providing one or more Services to You at no cost until the first of one of the following two dates: (a) the thirtieth day following Your acceptance of this Agreement or (b) the start date of a Subscribed Service ordered by You. Additional provisions governing trials may be included on the web page dedicated to free trial subscriptions. These additional provisions are incorporated into this Agreement by reference and bind you contractually to Us. THE DATA THAT YOU ENTER FOR SERVICES AND THE PERSONALIZATIONS MADE TO SERVICES BY OR FOR YOU DURING THE FREE 30-DAY TRIAL WILL BE PERMANENTLY LOST UNLESS YOU SUBSCRIBE TO A SUBSCRIPTION FOR THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, DO NOT PURCHASE MORE EXTENSIVE SERVICES AND DO NOT EXPORT THIS DATA BEFORE THE 30-DAY TRIAL PERIOD ENDS.
NOTWITHSTANDING ARTICLE 9 (GUARANTEES AND EXCLUSIONS), DURING THE FREE 30-DAY TRIAL, THE SERVICES ARE PROVIDED “AS IS” WITH NO GUARANTEE.
Consult the User Guide during the trial period to familiarize Yourself with the Service characteristics and functions before purchasing your Subscription.
3. SUBSCRIBED SERVICES
3.1. Provision of Subscribed Services. We agree to make the Services purchased available to You in accordance with this Agreement for the duration of each subscription. You agree that Your subscriptions under this Agreement are neither conditioned on the delivery of future features or characteristics nor founded on oral or written public statements from Us concerning future features or characteristics.
4. USE OF SERVICES
4.1 Our responsibilities. We agree: (i) to provide you with standard support for the Subscribed Services at no additional cost or more extensive support if subscribed for separately, (ii) to reasonably implement, with no formal commitment on our part, the appropriate measures so that Services are available twenty four hours per day (24/24 hours), seven days per week (7/7 days) with the exception of the following: (a) scheduled downtimes (for which We agree to give at least eight (8) hours’ prior notice through the Subscribed Services and which We will schedule on weekends from Friday at 6 pm Eastern Standard Time until Monday 3 am Eastern Standard Time) to the greatest extent possible and (b) any unavailability due to circumstances beyond Our control, specifically fortuitous events, acts of public authority, flood, fire, earthquake, civil unrest, terrorist act, strike or other social conflicts (not involving Our employees) or failures or delays by Internet access providers and (iii) only providing the Subscribed Services in accordance with the applicable laws and regulations. SERVICES ARE PROVIDED “AS IS” WITH NO GUARANTEE.
4.2. Your responsibilities. You (i) agree to be the guarantor of respect of this Agreement by Users, (ii) assume full responsibility for the accuracy, quality, integrity and legality of Your Data and the means by which you have acquired it, (iii) agree to take all commercially reasonable measures to prevent unauthorized access or unauthorized use of the Services and to inform us without delay in the case of unauthorized access or unauthorized use (iv) agree not to use the Services except in accordance with the User Guide and the applicable laws and regulations. You agree (a) to limit access to the Services exclusively to Users, (b) not to sell, resell or rent the Services, (c) not to use the Services to record or transmit illicit, defamatory or otherwise unlawful elements or to record or transmit elements in violation of the right of a third party with respect to its private life, (d) not to use the Services to record or transmit Malicious Code, (e) not to alter or disrupt the integrity or execution of the Services or the third-party data contained therein and (f) not attempt to obtain unauthorized access to the Services or the systems or networks associated with them.
4.3. Usage limits. The Services may be subject to other limitations concerning, for example, storage capacity, the number of calls You are authorized to send using Our application programming interface and, for Services allowing You to provide public websites, the number of pages viewed by visitors to these sites. These limits are specified in the User Guide.
5. THIRD-PARTY PROVIDERS
5.1. Purchasing of third-party products and services. All purchases of third-party products or Services made by You, such as Third-Party Applications and deployment, customization or other advisory services, and any exchange of data between You and a third-party provider are exclusively made between You and the third party concerned. We do not guarantee third-party products or services and do not provide support, whether or not they are designated by Us as “certified” or otherwise. Purchasing third-party products or services is not required to use the Services.
5.2. Third-Party Applications and Your Data. In the event that You install or activate Third-Party Applications for use with the Services, You acknowledge that We may authorize providers of these Third-Party Applications to access Your Data if it is necessary for them to function with the Services. We disclaim liability for the disclosure, modification or deletion of Your Data resulting from such access by Third-Party Application providers. The Services will allow You to restrict this access by limiting Users’ rights to install or activate Third-Party Applications for the purpose of using them with the Services.
5.3. Third-Party Services. Service features that function and communicate with Third-Party Services depend on the continuous availability of a third-party API or program to be used with the Services. If the third-party API or program ceases to be available under reasonable conditions for the Services, We may cease to provide these Service features without You being entitled to a reimbursement, credit note or any other compensation.
6. USER FEES, FEES AND PAYMENT FOR THE SUBSCRIBED SERVICES
6.1. User fees and fees. You agree to pay all user fees and fees indicated at www.membogo.com;
6.2. Billing and payment. You agree to provide Us with Your valid and up-to-date credit card details. You authorize Us to bill this card for all Services used for the Subscription. Billing will be completed in advance, on a monthly basis, according to the rates in force and your previous month's usage. We will bill You in advance and in accordance with billing policies. It is Your responsibility to completely and accurately maintain Your billing and contact information in the Services.
6.3. Late payment penalties. If we do not receive the amounts invoiced by the due date, We may take the following measures if We deem it appropriate, these billed amounts may result in late-payment interest at a monthly rate of 1.5% of the outstanding balance or at the minimum rate authorized by law if it is lower, starting the due date for the said payment and until the day of payment.
6.4. Suspension of Services and respect of obligations prior to the due date. In the event of a payment owed by You under this Agreement or any other contract relating to Our Services that is late by 10 days or more, We may, without prejudice to Our other rights and remedies, suspend the provision of Our Services until full payment of the amounts concerned is received.
6.5. Payment-related disputes. We undertake not to exercise Our rights under Article 6.3 (Late payment penalties) or Article 6.4 (Suspension of Services and respect of obligations prior to the due date) if the billed amounts in question are the subject of a reasonable dispute in good faith and if You make every effort to resolve the dispute.
6.6. Taxes. Unless stated otherwise, Our fees are exclusive of taxes, duties and other similar taxes of any nature, including value-added tax, turnover tax, usage charges, deducted at source by a local, State, provincial, federal or foreign administration (collectively, “Taxes”). It is Your responsibility to pay all Taxes and taxes related to Your subscriptions according to the terms of this Agreement. If We are legally obligated to pay or collect Taxes for which You are liable under the terms of this paragraph, the corresponding amount will be billed to You and You will be required to pay it, unless You provide Us with a valid tax exemption certificate issued by the competent tax authority.
7. EXCLUSIVE PROPERTY RIGHTS
7.1. Reservation of rights. Subject to the limited rights expressly agreed to herein, We reserve all rights, titles and interests pertaining to the Services, including intellectual property rights. You are not entitled to any rights other than those expressly stated herein.
7.2. Restrictions. You undertake (i) not to authorize any third party to access the Services except in the conditions stipulated herein, (ii) not to create works derived from the Services, (iii) not to copy or reproduce any part or content from our Services as frameworks or mirror sites, other than copies or frameworks created in Your intranets or otherwise for Your own internal needs, (iv) not to complete reverse engineering of the Services and (v) not to access the Services to (a) build a competing product or service or (b) copy any feature, function or other graphic attributes of the Services.
7.3. Ownership of Your Data. In the contractual relation that binds us, You exclusively hold all rights, titles and interests with regard to the entirety of Your Data.
7.4. Suggestions. We hold an international, permanent, irrevocable, transferable licence, with a right to sub-licence to use or incorporate into the Services any suggestions, requests for improvement, recommendations or any other feedback from You, including Users, regarding the functioning of Services.
8.1. Definition of Confidential Information. For the purposes herein, “Confidential Information” refers to all confidential information disclosed orally or in writing by a party (the “Transmitting Party”) to the other party (the “Receiving Party”), who are designated as such or when the nature and circumstances of the disclosure reasonably result in it being regarded as confidential. Your Data Constitutes Your Confidential Information; the Services constitute Our Confidential Information; each party's Confidential Information includes the provisions of this Agreement, as well as business plans and marketing plans, technical or technological information, product plans and designs and the business processes disclosed by the party. However, Confidential Information (other than Your Data) does not include any information that (i) is in or falls within the public domain without breach of any obligation to the Transmitting Party, (ii) was known by the Receiving Party prior to its release by the Transmitting Party without breach of any obligation in respect of the Receiving Party, (iii) is communicated by a third party without breach of an obligation to the Transmitting Party or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Unless written consent is received from the Transmitting Party, the Receiving Party undertakes (i) to take the same precautions as it takes to preserve the confidentiality of its own confidential information of a similar nature (but in all cases reasonably sufficient precautions) to ensure that the Transmitting Party’s Confidential Information is not disclosed or used for purposes other than those provided for in this Agreement and (ii) to limit access to the Transmitting Party’s Confidential Information to its employees, contractors and other users who need to access the information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party providing for protections at least as strict as those provided for herein.
8.3. Protection of Your Data. Without prejudice to the foregoing, We undertake to apply the appropriate administrative, physical and technical measures to protect the security, confidentiality and integrity of Your Data. We may not (a) modify Your Data, (b) disclose Your Data unless We are legally required to do so in accordance with Article 8.4 (Mandatory disclosure) or if We are expressly authorized by You, or (c) to access Your Data except to provide the Services or to prevent or resolve technical or service issues or at Your request regarding customer support issues.
8.4. Mandatory disclosure. The Receiving Party may disclose Confidential Information from the Transmitting Party if required to do so by law, subject to prior notification to the Transmitting Party (to the extent permitted by law) and to provide reasonable assistance, at the expense of the Transmitting Party, if the latter wishes to challenge the disclosure. If the Receiving Party is required by law to disclose Confidential Information from the Transmitting Party as part of a civil proceeding to which the Transmitting Party is party, and if the Transmitting Party does not challenge the disclosure, it will reimburse the Receiving Party for expenses it has reasonably committed to collect the Confidential Information and provide secure access to it.
9. GUARANTEES AND EXCLUSIONS
9.1. Our guarantees. We warrant that (i) performance of the Services will be in all respects in accordance with the User Guide and (ii) subject to Article 5.3 (Third-Party Services), that Service features will not be significantly diminished for an extended period of the subscription. In the case of a breach of any of these guarantees, Your sole remedy will be the one provided for in Article 12.3 (Termination on reasonable grounds) and Article 12.4 (Reimbursement or payment upon termination) below.
9.2. Reciprocal guarantees. Each party declares and warrants that it is authorized to enter into this Agreement.
9.3. Exclusion. UNLESS EXPRESSLY STIPULATED OTHERWISE IN THIS AGREEMENT, BOTH PARTIES DISCLAIM ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, PROVIDED FOR OR NOT UNDER THE LAW, AND SPECIFICALLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW APPLICABLE TO ALL IMPLIED WARRANTIES ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. RECIPROCAL INDEMNIFICATION
10.1. Indemnification by Us. We undertake to defend You against any claim, request, action or proceeding (a “Claim”) brought by a third party against You alleging that use of the Services herein violates or misappropriates the intellectual property rights of a third party, and to compensate You for any damages found against You arising from a final judicial decision, as well as the reasonable attorney's fees incurred by You in connection with such a Claim, provided (a) that You notify Us in writing without delay, (b) that You leave the entire conducting of the defence and settlement of the Claim to Us (in the understanding that We will not be able to settle any Claim without unconditionally exonerating You of any liability) and (c) that You provide Us with reasonable assistance at Our expense.
10.2. Indemnification by You. You undertake to defend Us against any claim, request, action or proceeding (a “Claim”) brought by a third party against Us alleging that use of Your Data or Your use of the Services in breach of this Agreement violates or misappropriates the intellectual property rights of a third party or violates the applicable law, and to compensate Us for any damages found against Us arising from a final judicial decision, as well as the reasonable attorney's fees incurred by Us in connection with such a Claim, provided (a) that We notify You of the Claim in writing without delay (b) that We leave the entire conducting of the defence and settlement of the Claim to You (in the understanding that You will not be able to settle any Claim without unconditionally exonerating Us of any liability) and (c) that We provide You with reasonable assistance, at Our expense.
10.3. Exclusive remedy. Article 10 herein (Reciprocal indemnification) specifies the exclusive liability of the party indemnifying the other party and the exclusive remedy of the indemnified party for any type of Claim described in this section.
11. LIMITATION OF LIABILITY
11.1. Limitation of liability. THE TOTAL CONTRACTUAL OR TORTORIOUS LIABILITY OR LIABILITY OF ANY OTHER NATURE OF THE PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO CASE EXCEED THE TOTAL CUMULATIVE AMOUNT PAID BY YOU HEREUNDER OR, IN THE CASE OF ONLY ONE INCIDENT, 5,000 DOLLARS OR, IF IT IS LESS, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING DOES NOT LIMIT YOUR PAYMENT OBLIGATIONS REFERRED TO IN ARTICLE 6 (FEES AND PAYMENT FOR THE SUBSCRIBED SERVICES).
11.2. Exclusion of indirect and apparent damages. NEITHER PARTY SHALL BE HELD LIABLE BY THE OTHER PARTY FOR LOST PROFITS OR LOSS OF REVENUE OR ANY INDIRECT, PARTICULAR, ANCILLARY, CONSECUTIVE OR PUNITIVE DAMAGES OR THE COST OF REPLACEMENT SERVICES, WHATEVER THE CONTRACTUAL OR TORTORIAL BASIS OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS INFORMED OF THE POSSIBILITY OF DAMAGE OF THIS NATURE. THE EXCLUSION ABOVE WILL NOT APPLY IN AS MUCH AS THIS APPLICATION IS PROHIBITED BY APPLICABLE LAW.
12. DURATION, TERMINATION AND END OF CONTRACT
12.1. Agreement duration. This Agreement takes effect on the date You accept it and remains in force until terminated in accordance with this Agreement.
12.2. Duration of subscribed subscriptions Your subscribed subscriptions accrue from the date of commencement of use of the Services and will continue for an indefinite period of time. The price applicable to the subscription will be equal to the price published on the website or the price of which We will You in writing concerning a price change at least 30 days in advance.
12.3. Termination. Either party may terminate this Agreement by giving the other party ninety (90) days’ notice
12.4. Payment upon termination. In the event of termination, You will pay all unpaid fees covering the remaining term of your subscription after the effective date of termination. Under no circumstances will a termination terminate Your obligation to pay any fees due to Us in respect of the period prior to the effective date of termination.
12.5. Restoration of Your Data. Upon Your request made within thirty (30) days following the effective date of termination of a subscription to the Subscribed Services and upon payment of the sum of one thousand dollars ($1,000), We will make a file containing Your Data available to You for download. At the end of this thirty-day period, We will be under no obligation to conserve or provide Your Data.
12.6. Provisions remaining in force. Articles 6 (Fees and payment for the Subscribed Services), 7 (Exclusive property rights), 8 (Confidentiality), 9.3 (Exclusion), 10 (Reciprocal indemnification), 11 (Limitation of liability), 12.4 (Reimbursement or payment upon termination), 12.5 (Restoration of Your Data), 13 (Identity of your co-contracting party, notifications, applicable law and jurisdictions) and 14 (General provisions) will remain in force following termination or expiration of this Agreement.
13. NOTICES, APPLICABLE LAW AND JURISDICTIONS
13.1. Generalities. All notifications hereunder must be sent to HPJ Solutions Inc. 5605 de Gaspé, Suite 801, Montreal, Quebec, H2T 2A4, to the attention of the President.
13.2. Notification methods. Unless stipulated otherwise in this Agreement, all notices, authorizations and approvals hereunder will be made or given in writing and will be deemed to have been made or given: (I) through hand delivery, (ii) the second working day following the mailing, (iii) the second working day following faxed delivery with acknowledgement of receipt or (iv) the first working day following the sending by email (it being understood that an email will not be sufficient for termination notifications or a compensable claim). Notices addressed to You will be addressed to the system administrator designated by You for Your Services account concerned and in the case of billing-related notices, to the contact person designated by You for billing.
13.3. Agreement on applicable law and assignment of jurisdiction. This Agreement is governed by the laws of the Province of Quebec without giving effect to the provisions governing conflict-of-laws rules.
14. GENERAL PROVISIONS
14.1. Respect of exporting restrictions. The parties agree to respect the legislation and regulations applicable to exports to the United States and other concerned States with regard to the provision and use of Services. Without prejudice to the foregoing, (i) each of the parties declares that its name does not appear on any list of natural or legal persons banned from receiving exports established by the United States government and (ii) You agree not to authorize any User to access or to use the Services in violation of an embargo, prohibition or restriction on United States exports.
14.2. Relationship of the Parties. The parties are independent contracting parties. This Agreement does not constitute a partnership, franchise, joint venture, mandate, employment or fiduciary between the parties.
14.3. Absence of third-party beneficiaries. No third parties are beneficiaries of this Agreement.
14.4. Waiver and cumulative remedies. Failure to exercise a right under this Agreement or to prevail of it at a late stage will not constitute a waiver of that right. Except as expressly provided herein, the remedies provided for herein are in addition, and not exclusive, of any other remedy available to either party at law or in equity.
14.5. Severability. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, it will be modified and interpreted by the jurisdiction so as to best achieve the objectives of the original provision within the maximum limits permitted by law and other provisions of this Agreement will remain in effect.
14.6. Attorney fees. You will pay on first request any reasonable attorney's fees that We may have incurred to collect any compensation or billed amounts due to Us under this Agreement as a result of a violation by You of Article 6.2 (Billing and payment).
14.7. Assignment. Neither party may assign its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which shall not be unduly refused). Notwithstanding the foregoing, each of the parties may assign this Agreement in its entirety, without the prior consent of the other party, to an Affiliate or as part of a merger, acquisition, restructuring or transfer of all or nearly all of its assets not involving a direct competitor of the other party. The sole remedy of which a party may prevail itself in the case of a proposed assignment of the other party in violation of this clause will be the termination of this Agreement if it so decides by written notice to the ceding party. In the event of such a termination, We will reimburse You for all prepaid compensation covering the duration of all remaining subscriptions following the effective date of termination. Subject to the foregoing, this Agreement is binding on each of the parties and will apply to the benefit of the parties and their successors and respective assignors.
14.8. Entirety of the provisions. This Agreement, including all annexes and addenda, constitutes the entirety of the agreements between the parties and cancels and replaces all prior agreements, proposals or declarations or written or oral concomitants concerning it. No amendment or waiver of any provision of this Agreement shall take effect unless it is in writing and signed by the party against whom the other party claims the change or waiver or it has been accepted electronically by the party. However, in the event of a contradiction or inconsistency in the provisions of the body of this Agreement and one of its annexes, one of its additional clauses, the terms of the annex or the terms of the additional clause shall prevail. Notwithstanding any stipulations to the contrary herein, none of the provisions or conditions set forth in Your order or any other order document shall be incorporated into or constitute part of this Agreement and all such terms and conditions shall be null and void.