Eudonet SaaS General Terms and Conditions of Use

These general terms and conditions for use of the EUDONET Software as a Service (“SaaS”) services (hereinafter the Terms of Use noted as “TOU”) are applicable to the Client at their date of entry into force and replace any previous version.
Eudonet Canada Inc. is a Quebec incorporated company having its head office at 7236 Rue Waverly, office 222, Montreal (Qc), H2R 0C2, registered with Companies Register of Quebec under number 1165581589.
Eudonet is a service offered by EUDONET CANADA INC. The purpose of this service is to make CRM solutions available through the INTERNET network, in a secure space.
The purpose of these TOU is to set forth the Parties’ rights and obligations in relation to accessing the Services and/or using the Software. Access to the Services and/or use of the Software implies knowledge of these TOU and constitutes irrevocable and unreserved acceptance hereof.

1.DEFINITIONS

“Administrator” means a person with authorised access to administrative functions who is appointed by the Client from among its Users to be responsible for authorisation and access management in connection with the Software.
“Agreement” means these TOU, the quote, any future supplements thereto, and the purchase order.
“Anomaly” means, according to the maintenance service subscription, a software malfunction that EUDONET can reproduce and that prevents the Software from being used as provided in the Documentation.
“Client” means a natural or legal person who enters into an Agreement with EUDONET to access the Services and/or use the Software.
“Documentation” means the user manuals, features guide, and operating instructions for the Software. The Documentation is available in electronic form in the English language. All other documentation, including any commercial documentation and training materials, is excluded from the scope of this Agreement.
“Malfunction” means any difficulty in accessing the Operating Platform that EUDONET detects.
“Operating Platform” means the hardware, Software, operating system, database, and environment provided by EUDONET for use of the Software.
“Purpose” means the purpose for which the Software was designed.
“Services” means the services provided by EUDONET in relation to the Agreement.
“Software” means all the features of one or more standard programs and the corresponding Documentation, designed to be made available to multiple users for the same use.
For the purposes of these TOU, Software means:

• The standard version provided by EUDONET at the time of signing the quote, personalisation or specific developments;
• Any subsequent updates.

“User” means a user authorised by the Administrator to access the Software in accordance with this Agreement.

2.PURPOSE

The purpose of these TOU is to set forth the terms and conditions of accessing the Services, as well as those relating to corrective maintenance of the Software during the subscription term and to phone support for trained Administrators.

3. ENTRY INTO FORCE – TERM – RENEWAL

The Agreement will be in effect for a period of one (1) year from the date of the first invoice provided to the Client, unless otherwise provided herein. The Agreement will automatically be renewed for successive twelve (12) month periods on each anniversary date, unless one of the Parties terminates it by sending a registered letter with proof of delivery no less than three (3) months before expiry of the term in progress (hereinafter, the “Term”). The Client expressly renounce to the application of articles 2125 and seq of the civil code of Quebec.

4. TERMS AND CONDITIONS OF SOFTWARE ACCESS

The Software can be accessed through the internet only and requires the Client to connect to the internet at the address provided.
The Client shall be solely responsible for their internet connection and liable for any charges associated therewith, including telecommunications fees.
The number of Authorised Users will be equal to the number of subscribers identified on the purchase order. Each User will have his or her own user name and password. The Administrator shall be responsible for access management, including:

• Creation of User accounts and corresponding user names (up to the number of Users provided in the Agreement);
• Removal and modification of user names;
• Management of security rules and access rights for each User.

5. OPERATION AND USE OF THE SOFTWARE

Access to the Services for each User:
Because the Client determines who may access the Software, EUDONET may not be held liable for any loss or damage resulting from access to the Software by a User or a by a third party not designated by the Client.
The Client undertakes, in its own name and in the name of and on behalf of the Users it will designate, to notify EUDONET immediately of any use of the Software access codes that it considers fraudulent.
EUDONET undertakes to ensure the perennity, continuity, and quality of the Services in keeping with the provisions of this Agreement.
In the event of an incident on the network, EUDONET undertakes to use all means at its disposal to restore access to the services as soon as possible.
EUDONET reserves the right to temporarily interrupt all or part of the Services for technical reasons by providing four (4) calendar days’ notice thereof. Where possible, scheduled interruptions will be programmed to take place outside business hours (9:00 am to 5:00 pm, Montreal time). In no case may an interruption exceed four (4) consecutive hours during business hours. Routine operations and maintenance procedures (backups, software updates) generally do not require any interruption of the Services. The EUDONET equipment is designed to operate twenty-four hours a day, seven days a week (24/7).
EUDONET reserves the right to change the Software features at any time.
In keeping with the rules of physical and logical security in effect on the date on which the quote was signed, EUDONET shall ensure protection of the entirety of the Operating Platform, including output data, processing operations, transmissions, and backups carried out on the Operating Platform. The aforementioned security rules are available from EUDONET upon request.
EUDONET shall allocate the Client up to 1 GB of disk space per User. Beyond this amount, supplementary billing will be carried out at the current rate.
EUDONET shall also allocate the Client a maximum of 100,000 emails per year on the EUDONET SMTP platform. Beyond this amount, supplementary billing will be carried out at the current rate.

6. SOFTWARE USAGE RIGHTS

EUDONET grants the Client the right to use the Software throughout the Agreement Term.
The Client agrees to use the Software in accordance with the provisions of this Agreement and with the requirements and instructions for use, security, and operation set forth in the Documentation provided to the Client. The Client shall use the Software for its intended purpose, solely for the Client’s own needs, and in keeping with the indicated number of Users.
The Client undertakes to request a supplementary quote from EUDONET if they need to create more User accounts than the number provided in the Agreement. Should EUDONET discover that the maximum number of Users as provided in the Agreement has been exceeded; the Client shall automatically become liable to EUDONET for an extra charge at the rate in effect at such time.
The Software is protected by the provisions of the Intellectual Property Code on copyright as well as international treaties on the subject. The Client acknowledges that it must handle the Software as it would any other item subject to copyright.
In particular, it is prohibited for the Client:

• To use the Software or Documentation in any way whatsoever for the purposes of designing, producing, distributing, or marketing a Software or a similar, equivalent, or substitution Software;
• To directly or indirectly make the Software or the Documentation available to a third party, including by rental, sale, loan, or free of charge, or to entrust it to any provider whatsoever for the purposes of outsourcing, without EUDONET’s prior written agreement;
• To use the Software for any operation not authorised by EUDONET.

7. INTELLECTUAL PROPERTY

EUDONET declares that it holds all the necessary intellectual property rights for entering into this Agreement.
The usage rights that EUDONET grants the Client under this Agreement do not include any transfer of intellectual property to the Client.
Accordingly, the Client shall refrain from any act, which may have the purpose or effect of directly or indirectly affecting the rights of EUDONET on the Software, which is protected by the Code of Intellectual Property.

8. INFRINGEMENT WARRANTY

In the event of any claim that the Software infringes upon an intellectual property right, EUDONET may, at its choice and expense, replace or modify all or any part of the Software or obtain a licence to enable the Client to use the Software, provided that the Client has complied with the following conditions:

• the Client has accepted and performed all of its obligations under the Agreement and its payments are up to date;
• the Client notified EUDONET of the infringement action or the declaration that preceded it within a period of eight (8) days, by registered mail with proof of delivery;
• EUDONET is able to assume sole control of the defence of its own interests and those of the Client, which necessitates that the Client collaborates loyally with EUDONET by providing all necessary information and assistance for properly carrying out such a defence.

If none of these measures would be reasonably possible, EUDONET may unilaterally decide to terminate the Agreement and, in that case, shall compensate the Client by reimbursing the payments made over the last twelve (12) months preceding the Notice of Termination.
This section sets forth the entirety of the liability assumed by EUDONET in respect of infringement by the Software or any other product or Service provided by EUDONET.

9. PHONE SUPPORT – MAINTENANCE – TECHNICAL SUPPORT

Throughout the Agreement Term, corrective and technical updates to the Operating Platform will be provided and installed for the Client. EUDONET shall also provide the Client with phone support and maintenance services for the Software (hereinafter, the “Services”).
As part of this Agreement, EUDONET shall make a team of support consultants available to the Client to provide technical and operational support for the Software.
With the exception of holidays and exceptional days of closure for EUDONET, and excluding cases of force majeure as defined herein, the support team’s hours are from 9:00 am to 5.00pm Monday to Friday. EUDONET reserves the right to vary these times and shall notify the Client of any new support hours by the means of its choice.
The Services are limited to:

• Access to phone support for assistance given to the trained administrator in using the Software or for handling Anomalies only. The number of calls is not limited.
• Updating the Software subject to the provisions of this Section;
  EUDONET shall unilaterally determine the need for an update in accordance with legal or technological developments;
  EUDONET shall install Updates directly on the Software, and updates may, as the case may:
  • Correct Anomalies, and/or
  • Improve existing features.

The following is expressly excluded from the Services provided by EUDONET under this Agreement:

• Use of the Software that is not in compliance with the Documentation, usage guidelines, or Purpose of the Software, and any abnormal use whatsoever (including negligence, operator error, accident, etc.);
• Any work or supplies not expressly mentioned in this Agreement, including telephone training for the Client’s employees;
• Any compatibility issues between the Software and any of the Client’s equipment, or any failure of such equipment;
• Provision of a telecommunications network allowing access to the Software;
• Any compatibility issues between the Software and the telecommunications networks;
• Any failure of a component of the Client’s software environment (operating system, other software or Software, network operating systems/networks, etc.);
• Any general non-compliance by the Client with its obligations under this Agreement or under any other Agreement entered into with EUDONET.

10. ADDITIONAL SERVICES

This Agreement does not cover any additional services recommended by EUDONET or requested by the Client to meet its specific needs. As such, advisory services, training, and consulting, for example, will be subject to a separate Agreement between the Client and EUDONET.
Likewise, phone support for users other than the administrator will be subject to a separate agreement between the Client and EUDONET.

11. COLLABORATION

To enable provision of the Services, the Client agrees, inter alia:

• To refer to the Documentation before each support request;
• To make available to EUDONET any necessary information that EUDONET may request to understand and resolve Anomalies;
• To designate a competent representative from among its members to be in charge of handling Anomalies, and to ensure that this person is available during any EUDONET intervention;
• To facilitate access for EUDONET personnel to all its equipment where necessary, to provide EUDONET personnel with open access to the premises, and to inform EUDONET of the appropriate resource person;
• To install and administer its equipment and applications that are not provided by EUDONET, as well as its networks.

12. FEES

The initial fee that the Client will pay to access the Services will be determined in the quote on the basis of the number of Users that the Client designates and the options chosen mutually as part of this Agreement.
Upon each renewal of the Agreement, EUDONET shall review the amount of the annual fee by applying the rate of consumer price index rounded to one decimal place plus 3 percentage points, based on the average of the consumer price index of Québec province publically available over the entire period since the last price revision applied by the Supplier. In the event that said inflation rate is negative, the increase in the fee will be a minimum +3%.
Prices may also vary with changing economic circumstances. EUDONET shall notify the Client of any pricing change by post or email not less than four (4) weeks prior to application thereof.

13. PAYMENT TERMS

Invoices will be issued annually and will be payable within thirty (30) days by bank transfer.
It is expressly agreed that, in the event that multiple invoices are payable and the Client makes a partial payment, EUDONET will be free to allocate that payment as it sees fit, notwithstanding any indication by the Client to the contrary.
In the event that invoices are not paid by the due date, any overdue payments will give rise, without notice, to the billing of late payment interest, calculated per day of delay using the interest rate applied by the Bank of Canada to its most recent refinancing operation plus 10 percentage points.
This interest will run from the day following the payment due date until the day that payment is made.
Furthermore, in the event of late payment by the Client, a lump sum of forty canadian dollars excluding taxes ($40) for recovery costs will be payable, ipso jure, by the Client. Additional compensation will be sought by EUDONET, in the event that the recovery costs actually incurred are higher than the amount of the aforementioned lump sum.
The license fee and all other payment amounts herein are indicated excluding TPS and TVQ, customs duties, withholding taxes, or any other applicable taxes, which are at the Client’s expense. If any withholding tax, customs duties, or import taxes apply, the Client shall pay these taxes to the appropriate tax authorities and shall voluntarily provide EUDONET with proof thereof.
In addition, and without prejudice to EUDONET’s right to seek damages by any means offered by law or to terminate the Agreement, if the outstanding payment has not been made within thirty (30) days of the due date and where a notice to remedy has remained without effect, EUDONET reserves the right to suspend its obligations under this Agreement, including by suspending access to the Software, until full payment of the principal, penalties, Service restoration charges, and interest charges has been received.
The Client will be charged Service restoration fees calculated on the basis of the rate in effect at the time of such restoration. As a guide, the Service restoration fees are currently in the form of a flat fee of one thousand Canadian Dollars (1000 $) excluding VAT. Suspension of the Services does not affect the monthly fees owed for that period. The Services will resume as soon as the reason for suspension thereof has been remedied, with no extension to the period underway at that time.
No compensation may be made without EUDONET’s prior written agreement.

14. TERMINATION

14.1. Termination by the Client

In the event that the Customer wishes to terminate part of the Services, the new amount of the fee will be taken into account during its next renewal at the new applicable rate. For this, partial termination must be notified by registered letter with acknowlednt of receipt at least three (3) months before the expiration of the current period.

14.2. Termination for breach
In the event that a Party breaches a material obligation of this Agreement and does not remedy it within thirty (30) calendar days from the date on which the first notice of the breach and the associated risk of termination was sent by registered mail with proof of delivery to the address indicated by that Party, the other Party may terminate the Agreement by sending a registered letter with proof of delivery, without prejudice to the damages that the non-breaching Party may claim under the Agreement (hereinafter, the “Notice of Termination”).
Termination will take effect on the date when the Notice of Termination is received, at which time all Client access to the Services will be suspended immediately.
Termination or the end of this Agreement for any reason whatsoever will not give rise to reimbursement of any amounts received by EUDONET.

15. ACCESS TO SOURCE CODES

In the event of EUDONET’s bankruptcy or insolvency, the Client reserves the right to request access to the source code for the programs that EUDONET owns, which are filed with the APP (Association pour la Protection des Programmes) in France.

16. BACKUP OF CLIENT DATA AFTER TERMINATION

In the event that the Client or EUDONET terminate this Agreement for any reason whatsoever, the Client may request that its data be backed up on a storage device of EUDONET’s choosing or sent by email. The backup will be carried out within the time limits and at the rates in effect for this service, except if the Agreement is terminated due solely to EUDONET’s failure to ensure the proper functioning of the Services.
At the Client’s express request, EUDONET undertakes to clear and remove from its system all data belonging to the Client. Such removal will take place within 10 days of the Client’s request.
If the Client does not make an express request to this effect within one month of termination, EUDONET will be free to erase the data if and when it chooses, without notice to the Client.

17. LIABILITY

17.1. Client’s Liability
The Client and the User undertake to abide by the regulations on intellectual property, protection of personal information, and privacy and to comply with all regulations in force.
The Parties acknowledge that the Client alone has the ability to control and see the information transmitted over the Operating Platform.
The Client warrants that it holds all usage and distribution rights in the territory for all information and data to be hosted by EUDONET and that it is solely liable for the consequences of making such information and data publicly available.
The Client may not include any illegal items in the data hosted by EUDONET, including, for example, any defamatory or racist content, or any undisclosed personal information.
In the event that a judicial authority finds a breach or issues an injunction to remove objectionable content, EUDONET may take any necessary measures to remove such content or to prevent access thereto without the Client’s prior consent. In such case, EUDONET must simply inform the Client, before or after. EUDONET shall inform the Client immediately if it receives any informal complaint or formal notice from a third party that the content is illegal or causing it harm.
If it appears to EUDONET that data hosted on behalf of the Client is clearly illegal, EUDONET may take all necessary measures to remove access or prevent access to the contentious content and will inform the Client thereof.
The suspension or interruption of access to the content for the above reasons will not entitle the Client to any compensation from EUDONET.
Furthermore, the Client will be liable to EUDONET for full payment of the agreed-upon fees throughout the suspension or interruption period.
In all cases, the Client absolves EUDONET of any financial or other consequences of any remedy, legal action, and, a fortiori, any conviction to which EUDONET may be exposed for hosting illegal data for the Client as part of this Agreement.

17.2. EUDONET’s liability
Within the limits of the applicable law and regardless of the cause, EUDONET may not be held liable for any direct or indirect damage whatsoever (including commercial or financial harm or operating losses that could affect the Client or User, or any loss of data) that arises from an inability to access the Services or a use made of the Services. EUDONET’s liability cannot be engaged in the event of Force majeure or other events beyond its control.
EUDONET nonetheless undertakes to take all reasonable measures to ensure data integrity, including through:

• Systematic use of most recent versions of antivirus software;
• Disk mirroring (information is replicated in real time onto multiple hard disks to ensure that a failure of one disk does not interfere with the continuous availability of the Services);
• Daily backup of data;
• Regular testing of restore procedures.

EUDONET may not be held liable for any legal action brought against the Client or the User due to illegal use of the Software.
EUDONET is subject under this Agreement to an obligation of means and will not be held liable for any delay in the performance of the Services.
Furthermore, EUDONET’s liability may not be engaged in the event of a misapplication of operating advice provided by the support team, a failure to apply such advice, or an application of advice from a source other than EUDONET.
In no case may EUDONET be held liable toward third parties for any indirect harm, including operating losses, commercial losses, loss of goodwill, loss of orders, business disturbances of any kind, loss of profit, or damage to brand image.
Other than infringement actions, any legal action brought against the Client by a third party constitutes an indirect loss, and as such cannot give rise to compensation.
If a final decision of a competent court should find that EUDONET’s liability has been engaged in connection with this Agreement, any compensation that could be claimed against EUDONET would be expressly limited to the amount of the fees collected by EUDONET for provision of the Services for the six (6) month period that is underway at the time when the harm occurred.
The Parties expressly agree and the Client accepts that the provisions of this Section will continue to apply even in the event of termination of this Agreement as evidenced by a final court decision.
These provisions establish the sharing of risk between EUDONET and the Client. The price reflects this risk sharing and the aforementioned limitation of liability.

18. DECLARATION

The Client declares that it understands the nature and limitations of the internet, and acknowledges:

• That the technical dependability of internet data transmissions is relative. The heterogeneous networks over which data circulates have varying features and technical capacity and can become saturated at certain times of the day;
• That certain networks may rely on specific agreements and be subject to access restrictions that do not allow access to the Software.
• That the Software’s users may be located around the globe, and that the Software content can be reproduced, represented, or generally distributed without geographical limitation;
• That data transmitted over the internet is not protected against potential misappropriation and that the Client therefore shares any passwords, confidential codes, and any other sensitive information at its own risk;
• That making the Software content available of to the Users can lead to unauthorised third-party corruption despite EUDONET’s provision of password-protected access.

19. TECHNICAL PROTECTION MEASURES

The Client understands and expressly agrees, subject to the applicable legal provisions, that:

• The EUDONET Software contains technical features (cookies or other) that allow the Client’s identifying information (IP address) to be sent to EUDONET via a web service, either automatically or at EUDONET’s initiative, when the Client is connected to the internet and using certain Software;
• EUDONET may use the information it obtains through such technical features to help combat counterfeiting by identifying and preventing potentially illegal or non-compliant use of the Software.

20. FORCE MAJEURE

Either Party will be fully released from liability if its partial or complete failure to perform the obligations to which it is bound is the result of a force majeure defined by article 1470 of the C.c.Q.
In cases of force majeure, performance of the Agreement will first be suspended and the Parties shall meet to determine the terms of the potential continuation of their relationship.
If the event of force majeure lasts for more than one (1) month, the Agreement will be terminated automatically unless otherwise agreed by the Parties.

21. OTHER PROVISIONS

21.1. Changes to the TOU
EUDONET reserves the right to amend the TOU at any time. Any amendments will enter into force and apply to all Clients and Users as of the date on which EUDONET notifies the Administrator thereof.

21.2. Confidentiality
All data belonging to the Client and managed by the Services is and remains the property of the Client. EUDONET undertakes to keep such data confidential and to refrain from making any copy thereof other than as technically required for backup purposes. EUDONET undertakes to refrain from using the data in any way other than for statistical purposes or to perform its obligations under this Agreement.
The Client undertakes to keep all documents, data, and information concerning the services provided by EUDONET under this Agreement strictly confidential.

21.3. Waiver
The failure of either Party to prosecute a breach of any obligation of this Agreement may not be construed thereafter as a waiver of such obligation.

21.4. Transfer
The Client may in no way assign, sub-license, sell, or transfer in any other way its rights under this Agreement without EUDONET’s prior written consent.

21.5. Whole agreement
This Agreement expresses the full obligations of both Parties.
In the event of a difference of interpretation between a heading and the clause to which it refers, the headings will be deemed to be non-existent.
No general or specific term or condition contained in the documents provided by the Client forms a part of this Agreement, nor may it contravene or change the scope hereof, with the exception of any additional Client orders accepted by EUDONET.
Except as specifically stipulated herein, the Agreement may only be modified by way of a written amendment duly signed by the persons authorized or mandated by the Client and EUDONET.

21.6. Invalidity
If one or more provisions of this Agreement are held or declared to be invalid under a law or regulation or following a final decision of a competent court, the other provisions will retain their full scope and effect and the Parties agree that they will cooperate to draft a similar provision that removes the invalid aspect of the previous one.

21.7. Commercial use
EUDONET may use the Client’s name and logo to promote the Software.

21.8. Brand
Eudonet CRM, Eudonet Contacts, and Eudonet Presse are registered trademarks belonging to EUDONET. The Client and the User agree not use or distribute them in any way whatsoever without EUDONET’s express authorisation.

21.9. Notice
To be valid, all notice must be given by registered mail with proof of delivery to the address indicated in this Agreement.

21.10. Non-solicitation
Without prejudice to any damages, the Client undertakes to refrain from hiring any EUDONET contributor during the Agreement Term and for a period of two (2) years from expiry of the final agreement.

21.11. Data protection and freedom
All personal information regarding the Client or the User that is gathered in the context of this Agreement is subject to the provisions of the Act Respecting The Protection Of Personal Information. The Client may also request that such information not be provided to third parties by sending EUDONET an email to this effect.

21.12. Applicable law and jurisdiction
This Agreement shall be governed by and construed in accordance with Quebec Province or, lack thereof, under the applicable laws of Canada. The parties hereto agree to submit to the exclusive jurisdiction of the Quebec Province Courts, in the Montreal jurisdiction district, in Canada.
In the event of a dispute and following an attempt to reach an amicable settlement, this Agreement is governed by the laws of Quebec Province and the Customer and Eudonet Canada Inc. both agree that the courts of the Quebec Province Courts, in the Montreal jurisdiction district, in Canada will be the only courts that can decide on legal disputes or claims about this Agreement.