1. Terms of Service

  1. Ubico Labs

  1. Terms of Service

  1. UPDATED:  2019-07-05

RECITALS:

  1. The Provider specializes in developing software in lead generation, machine learning and email automation; and,
  2. The Customer wishes to obtain the services of the Provider in accordance with the terms and conditions set out in this agreement (the "Agreement") and considers that the Provider possesses the skills, qualifications and experience necessary to provide such services to the Customer.

TAKING INTO ACCOUNT THE FOREGOING, THE PARTIES AGREE TO THE FOLLOWING:

  1. CHANGES TO THE TERMS OF SERVICE
  1. The Provider may amend the Agreement related to the Services, from time to time, at its sole discretion, unless otherwise stipulated herein. The date that the Agreement was last revised is identified at the top of the page. The Customer is responsible for reviewing any updated Agreement the Provider may send to the Customer and contacting the Provider to update the Customer's contact information. The Customer's continued use of the Provider's Services represents that the Customer agrees to be bound by all the terms in the revised Agreement.
  1. SERVICES PROVIDED
  1. The Provider shall make available the Hosted Services to the Customer during the term of the Agreement. The term "Hosted Services" means campaign dashboard, lead sheet, outbound email assets which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement.
  2. The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account promptly following the signature date.
  3. The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with this Agreement during the Term.
  4. The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer but does not guarantee 100% availability.
  5. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
  1. A Force Majeure Event, meaning an event, or a series of related events, that is outside the reasonable control of the party affected;
  2. A fault or failure of the internet or any public telecommunications network;
  3. A fault or failure of the Customer's computer systems or networks;
  4. Any breach by the Customer of this Agreement, or stipulations contemplated in related Agreements provided by UBICO Labratories Inc.. at any time; or,
  5. Scheduled maintenance carried out in accordance with this Agreement.
  1. BETA SERVICES
  1. From time to time, the Provider may invite the Customer to try our beta Services ("Beta Services") at no charge and the Customer may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, limited release, developer preview, non-production, evaluation or by a description of similar import.
  2. Beta Services are for evaluation purposes only and not for production use, are not considered "Services" under the Agreement, are not supported, and may be subject to additional terms.
  3. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date, or the date that a version of the Beta Services becomes generally available or the date that the Provider, in its sole and absolute discretion, elects to discontinue the Beta Services.
  4. The Provider may discontinue Beta Services at any time in our sole and absolute discretion and may never make them generally available.
  5. The Provider will have no liability whatsoever for any harm or damage arising out of or in connection with a Beta Service.
  1. MAINTENANCE SERVICES
  1. Definition:
  1. "Maintenance Services" means the general maintenance of the Hosted Services, and the application of Updates and Upgrades.
  1. The Provider shall provide the Maintenance Services of the Hosted Services on or about the hours of 3:00 AM (EST) and 6:00 AM (EST).
  2. Nevertheless, at all times and the Provider shall give at least 3 days prior written notice (through any means) of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services.
  1. SUPPORT SERVICES
  1. Definition:
  1. "Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.
  1. The Provider shall provide the Support Services to the Customer during the Term of this Agreement and the Provider shall respond promptly to all requests for Support Services made by the Customer from Monday to Friday between regular business hours (9AM to 5PM EST).
  2. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue for any reason. However, the Provider shall give the Customer a prior written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
  1. CUSTOMER DATA
  1. Definition:
  1. "Customer Data" means all data, works and materials (a) uploaded to or stored on the Hosted Services by the Customer (b) supplied by the Customer to the Provider and (c) and data supplied from the Hosted Services to the Customer.
  1. The Customer hereby grants to the Provider a non-exclusive license to store, export and adapt the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
  2. The Provider shall create a back-up copy of the Customer Data on a bi-weekly basis and shall ensure, on a best-effort basis, that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken.
  1. CUSTOMER CONTENT
  1. Definition:
  1. "Customer Content" means all electronic data, material, and information to be created, submitted, received, processed, collected, transmitted, and stored by or for the Customer through our Services and/or a third-party application.
  1. The Provider is not responsible or liable for any Customer Content. Although the Provider has no obligation to screen, edit or monitor Customer Content, the Provider reserves the right, and has sole absolute discretion, to remove Customer Content stored on the Hosted Services at any time and for any reason. The Customer is solely responsible for creating backup copies of and replacing any Customer Content at the Customer's sole cost and expense.
  2. While the Provider does not claim any ownership interest in the Customer Content, by creating, submitting, receiving, processing, collecting, transmitting, and storing Customer Content on or through the Hosted Services the Customer hereby grants the Provider a non-exclusive, royalty-free, worldwide, perpetual, irrevocable and fully sub-licensee right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly and display the Customer Content to provide the Provider's Services in accordance with the Agreement.
  3. By using the Hosted Services, the Customer represents, warrants, acknowledges and agrees not to create, submit, process, transmit or store any of the following:
  1. Customer Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
  2. Customer Content that would constitute, encourage or provide instructions for a criminal offense in any jurisdiction served by the Hosted Services, violate the rights of any party or otherwise create liability or violate any local, provincial, national or international law;
  3. Customer Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  4. Customer Content that contains material misrepresentations;
  5. Customer Content that contains or depicts any statements, remarks or claims that do not reflect the Customer's honest views and experiences;
  6. Customer Content that impersonates, or misrepresents the Customer's affiliation with, any person or entity;
  7. Customer Content that references or depicts the Hosted Services but fails to disclose a material connection to the Provider, if the Customer has one;
  8. Customer Content that contains any private or personal information of a third party without such third party's consent;
  9. Customer Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; and,
  10. Customer Content that, in the Provider's sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose the Provider or others to any harm or liability of any type.
  1. The Customer further represents and warrants that:
  1. The Customer owns and controls all of the rights to the Customer Content or otherwise have all necessary rights to use such Customer Content;
  2. The Customer authorizes the Provider to use such Customer Content for the purposes described in the Agreement;
  3. The Customer Content is accurate and not misleading or harmful in any manner; and,
  4. The Customer Content, and the Customer's use and posting thereof, does not and will not violate the Agreement or any applicable law, rule, regulation or third party right.
  1. USAGE OF HOSTED SERVICES
  1. The Customer must not without the written permission of the Provider use the Hosted Services for any purpose other than marketing and sales. Any use of the Hosted Services other than as specifically authorized herein, without the Provider's prior written permission, is strictly prohibited and will terminate the Agreement herein.
  1. MONITORING
  1. The Customer acknowledges that the Provider monitors the Content and the use of the Hosted Services for any reason whatsoever.
  1. THIRD PARTY APPLICATIONS
  1. The Hosted Services may be compatible or useful in connection with a third-party applications or services, including, for example, other applications and implementation and other consulting services et al. Any acquisition by the Customer of such other third-party applications or services, and any exchange of data between the Customer and any other provider, is solely between the Customer and the applicable other provider. A non-exaustive list of our third-party providers is below:
  1. Hunter.io
  2. Clearbit
  3. People Data Labs
  4. Neverbounce
  5. Briteverify
  6. Zoho
  7. Amazon Web Services
  1. We do not warrant or support third party applications or other services, whether or not they are designated by us as "certified" or otherwise.
  2. The Hosted Services may contain features designed to inter-operate with third-party applications (such as Google or GitHub OAuth). To use such features, the Customer may be required to obtain access to third party applications from their providers and may be required to grant the Provider access to the Customer's account(s) on the other applications.
  1. If the provider of other application ceases to make the third-party applications available for inter-operation with the corresponding Service features on reasonable terms, we may cease providing those Service features without entitling the Customer to any refund, credit, or other compensation.
  1. Further, if the Hosted Service, at its sole and absolute discretion, elects to integrate with a third-party authentication service, whether through internal (such as Active Directory Federation Service or Keycloak) or external (such as Auth0 or OneLogin) means, any data shared through this service, is solely between the third-party authentication service and the Customer. The Provider also is free from any liability as a result of a breach of such service.
  1. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
  1. Definition:
  1. "Intellectual Property" in this Agreement means all original works of authorship, discoveries, designs, processes, developments, concepts, formulae, business methods, improvements and trade secrets, works, reports, data, algorithms, logic, infrastructure, compilations of information, software, copyright, trademarks, know-how, proprietary information, designs, processes, inventions, ideas, written presentations, memoranda, research, databases, drawings, sketches, layouts, commercial material, working papers, documents, copies, transcriptions, and other materials in all forms, and any renewals, improvements, upgrades, modifications, enhancements or variations of any of the foregoing, whether or not patent-able or registrable under copyright or otherwise subject to protection under intellectual property laws that you discover or make, or assist in discovering or making, however fixed, stored, expressed or embodied, created, developed, generated, authored, or produced in performance of work on behalf of the Company or any affiliate, including any applications that may be filed or that may be issued thereon in any and all countries.
  1. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
  2. Subject to the Customer's compliance with the Agreement, the Customer is hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Hosted Services in connection with the Customer's marketing campaigns. However, such license is subject to these Terms and does not include any right to:
  1. Sell, resell license, sub-license, distribute, rent or lease the Hosted Services and the Contents worldwide;
  2. Use the Hosted Services and the Contents for commercial purposes unrelated to the Customer's marketing campaigns;
  3. Distribute, publicly perform or publicly display any Content not authorized by the Provider;
  4. Modify or otherwise make any derivative uses of the Services or Content, or any portion thereof;
  5. Use any data mining, robots or similar data gathering or extraction methods for any purpose;
  6. Download (other than the page caching) any portion of the Hosted Services or Content, except as expressly permitted by the Provider for any propose;
  7. Attempt to reverse-engineer and/or close any feature of the Hosted Services for any reason; and,
  8. The use the Hosted Services or Content other than for their intended purposes, which shall be limited to use in furtherance of the Hosted Services.
  1. For further clarity, it is strictly prohibited to use the Hosted Services in a matter that is specifically authorized herein (within this Agreement or through written authorization). Any breach of this Section will be determined at the sole and absolute discretion of the Provider and any licence/use of the Hosted Services will terminate immediately.
  1. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by the Provider, nothing in the Agreement shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of the Provider or any third party, whether by estoppel, implication or otherwise.
  1. COUNTERPARTY AND TERMS OF PAYMENT
  1. In consideration for the Hosted Services, the Customer and the Provider have agreed to a payment method that is stated on the Order Form.
  2. The Customer shall be responsible for timely payment of all fees specified on the Provider's invoice in American dollars. By using the Provider's services, the Customer acknowledge and agrees that the Provider's fees cannot be cancelled once charged and all fees paid are non-refundable.
  3. The Customer agrees to pay the monthly or yearly sum as shown with the relevant plan on the Provider's website and Order Form. This sum may change from time to time at the Providers sole and absolute discretion.
  4. The Provider shall issue invoices to the Customer, on a monthly or yearly basis, in advance of the period to which they relate.
  5. The Customer agrees to pay each invoice upon receipt of each invoice date. The Provider is authorized to amend payment terms at its sole and absolute discretion and the modification of these terms do not produce any reliance whatsoever in said terms, whether through estoppel, equity, or otherwise.
  6. Payments can be made by bank transfer, credit card, Stripe, Charbee, or any other payment processor of the Providers Choice. If payments are made by credit card, an administrative fee of 2.9% will be charged to the Customer.
  7. In the event that the Customer's credit card was declined or the Customer's payment was not timely made for any or no reason, the Provider will automatically charge and the Customer shall be automatically responsible for all reasonable surcharges, including but not limited to any administrative fees, processing fees and fines.
  1. The above Section does not apply to any payment or invoices under a good faith dispute and/or resolution.
  1. PENALTY IN CASE OF FAILURE TO PAY
  1. In the event that Customer fails to pay the issued invoices, the Hosted Services will be interrupted, and the Provider reserves the right to terminate the Agreement.
  1. CONFIDENTIALITY
  1. Definition:
  1. "Customer Confidential Information" means:
  1. Any information disclosed by the Customer to the Provider (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
  1. As marked or described as "confidential"; or,
  2. Should have been reasonably understood by the Provider (though its Hosted Service and other means) to be confidential; and,
  3. Consumer Data.
  1. The Provider Shall:
  1. Keep the Customer Confidential Information strictly confidential;
  2. Not disclose the Customer Confidential Information to any person without the Customers written consent;
  3. Use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care, and on a best-effort basis.
  4. The obligation described in the preceding article does not apply to information already disclosed to the public, already known to the party receiving the confidential information or which is not considered as confidential information by the party disclosing it.
  1. The provisions of this Section shall continue in force indefinitely following the termination of this Agreement.
  1. WARRANTIES AND LIMITATIONS
  1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
  2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
  3. The Provider shall not be liable to the Customer or any agent associated with the Customer for any error of judgment or any act performed in good faith and within the limits of the powers expressly or tacitly conferred on the Provider under the Agreement.
  4. The Customer agrees that the Provider shall not be liable for lost profits or claims against the Customer by any other party. In addition, the Provider shall not be liable for any problems, delays, loss of time or money or other events beyond its control that may be caused by the usage of the Hosted Services.
  5. The Customer further acknowledges, agrees, represent and warrant (understood in conjunction with Section 11.3 with respect to Intellectual Property) that:
  1. The Customer will not use the Hosted Services for any unlawful purpose;
  2. The Customer shall not infringe rights of the Provider or a third party, including any property, intellectual property, privacy rights of the Provider or a third party;
  3. The Customer shall not use the Hosted Services in violation of the terms herein, including the DPA;
  4. The customer shall not use the Hosted Services in violation of the Customer's contractual or other legal obligations, including applicable personal data protection laws;
  5. The Customer shall not commit any unlawful acts using our services, including any infringing, libelous, tortious acts;
  6. The Customer shall not "stalk" or otherwise harass any person;
  7. The Customer shall not make false representations, including about the Customer's identity or affiliations;
  8. The Customer shall not use any software, program, file, scripts, agents, or any other code, including, for example, viruses, worms, time bombs and Trojan horses, ("Malicious Code") that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
  9. The Customer shall not engage in any conduct that interferes with the Hosted Services or restricts or inhibits any other person from using or enjoying the same, or which, in the Provider's sole judgment, exposes the Provider or any of its officers, directors, employees or agents to any liability or detriment of any type;
  10. The Customer shall not use or attempt to use reverse engineer to reconstruct any of the Provider's Services;
  11. The Customer shall not copy any part of the Provider's Hosted Service including any feature, function or user interface thereof;
  12. The Customer shall not harvest or otherwise collect any data, information or content from the Hosted Services, including by using manual or automated software, devices, or other processes to "crawl", "scrape" or "spider" any page of the Hosted Services to copy, obtain, propagate, distribute or misappropriate any content;
  13. The Customer shall not permit any direct or indirect access of the Hosted Services that circumvents or attempts to circumvent a contractual usage limit;
  14. The Customer shall not access the Hosted Services with the intent to build a competitive product or service;
  15. The Customer shall not frame or mirror any part of the Hosted Service, other than framing on the Customer's own intranets or otherwise for the Customer's own internal business purposes;
  16. The Customer shall not engage in any activity that can reasonably cause injury, loss or damage to the Provider or third party;
  17. The Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction; and,
  18. The Customer shall notify the Provider regarding
  1. Any illegal, suspicious, or fraudulent activity;
  2. Any security or data breaches;
  3. Any activity that violates these Terms;
  4. Any misrepresentations, errors, or inaccuracies the Customers discovers; or,
  5. Any illegal or improper bribe, kickback, payment give or thing of value from any of the Provider's employees or agents in connection with this Agreement.
  1. The Customer acknowledges and agrees they are responsible for their own acts and omissions.
  2. If the Customer submits any information, including any personal information, on or through the Provider's Hosted Services, the Customer represents and warrants that they are the owner of such information or are authorized to submit such information. Prior to submitting any personal information of a third party, the Customer represents and warrants that they shall provide a copy of the Provider's Privacy Policy to the third party and have received the explicit and informed consent from the third party to submit such information. Whenever the Customer submits any personal information to the Provider's system, the Data Processing Addendum applies for European Economic Area ("EEA") residents in Section 30.
  3. When the Customer consents and authorizes an e-mail account to be connected to the Provider's system, the Provider may collect information from that e-mail account, including the content of the e-mail messages, contacts, and entries in any calendars associated with the e-mail account. By consenting and authorizing an e-mail account to be connected to the Provider's system, the Customer represents and warrants that they agree to the Provider's collection of information from the e-mail account. The Customer further represents and warrants that it is their responsibility, prior to authorizing the e-mail account to be connected to the Provider's system, to confirm that the Customer have obtained all necessary consent from the users of the e-mail account; that the user of the e-mail account has read, understood, and consented to the Provider's privacy policy; and that the e-mail account is being used strictly for work related and non-personal purposes. The Customer further represents and warrants that it is their responsibility to continuously monitor that the e-mail account connected to the Provider's system is being used strictly for work related and non-personal purposes. Whenever the e-mail connection to the Provider's system involves processing of personal data, the Data Processing Addendum applies.
  4. By using the Hosted Services, the Customers represents and warrants that they shall:
  1. Provide accurate, truthful, current and complete information, whether on the Hosted Services or to a third party;
  2. Maintain and promptly update the information, including any billing and contact information;
  3. Maintain the security of your password, including not disclosing your password to another;
  4. Not permit anyone else to access or otherwise use your Account;
  5. Not access or otherwise use, or attempt to access or use, an Account of another other than your own; and,
  6. Immediately notify the Provider if you discover or otherwise suspect any security breaches related to the Hosted Services.
  1. FEEDBACK AND SUGGESTIONS
  2. The Customer grants the Provider and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to make, have made, use, distribute, modify, make derivative works of, incorporate into the Hosted Services and otherwise exploit in any manner any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer or users relating to the operation of the Hosted Services or any of the Provider's products or services.
  3. COPYRIGHT COMPLAINTS
  1. In accordance with the applicable laws, the Provider has adopted a policy of limiting access to the Services to or terminating the Accounts of Customers, in appropriate circumstances or in the Provider's sole discretion who infringe the intellectual property rights of another. If the Customer believes that anything on the Provider's Services infringes any copyright that the Customer owns or controls, the Customer may file a notification of such infringement with the Provider's designated legal counsel as set forth below:

Renno & Co. Inc.

Counsel for Laboratoires Ubico Inc/UBICO Laboratories Inc.

3 Place Ville, Suite 400

Montréal, QC

Email: legal@rennoco.com

  1. If a material the Customer have posted to the Hosted Services was removed or disabled in error, the Customer may file a counter notice pursuant to the applicable laws.
  2. Please consult the Canadian Federal Copyright Act or the United States Digital Millennium Copyright Act, for guidance with respect to proper notification.
  3. The Customer should also note that if the Customer knowingly makes any material misrepresentation in the Customer's notification that the material or activity is infringing, the Customer will be liable for any damages, including, without limitation, costs and attorneys' fees, incurred by the Provider or the alleged infringement as the result of the Provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing
  1. TERM
  1. This Agreement shall come into force on the date the Customer accepts it and continues in force until it has been terminated
  1. TERMINATION AND DEFAULT
  1. Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.
  2. If the Customer is in default under the Agreement, the Provider may terminate the Agreement unilaterally by notifying the Customer by e-mail notice to remedy the default within fifteen (15) days. If the default under the Agreement has not been remedied within fifteen (15) days, the Agreement shall be deemed to be terminated.
  3. Any notice or communication to the Provider will be made by email to info@ubico.io.
  4. Any notice or communication made to the Customer will be made by e-mail to the e-mail record on file. If the Parties have not received confirmation of receipt from the other Party within ten (10) days, the Parties may assume that the communication or notice has been received after that period.
  5. If the Agreement is terminated by us in accordance with Subsection 1 or 3, the Customer shall pay any unpaid fees. In no event will termination relieve the Customer of the Customer's obligation to pay any fees payable to the Provider for the period to the effective date of termination.
  6. If the Agreement is terminated by the Customer in accordance with Subsections 1 or 3 there will be no refund.
  7. Upon a written request made within 30 days after the effective date of a termination or expiration of the Agreement under these Terms, the Provider will make the Customer Data associated with the Customer's account available to the Customer for the Customer's export or download. The Provider has no obligation to maintain or provide any Customer Data to the Customer 30 day after the termination or expiration of the Agreement and may continue to use the Customer Data in aggregate form
  1. LIMITATION OF LIABILITY OF THE PROVIDER
  1. Under no circumstances will the Customer be entitled to recover from the Provider parties any incidental, exemplary, consequential, indirect, punitive or special damages (including without limitation damages for loss of business, loss of profits, loss of use or emotional distress), whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not the Provider has been informed of the possibility of such damage, for any harm or damage caused by, arising from, or relating to the use of the Hosted Services, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to the Customer.
  2. In no event will the Provider's total liability to the Customer from a single incident exceed the amounts of payments the Provider receives from the Customer in the 12 months preceding the incident. In no event will the Provider's total aggregate liability to the Customer exceed the total amount of payments we receive from the Customer. The Customer's exclusive remedies in the event that the Provider breached any of its warranties to the Customer herein, are termination of the Agreement.
  3. If you are a resident to the State of California, in the United States, you waive California Civil Code Section 1542, which says: "a general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." The provisions of this Section 11 are fundamental elements of the basis of the bargain between you and the UBICO Labratories Inc..
  1. INDEMNIFICATION BY THE CUSTOMER
  1. The Customer agrees to indemnify, defend and hold harmless the Provider, and our past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the "Provider's Parties") against any claim, demand, suit or proceeding made or brought against Provider's parties by a third party alleging the Customer's customer data, use and disclosure of any data generated from our services (including any leads or lead data), or the Customer's use of our services, infringes or misappropriates a third party right, violates the Customer's contractual or legal obligations, or violates any applicable law, rules, or regulation, except to the extent such indemnification is prohibited by law (a "Claim Against Us").
  2. The Customer will indemnify, defend and hold Provider's parties harmless from any claim damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, lawyers fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever in connection to a claim against us, whether known or unknown, foreseen or unforeseen, matured or unmeasured, or suspected or unsuspected, in law or equity, provided that (a) the Provider promptly give the Customer written notice of the claim against the Provider; (b) the Provider gives the Customer sole control of the defence and settlement of the claim against the Provider; (except that the Customer shall not settle any claim against the Provider unless it unconditionally releases the Provider of all liability); and (c) the Provider gives the Customer all reasonable assistance, at the Customer's expense
  1. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
  1. The Agreement, including the European Union Data Processing Addendum ("DPA") (which applies to EEA residents), and Privacy Policy is the entire agreement between the Provider and the Customer regarding the Customer's use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other ordering documentation that You may provide (excluding Order Forms) is void. In the event of any conflict or inconsistency between the Order Form and these Terms of Service, if applicable, the Order Form shall control and govern.
  1. SPECIAL DISPUTE RESOLUTION CLAUSE FOR CORPORATE CLIENTS
  1. Definition:
  1. "Corporate Clients" means users of the Provider that are primarily of a commercial nature, regardless of legal status (for example, Corporation, Partnership, or Sole Practitioner operating a business).
  1. The Customer agrees that if the account with the Hosted Provider is in the name of any commercial entity, it will be considered a "Corporate Client" for the purposes of this Agreements and abrogate any rights given therein in respective Consumer Protection statues for individual, and non-corporate, users.
  2. For Corporate Clients of the Provider, the parties shall endeavor to resolve amicably any dispute in the ordinary course of business between the Parties' representatives. If the Parties' representatives are unable to resolve the dispute within thirty (30) days of a Party's notice to the other Party regarding the said dispute, then the matter goes to arbitration. A Corporate Client in this Agreement.
  3. The Parties agree that any disagreement or dispute relating to this Agreement or resulting from its interpretation, application or for calculating damages for breach of contract will be settled definitively by arbitration and excluding the courts, according to the laws of the Province of Québec. Unless the parties decide otherwise in an Arbitration Agreement, the arbitration will be conducted under the aegis of an accredited arbitrator alone, permitted to practice in the Province of Québec, and will be conducted in accordance with the rules of law and the provisions of the Civil Code of Québec (as amended) and the Québec Code of Civil Procedure (as amended) or its equivalent in force at the time of the Dispute. The arbitration award shall be final, binding on the Parties, and without appeal.
  4. If a dispute goes to arbitration, and subject to the final Decision of the arbitrator, the parties will share equal responsibility for the arbitrator's fees and expenses.
  5. The provisions enumerated in this section do not hinder the right of either party to seek injunctive relief from the Court in order to limit immediate, serious and irreparable injury.
  1. EUROPEAN UNION GDPR DATA PROCESSING ADDENDUM
  1. The Provider requires the Customer to accept the provisions of this Data Processing Addendum ("DPA") which is intended to meet the data protection adequacy and security requirements of the GDPR-Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. Therefore, if the GDPR applies to the Customer's activity (for instance because the Customer is established in the European Union or established outside the European Union but the Customer offers good or services to data subjects who are in the European Union) — the Customer needs to accept these Data Processing Addendum terms to be compliant with GDPR so that the Customer can process such GDPR-eligible personal data with the Provider. Unless the Customer accepts the Agreement involving this DPA the Customer's contract with the Provider will lack those terms therefore if GDPR applies to the Customer's activity the Customer must refrain from using the Provider's Service unless the Customer accepts this DPA.
  2. The terms "personal data", "data subject", "processing", "controller", "processor" and "supervisory authority" as used in this DPA have the meanings given in the GDPR.
  3. For the reasons mentioned above, if the Customer with any connection to the EEA, as stated above, chooses to accept Terms and Conditions and enter the Agreement, the Customer enters this Data Protection Agreement which reflects the conditions governing processing and security of the personal data the Customer submits to the Provider's system or which may be processed by the Customer when connect the Customer's e-mail account thereto, i.e. submitted, stored, sent or received via the our Platform and App, hereinafter referred to as the "Customer Data". Please note that whenever the word "the Customer" is used in this DPA, it means any persons who use the Services on the Customer's behalf, including the Customer's employees, subcontractors and other personnel members.
  4. In accordance with the GDPR regulations, this DPA shall be governed and construed in accordance with the laws of Ireland as a European Union's member state. The DPA is concluded for the whole period from the acceptance of the Agreement and this DPA until the end of the Provider's provision of the Services under the Agreement, which shall include periods of suspension of Services' provision or other post-termination periods when the Provider may refrain from deleting the Customer's data.
  5. The Customer Data will be processed via the Provider's Services and for the purpose to provide the Customer with full functionalities of the Provider's Services and Website and related operational and technical support related to the Customer's usage of the services so the duration of the processing will last until the expiry of this DPA or until deletion of all the Customer Data. The Provider will process the Customer Data in accordance with our Privacy Policy.
  6. The Provider shall not be the controller of the Customer Data the Customer may submit to the Provider's Services and will process such information within the Services solely in the processor's role and – depending on the scope of the Customer's activity – the Customer may be the controller or processor of this data. If the GDPR applies to the processing of Customer Data and the Customer is the processor, the Customer explicitly warrants the Provider that the Customer's instructions and actions with respect to that Customer Data processing, including hereby appointment of the Provider as another processor, have been authorized by the relevant controller.
  7. The personal data which may be processed (i.e. submitted, stored, sent or received) by the Customer when the Customer uses the Services may include the following categories of data: names, e-mail address, telephone, profession, company's name and address, city and country of the company, user IDs, presentations, images, calendar entries and other data which may be relevant for the Customer's purposes of permitted usage of the Provider's Services.
  8. The Customer Data which the Customer may process might concern the following categories of data subjects: users of the Services who may include the Customer's employees and contractors, the personnel of the Customer's customers, suppliers and subcontractors or any other person who transmits data via the Services, including any individuals collaborating and communicating with users of the Services.
  9. If the explicit consent of data subject is the legal basis to process the Customer Data via the Provider's Systems, the Customer represents and warrants the Provider that each such consent is freely given and taken in accordance with applicable laws. In this context the Customer indemnify the Provider of all claims and actions of third parties related to the processing of Customer Data via Services without explicit consent or other legal basis under the respective laws.
  10. By entering this DPA the Customer instructs the Provider to process Customer Data only in accordance with applicable laws and only to:
  1. Provide the Services', App's and Website's functionalities and related customer and technical support;
  2. To provide you with our actions, services and support specified by your usage of the Services and demanded when you use the Services (such as sending e-mail messages, campaign settings, etc.); or,
  3. As further documented in herein DPA, Terms of Services, Privacy Policy or otherwise documented in any instructions you may give us in writing, via e-mail or other written electronic communication and that we acknowledge as constituting instructions for the Customer Data processing.
  1. We will comply with your instructions (including with regard to international personal data transfers) unless any European Union or European Union member states' law we could be potentially subject to requires us to otherwise process the Customer Data. If this is the case, we will inform you on this obligation (unless law prohibits us to do so on important grounds of public interest). We will also inform you if your instruction for data processing if we believe it may infringe regulations of the GDPR.
  2. We enable you to delete Customer Data during this DPA by using functionalities within Services – including moving data to archive for limited period or by instant permanent deletion. If the term indicated above expires or you choose to delete data permanently, the Customer Data may not be recovered. Each of such actions will be acknowledged as your instruction to delete relevant Customer Data you submitted or keep within our systems. When the Agreement is terminated or otherwise expires, we shall delete your data, including Customer Data, and/or give you their copy (return them) subject the terms of Agreement.
  3. Under this DPA the Customer authorities the Provider to engage any other third parties as other processors and therefore –the Provider will inform the Customer about such planned engagement and the Customer is authorized to object to such appointment terminating the Agreement within 90 days written notice. If the Provider engages another processor for carrying out specific processing activities on the Customer's behalf (which is unlikely), the same data protection obligations as set out in the DPA will be imposed on that other processor, including in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR.
  4. The Provider has implemented and will maintain all the appropriate technical and organizational measures to protect Customer Data to ensure a level of security against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to Customer Data, including encryption of personal data, introducing and maintaining systems ensuring the ongoing confidentiality, integrity, availability and resilience of processing, systems ensuring ability to restore the availability and access to Customer Data in the event of a physical or technical incident.
  5. The Customer shall acknowledge that the above-mentioned technical and organizational measures to protect Customer Data involve i.a.: physical security, logical security, separation of databases, policy regarding the removal of magnetic and optical data (including hard drives, portable storage media, backup platforms, etc.), procedures regarding database management, provisions regarding the collection, marking, verification, processing, and distribution of the data, management of access to personnel, including determination of the methodology for providing access to data, restrictions upon access, and keeping an updated list of persons with access rights, confidentiality undertakings for those persons with access rights, encryption of personal data, provisions regarding operations of the systems and maintaining ongoing data integrity, confidentiality, availability and resilience of processing systems and services, monitoring for the discovery of breaches of data integrity and methodology for reparation of such breaches, provisions regarding employee reliability and record of data misuse in accordance with the level of data sensitivity. We shall also regularly test, assess and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Customer Data processing.
  6. If the Customer has further questions on the Provider's technical and organizational means for personal data protection the Customer shall inquire the Provider to provide the Customer with additional information prior to submitting Customer Data to the Provider's systems or it shall be otherwise considered that the Customer agreed that taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Data as well as the risks to individuals our data protection standards are appropriate to the risk in respect of the Customer Data.
  7. The Provider also ensures that their employees, contractors and sub-processors have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality to the extent applicable to their scope of performance.
  8. If the Provider becomes aware of a data incident – meaning a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by the Provider, excluding unsuccessful attempts or activities that do not compromise the security of Customer Data, unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems – we will notify the Customer of the Data Incident promptly and without undue delay and promptly take reasonable steps to minimize harm and secure Customer Data. Such Data Incident notification will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps the Provider may recommend to address the Data Incident. The Provider will deliver such notification to the Customer's e-mail address or, at the Provider's discretion, by phone call or other direct communication. It is the Customer's sole responsibility to provide the Provider with and update the Customer's current and valid contact information. Neither of the Provider's notifications or communications regarding Data Incidents shall be construed as an acknowledgement of fault or liability with respect to the Data Incident.
  9. By entering this DPA the Customer explicitly acknowledges, agrees and confirms that the Provider will never assess the contents of Customer Data the Customer may submit, store, send or receive using the Provider's Services in order to identify information subject to any specific legal requirements or to assess the Customer's compliance with any laws or infringements thereof. Therefore the Customer is solely responsible for complying with applicable incident notification laws and fulfilling any third party notification obligations related to any Data Incident(s).
  10. The Customer agrees that, without prejudice, the Customer shall be solely responsible for their use of the Services, including: making appropriate use of the Services and exercise adequate security controls to ensure a level of security appropriate to the risk in respect of the Customer Data, securing the account authentication credentials, systems and devices which the Customer may use to access the Services and backing up their Customer Data.
  11. As we provide solely online Services we shall have no obligation to protect Customer Data that the Customer may choose to store or transfer outside of the Provider's systems, for instance for physical storage – in any form. If the Customer has further questions on the Provider's technical and organizational means for personal data protection the Customer shall inquire the Provider to provide additional information prior to submitting Customer Data to the Provider's systems or it shall be otherwise considered that the Customer agrees that taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Data as well as the risks to individuals our data protection standards are appropriate to the risk in respect of the Customer Data.
  12. Notwithstanding the Provider's obligations in respect to this DPA, the Customer shall also take all the reasonable precaution steps in order to ensure appropriate security and to prevent any destruction, loss, alteration, disclosure, unauthorized or illegal access to or acquirement of Customer Data and any other personal data the Customer may process using via the Provider's Services. If the data the Customer processes via Services were accessed or obtained by an unauthorized person or if there occurs a breach of such personal data security, the Customer shall immediately notify the Provider on such Data Incident and shall cooperate with the Provider in order to take any steps deemed required for the mitigation of any loss or damage.
  13. If the Customer breaches any obligations they may have under the GDPR the Customer shall be unconditionally and solely liable and it shall compensate the Provider and any third parties or data subjects against (a) any damage, loss, costs, taxes and expenses (including legal charges related to judicial experts and lawyers), (b) the refund of any fines or penalties paid by us to the supervisory authority, (c) any other damages resulting from the negligence, fault or gross misconduct or from any breach of an obligation related to Customer Data and other personal data processed via the Services as a consequence of non-complying with this DPA and the GDPR.
  14. The Provider will consider any breach of any representation or provision of the DPA and the GDPR by the Customer shall represent a gross breach of the Agreement and it shall entitle the Provider to terminate the Agreement immediately by sending a termination notice, without any grace or remedy period and without any other formality, notification or intervention of any court of law or another jurisdictional body.
  15. To the extent necessary for the reason of this DPA, the Provider will make available for the Customer's review the documents and information to demonstrate our compliance with our obligations under this DPA.
  16. If GDPR applies to the processing of Customer Data, we will also allow the Customer or the Customer's appointed independent auditor to conduct audits (including inspections) to verify the Provider's compliance with obligations under this DPA, including the Provider's documentation and we will contribute to such audits. In any case such audits will be subject to prior arrangements and reasonably agreed terms for such audits and inspections which may involve fees based on our reasonable costs of such reviews. If the Customer wishes to appoint an auditor, the Provider may object to the Customer's choice if in the Provider's reasonable opinion the appointed auditor is not suitably qualified or independent, a competitor of the Provider or otherwise manifestly unsuitable. If this is the case the Provider will require the Customer to appoint another auditor or conduct the audit itself.
  17. If applicable, the Provider will assist the Customer in ensuring compliance with any of the Customer's obligations in respect of data protection impact assessments and prior consultation, including if applicable the Customer's obligations pursuant to Articles 35 and 36 of the GDPR, taking into account the nature of the processing and the information available to the Provider, for instance by providing additional security information or providing the information with regard to performance of the Agreement including this Data Processing Addendum.
  18. During the term of the Agreement, the Provider will enable the Customer to access, rectify and restrict processing of Customer Data, including deletion of this data (subject to the hereinabove terms) and to export Customer Data – in a manner consistent with the functionalities of the Services.
  19. If the Provider receives any request from a data subject in relation to Customer Data the Provider may process, the Provider will advise the data subject to submit their request to the Customer and the Customer shall be responsible for responding to any such request including, where necessary, by using the functionality of the Services. Nevertheless, taking into account the nature of the processing of Customer Data via the Services, the Provider will assist the Customer in fulfilling any obligation to respond to requests by data subjects, including obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR. Depending on the case, the Provider may provide you Services' functionalities to perform our commitments you assist you or we may help you in other appropriate manner, including serving you with additional information on processing of Customer Data.
  20. Shall the Customer have any questions in respect of this Data Protection Addendum, please contact the Provider at: legal@ubico.io.
  1. MISCELLANEOUS
  1. Relationship between Provider and Customer. The relationship of the Parties is that of independent contractors. This Agreement does not constitute any one party hereto as the legal agent, partner, employee or legal representative of the other Party for any purpose whatsoever. Neither of the Parties grants to the other any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of it or in its name in any manner whatsoever, unless otherwise agreed to in writing by the other party.
  2. International Use. If the Customer gains access to the Hosted Services from locations outside Canada, the Customer will be responsible for compliance with all local laws of any such other location, and in no event will you the Customer the Hosted Services in violation of Canadian export laws or regulations.
  3. Export Compliance. The Provider's Services may be subject to export laws and regulations of Canada and other jurisdictions. Each party represents that it is not named on any Canadian, United States, European Union, or United Kingdom government denied-party list. You shall not permit any one to access or use the Provider's Service in an embargoed country or in violation of any Canadian export law or regulation.
  4. General Disclaimers. The Customer warrants that they have read and understand the following:
  1. The Provider is only responsible for providing the services under the terms of the Agreement. The Provider shall not have any liability with respect to any communications created, stored, or transmitted through the Hosted Services.
  2. The Provider does not make any representations or warranties regarding the accuracy of our database or lists or automated sales lead generation software. Unless expressly provided otherwise herein, all services and beta services are provided on an "as is", "where is" basis, with all faults and, without representations and warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, (1) all warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement, and any and all warranties arising from course of dealing and usage of trade, as to the website, app, their content and materials and services; (2) that the website, content, materials, and services, will meet the Customer's requirements, will always be accurate, reliable, available, accessible, uninterrupted, timely, secure or operate without error; (3) with respect to the results that may be obtained from the operation, use or other exploitation of the website, content, materials, services, and listings. The Provider further disclaims any other warranties that arise from trade usage or custom, and any warranties that the website, content, materials or services will be free and clear from any adverse lien or security interests.
  1. Reasonableness of Undertakings: Each of the Parties recognizes that the undertakings assumed by it:
  1. Are reasonable in all respects, including, without limitation, as to their subject matter, scope and duration, given the consideration referred to hereinabove and the operations of each of the Parties up to that time; and,
  2. Are necessary in order to protect the legitimate interests of the other Party; and, do not prevent it, in any manner whatsoever, from doing business or continuing to do business, as the case may be.
  1. Governing Law: This Agreement shall be governed by the laws of the Province of Québec and the laws of Canada applicable therein, without regard to the conflicts of law provisions of any jurisdiction. To the extent that any lawsuit is permitted under this Agreement, the Parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the Courts of Québec.
  2. Assignability: The Master Distributor may not assign this Agreement or any of its rights or obligations under this Agreement. Agent may assign its rights hereunder at its sole discretion. Subject to the foregoing, this Agreement and the covenants, obligations, undertakings, rights, and benefits set forth herein shall be binding on and inure to the benefit of the Parties and their respective successors and assigns.
  3. Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between the Parties. The Parties represent and warrant that they are not relying on any statement or representation not contained in this Agreement. To the extent that any terms set forth in any Exhibit conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed by the Parties in such Exhibit.
  4. Headings: No resort shall be had to the headings used in this Agreement in the interpretation or construction of the Agreement; such headings shall serve merely to assist in classifying and identifying the provisions embodying the understanding between the Parties, which provisions have been reduced to writing in this Agreement, and, as a result, no meaning shall be ascribed to them nor may they influence the interpretation or construction of a provision.
  5. Severability: If a court or other body of competent jurisdiction finds, or the Parties mutually agree, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
  6. Compliance: Should any provision of this Agreement contravene any applicable law, it shall be interpreted or construed, if need be, in such a manner as to render it in compliance with the applicable law or, failing which, in the manner most likely to reflect the intention of the Parties without departing or derogating from the requirements or stipulations posited by the applicable laws.
  7. Amendments: This Agreement may be amended or varied from time to time by mutual agreement between the Parties. As the case may be, said amendment or variation effected shall only become effective as of the day when it shall be reduced to writing and duly signed or executed by the Parties.
  8. No Waiver: The silence of a Party, its failure to exercise, or tardiness in exercising, a right or remedy granted to it pursuant to the Agreement under no circumstances shall be interpreted or construed as a waiver of its rights or remedies, so long as the contractual or legal prescription or limitation period in respect of the exercise of such right or remedy shall not have expired.
  9. Cumulative Rights: All rights referred to in the Agreement are cumulative. Any waiver of the enforcement of a right granted by one of the Parties to the Agreement for the benefit of another under no circumstances shall be interpreted or construed as a waiver of the enforcement of any other right granted hereunder unless expressed in writing.
  10. Neutrality of Terms: Where appropriate, the singular number set forth in this Agreement shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates.
  11. Counterparts: This Agreement may be executed and delivered in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile or by electronic image scan transmission in .pdf format shall constitute effective execution and delivery of this Agreement.
  12. Successors: Unless otherwise stipulated, and subject to the provisions stated in the entirety of this Agreement, this Agreement shall bind the Parties hereto as well as their respective successors, heirs and assigns.
  13. No Duress: The Parties represent and expressly acknowledge that the terms and conditions of this Agreement have not been imposed by any one of them, but rather they have been freely discussed amongst them.
  14. Survivability: Termination of this Agreement shall not affect the rights or obligations of the Parties with respect to, notably, Warranties and Representations, Non-Circumvention and Non-Competition, Liability and Indemnification, Defects and Complaints, Insurance, Manufacturer's Warranty Disclaimer, Confidential Information, Dispute Resolutions, Audit Rights, and Third-Party Beneficiary, which the rights and obligations shall survive the termination of this Agreement.
  15. Time of Essence: Time is of the essence of this Agreement.
  16. Preamble: The Preamble hereof shall be an integral part of this Agreement.
  17. English Language: It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s'y rattachant, y compris les avis et les autres communications, soient rédigés et signés**en anglais seulement.