Terms of Service

Latest Update: 2020-07-27

Welcome aboard!

These Terms of Services constitute legal Terms of Services between the entity that agrees to these Terms of Services (the “Customer”; “you”) and

Civalgo, Inc. with a registered address at 460-55 rue Louvain West, Montreal (Québec), H2N 1A4 (“Civalgo”, “we”, “us”).

Please read the following Terms of Services carefully before accessing or using our Services (as defined below), as they contain important information on your obligations while using the Services. The Terms of Services also inform you on our liability towards you and the warranties or disclaimers that apply to our Services.

If you wish to use our Services, you must accept and agree to be bound by and comply with these Terms of Services. Continued use of any of our Services indicates your continued acceptance of the Terms of Services. If you do not agree with these Terms of Services, you must not use our Services.

These Terms of Services define the legal relationship between you and us in connection with the Services.

If you have any questions related thereto, you can reach us at support@civalgo.com or call us directly at call us directly: 1 833 983 5448.

1. DEFINITIONS

“Abuse(s)” has the meaning ascribed to it in Section 3(a).

“Account” means the account(s) that you acquire as part of your subscription.

“Admin Console” means the online tool made available to you by us, designed for reporting and some other administrative functions.

“Administrator(s)” means the personnel designated by you to administer the Services on your behalf.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to these Terms of Services. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Anti-Corruption Laws” has the meaning ascribed to it in Section 20.

“Anonymized Data” means any Usage Data, Customer Data and other data generated by the Services which have been processed through an industry-standard de-identification technology or method and which, as a result, does not relate anymore to an identified or identifiable natural or Customer. For the avoidance of doubts, Anonymized Data does not include Personal Data.

“Availability” means that the Services are available for access and use from Civalgo Data Center.

“Civalgo Data Center” means the servers and network infrastructure, whether physical or virtual, on which the Services are hosted and operated, whether managed directly by Civalgo, colocation services provider, or cloud hosting provider.

“Civalgo Services” means the Services, but excluding any Third Party Service.

“Change Order” has the meaning ascribed to it in Section 7(a).

“Documentation” means the documentation and other material made available to Customer (and End Users) in connection with our provision of the Services, including Services specifications and descriptions that are publicly available on our website.

“Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including proprietary information and trade secrets. Confidential Information must be indicated as confidential information, or it must be clear at the time of the disclosure that the information ought to be handled as Confidential Information.

“Customer Data” means any (i) Personal Data; (ii) data generated by or submitted through the Services by Customer (including by End Users). Notwithstanding anything to the contrary in these Terms of Services, Anonymized Data and Usage Data shall not be considered Customer Data.

“End User(s)” means each user who is authorized by you to use and access the Services, including the Administrators.

“Excluded Upgrade” has the meaning ascribed to it in Section 2(c).

“Fees” has the meaning ascribed to it in Section 7(a).

“Force Majeure” has the meaning ascribed to it in Section 19.

“Initial Term” has the meaning ascribed to it in Article 8.

“Immediate Control” means Civalgo’s network services within the Civalgo Data Center which extends to, includes, and terminates at the Internet Service Provider circuit termination point on the router of the Civalgo Data Center (i.e., public Internet connectivity). Specifically excluded from the definition of “Immediate Control” are the following: (a) equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer and Customer’s network services which allow the Customer to access the Civalgo Services (these components are controlled by the Customer and their performance or failure to perform can impair or disrupt Customer’s connections to the Internet and the transmission of data); (b) equipment, data, advertisements, materials, software, hardware, services and/or facilities provided by third party vendors or service providers of Customer; (c) acts or omissions of Customer or its Representative, including third party vendors or service providers; (d) issues arising from bugs or other problems in the software, firmware, or hardware of third parties; (e) delays or failures due to circumstances beyond Civalgo’s reasonable control that could not be avoided by its exercise of due care and (f) any outage, network unavailability, or downtime outside the Civalgo Data Center.

“Intellectual Property” means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and any and all proprietary rights provided under patent law, copyright law, trade mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.

“Notification Email Address” means the email address provided by you in the Order Form, which address is designated to receive notices from us.

“Order Form” means an order form executed by you and us or accepted through a purchase order. The Order Form describes in further details the Services, the Fees and the Term.

“Order Form Approval” shall have the meaning ascribed to it in Section 7(a).

“Personal Data” means any information that would meet the definition of “personal information” or “personal data” (or similar nomenclature) under applicable Law and that is (i) submitted through the Services by you or your End Users or (ii) collected or generated by the Services about End Users.

“Renewal Term” has the meaning ascribed to it in Section 8.

“Report” has the meaning ascribed to it in Section 13(b).

“Representatives” means a party’s Affiliates, subsidiaries, resellers, agents and subcontractors, as well as the respective employees, directors, officers and developers of each of these third parties, and those of the concerned party, as the case may be;

“Reseller” means an entity which is authorized by Civalgo to resell the Services.

“Scheduled Downtime” has the meaning ascribed to it in Section 4.

“Security Breach” means any act or omission that materially compromises the security, confidentiality or integrity of Customer Data.

“Services” means the services described in the Order Form.

“Subscription Term” has the meaning ascribed to it in Section 7(b).

“Tax Deduction” has the meaning ascribed to it in Section 7(c).

“Term” has the meaning ascribed to it in Article 8 hereof and includes any Renewal Term(s).

“Terms of Service” means these Terms of Services and the Order Form.

“Third-Party Claim” means any third-party claim, lawsuit, action, or proceeding.

“Third-Party Services” means integration partners accessible through application interface programming (“APIs”), third party websites and applications or service providers used by Civalgo in partial fulfillment of the Services.

“Trial Period” has the meaning ascribed to it in Section 9.

“Upgrade” has the meaning ascribed to it in Section 2(c).

“Urgent Security Issue” means any (i) use of the Services in contravention of these Terms of Services by an End User; (ii) a Security Breach; or (iii) a situation reasonably requiring Civalgo to act immediately to prevent or mitigate security risks, including to install important security patches.

“Usage Data” means data captured and/or generated by the Services about statistics, trends, performance and analytics, such as page views, performance statistics, errors occurrences, and electronic attributes of devices, such as browser name and version, operating system and country. Usage Data is generally used to improve our Services, monitor performance and understand popular features.

2. OUR SERVICES

(a) Services

Subject to and conditioned on your payment of applicable Fees and compliance with these Terms of Services, we will provide the Services and make the Services available to you during the Subscription Term, as applicable, the whole substantially in accordance with these Terms of Services.

(a) Order Form; Change Order

The Order Form shall contain a description of the Services to be delivered to the Customer, the Subscription Term, the payment terms (including frequency, amounts and method(s) of payment).

The Order Form is approved (a) upon acceptance of the Order Form by the issuance of a Purchase Order by Customer corresponding to the Order Form; (b) upon signature or acceptance of the Order Form in writing or (c) upon Customer accessing the Services following the issuance of the Order Form (“Order Form Approval”).

Order Form shall have precedence over these Terms of Services in case of a conflict between the Order Form and the Terms of Services.

Customer may add End User Accounts through the Admin Console, in which case, the Order Form shall be considered amended automatically to include the End User Account, and each new End User Account shall be paid for in proportion of the time remaining in the then-current Subscription Term. For the avoidance of doubt, each additional End User Account subscription shall renew at the same time than the Services, at the end of the then current Subscription Term.  Customer may also add End Users Accounts through a change order to the Order Form (a “Change Order”). Additional End Users Accounts are invoiced at the then-current Fees.

Change Orders are issued by Civalgo and are approved by Customer (a) upon the issuance of a Purchase Order by Customer corresponding to the Change Order or (b) upon signature or acceptance of the Change Order in writing by Customer. Change Order can also be used to modify an Order Form on a case-by-case basis, as required by Customer and accepted by Civalgo.

(b) Modifications to Services

We reserve our rights to make changes to the Services. In case of a material change, we will notify you using the Notification Email Address or through the Admin Console. Modifications to the Services shall not materially and adversely affect the performance of the Services in accordance with these Terms of Services.

We may need to modify these Terms of Services to adapt to new technologies, functionalities, regulatory requirements or otherwise based on our legitimate business needs. If we need to amend these Terms of Services, we will advise you through the Notification Email Address. If you continue to use the Services after such notice, we will consider that you accept the amendments to these Terms of Services. You may object to such modifications to these Terms of Services by reaching out to us at support@civalgo.com and if you we cannot agree to a mutually acceptable modification, you may exercise your right to termination with cause pursuant to Section 21.

(c) Upgrades; New Features

We may, from time to time, develop new modules, versions, functionalities or features to the Services (each an “Upgrade”). Upgrades are generally included with your subscription to the Services, except if we indicate otherwise (the “Excluded Upgrade”). Excluded Upgrades can be added to an Order Form through a Change Order, and may be subject to additional fees and terms and conditions. Excluded Upgrades shall not include security patches and updates that are required for the Services to function substantially as described in these Terms of Services.

3. YOUR OBLIGATIONS AND RESPONSIBILITIES

(a) Acceptable Use

You represent and warrant that you will use the Services only for lawful purposes and in accordance with the foregoing rules. You agree that you will deploy commercially reasonable efforts to cause your End Users to use the Services in accordance with these rules. You shall remain entirely liable for all acts and omissions by your End Users, and any act or omission by such End User that would constitute a breach of these Terms of Services if taken by you will be deemed a breach of these Terms of Services by you.

You hereby represent and warrant that, unless expressly authorized in writing by us, you and your End Users will use the Services in any manner:

(i) that is prohibited by law or our policies made available to you, including these Terms of Services;

(ii) that will disrupt third parties’ use or enjoyment of the Services, including if this use results in automated, constant and repeated requests for data other than as permitted under these Terms of Services and has a negative effect on our systems or network, including abnormal usage that overloads servers or causes portions of our network to be blocked (e.g. denial-of-services and distributed-denial-of-services attacks);

(iii) that uses the Services to create, transmit, distribute or store material that violates Intellectual Property, privacy, publicity or other personal rights of individuals, export control, or that can otherwise be threatening, abusive, hateful or constitutes or encourages conduct that would be considered a fraud, a criminal offence or likely to give rise to civil liability;

(iv) that results in (A) the sharing of credentials, identifiers and passwords among End Users or among End Users and third parties and (B) the distribution, disclosure or use of any of the Services in any format to or by unauthorized third parties (i.e. other than End Users), including through any time-sharing service, service bureau, network or by any other means;

(v) that involves using any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms, or methodology to access, acquire, copy or monitor the Services or any portion of the Services;

(vi) that involves decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or ideas or algorithms of any of the Services underlying technology by any means whatsoever;

(vii) that involves penetrating our security, including, without limitation:

(A) by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;

(B) by interfering with the proper working of the Services;

(C) by attempting to hack any security requirements or processes in the use of the Services;

(D) by attempting to access any part of the Services (or any of their related systems, networks, servers or other equipment) which you are not authorized to access;

(E) by attempting to disrupt in any manner the operation of the Services, its servers or network;

(F) by disobeying any requirements, procedures, policies or regulations of your network connected to the Services;

(G) by manipulating identifiers to disguise the origin of any content transmitted or uploaded on to the Services, or the source of any content;

(H) by modifying or altering the Services in any unauthorized manner.

(collectively, the “Abuses”).

You hereby agree and acknowledge that an indirect or attempted violation of this Section 3(a) shall be considered an Abuse. If we discover that you (or your End Users) are about to commit any Abuse (including by facilitating an Abuse), we may suspend part or all of the Services pre-emptively with or without prior notice. If no prior notice was given, we will send you a written notice as soon as practicable and will conduct an inquiry to reasonably determine if the suspension of Services should be maintained.

(b) Account

End Users must have an Account to access and use the Services. End Users are responsible for maintaining their credentials confidential, and Civalgo shall not be responsible if an Account is compromised. If credentials have been compromised, Administrators must block these credentials and trigger a reset of the credentials as soon as practicable for the concerned End User(s) and contact us to advise us that credentials have been compromised so that we can conduct reasonable inquiries. You agree to collaborate with us for such inquiries.

(c) Administration of Services

You are responsible for understanding the settings, privileges and controls for the Services and for controlling whom you permit to become an End User and what are the settings and privileges for such End User. Civalgo shall not be responsible for managing End Users, settings and controls available as part of the Admin Console.

You agree to notify us without undue delay if your Notification Email Address changes. If you fail to do so, we shall have no liability for notices or communications that are not received by you.

You agree and understand that you are responsible for seeking all consents and authorization necessary for allowing us to perform the Services as described in the Order Form, including from End Users where applicable.

4. SERVICE LEVEL AGREEMENT

(a)  Availability Objective

Subject to these Terms of Services, Civalgo will provide a 99.8% Availability for the Services within Civalgo’s Immediate Control (the “Availability Objective”).

(b) Availability Calculation

Availability is calculated per calendar month. For a given calendar month, the calculation will be as follows, where “t” is the total number of seconds in the calendar month and “d” is the material downtime in second during that month:

Availability = 100 x ((t-d-) /t)

Material downtime is measured as the time in seconds when the Civalgo Services are not Available for reasons other than the following exclusions: (a) a Force Majeure, (b) an Urgent Security Issue; (c) use of unapproved or modified hardware or software by or on behalf of Customer; (d) scheduled maintenance, as described below in Section 4(c).

(c) Scheduled Maintenance

While we attempt to perform scheduled maintenance without service interruption, some maintenance outage may be required. We will attempt to perform maintenance during night times and weekends, where possible, we will advise Customer in advance of scheduled maintenance through the Notification Email Address, or by other electronic means, such as through the Admin Console.

(d) Remedies

Customer’s sole and only remedy in case of we are unable to achieve the Availability Objective in a given month will be a service credit calculated as follow.,

Service credits are only available to Customer if Customer is current in its payment obligations. To receive service credits, Customer must submit a written request within fifteen (15) days of the end of the month in which the Civalgo Service was unavailable or Customers' right to receive service credits will respect to such unavailability will be waived.

5. INTERRUPTION AND SUSPENSION OF SERVICES

(a) Urgent Security Issues

Notwithstanding anything to the contrary, we reserve our rights to suspend, with or without notice, part or all of the Services for Urgent Security Issues, including any Accounts involved in such Urgent Security Issue, if applicable.

(b) Suspension to comply with law

We may, at our sole discretion and at any time, suspend the provision of the Services if necessary, to comply with any applicable law.

6. SUPPORT

We provide technical support through a live chat available on our public website, and within the Services. You can also e-mail us at support@civalgo.com. Support requests that require follow-ups and maintenance work are classified per priority. Some requests may be addressed in subsequent releases of our Services, such as minor bug fixes and technical issues with reasonable work arounds. We respond to support requests available during office hours (9AM to 5PM ET), excluding statutory holidays.

7. ORDER FORM; FEES; TAXES

(a) Fees; Payments; Reimbursements

You agree to pay us the fees as described in the Order Form as consideration for our provision of the Services, the whole in accordance with this Article 7 and the payment terms set forth in the Order Form (the “Fees”). All Fees are in American dollars, unless indicated otherwise in the Order Form.

Unless stated otherwise in an Order Form, Customer agrees to pay the Fees within thirty (30) days of the invoice date. After this period, Civalgo shall issue a notice of late payment. If the situation is not resolved within sixty (60) days from the initial invoice date, Civalgo may suspend the Services (or part of the Services) without further notice, and until all past invoices are paid. During such suspension period, Civalgo shall have no obligation to provide Customer with the Services, and until the Fees are paid in full. Notwithstanding the foregoing, we may charge you for the Fees during the suspension period as if the Services were delivered. Upon payment of all due Fees (including any interests as set forth below), Civalgo will resume the performance of the Services.

Any unpaid portion of the Fees past the due date is subject to interests of 1,5% monthly (18% annually). Customer shall be liable for all reasonable costs (including attorney’s fees) that Civalgo may incur to recover unpaid Fees. The foregoing shall not apply if a portion of the Fees is disputed in good faith, including if the matter is submitted to mediation pursuant to Section 22(b) or to arbitration pursuant to Section 22(c).

If payment through direct debit in your bank account or through credit card is authorized as a method of payment for the Fees in the Order Form, you hereby authorize us to debit the Fees from your bank account or credit card, as the case may be, and represents and warrants that you have provided us with accurate and truthful financial information as required for us to debit the Fees in your bank account or on your credit card.

You further represent and warrant that you will inform us without undue delays of any changes to your financial information. You are responsible for any fees resulting from your failure to inform us of such changes, or for the fees engendered by Civalgo if the payment is declined.

Notwithstanding anything to the contrary, Civalgo shall have no obligation to make any payment methods available to Customer, and different payment methods may be available to Customer depending on the terms and conditions on the Order Form. We may change our billing options at any time by advising you through the Admin Console or the Notification Email Address at least thirty (30) days in advance.

Subject to applicable laws, and except if the Services are terminated by you for cause pursuant to Section 21, the Services are non reimbursable, and we have no obligations to refund any Fees already paid by you to us for any reasons whatsoever.

(b) Taxes

If Civalgo is required by law or by administration thereof to collect any applicable taxes from Customer, Customer shall pay such taxes to Civalgo concurrent with and in addition to the  payment of the Fees (and any other financial considerations payable pursuant to these Terms of Services), unless Customer qualifies for an exemption from any such applicable taxes, in which case, Customer shall, in lieu of payment of such applicable taxes to Civalgo, deliver to Civalgo such certificates, elections or other documents required by Laws or the administration thereof to substantiate and effect the exemption claimed by Customer. Where Civalgo is not required by law or the administration thereof to collect applicable taxes, Customer shall pay such taxes directly to the appropriate taxing authority and shall provide evidence of such payment to Civalgo upon request.

Customer shall make all payments under these Terms of Services without any deduction or withholding for or on account of any taxes (“Tax Deduction”) unless a Tax Deduction is required by law. If a Tax Deduction is required by law then (i) where such Tax Deduction relates to any tax other than an income tax imposed on Civalgo’s net income, the relevant amount payable by Customer hereunder shall be increased to the amount that would, following any required Tax Deduction, result in Civalgo receiving the amount that would have been received if no Tax Deduction were required; (ii) Customer shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify Civalgo accordingly and (iii) Customer shall timely remit the amount of such Tax Deduction to the appropriate taxing authorities. Customer will use commercially reasonable efforts to mitigate, reduce, or eliminate any Tax Deduction (including, but not limited to, by taking advantage of any reduced rate of tax provided for by any applicable international agreement for the avoidance of double taxation then in force).

8. RESELLERS

Our Services may be purchased through Resellers. If you purchased our Services through a Reseller, you are required to follow the terms and conditions of such Resellers, including the payment of the Fees in accordance with their payment terms. The terms and conditions of Reseller regarding the Fees shall have precedence with these Terms of Services. Resellers may submit their own Order Form for the Services directly with us. If so, you may only execute Change Orders with the Reseller, and the Reseller will be responsible for provisioning the Services to you. Any other provisions set forth in these Terms of Services shall apply in full force to your use of the Services, with all necessary adaptations.

We are not responsible for any dispute with a Reseller regarding the Fees or the Services. Resellers are not authorized to make any representations or warranties regarding the Services which engage Civalgo. Our only representations or warranties are set forth in these Terms of Services, and the specifications and functionalities for our Services is contained exclusively in our Documentation. Resellers may offer additional representations or warranties that engage them only, and subject to their respective terms and conditions.

You agree and understand that we are not liable for the acts or omissions of Resellers, including their misrepresentations.

9. TERM

The term of these Terms of Services begins upon the Order Form Approval or upon the beginning of the Trial Period and continues for as long as an Order Form is active or for the duration of the Trial Period if no Order Form is signed thereafter (the “Term”).

The subscription term begins on the date stipulated in the Order Form and ends at the end of the time period stipulated in the Order Form (the “Subscription Term”). The Subscription Term shall renew automatically for one (1) year, unless indicated otherwise by either party at least thirty (30) days before the end of the then current Subscription Term (each a “Renewal Term”).  

Notwithstanding anything to the contrary in these Terms of Services, Civalgo may increase the Fees before each Renewal Subscription Term. If Civalgo decides, at its sole discretion, to increase the Fees, Civalgo shall notify Customer at least sixty (60) days before the end of the then-current Subscription Term either (i) by sending an email to the Notification Email Address or (ii) by posting a notice in the Admin Console. Customer may decide to refuse the Fees by not renewing the Subscription Term and advising Civalgo as set forth in this Section 9.

10. FREE TRIAL

In the event that Civalgo agrees to provide you with a free trial of the Services, you will be entitled to use and access the Services for a period of fourteen (14) consecutive days or as agreed otherwise in writing between the parties in an Order Form (the “Trial Period”). For the avoidance of doubt, Civalgo has no obligation to provide a Trial Period to you.

Unless indicated otherwise in the Order Form, no fees will be charged for the Services during the Trial Period. At the end of the Trial Period, and unless the Services are terminated within the Trial Period, the Subscription Term set forth on the Order Form will begin and Fees will be charged based on the payment method set forth in an Order Form.

You can terminate the Trial Period at any time by writing to us at support@civalgo.com, in which case, and notwithstanding anything to the contrary, these Terms of Services will terminate immediately. During the Trial Period, the parties may also modify the Order Form through a Change Order.

To the maximum extent permitted by applicable law, we shall have no liability whatsoever to you or your Representatives, including any loss of profits, special, direct, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services during your Trial Period.

11. INTELLECTUAL PROPERTY

We shall remain the sole and exclusive owner of all right, title, and interest, including all Intellectual Property, in and to the Services (including the underlying technologies and APIs created by us), the Documentation and in our Confidential Information. Customer shall remain the sole and exclusive owner of all right, title, and interest into its Intellectual Property.

Notwithstanding anything to the contrary, Civalgo shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its End Users) to Civalgo, so long as they relate to the Services, and Customer hereby assign to Civalgo, without limitation of any kind, all of its rights, titles and interests therein, Civalgo accepting such assignment. At our reasonable request and expense, you will complete and execute all necessary documents and take such other actions as we may reasonably require in order to assist us to acquire, develop and maintain our Intellectual Property in the Feedback.

CONFIDENTIAL INFORMATION

(a) Exclusions

Confidential information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure, or (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party.

(b) Obligations

The Receiving Party acknowledges and agrees that the Confidential Information is proprietary information of the Disclosing Party, and may constitute Intellectual Property of the Disclosing Party, whether or not any portion thereof is or may be validly copyrighted or patented. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes set forth in these Terms of Services and shall protect such Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own confidential information.

The Receiving Party shall take all reasonable steps necessary to ensure that the Confidential Information of the Disclosing Party is not made available or disclosed by it or by any of its Representatives to any third person except (i) as required by applicable law, including a valid court order; (ii) with the prior written consent of the Disclosing Party or (iii) as authorized or reasonably inferred from these Terms of Services. The Receiving Party will use due diligence to ensure that its Representatives are subject to the same obligations of confidentiality as it does.

The Receiving Party shall not make copies or reproductions of the Confidential Information of the Disclosing Party (in any medium) except as required for the purpose of these Terms of Services (including for backups and business continuity purposes).

(c) Obligation upon Termination

Upon the termination of these Terms of Services for any reason, the Receiving Party shall promptly either return all Confidential Information in its possession to the Disclosing Party or destroy such Confidential Information, at the option of the Disclosing Party.  Notwithstanding the foregoing, the Receiving Party is authorized to keep copies as required to comply with applicable Law, for its corporate records or as part of business continuity, in which case, the Receiving Party shall ensure the confidentiality and integrity of such Confidential Information as long as it is under the Receiving Party custody and securely delete such Confidential Information as soon as reasonably possible.

12. PERSONAL DATA

(a) Collection, Use and Disclosure of Personal Data

You hereby agree and acknowledge that we use, collect and disclose Personal Data in accordance with our Privacy Policy, as amended from time to time.

Each party shall be responsible for complying with applicable law to the collection, use and disclosure of Personal Data. Without limiting the generality of the foregoing, you represent and warrant that you have all proper consents or that you are relying on another legislative basis to allow us to collect, use and disclose Personal Data as set forth in our Privacy Policy, and as required to perform the Services.

We will deploy commercially reasonable efforts to assist you to respond to individual privacy rights requests, such as the right to access or correct Personal Data. If we receive such requests about your End Users, we will advise you without further delay. The parties agree to collaborate in good faith as necessary to respond to such requests in accordance with the law, and as otherwise required to comply with the law.

Civalgo shall deploy commercially reasonable efforts to implement security safeguards adequate to the risks associated with the collection, use and disclosure of Personal Data, taking into consideration factors such as the nature, scope, context and purposes of such collection, use and disclosure.

(b) Security Breach

In the event of a Security Breach, we will notify you without undue delay upon becoming aware of a Security Breach (either through the Notification Email Address or the Admin Console), providing you with sufficient information to allow you to meet your reporting obligations. If all or part of this information is not available at the time of our initial notice, we will follow up as the information becomes available with further notices. We may notify End Users of a Security Breach directly without first obtaining your prior written consent.

13. LICENSES

(a) Licences to Customer Data

You hold all rights, title and interest in and to all Customer Data, provided that you hereby grant us a revocable (but only pursuant to these Terms of Services), fully-paid, non-exclusive, royalty-free, limited and worldwide licence to aggregate, reproduce, distribute, and otherwise use and display the Customer Data as may be necessary for us to provide the Services to you or to exercise our rights and obligations under these Terms of Services.

.

(b) Licences to Reports

The Services may include the provision of reports or similar outputs (each a “Report”). Unless otherwise set forth in an Order Form, Civalgo hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited license to reproduce, print, download and use all such Reports solely in accordance with these Terms of Services and for your and your Representatives’ business purposes. This licence shall survive the Term.

(c) Licenses to the Services

Subject to these Terms of Services, including the payment of applicable Fees, we hereby grant you, for the Subscription Term, a non-exclusive, non-sublicensable, non-transferable, revocable (but only pursuant to these Terms of Services) right and license to access and use (and allow your End Users to access and use) the Services for legitimate business purposes. All rights not expressly granted hereunder are reserved by Civalgo. End Users may only use the Services provided Customer remains liable for its End Users.

14. PUBLICITY

You hereby agree that we may (i) publicly use your name and logo alongside the names and/or logos of other customers on our website, clients lists, proposals, investor presentations and sales presentations; and (ii) that each party will get the prior written consent of the other party before issuing any press release.

You can you can reach us at anytime at support@civalgo.com to withdraw your consent provided pursuant to this Article 14.

15. INDEMNITY

You hereby agree to indemnify us, defend us and hold us harmless (including our Representatives) from and against any and all claims, penalties, fine, cost, expenses (including reasonable attorney’s fees), actions, damages, losses or liabilities directly or indirectly arising out of, related to, in connection with or resulting from: (i) your breach of these Terms of Services; and (ii) your negligence, fraud and willful misconduct.

16. WARRANTIES; REPRESENTATIONS AND DISCLAIMER

We represent and warrant that the Services will be substantially conform to the Documentation and will be performed in a professional manner.

You represent and warrant that all your End Users are at least sixteen (16) years of age to access and use the Services.

Except as provided in these Terms of Services, (i) we do not warrant that the Services will be uninterrupted or error free; (ii) we do not make any warranty as to the results that may be obtained from the use of the Services; (iii) Civalgo is the sole authorized person to make any representations or warranties on its behalf (iv) we do not warrant that the Services will be conform to representations by Resellers that are not compliant with the Documentation (v) the Services are provided on an “as is”, “where is” and “as available” basis; (vi) to the maximum extent permitted by law, we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, quality, reliability or completeness of any outputs or information (including a Report) provided as a by or as a result of using the Services; and (vii) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in these Terms of Services, you hereby waive your rights in any of the foregoing warranties, representations or conditions, whether express or implied.

Customer is solely responsible for the accuracy, truthfulness and quality of Customer Data and any content or information directly or indirectly delivered through or passed through the Services by Customer (or its End Users). We exercise no control over and accept no responsibility for the accuracy, truthfulness and quality of Customer Data, including, without limitation, violations of Intellectual Property, applicable law and privacy rights.

You acknowledge and agree that any outputs (including Reports) produced by or obtained from the Services (or the use thereof) are for informational purposes only. We do not have any liability whatsoever for business decisions resulting from such outputs. You must ensure the outputs are accurate and consistent.

We do not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Services. Accordingly, (a) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services and (b) we cannot guarantee the privacy or security of wireless data transmissions.

No other oral advices, written or electronically delivered information given by us or our Representatives shall create any warranty.

The Services may contain Third Party Services. We are not responsible neither do we endorse Third Party Services. You are responsible for reviewing the terms and conditions as well as the privacy practices of Third-Party Services and, where applicable, for obtaining your licenses and accesses to their services, applications or technologies.  

17. LIMITATION OF LIABILITY

To the maximum extent permitted by law, neither party shall be liable to the other party or its Representatives for any loss of profits, or special, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services, or the performance of any other obligations under these Terms of Services, even if a party is aware of the possibility of occurrence of such damages.

Notwithstanding anything to the contrary, to the maximum extent permitted by law, our total liability to you for any damages arising out or in connection with these Terms of Services, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by you pursuant to  an Order Form during the twelve (12)-month period preceding the event which gave rise to such damages.

18. FORCE MAJEURE

Civalgo shall not be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”). Notwithstanding anything to the contrary, the parties agree and acknowledge that pandemics such as COVID-19 shall be considered Force Majeure.

Any delay resulting from a Force Majeure will result in an extension of the corresponding obligation for a period equal to the time lost by reason by such cause. For instance, if the Services are unavailable for a period of two (2) weeks as a result of a Force Majeure, then the Subscription Term shall automatically be extended by two (2) weeks.

In the event of a Force Majeure, Civalgo shall advise Customer within five (5) days of the event of Force Majeure, providing Customer with details and justification of the Force Majeure. Customer agrees and understands that Article 1591 of the Civil Code of Quebec regarding the exception for non-performance is not applicable, and Customer shall continue to pay invoices are usual during a Force Majeure, although no additional fees with be required for the extension of the Subscription Term.

19. EXPORT CONTROL; ANTI-CORRUPTION

Each party shall comply with all applicable anti-bribery and anti-corruption Laws, including, without limitation, the Canadian Corruption of Foreign Public Officials Act and the U.S. Foreign Corrupt Practices Act of 1977, as amended (“Anti-Corruption Laws”). Neither party or its Representatives is or has been the subject of any investigation or inquiry by any authorities with respect to potential or actual violations of anti-bribery Law. If a party has been subject to such investigation or inquiry, it represents and warrants that it has not been found in breach of applicable law and that no charge has been retained against this party.  Notwithstanding anything to the contrary, if either party takes any action that could constitute a violation of Anti-Corruption Laws, the other party may immediately terminate this Agreement.

Customer acknowledges that the Services may be subject to Canadian and United States export laws, statutes and regulations and to export laws, statutes and regulations of other countries, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder.

Customer represents and warrants that neither it nor any of its Representative will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto, directly or indirectly, to any country for which the competent authorities (including the Canadian and United States governments entities) require an export license, other governmental approval or letter of assurance, without first obtaining such license, approval or letter, including, without limitation, any countries on Canada’s Area Control List or subject to the Canadian Economic Sanctions.

Customer represents and warrants that neither it nor any of its Representatives will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto for an end-use that is directly or indirectly related to the research, development or production of chemical, biological, or nuclear weapons or any missile programs for such weapons, or that otherwise disrupt international peace or is contrary to any restriction on end users set for in applicable law.

20. TERMINATION

(a) Termination

Either party may suspend or terminate the Terms of Services (or an Order Form, if there are more than one active) for cause (i) upon a thirty (30) day prior written notice of a material breach of the Terms of Services to the other party, if such breach remains uncured at the expiration of such period; (ii) immediately upon a written notice if

A) Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors

B) Customer refuses a modification to these Terms of Services as further described under Section 2(b);

C) Customer or an End Users commits an Abuse as described under Section 3(a), if Civalgo has conducted a reasonable inquiry confirming that the Abuse was committed;

For greater precision, if an Order Form is terminated and no other Order Form is active, these Terms of Services shall also be terminated.

Customer hereby irremediably and expressly renounce to articles 2125 and 2126 of the Civil Code of Quebec.

We may terminate these Terms of Services without cause subject to a ninety (90) days written notice to you.

If the Services are terminated for any reason, Customer agree to pay to Civalgo, in proportion to the agreed Fees in the Order Form, the actual work performed up to the termination date of the Terms of Services (or the relevant Order Form).

(b) Effects of Termination

If these Terms of Services are terminated for any reason or expire, then: (i)  except as otherwise set forth in these Terms of Services, the rights granted by one party to the other shall terminate immediately; (ii) you shall have a limited access to the Services for a limited period of thirty (30) days during which you may extract your Customer Data;; and

The provisions of Sections 1, 7, 10, 11, 12, 13, 14, 15, 16, 17 and 21 hereof will survive the Term or the termination of these Terms of Services for any reason.

21. GOVERNING LAW; DISPUTE RESOLUTION

(a) Mediation

Any dispute between the parties arising from the application or interpretation of the Terms of Services that is not resolved within thirty (30) days from a written notice of dispute being given by one party to the other party shall be referred to mandatory mediation. The parties must participate in good faith in at least one (1) mediation session by delegating a person in authority to participate. The mediator shall be selected jointly by the parties acting reasonably. The mediation shall be conducted in French or English in the City of Montreal, Province of Quebec, or through electronic means as agreed upon between the parties. The parties shall be responsible for their own costs relating to the mediation and shall share equally the other costs associated with the mediation, such as professional fees.

If the Parties settle the dispute through mediation, they shall jointly draft a document setting out the terms of such settlement. This document, once signed, will be irrevocably binding on the parties, and may be subject to homologation by a competent court in Montreal, Quebec, Canada.

(b) Arbitration

Subject to the mediation provisions set out above, if any dispute, controversy or claim arising out of or relating to these Terms of Services including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of arbitration shall be Montreal, Québec, Canada (unless agreed otherwise in writing between the parties). The language of the arbitration shall be French or English, at the parties’ choice. There shall be a sole arbitrator selected jointly between the parties, or if the parties cannot agree, by a judge of the Superior Court of Québec, in Montreal, Quebec, Canada. The arbitrator shall have at least five (5) years of experience in commercial law and in the field of technology such as software-as-a-service.

The arbitrator must select its award from one of the final offers made by each of the Parties, in its entirety and without modification. The arbitrator must provide detailed reasons for its award. An oral hearing need not be held, and the parties may submit their observations in writing. There will be no appeal from the decision of the arbitrator on questions of fact, law or mixed fact and law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. The costs of the arbitration shall be divided equally between the parties, and each party shall bear its own costs of representation. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

The arbitration proceedings and awards shall be considered Confidential Information.

(c)  Governing Law

The validity, construction and performance of these Terms of Services and the legal relation between you and us shall be governed by and constructed in accordance with the Law of Quebec, Canada, and the federal law applicable therein, without giving effect to any choice or conflict of law provision or rule (whether in Quebec or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Quebec, Canada. Specifically excluded from application to the Terms of Services is that law known as the United Nations Convention on the International Sale of Goods.

22. GENERAL PROVISIONS

The waiver of a breach of any provision of these Terms of Services will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of these Terms of Services is in violation of any law, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. These Terms of Services describe the entire understanding of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.

We may assign these Terms of Services, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign these Terms of Services, or part of it, to any other person without our prior written approval, which shall not be withheld unreasonably. Any attempt by you to assign these Terms of Services without our consent is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.