This Online Services Agreement is entered into between Knova Web Technologies inc. (“Knova”, “us”, “we”, “our”) and the client accepting its terms (the “Client”, “you”, “your”), and governs Client’s access to and use of Knova’s online platform named Convoflo available at https://www.convoflo.com (the “Platform”).
BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS AND REPRESENT THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT OR THE AUTHORITY TO BIND YOUR ORGANIZATION TO THESE TERMS.
The following words and expressions as used in this Agreement shall have the meanings indicated below:
“Addendums” means the addendums that may be issued by Knova from time to time in respect of the Platform or its use by the Client.
“Client Data”: means data that the Client and its Users transmit, upload, store, retrieve or otherwise make available to third parties through the Platform.
“Confidential Information” means any information relating to the affairs of a party hereto that is not generally available to the public and including, without limitation, Client Data; the term “Confidential Information” does not, however, include information (i) which is in the public domain through no fault of the party to whom the information is disclosed; (ii) which, after disclosure, is received by that party from another person who is legally in possession of that confidential information and who is not precluded from disclosing the information to that party; (iii) which is independently developed by a party through persons who have not had access to, or have not been aware of, the Confidential Information; (iv) the disclosure of which has been previously approved in writing by the party that originally disclosed that information; or (v) the disclosure of which is necessary by law or by order of a court or other power having jurisdiction.
“Developments” means all customizations, adaptations, modifications, innovations, additions, upgrades or improvements relating to the Platform, as developed or designed by Knova from time to time.
“Documentation” means the user manuals, guides, policies and other technical documentation and specifications published or developed by Knova n respect of the Platform (as amended or updated from time to time).
“Feedback” means any suggestion, recommendation, feedback or idea for modifying or improving the Platform which is communicated to us by you or a User from time to time.
“Fees” means the fees payable by the Client to access and use the Platform as indicated on the purchase order or invoice issued by Knova and signed by the Client.
“Intellectual Property Rights” means any intellectual property right, including copyright, rights in inventions or patents, trademarks, rights to file applications for patent or registration of trademarks or any other right of the same nature in all countries, as well as any applicable civil law or common law principle relating to the protection of confidential information, trade secrets and know-how.
“Law” means any law, regulation, rule, decree, code, standard, ordinance, decision, judgment, order, sentence, policy or directive of a government agency, as well as each of its provisions, including the provisions or principles of civil law, common law and equity, applying to the party in question.
“Personal data” means any information relating to an identified or identifiable natural person, i.e. a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Subscription Period” means the period for which the Client subscribed to the Platform.
“User” means a person under the authority or responsibility of the Client and who is authorized to use the Platform in accordance with this Agreement.
“Works and Content” means collectively the Platform, its Developments, the Documentation and all derivative works therefrom (whether originating from or developed by us, you or a User), including all configurations, features, functionalities, interfaces, content, graphics, button icons, logos, marks, scripts, artworks, pictures, computer codes, designs, applications, data, texts or files integrated into the Platform, as well as any presentation, arrangement, coordination, enhancement and selection thereof within the Platform.
The titles and subheadings of articles, sections and paragraphs have been inserted herein for ease of reading only and will not be used in its interpretation.
3. Right to access and use the Platform
3.1 Conditional right
Subject to compliance with the Agreement and the payment of applicable Fees, Knova grants the Client and its Users the non-exclusive, revocable and non-transferable right to access and use the Platform during the Subscription Period for personal use or business purposes only.
3.2 Subscriptions and renewals
Subscriptions to the Platform are billed and payable as agreed between Knova and the Client and are automatically renewed for the same Subscription Period, unless either party sends the other party a non-renewal notice at least 30 days prior to the expiration of the then- current Subscription Period.
Your use of the Platform may be subject to certain limitations on the number of authorized Users or available features, depending on the type of subscription purchased. The Platform may not be accessed or used in excess of the number of authorized Users under your subscription.
3.4 Administrators and Users
We reserve the right to modify, upgrade or improve the Platform or to add or remove any feature thereof as we deem appropriate; provided, however, that we will not remove or materially reduce a core feature of the Platform without providing you a prior written notice.
Your right to use the Platform is subject to the restrictions set forth below. By using the Platform, you agree on behalf of yourself and your Users not to: (i) allow the access to or use of the Platform to any unauthorized person; (ii) sell, resell, license, assign, share, sublicense, distribute, make available, rent or lease the Platform, (iii) use the Platform to store or transmit infringing, libelous, tortious or unlawful data; (iv) use the Platform in a way that may infringe the intellectual property, privacy or other rights of third parties; (v) reverse engineer, disassemble, compile or decompile the Platform; (vi) modify, copy, translate, alter, improve or create derivative works from the Platform, or otherwise use or access the Platform to develop competitive products or services; (vii) knowingly or negligently use the Platform in a way that interferes with or disrupts its performance or its access by others; (viii) use the Platform to send unauthorized or unsolicited advertising or spam, or to collect data without proper authorization.
3.7 Use of third-party features and services
The Platform may allow you to use third- party features or services (“Third-Party Services”). By using Third-Party Services through the Platform, you consent to the transmission to, and the processing of, Client Data by such Third-Party Services.
3.8 Use of password and username
Client and Users shall use their account usernames and passwords in a secure manner, in accordance with the security recommendations and guidelines issued by Knova from time to time. Without limiting the foregoing, Client shall ensure that its Users protect their username and password adequately and Client is solely responsible for all uses and activities occurring under User accounts. Client agrees to notify Knova promptly upon becoming aware of any breach of security or unauthorized access to a User account. Knova disclaims any liability for any loss, damage or unauthorized access resulting from its failure or a failure by its Users to comply with applicable security obligations.
3.9 Suspension due to improper use
Knova may without advance notice and without incurring any liability suspend Client’s and Users’ right to access and use the Plaform if it reasonably considers that Client or its Users do not use the Platform in accordance with the terms of this Agreement or that such action is necessary to prevent the improper use of the Platform, fraud, security threats or the commission of illegal activities. To the extent possible, Knova will attempt to notify the Client prior to such suspension or otherwise within 24 hours.
4. Intellectual property
4.1 Exclusive owner
Subject to the limited rights expressly granted hereunder, we reserve all of our right, title and interest in and to the Works and Content, including any and all related Intellectual Property Rights. No rights in the Works and Content are granted to you or to any User hereunder other than as expressly set forth herein. You agree that the Works and Content are protected by copyright, trademark, patent and other intellectual property laws and that any misappropriation or violation thereof by you or any User will entitle us to claim damages and be indemnified by you pursuant to those laws.
4.2 No dispute
You undertake not to institute, directly or indirectly, any administrative, quasi-judicial or judicial procedure or action to challenge the rights, titles and interests, including all Intellectual Property Rights, of Knova in the Works and Content. You also undertake not to do, or arrange for, or help or assist anyone whatsoever to do, directly or indirectly, by omission or commission, any act that could jeopardize or affect the validity of the rights, titles and interests, including all Intellectual Property Rights, of Knova in the Works and Content.
You grant us, for yourself and on behalf of your Users, a perpetual, irrevocable, worldwide, sublicensable and transferable license to freely use, copy, disclose, license, distribute, exploit and commercialize in any manner any and all Feedback that you or your Users communicate to us, without any compensation or restriction. To the extent we use a Feedback to create or develop a Development, you acknowledge and agree that any such Development (including all related Intellectual Property Rights) shall be our sole and exclusive property, and that no Feedback will be considered your confidential information.
5. Fees, Invoicing and Payment
Unless indicated otherwise on the quote signed by the Client, Knova will invoice the Fees on an annual basis.
5.2 Fees and Payment
You agree to pay all applicable Fees in accordance with the terms indicated on your invoice. Except as otherwise specified herein, invoiced Fees are non-cancelable and payments are non- refundable. A valid payment method is required to process your payments. If you pay with a credit card, you agree that your credit card information and related personal data be provided to our third-party payment processor to process your payment. You are responsible for providing complete and accurate billing and contact information to us and to keep such information current. By submitting such payment information, you automatically authorize us or our third-party payment processor, as applicable, to charge you for all fees stated on your invoice through your selected payment instrument. You are responsible to pay any and all transaction fees and currency conversions charged by your financial institution or intermediaries.
5.3 Payment Default
We reserve our right to suspend or terminate your access to the Platform without advance notice or liability if at any time we determine that your payment information is not current or accurate or if your payment is overdue. Interest at annual rate of ten percent (10%) and calculated on a daily basis will be charged against any overdue payment. You agree to reimburse us for all overdraft charges and other reasonable costs and expenses incurred in connection with the collection of your overdue or returned payments.
5.4 Fees Modifications
We may at our sole discretion and at any time change or update our Fees and any such change will become effective upon the next renewal of your Subscription Period, provided that we notify you at least 45 days in advance.
Our Fees as displayed on our website do not include any taxes, levies, duties or similar fees imposed by any governmental entity or collecting agency, including, for example, value-added, sales, use or withholding taxes. Applicable taxes will be added on your invoice and you agree to pay any such amounts to us in full without any right of set-off or deduction.
6. Client Data
6.1 Protection and processing of Client Data
Knova will maintain administrative, physical and technical safeguards in accordance with industry standards to keep Client Data safe and secure and to protect its confidentiality and integrity. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, deletion or disclosure of Client Data by our personnel except (a) to allow you and your Users to access and use the Platform or to address technical problems or your customer support requests, (b) as compelled by law or a judicial order, or (c) as expressly permitted in this Agreement or otherwise instructed by you in writing. We never sell, rent, or lease Client Data to any third party and we do not share your Data with any third party other than for the purposes of providing you access or improving the Platform or to resolve any issues or problems that you may encounter when using the Platform (and you hereby acknowledge and agree that Client Data may be transferred to such third-party service providers for such purposes).
6.2 Ownership of Client Data
You retain all right, title and interest in and to Client Data. You hereby grant us a non-exclusive, worldwide, sub-licensable and limited term license to access, use, process, store, copy, distribute, display and retrieve Client Data for the authorized purposes identified in Section 6.1 above.
6.3 Your data compliance obligations
You represent and warrant that (i) you and your Users have obtained all necessary rights, releases and permissions to submit or upload Client Data to the Platform and to grant the rights granted to us in these Terms, (ii) the submission, processing and storage of Client Data to or through the Platform does not and will not infringe on any laws or any third- party intellectual property or privacy rights.
6.4 Data Processing Addendum
To the extent you submit Client Data to the Platform that also includes Personal Data, the terms of our Data Processing Addendum also apply to the processing of such Client Data.
You will defend, indemnify and hold us harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claims, demands, suits or proceedings arising from or related to your breach of the Agreement or any claims or disputes related to the use of the Platform by Users (a “Claim”). We will (i) promptly give you written notice of the Claim, (ii) give you all reasonable assistance and collaboration at your request and your sole expense, and (iii) give you sole control of the defense and settlement thereof, except that you may not settle any Claim unless it unconditionally releases us of all liability and that we may join in the defense with our own attorneys, at our sole option and our sole expense.
8. Limited warranty
8.1 Limited Warranty
We warrant that during your Subscription Period the Platform will perform materially in accordance with its description, features and operations under normal use (the “Limited Warranty”). Minor discrepancies shall not be treated as a non-conformance with our Limited Warranty.
The Limited Warranty will not apply (and you hereby waive any related right or claim against us) if the defect occurs by reason or in the course of any of the following situations: (i) computer deficiencies or improper operation or maintenance of your computer devices; (ii) misuse, abuse, accident, neglect, theft, vandalism, acts of God, power failures or surges, battery failures, internet or wi-fi failures or insufficient internet or wi-fi network; (iii) any negligent, wrongful, malicious or illegal acts or omissions committed by you, your Users or any third party, or any other causes beyond our reasonable control; (iv) any defect not made known to us within your Subscription Period; (v) your failure to use up-to-date tools for detecting and patching security vulnerabilities; (vi) the Platform is not used in accordance with the Documentation, this Agreement or any written recommendation, instruction or security guidelines issued by us from time to time; (vii) the Platform is used with incompatible, unauthorized or non-supported technologies, hardware, software, network or system; or (viii) planned downtime for which you will have received reasonable advance notice.
Our sole liability and your sole and exclusive remedies under the Limited Warranty shall be, at our exclusive option, to either (i) make such corrections, modifications or adjustments to the Platform as may be necessary to conform with the Limited Warranty; or (ii) terminate the Subscription Period and refund the prepaid Fees on a pro rata basis from the date on which you notified us of the defect.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SPECIFIED ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED “AS IS” AND WE DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED (WHETHER ARISING BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTY OF TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. YOU UNDERSTAND THAT USE OF THE PLATFORM NECESSARILY INVOLVES TRANSMISSION OF CLIENT DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF DATA LOST, ALTERED OR INTERCEPTED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF CLIENT DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. YOU ASSUME THE ENTIRE RISK AND RESPONSIBILITY AS TO PERFORMANCE AND FOR SELECTING THE PLATFORM TO ACHIEVE YOUR REQUIREMENTS OR INTENDED RESULTS AND OBJECTIVES, WHETHER OR NOT DISCLOSED TO US. WE MAKE NO REPRESENTATION AND GIVE NO WARRANTY THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM WILL BE TIMELY, ERROR- FREE, VIRUS-FREE OR UNINTERRUPTED.
9. Term and termination of the Agreement
This Agreement becomes effective on the date you sign our invoice or purchase order or that you signify to us by any other means your acceptance of the terms provided herein, as applicable, and continues until the end of your last Subscription Period or until the Agreement is terminated as provided herein.
9.2 Termination for cause
A party may terminate this Agreement (and any related subscription) immediately without prior notice if the other party (i) fails to cure any material breach of this Agreement within 30 days after written notice, (ii) ceases its operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) commits an act contrary to good morals, business ethics or public order, a fraudulent act or any other act of the same nature.
9.3 Termination for convenience
Client may choose to cancel its subscription at any time and for any reason upon written notice to Knova, provided, however, that Client will not be entitled to a refund of any pre-paid Fees and will remain liable to pay the Fees applicable to the remainder of its Subscription Period.
9.4 Portability and deletion of Client Data
Client Data will be deleted permanently after a period of thirty (30) days following the expiration or termination of your subscription, except as otherwise compelled by applicable law. Knova may provide confirmation of Client Data destruction at your demand. You will be entitled to access the Platform to retrieve your Client Data during such 30-day period, after which you will not be allowed to access and use the Platform.
9.5 Surviving provisions
Notwithstanding anything to the contrary herein, any and all provisions of this Agreement that must necessarily survive to fulfill the essential purposes of the Agreement and to give full effect to the parties’ intents expressed herein shall survive the termination of this Agreement.
10. Limitation of liability
10.1 Limitation of liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KNOVA ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE PLATFORM EXCEED YOUR SUBSCRIPTION FEES PAID FOR THE SUBSCRIPTION PERIOD DURING WHICH THE EVENT LEADING TO SUCH LIABILITY OCCURRED. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT OR BREACH OF STATUTORY DUTY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS PURSUANT TO THIS AGREEMENT. IN THE EVENT THAT ANY DISCLAIMER, EXCLUSION OR LIMITATION IN THIS AGREEMENT CANNOT BE EXCLUDED OR LIMITED ACCORDING TO APPLICABLE LAW, THEN ONLY SUCH DISCLAIMER, EXCLUSION OR LIMITATION SHALL NOT APPLY AND ALL THE REMAINING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS PROVIDED HEREIN SHALL REMAIN VALID AND ENFORCEABLE. WITHOUT LIMITING THE FOREGOING, KNOVA SHALL NOT BE LIABLE IN RESPECT OF ANY DAMAGE CAUSED BY YOUR FAILURE TO IMPLEMENT ADEQUATE INTERNAL SECURITY PRACTICES AND PROCEDURES.
10.2 Exclusion of indirect and consequential damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR (i) ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, (ii) DAMAGES FOR OR RELATED TO BUSINESS INTERRUPTION OR LOSS OF INCOME, GOODWILL OR PROFITS, (iii) DAMAGES RELATED TO PRIVACY OR SECURITY BREACHES OR LOSS, CORRUPTION OR RECOVERY OF DATA, FILES OR COMPUTER PROGRAMS, WHETHER ARISING OUT, IN EACH CASE, OF THE USE OF OR THE INABILITY TO USE THE PLATFORM, THE PROVISION OF OR THE FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, OR ANY BREACH OF CONTRACT, ANY TORT, OR ANY BREACH OF STATUTORY DUTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Force majeure
Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any event of force majeure or any other unforeseeable cause which is beyond the reasonable control of such party. The affected party will make commercially reasonable efforts to avoid or eliminate the causes of non-performance, and will continue to perform the obligations hereby imposed with due diligence upon elimination of such causes. In the event of a total impediment to performance of obligations for more than 90 days, the parties will attempt to reach a mutually acceptable compromise in the spirit and intent of this Agreement.
12. Relations between the parties
Knova is for the purposes hereof considered to be an independent contractor. Neither party (i) can be considered the agent, employee or partner of the other party; and (ii) has the right or power to bind the other party except with the express written permission of that other party.
13. Miscellaneous provisions
13.1 Assignment and beneficiaries
You may not assign, transfer or sublicense any of your rights or obligations hereunder, whether by contract, operation of law or otherwise, without our prior written consent, except if the assignment is made to an affiliated entity or as part of a corporate reorganization, consolidation, merger, acquisition or sale of all or substantially all of your business and assets. We have the right to assign at any time our rights and obligations hereunder (subject to providing a notice to you). Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
Knova may perform its obligations, in whole or in part, through third party subcontractors or sub-processors (subject to the terms of the Data Processing Addendum, to the extent applicable), it being understood that Knova will remain liable to the Client at all times for any violation of this Agreement by these subcontractors and sub- processors, if applicable.
13.3 Non-executory provisions
Each provision hereof forms a separate whole so that any decision that any of its provisions is null or unenforceable will not affect the validity of the other provisions or their enforceability.
13.4 Entire agreement and order of precedence
13.5 Disclosure of the business relationship
The Client accepts that Knova publicly discloses that the Client is one of its customers.
We reserve the right to amend or update the Agreement from time to time and to publish any updated version on our website. Modifications to our Agreement will apply to you only upon the renewal of your subscripion and will not apply to your then- current Subscription Period. If you do not agree to the modified terms of our Agreement, in whole or in part, you may elect not to renew your Subscription Period and cease using the Platform. By renewing your Subscription Period or continuing to use the Platform after the modified Agreement becoming effective to you, you agree to be bound by the Agreement as then modified and to comply therewith.
Upon our written request, you will confirm to us in writing that the Platform is being used in conformity with this Agreement and provide reasonable cooperation, information and documents in support of your confirmation. Should we discover any use of the Platform in violation of these terms, we reserve the right to terminate this Agreement in addition to such other rights and remedies that we may have herein or under applicable law.
13.8 Failure to exercise rights
The failure of either party to exercise any of its rights under this Agreement shall not be deemed to be a waiver of such rights. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. In order to be valid, a waiver must be given explicitly in writing by an authorized representative of the party accepting to waive its right.
13.9 Dispute resolution
The parties acknowledge and agree that any unresolved claim, dispute, or controversy (excluding any claims for injunctive relief) arising out of or in connection with this Agreement, or the breach or alleged breach thereof, will be treated under the exclusive auspices of arbitration by the Canadian Commercial Arbitration Centre, by means of arbitration and to the exclusion of courts of law, in accordance with its General Commercial Arbitration Rules then in force. Such arbitration shall be held in front of a sole arbitrator in Montreal, Province of Quebec, in the English language or any other language as may be mutually agreed. The decision of the arbitrator shall be final, binding and non- appealable. Each party will share equally the costs of arbitration (other than the costs and fees of their respective attorneys). Notwithstanding the foregoing, nothing herein shall be deemed as preventing a party from seeking injunctive relief or provisional or ancillary remedies from the courts as necessary to protect any of its proprietary interests, including to prevent the actual or threatened infringement, misappropriation or violation of its intellectual property rights.
13.10 Applicable law
This Agreement is governed by the laws of the Province of Quebec and those of Canada applicable therein, without regard to the principles of conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. 13.11 Language. The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressément que cette Convention et tous les documents qui s'y rapportent soient rédigés en anglais.