Last updated on April 3 2023
This Agreement intervenes between BF SOFTWARES TECHNOLOGIES INC. (“InputKit”) and yourself (the “Client”) on the Effective date and contains the terms and conditions governing the provision of the Services. InputKit and the Client are hereinafter referred to collectively as the “Parties” and individually as a “Party”.
By registering for the Services and their use thereafter, the Client (i) acknowledged having read and understood this Agreement; and (ii) unconditionally agrees to be subject at all times to the terms and conditions of this Agreement.
InputKit reserves the right, at any time and at its sole discretion to change, add or remove portions of Agreement. It is the Client’s responsibility to periodically check the terms and conditions of services published online by InputKit for changes. The Client is deemed having accepted any changes to this Agreement by its continued use of the Services following the posting of such changes.
1.1. Definitions. The expressions contained hereinafter shall have the following meaning:
“Account” means the customer space made available to the Client by InputKit as part of the provision of Services.
“Effective Date” means the date of formation of the contract between InputKit and the Client by the acceptance and signature of the quote.
“Term” means a one (1) year period, renewable, starting form the Effective Date, that being whether the payment is yearly or monthly based on the payment conditions proposed by InputKit.
“Agreement” means these terms and conditions of services, as amended from time to time as provided herein.
“Confidential Information” means any information, in any form or medium, relating to the Parties that (i) was marked as confidential; or (ii) any reasonable businessperson should conclude should be considered confidential, including without limitation, specifications, drawings, plans, drawings, data, software, prototypes, prices, Intellectual Property or any other commercial or technical data.
“Services” means any products and services of InputKit to which the Client subscribes, the whole as indicated in its Account.
“Solution” means any version of the automated customer satisfaction tracking solution designed and developed by InputKit and marketed as InputKit™, including each of its components, source code, upgrades, updates, and all documentation related to its use.
“Intellectual Property” shall mean all intellectual property assets of InputKit, including, without limitation plans and drawings, know-how, working tools, documentation, trade secrets, copyrights (including copyrights in software, documentation, and source code) and any other intellectual property rights of a similar kind in any part of the world whether registered or not. Without limiting the generality of the foregoing, the Client acknowledges that the Intellectual Property includes the Solution and all of its components.
2.1. InputKit agrees to provide the Services to the Client, who accepts them, all in accordance with the terms hereof.
3. PRICE AND PAYMENTS
3.1. InputKit will invoice the Client for the Services according to the prices (plus applicable sales taxes) and within the time periods indicated in its Account, or according to any other written agreement between the Parties. Amounts so invoiced shall be payable (i) within 15 days of receipt of any invoice (NET 15 days); (ii) or according to the payment terms indicated in the Client’s Account if applicable. Any unpaid balance after this period will bear interest at the annual rate of 12%. InputKit may revise the price of the Services upon any renewal.
4. OBLIGATIONS OF THE PARTIES
4.1. InputKit undertakes to provide the Services according to industry best practice within the deadlines provided for in the schedule established with the Client.
4.2. The Client undertakes to fully cooperate with InputKit throughout the Term, in particular to provide access to the internal tools necessary for the provision of the Services and the full cooperation of its staff.
4.3. Access to the Account. The login credentials are for the Client internal use only and InputKit shall not be not responsible for unauthorized access to the Account. The Client is solely responsible for all activities that occur under its Account, regardless of whether the activities are authorized by or undertaken by the Client, its employees or a third party as the case may be.
5. TERM AND TERMINATION
5.1. This Agreement will enter into effect on the Effective Date and will remain in effect for the Duration. This Agreement will be automatically renewed for additional period(s) of the same duration unless (i) the Client sends InputKit notice of nonrenewal no later than 30 days prior to the expiration of the initial term or any subsequent renewal; or (ii) the Agreement is terminated in accordance with the provisions hereof (the “Term”). For the purposes of clarity, if the Client has not committed to use the Services for a specified period, the Parties may at any time terminate the Agreement by sending a 30-day notice to this effect.
5.2. The termination of the Agreement before the end of the Duration shall be solely permitted in one of the following situations :
a) following a specific agreement to that effect between InputKit and the Client;
b) without limited the exercise of other rights, at all times, in case of a default caused by the non-respect of one or another section of the present Agreement by one Party, if the faulty Party is advised of the default in writing and the default has not been corrected within a 30 days period after sending the written notice to that effect. The notice shall indicate the nature of the default and the intention of the Party to terminate the agreement if the defaulting Party refuses or fails to correct the defect within that period.
c) at all times by one Party, without further notice, if one Party (i)makes an assignment of their property in favor of their creditors or proceeds to a liquidation of their property; (ii) files a petition for voluntary bankruptcy, or if a petition for bankruptcy is brought against them and a final judgment is rendered pronouncing their bankruptcy; (iii) is appointed a receiver or administrator to administer their property; or (iv) liquidates their business or all or a substantial part of their assets or dissolves their legal personality other than as part of a corporate reorganization.
5.3. In the event of the termination of the Agreement by InputKit under Section 5.2 above, the Client agrees to pay InputKit, as a penalty, an amount equivalent to the lesser of (i) 12 monthly instalments and (ii ) the balance of the instalments due until the expiry of the Term. This penalty is payable on the date of termination.
5.4. The Client (i) expressly waives his unilateral right of termination provided for in article 2125 of the Civil Code of Quebec; and (ii) acknowledges and agrees that the installation and configuration fees of the Solution, as well as the InputKit Solution fees, as indicted in the quote and accepted by the Client’s signature, are non-refundable.
6. SUSPENSION OF SERVICES
6.1. In the event of a default of the Client with regards to its obligations hereunder, including the default of any monetary obligations, InputKit may, immediately upon simple notice, suspend, in whole or in part, the provision of the Services or access to the recurring or ongoing Services, such as hosting or technical support. In the event of such suspension, the Client remains liable for all costs incurred during the period of suspension.
7.1. The Client acknowledges that part of the value of InputKit’s business rests in good part on the qualified workforce it is able to provide to all of its customers and that solicitation, or employment as the case may be, of one of such person by the Client would cause InputKit significant damage. As such, the Client undertakes not to, directly or indirectly retain the services or employ an employee or subcontractor of InputKit, or otherwise cause such person to terminate its employment with InputKit, and this for the Term and a 24-month period thereafter.
8.1. The Parties acknowledge that all Confidential Information disclosed during the Term is, and remains indefinitely, the exclusive property of the transmitting Party and that any unauthorized disclosure may cause serious harm to the transmitting Party. Without limiting the generality of the foregoing, each Party undertakes, during the Term and for an indefinite period thereafter (i) to use the Confidential Information solely for the purposes for which it was disclosed; and (ii) not to allow a third party to have access to the Confidential Information unless such disclosure proves necessary to achieve the purpose of its disclosure.
8.2. The obligations contained in this Section 8 do not apply to any information (i) for which a Party can reasonably demonstrate that it has become generally available in the industry or the public, without fault or gesture on its part; or (ii) which is the subject of an order from a court, tribunal or government authority in the course of any legal or administrative procedure or under the law compelling the recipient Party to disclose it.
9. INTELLECTUAL PROPERTY
9.1. Subject to the complete payment of any amounts owned under this Agreement, InputKit grants the Client, for the Term, a limited, non-transferable or sub-licensable, non-exclusive license to use the Solution to receive the Services.
9.2. The Client acknowledges (i) it that shall have no rights in, or to, the Intellectual Property except as specifically provided in this Agreement or in a specific written instrument; and (ii) agrees that it will not register, or attempt to register, the Intellectual Property or otherwise take any actions that would adversely affect InputKit’s rights in its Intellectual Property. Without limiting the generality of the foregoing, the Client agrees not to reproduce, decompile, disassemble, decode, reverse engineer, modify, translate, publish, sell, distribute, or license any element of the Intellectual Property.
10.1. InputKit warrants that it will perform the Services (i) in all material respects as described in this Agreement; and (ii) in a professional manner using personnel that have the necessary knowledge, experience and skills to perform and deliver the Services. If the Services provided to the Client are not performed as warranted above, the Client must promptly provide written notice to InputKit that describes the deficiency in the Services.
11. LIMITATION OF LIABILITY
11.1. Except for the limited warranty warranties set out in Section 10 above, and to the extent not prohibited by the law, InputKit makes no warranty, express or implied that the Services, or the products and services of a third-party supplier if applicable will (ii) be performed error-free or uninterrupted, or that InputKit will correct all errors; (ii) operate in combination with the Client’s hardware, software, systems or data not provided by InputKit; and (iii) meet the Client’s requirements, specifications or expectations.
11.2. Except those attributable to its gross negligence or gross fault, InputKit shall not be liable for any direct, indirect, incidental, consequential, special, punitive or exemplary damages or lost profits, regardless of their nature, suffered by the Client in connection with the provision of Services, including, but not limited to, those resulting from (i) Client’s instructions or inaccurate or unclear information provided; (ii) any cause beyond the reasonable control of InputKit; and (iii) the suspension of any Service under Section 6 above. Without limiting the generality of the foregoing, the Client agrees that InputKit shall not be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages or lost profits, even if InputKit has been informed of the possibility of such damages. In all cases, InputKit’s liability will be limited to the amount paid for the Services by the Client and the who waive any right to claim any excess amount.
12.1. The Client undertakes to defend, indemnify and hold InputKit harmless from all liabilities, claims and expenses, including reasonable attorney’s fees that arise from (i) any negligence, fault, willful act or omission of the Client; and (ii) any failure by the Client to fulfill its obligations hereunder, in particular with regard to the protection of Intellectual Property.
13. GENERAL PROVISIONS
13.1. Interprétation. In this Agreement (i) the headings have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof; (ii) where appropriate, the singular number set forth herein shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates; (iii) “or” is used in the inclusive sense of “and/or”; and (iv) the terms “herein”, “hereof”, “hereto”, “herewith”, “hereunder”, “hereby” and other similar terms, when used in the Agreement, generally refers to this Agreement as a whole rather than to a specific part thereof, unless otherwise indicated in the text.
13.2. Relationship of the Parties. Nothing in this Agreement shall be construed as constituting any form of alliance, joint venture, partnership, employment agreement, or any other similar arrangement between the Parties, nor impose any liability as such on either of them. Without limiting the generality of the foregoing, the Parties recognize and acknowledge that (i) they always remain independent entities; and (ii) nothing herein shall give a Party the right to make any kind of commitment for or on behalf of the other Party without such Party prior written consent.
13.3. Communication. The Client agrees that InputKit may use its names, logos and trademarks for advertising purposes, including on its website, unless otherwise provided for in a specific written agreement to this effect.
13.4. Force Majeure. A Party shall not be considered in default to fulfill an obligation when such failure is the result of force majeure. Force Majeure shall mean any event beyond the reasonable control of a Party, including, acts of God, floods, storms, tornadoes, earthquakes, explosions and fires, outbreaks of disease and quarantine, destruction or expropriation of property, sustained electrical power failure affecting the business premises of a Party.
13.5. No Waiver. Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or a recourse provided for in this Agreement be considered to be a waiver of such right or recourse. The waiver of a right shall not be interpreted as the waiver of any other right. All rights set forth in this Agreement shall be cumulative and not alternative.
13.6. Severability. In the event that any provision of the Agreement is deemed to be invalid or unenforceable, in whole or in part, such provision will, whenever possible to do so, be interpreted, construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. All the remaining provisions of the Agreement will remain valid and continue to bind the Parties.
13.7. Amendments. This Agreement shall not be amended or modified except by another written document duly signed by all the Parties.
13.8. Entire Agreement. This Agreement constitutes the entire understanding between the Parties. Declarations, representations, promises or conditions other than those set forth in this Agreement shall not be construed in any way so as to contradict, modify or affect the provisions of this Agreement.
13.9. Assignment and successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their successors and permitted assigns. This Agreement, as well as any rights and obligations hereunder, shall not be assigned by any Party hereto, either in whole or in part, without the express prior written consent of the other Party, any attempt to do so without such consent shall be null and void.
13.10. Governing Law. This Agreement shall be governed by the laws of the Province of Quebec, Canada and the Parties consent to and submit all disputes or disagreements arising pursuant to this agreement to the exclusive jurisdiction of the courts of the Province of Quebec, judicial district of Longueuil.