Web Contract Clause Cantook Station

SERVICE CONTRACT

  • Entire Agreement – these terms and conditions supplement the general terms and conditions of sale between DE MARQUE and the LICENSEE and form a single contract (hereinafter referred to as the “Agreement”);
  • These terms and conditions must therefore be accepted and signed electronically by the LICENSEE and such signature is a condition to the coming into force of the Agreement;
  • The coming into force of this Agreement, signed by the Parties, is conditional upon the LICENSEE’s express acceptance of these terms.

SERVICES

  • Availability – DE MARQUE warrants to the LICENSEE that the Platform will be available at least 99% of the time on an annual basis. The availability rate is defined as the number of minutes of availability divided by the number of minutes of scheduled availability. Availability will be measured by an independent service conducting checks at least every 15 minutes. The scheduled minutes of availability do not include Updates and Maintenance operations.
  • Assistance and technical support – DE MARQUE shall supply to the LICENSEE without cost, an assistanceand technical support Services to ensure that the LICENSEE has access to a continuously operating functional Platform pursuant to the terms hereunder :
    • Standard Assistance – DE MARQUE makes available to the LICENSEE an online standard assistance service during business hourss.
    • Emergency Assistance – An emergency assistance number is also made available to the LICENSEE at all times for any immediate technical assistance or in case of a Blocking Anomaly.
  • Correction of Problems – DE MARQUE shall react within less than 4 hours for Critical Anomalies and correct the situation or supply a temporary Circumvention Solution within 48 hours. For any Blocking Anomaly, DE MARQUE shall ensure a correction or a Circumvention Solution within 5 days of the beginning of the Blocking Anomaly. For any Non-Blocking Anomaly, DE MARQUE shall make a correction or supply a Circumvention Solution within a time limit agreed on in each case in good faith between the Parties.
  • Maintenance – DE MARQUE shall perform all Corrective Maintenance and Evolutive Maintenance without cost. If such additional costs are incurred, DE MARQUE may propose to integrate these developments to the Software or the Platform at a rate determined on a case-by- case basis.
  • Specific Developments – DE MARQUE may, at the LICENSEE’s request, develop any Specific Development to integrate functionalities to the Software or the Platform, following the acceptance by the LICENSEE of a quote supplied by DE MARQUE to develop and integrate said Specific Developments to the Software or the Platform. Specific Developments shall be considered as an acceleration of the improvement of the performance or functionalities of the Software and Platform, and not as any proprietary elements of the LICENSEE.
  • External Domain Name – DE MARQUE shall not be held liable for the non-availability of the Platform due to service problems related to the LICENSEE’s external domain name and any non- availability for such a reason shall not be considered in calculating the availability rate detailed section 3.1. The LICENSEE shall be solely liable for any problem related to such breakdown, but DE MARQUE will however assist the LICENSEE within the same time limits as with a Blocking Anomaly, if modifications were to be made to the Platform in connection with the problems related to the LICENSEE’s external domain name.
  • Sending of Emails – The LICENSEE shall supply or create all computer accesses required to allow DE MARQUE to send emails from the Platform through email addresses originating from the LICENSEE’s external domain name. DE MARQUE cannot warrant that the emails sent via the email addresses from the LICENSEE’s domain name will actually be delivered or will be free of errors, as this responsibility is strictly the LICENSEE’s.

INTERPRETATION

Precedence This Agreement is the complete agreement reached by the Parties to the exclusion of any other prior or concurrent document, contract or verbal undertaking which may have been entered into during the negotiations that preceded the complete execution of the Agreement, which the Parties state to be inadmissible as evidence likely to modify or affect any of the provisions of the Agreement in any way whatsoever.

INTELLECTUAL PROPERTY

  • All Intellectual Property Rights designed, developed, acquired or otherwise obtained by either one of the Parties before the execution of this Agreement shall remain the property of the Party, which designed, developed, acquired or otherwise obtained them. This Agreement does not therefore have the effect of transferring in whole or in part any Intellectual Property Right prior to this Agreement to the other Party or to anyone.
  • Any Intellectual Property Rights or Improvements regarding the Platform, Software or any other element, which may be protected by an Intellectual Property Right and developed hereunder, whether or not DE MARQUE or the LICENSEE creates them, are and remain the unique and exclusive property of DE MARQUE.
  • This Agreement shall not in any way and at any time be interpreted as:
    • granting a license, a right or any interest whatsoever to the LICENSEE regarding the Intellectual Property Rights or Improvements to the Platform or Software, except for the license referred to in section 3.1 herein;
    • granting any access to the Source Code.
  • The LICENSEE agrees to assign and hereby assigns to DE MARQUE all rights, titles or interest it has or could have in the future to or in any Intellectual Property Rights or Improvements to the Platform or Software and irrevocably waives any moral rights it may have to or in the Intellectual Property Rights or Improvements to the Platform or Software. The LICENSEE shall obtain such assignments and waivers from any employee, supplier or sub-contractor who may be called on to work for the LICENSEE under this Agreement.
  • At DE MARQUE’s request, the LICENSEE shall accomplish everything that is useful or necessary to give full effect to the assignments and waivers done and granted hereunder, namely by signing all required documents which are necessary or useful to acknowledge, preserve or publicize the assigned rights.
  • DE MARQUE shall have the right to give access to any Specific Development requested by the LICENSEE to any third party to which DE MARQUE provides access to the Software or Platform, since Specific Developments shall be considered as an acceleration of the improvement of the performance or functionalities of the Software and Platform, and not as any proprietary elements of the LICENSEE.
  • The LICENSEE does not have any right to reproduce the Platform or Software, to distribute copies or versions or all or part of the Platform or Software or to develop and/or sell variations or works derived from the Platform or the Software to any third party, including to any Library.
  • Although the Platform is supplied as a white label software solution to the LICENSEE, DE MARQUE shall have the right at their entire discretion, to show their name, logos and  trademarks on the Platform in a discrete and reasonable way. 
  • The LICENSEE grants to DE MARQUE the right to use the LICENSEE’s name and trademarks strictly to mention the existence of an agreement with the LICENSEE for promotional and marketing purposes.

CONFIDENTIALITY

  • Each Party shall deal with and maintain the strictest confidentiality of all Confidential Information it received or acquired from another Party in the performance of this Agreement and shall take all reasonable measures required for such protection. Without restricting the scope of the above, each Party shall maintain the secrecy of the Confidential Information of another Party, shall not copy it or otherwise reproduce it and shall not disclose it or make it available to third parties, either in whole or in part, except to directors, administrators, employees and consultants of that Party who have a need to know for the purposes of the performance of this Agreement, and said persons shall be bound by obligations of confidentiality which are at least as stringent as those specified in this Agreement
  • Each Party shall use the other Parties’ confidential information strictly for the purposes of the performance of this Agreement and for no other purpose without having obtained prior written specific authorization from the other Parties to do so. Without restricting the scope of the preceding, the LICENSEE shall not use DE MARQUE’s confidential information and shall not modify it so that it may be used for the design or creation of any other product, technology or information, The LICENSEE shall not use any of DE MARQUE’s confidential information to compete against it, so as to cause prejudice to it and shall not allow a third party to do anything mentioned above.
  • The purpose of this Agreement is not to prevent the Parties from using or disclosing Confidential Information:
    • the disclosure of which is required by law, provided, as the case may be, that the Party receiving a request for the disclosure of another Party’s Confidential Information pursuant to law immediately advises such Party so it may apply for an appropriate protective order;
    • which is part of the public domain otherwise than as a result of an infringement of this Agreement;
    • which is already known to a Party when it is disclosed by another Party, provided that such knowledge is documented by written evidence and that said Party does not have an obligation of confidentiality to third parties regarding said Confidential Information;
    • the use or disclosure of which is approved under the specific written authorization of the Party  which  owns  such  Confidential  Information.  In  case  of  uncertainty  regarding  the confidentiality of information a Party plans on using or disclosing, said Party shall consult the other Party which owns such information and request its consent before using or disclosing said information.
  • These confidentiality obligations shall continue for a period of twenty-four (24) months  following the termination date of this Agreement for any reason whatsoever.
  • Each Party shall return to the other Parties, on termination of this Agreement for any reason whatsoever or within ten (10) days following a written request made by one Party to the others to that effect, all documents or other media which represent or contain the Confidential Information received and gathered hereunder, without keeping any copies of said Confidential Information. Each Party shall also enclose with the Confidential Information returned, written confirmation certifying that said Confidential Information is all of the Confidential Information received and gathered hereunder.
  • The Parties agree however that some information may be used by DE MARQUE as statistical data and that DE MARQUE may publish some of this information which is not considered to be confidential if nothing disclosed allows identifying a person. DE MARQUE shall not communicate, disclose, disseminate or use any personal information which is confidential as such, which the LICENSEE may have disclosed to it regarding any Library and/or to its Authorized Patrons under this Agreement for which the LICENSEE did not give DE MARQUE prior authorization to communicate, disclose, disseminate or use such information, except to the extent strictly necessary to perform its obligations or to exercise its rights under this Agreement provided that this is anonymous and aggregated statistical information supplied in the performance of this Agreement and specifically devised for such purpose, it being understood that such anonymous and aggregated data are not personal confidential information and may as such be used by DE MARQUE.

DATA RECOVERY

  • At the expiration of the term of this Agreement or in case of its early termination, the LICENSEE may recover the following operating data: catalogue data and all metadata, user accounts, loans, reservations and borrowing history.

TERMINAISON OF THE AGREEMENT

Termination without prior notice

  • The Agreement is automatically terminated without a notice or demand letter, if any of the following events should occur:
  • A Party becomes insolvent, assigns its property for the benefit of its creditors or liquidates all of its property;
  • A Party files for bankruptcy or if bankruptcy proceedings are undertaken against it and a final judgment is rendered by which it is declared bankrupt;
  • A Party sells, assigns, transfers or alienates its rights in this Agreement without obtaining the prior written permission from the other Party pursuant to section 7.6.

Termination with prior notice

  • The Parties may terminate this Agreement at any time by giving a written notice to that effect of at least thirty (30) days, without prejudice to their rights and recourses, if either of the Parties does not comply with any of the conditions of this Agreement and if such default is not remedied within thirty (30) days following the receipt of a written notice describing the default and the remedy requested;
  • In case of termination as a result of DE MARQUE’s default, the LICENSEE shall only be required to pay the invoices received up to the date of termination. In addition, the LICENSEE may, without paying any compensation or indemnity, continue to use the Software and all of its developments on the date of termination, as well as to continue to operate the Platform pursuant to the license granted by DE MARQUE under section 3.1 herein.
  • In case of termination as a result of the LICENSEE’s default, DE MARQUE shall be entitled  to  the  complete  and  immediate  payment  of  any  amount  due  on  the  date    of termination, as well as to any amount due for Specific Developments made by DE MARQUE on the date of termination. The licenses specified hereunder shall be immediately revoked and the LICENSEE shall immediately cease using or operating the Platform or the Software on the termination date of this Agreement.

VARIOUS PROVISIONS

  • Applicable law – This Agreement, its interpretation, enforcement, application and its  effects are subject to the laws applicable in the province of Quebec, Canada.
  • Term – The term hereof shall begin on the Effective Date until either Party terminates the Agreement in accordance with article 7 Termination of Agreement, above.
  • Obligation for mediation and conflict resolution – Any dispute resulting from this Agreement shall be first of all subject to mediation in good faith between the Parties. The mediator shall be chosen by mutual agreement of the Parties and the Parties shall equally share the fees and disbursements for the mediation. If the dispute is not settled following the mediation, the dispute shall be submitted to a competent court in the judicial district of Quebec, Canada.
  • Partial invalidity – If a provision of this Agreement is considered to be invalid or inapplicable in any way by a court of competent jurisdiction, such a ruling shall not hinder or affect the validity, legality or applicability of the other provisions herein and each section of this Agreement is deemed to be separate, divisible and distinct as such.
  • Notice – Except for the sections of this Agreement where it is specified otherwise, any notice required hereunder is sufficient if it is in writing and sent by a means of communication which allows the sender to prove that said notice was actually delivered to the receiving Party at the address specified on the front page or at any other address, namely at an email address.
  • Assignment – No Party may assign this Agreement or any part of it or its rights hereunder without having first obtained the written consent of the other Party hereto at least six (6) months ahead of time, and said consent shall not be withheld without just and sufficient grounds.
  • Taxes – The LICENSEE is the only person liable for the payment of any Goods and Services Tax, sales tax and/or any other tax or levy of any type whatsoever, regarding the amounts it receives in connection with its use or operation of the Platform for Libraries or third parties, as well as in connection with any amount it pays to DE MARQUE or to a third party hereunder. The LICENSEE shall pay said taxes or levies at the rates in force under any  applicable legislation or regulations and in the manner and according to the due dates specified in said legislation and regulations.
  • Copies – Each copy of this Agreement, which is signed by the Parties is an original of this Agreement.
  • Force majeure – None of the Parties hereto may be considered in default in the performance of its obligations hereunder if such performance is delayed, suspended or prevented as a result of force majeure. Force majeure is any cause, which does not depend on the will of the Parties, which they could not have reasonably foreseen and against which they could not have protected themselves. Force majeure namely includes without restriction, any strike, partial or complete work stoppage, lock-out, fire, riot, civil or military intervention, compliance with the regulations or orders of any government authorities and acts of war, whether declared or not.
  • No waiver – A Party’s silence, its negligence or delay in exercising a right or a recourse which is granted to it hereunder shall never be interpreted against said Party as a waiver of its rights and recourses as long as legal or contract time limits for the exercise of such recourses are not expired.
  • Relationship between the Parties – The Agreement does not create a relationship of agent, partner, associate, employee or legal representative between DE MARQUE and the LICENSEE. The Parties acknowledge that they are independent contractors and that each of them is free to administer its business as it intends. They confirm that nothing hereunder may be interpreted as granting control by any Party over the business and operations of the other Party;
  • Survival – Any sections hereof or obligations hereunder which by their nature,  must  survive the expiry or termination of this Agreement, including without restricting the general nature of the above, the obligations regarding intellectual property, confidentiality and the representations and warranties of the Parties, shall remain in force following such expiry or termination of this Agreement.
  • Titles – The titles used in this Agreement shall not be used for interpretation purposes, as they are strictly used for classifying and identifying the content of the Agreement for the Parties, and because of this, they cannot have any meaning whatsoever or influence the interpretation of any provision herein.
  • Amendment – A written instrument signed by both Parties can only amend this Agreement.
  • Scope – This Agreement is binding on the Parties, as well as their legal representatives, successors, legatees and authorized successors and assigns.
  • Devises – Currency. All amounts of money specified hereunder refer to XXXX currency. In addition, unless stipulated otherwise herein, the amounts of money specified herein shall not be interpreted as including in the stipulated amount any tax applicable to this type of payment throughout the duration of this Agreement, as any taxes are to be calculated in addition to the stipulated amounts.

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