Cantook Hub Web Contract Clauses

HOSTING AND DIGITAL FILE DISTRIBUTION AGREEMENT

  • Entire Agreement – these terms and conditions supplement the digital file hosting and distribution agreement between DE MARQUE and the PUBLISHER and form a single contract (hereinafter referred to as the “Agreement”);
  • These terms and conditions must therefore be accepted and signed electronically by the PUBLISHER 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 PUBLISHER’s express acceptance of these terms.

INTERPRETATION

Precedence – The Agreement constitutes the entire and complete agreement between the Parties to the exclusion of any other prior or concurrent documents, contracts or oral promises that may have been made, as part of the negotiations that preceded the full execution of the Agreement, which the Parties declare inadmissible as elements of evidence that would in any way alter or affect any of the provisions of the Agreement.

REPRESENTATIONS AND WARRANTIES BY DE MARQUE

DE MARQUE represents and makes the following warranties to the PUBLISHER:

  • Capacity and Authority – DE MARQUE has the capacity and authority to validly bind itself to the terms of the Agreement and to perform all of its obligations under the Agreement. The Agreement therefore constitutes a valid binding commitment by DE MARQUE, enforceable in accordance with its term.
  • Quality of Services – DE MARQUE is committed to supervising and directing its teams to ensure the proper performance and quality of the agreed upon Services. DE MARQUE assigns qualified teams with the necessary technical and/or functional skills depending on the nature of the Services. DE MARQUE remains fully autonomous and free to choose its partners and suppliers.
  • Data Integrity – DE MARQUE is committed to ensuring the confidentiality and integrity of data, programs, systems and servers, including the implementation of appropriate security measures. However, given the nature of the public network that is the Internet, De Marque shall not be required to warrant or assume any liability for any breach of confidentiality, hacking, virus, loss or alteration of information transmitted or hosted on its systems or on the systems of third parties.
  • Limitation of Liability – DE MARQUE has no obligation to verify or responsibility for the LICENSEE’s use of the Platform and the Software Package, or for the files passing through the Platform. Therefore, DEMARQUE cannot be held liable for the following breaches:
    • Violation of federal, state, local or foreign laws or regulations, including, but not limited to, digital book pricing, digital lending terms on any type of work, free competition or trade practices;
    • Infringement of an Intellectual Property Right committed by any third party;
    • Violation of privacy, publicity or other personality rights of any other person or entity. The LICENSEE is solely liable for the use of the Platform in compliance with all applicable laws.
  • Limitation of Liability – DE MARQUE shall have no liability for infringement of rights by third parties or for any defect in the merchantability of the Digital Files. Any legal notices, lawsuits or claims related to the Digital Files received by DE MARQUE will be redirected to the PUBLISHER, who agrees to hold DE MARQUE harmless and to defend itself in connection with any dispute arising from the foregoing. In such cases, or in the event that DE MARQUE has a reasonable doubt that a Digital File is likely to be the subject of a potential lawsuit or claim, or to damage its reputation, or for any other reason, DE MARQUE reserves the unilateral right not to distribute such File or to take the necessary technical means to temporarily or permanently suspend its distribution via Cantook Hub.
  • Non-Compliance – DE MARQUE shall have no obligation to transmit or make available to Sellers Digital Files provided by PUBLISHER that do not conform to the technical specifications required by DE MARQUE. 
  • Use of Cantook Hub – DE MARQUE does not warrant that, at all times, the use of Cantook Hub will be uninterrupted, timely, error-free or without security breach. The Publisher assumes the risks associated with its use and if, despite DE MARQUE’s undertakings, the Publisher is not satisfied, its sole and exclusive remedy is to discontinue its use. The PUBLISHER is solely liable for maintaining backup copies of all its Digital Files and Metadata stored in Cantook Hub.
  • Limitation of Liability – DE MARQUE’s liability under the Agreement, if any, is in all cases limited to the total amount of annual fees paid to DE MARQUE by the Publisher under the Agreement. DE MARQUE shall in no event be liable for any indirect or special loss and/or damage, including but not limited to any financial loss, loss of revenue or profit, for any reason whatsoever, even if such loss or damage was foreseeable and even if DE MARQUE had been advised of such possibility.

PUBLISHER’S REPRESENTATIONS AND WARRANTIES

The Publisher represents and warrants that:

  • It has obtained all the rights allowing it to warehouse its Digital files on Cantook Hub and to grant De Marque the right to distribute such Digital files through Online Shops;
  • It shall assume all the responsibilities with respect to the content of the Digital files;
  • The PUBLISHER declares that the content of the Digital Files:
    • Are free from errors or technical defaults
    • Complies with all applicable laws and regulations in the territories covered by the sale of the Digital files;
    • Does not have harmful, inaccurate, pornographic, offensive, obscene, threatening, defamatory or seditious  material or material that is contrary to the public order or offensive to the public or a part of the public, or that promotes or encourages unlawful activities;
  • PUBLISHER also represents that the Digital Files:
    • Do not contravene any federal, provincial, local or foreign law or regulation;
    • Do not infringe any copyright, trademark or any other third party intellectual property right;
    • Do not infringe on privacy rights, publicity rights or any other personality rights of any other individual or entity;
  • The Digital files do not contain any viruses or other computer programs that could damage or adversely interfere with any computer or telecommunications network, equipment or mobile phones, or send unsolicited e-mail;
  • It guarantees to have paid or to pay any sums directly or indirectly payable to any entitled person to the Digital Files of any use of the work in the context of digital distribution and that in any case De Marque will not be held responsible for the payment of any amount in this regard.
  • The Publisher will fully indemnify, defend and hold De Marque and its directors, shareholders, officers, employees, agents, mandataries and representatives (collectively the “Indemnified Persons”) harmless from and against any damage, actions, proceedings, claims, demands, losses, fees or expenses (including legal fees and expenses) suffered by the Indemnified Persons and which result from:
    • The breach by the Publisher of any of its undertakings or guarantees set out herein;
    • Any third party claim alleging that the textual or graphic material submitted by the Publisher to De Marque as a Digital file or Metadata infringe on third party intellectual property rights.

RIGHT GRANTED BY THE PUBLISHER

Under the terms hereof, the Publisher grants the following rights to De Marque during the Term and in the Territory:

  • The right to host the Publisher’s Digital files and Metadata in Cantook Hub;
  • The right to enter into agreements with Vendors for the purpose of distributing Digital files;
  • The right to enter into agreements with third parties for the purpose of granting licences authorizing the loan of Digital files;
  • The right to send the Publisher’s Digital files to Online Shops or make them available to them;
  • The right to reproduce the Digital files, communicate the Digital files to the public through telecommunication, send the Digital files and make them available to the public through all means current and future for the purpose of digital distribution;
  • The right to do everything necessary within reason for De Marque to perform its obligations toward the Vendors, such as changing the Metadata, if necessary within reason to correct any errors they contain;
  • The right to use the following free of charge: the Metadata, the Publisher’s names and logos, the covers and tables of contents of the Digital files in order to promote the Digital files, Cantook Hub, De Marque, Vendors or Online Shops;
  • The right to allow Vendors to offer Customers, at no charge to them, access to the content of the Digital file equivalent, unless otherwise indicated, to ten percent (10%) of the Digital file, without protecting this content by DRM;
  • The right to adapt the format of a Digital file so as to include therein the rules of use, all the necessary functionalities (in particular the distribution channel, i.e. subscription, streaming, partial downloading, etc.) so that it can be sold at Online Shops. De Marque refrains from making any changes to the substance of the Digital files;
  • The right to send free copies of customer service Digital files for testing purposes or in the event a copy of the Digital file sold to a Customer or the Customer’s DRM have proven to be defective. Customer service or test copies are clearly differentiated from active sales in the Statistics section of the Publisher Account;
  • The right to allow every Vendor to reduce the Customer Price of a Digital file if such Digital file is available in the Territory at a lower price than the Customer Price, at another Vendor’s Online Shop;
  • The right for De Marque and the Vendors to keep, notwithstanding the termination of the Agreement for any reason whatsoever, a backup copy of all Digital files in order to enable De Marque and the Vendors to honour the commitments toward any Customer before the end of the Agreement for the purposes of allowing Customers who have purchased Digital files through an Online Shop prior to the end of the Agreement to download the book again and to allow Customers who have obtained an e-lending licence to operate the number of loans provided until the licence expires. 
  • The right to authorize any third party to perform any act mentioned in this section.

INTELLECTUAL PROPERTY

  • All Intellectual Property Rights conceived, developed, acquired or otherwise obtained by either Party prior to the execution of this Agreement shall remain the property of the Party that conceived, developed, acquired or otherwise obtained them. The Agreement does not transfer, in whole or in part, any Intellectual Property Rights prior to this Agreement to the other Party or to anyone else.
  • Software and development tools owned by DE MARQUE remain its exclusive property. The PUBLISHER has the right to use these software and tools during the term of this agreement.
    The PUBLISHER grants DE MARQUE the right to use the name and trademarks of the PUBLISHER for the sole purpose of mentioning the existence of an agreement with the PUBLISHER for promotional and marketing purposes.

CONFIDENTIALITY

All Intellectual Property Rights conceived, developed, acquired or otherwise obtained by either Party prior to the execution of this Agreement shall remain the property of the Party that conceived, developed, acquired or otherwise obtained them. The Agreement does not transfer, in whole or in part, any Intellectual Property Rights prior to this Agreement to the other Party or to anyone else.

Software and development tools owned by DE MARQUE remain its exclusive property. The PUBLISHER has the right to use these software and tools during the term of this agreement.
The PUBLISHER grants DE MARQUE the right to use the name and trademarks of the PUBLISHER for the sole purpose of mentioning the existence of an agreement with the PUBLISHER for promotional and marketing purposes.

CONFIDENTIALITY

  • Each Party agrees to treat and maintain in strict confidence any confidential information it has received or acquired from the other Party in connection with this Agreement and to take all reasonable steps necessary for such protection. Without limiting the foregoing, each Party agrees to keep the Confidential Information of the other Party secret, not to copy or otherwise reproduce it and not to disclose or make it available to any third party, in whole or in part, except to such Party’s directors, officers, employees and consultants who require it for the purposes of the Agreement, who shall be bound by confidentiality obligations at least as strict as those set forth in the Agreement.
  • Each Party agrees to use the confidential information of the other Party only for the purpose of performing the Agreement, and will not use the confidential information of the other Party for any other purpose without the prior express written consent of such other Party. Without limiting the foregoing, the PUBLISHER will not use DE MARQUE’s confidential information or modify it for the purpose of designing or creating any other product, technology or information. The PUBLISHER will not use any of DE MARQUE’s confidential information to compete with DE MARQUE, will not use DE MARQUE’s confidential information in a manner that would be detrimental to DE MARQUE, and will not permit any third party to do any of the preceding.
  • The Agreement does not intend to, and does not, prevent the Parties from using or disclosing confidential information:
    • required by law to be disclosed, provided that, where applicable, the Party receiving a request for disclosure of confidential information from the other Party pursuant to a requirement of law shall promptly notify the other Party of such requirement so that the other Party may seek the appropriate protective order;
    • that is or becomes in the public domain other than as a result of the breach of the Agreement;
    • that is already in the possession of a Party at the time of disclosure by the other Party, provided that such possession is documented by written evidence and that Party does not have a confidentiality obligation in favor of third parties with respect to such Confidential Information; or
    • the use or disclosure of which is approved by the express written authorization of the Party to whom it belongs. If there is any uncertainty as to the confidentiality of any information that a Party intends to use or disclose, the Party agrees to consult with and seek the consent of the other Party before doing either.
  • These confidentiality obligations imposed on each of the Parties will continue for a period of twenty-four (24) months following the date of termination of the Agreement for any reason.
  • Each Party agrees to return to the other Party, upon termination of the Agreement for any reason or within ten (10) days of a written request by one Party to the other Party to do so, all documents or other materials representing or constituting confidential information received and collected under the Agreement without retaining any copies of such confidential information. Each Party also agrees to attach to the confidential information returned a written confirmation that such confidential information constitutes all information received and collected under the Agreement.
  • However, it is understood by the Parties that certain information may be used by DE MARQUE as statistical data and that DE MARQUE may publish some of this information which will not be considered confidential if no personally identifiable information is disclosed. DE MARQUE will not communicate, disclose, disseminate or use any personal information of a confidential nature that the PUBLISHER may have communicated to DE MARQUE under the terms of the Agreement and that the PUBLISHER has not previously authorized DE MARQUE to communicate, disclose, disseminate or use, except to the extent strictly necessary to perform its obligations or exercise its rights under the Agreement and to the extent that it is anonymized and aggregated statistical data provided in performance of the Agreement and expressly designed for such purposes, it being understood that such anonymized and aggregated data does not constitute confidential personal information and may therefore be used by DE MARQUE.

TERMINATION OF THE AGREEMENT

Termination without Prior Notoce – The Agreement is terminated as of right, without notice or formal demand should any of the following events occur:

  • A Party becomes insolvent, makes an assignment of its property in favour of its creditors or proceeds with the liquidation of its assets;
  • A Party voluntarily files a petition in bankruptcy or is petitioned into bankruptcy and a final judgment is rendered declaring its bankruptcy;
  • a Party sells, assigns, transfers or cedes its rights or part of its rights under this Agreement without having obtained the other Party’s prior written permission in accordance with Section 7.2.

Termination with Prior Notice – The Parties may at any time, by way of a written notice to such effect of no less than thirty (30) days, terminate the Agreement, without prejudice to all their rights and remedies, if either of the Parties fails to abide by any of the terms and conditions of the Agreement and that such derogation or default is not corrected within thirty (30) days following the receipt of a written notice describing the derogation or default and the correction requested.

Payment of amounts due and payable upon termination. In the event of termination due to the Publisher’s default, with or without prior notice, De Marque shall be entitled to payment forthwith in full of any amounts due and payable at the termination date. The Publisher shall immediately cease to use Cantook Hub as of the termination date of the Agreement.

MISCELLANEOUS PROVISIONS

  • Juridiction – This Agreement, its interpretation, performance, application, validity and effects are subject to the applicable laws in force in the province of Quebec and in Canada, which govern all the provisions it contains in whole or in part.
  • Adaptation – If any provision contravenes an applicable law, it shall be construed, where appropriate, so as to render it compliant with the applicable law, or alternatively, in a manner that is most likely to meet the intent of the Parties without derogating from the requirements of the applicable laws that the Parties do not wish to contravene.
  • Severability – Any provision of this Agreement not in compliance with the applicable laws shall be deemed to have no effect insofar as it is prohibited by any of the said laws. The same principle applies to all subordinate clauses or clauses related to such a provision inasmuch as their applicability depends on the said provision.
  • Currency – All amounts of money provided herein refer to Canadian currency. Furthermore, unless otherwise indicated in the text, the amounts of money indicated herein shall not be construed as including the Goods and Services Tax (GST), the Quebec Sales Tax (QST) or any other tax or assessment applicable to this type of payment during the term hereof.
  • Notice – Unless otherwise provided in this Agreement, any notice required hereunder shall be sufficient if it is recorded in writing and sent by a mode of communication which allows the sender to prove that the said notice was actually delivered to the recipient at the address indicated on the title page hereof or any other address, including an email address, that the recipient may make known under this section. 
  • Relation between the Parties – This Agreement does not create a relationship of agent, mandatary, partner, employee or legal representative between De Marque and the Publisher. The Parties acknowledge that they are acting as independent entrepreneurs and that each is free to manage its business in the manner it wishes despite the Agreement. They confirm that no provision hereof may be construed in such a way as to grant a power of control to the Publisher over the business and operations of De Marque, failing which such a provision shall be construed restrictively in order to protect De Marque’s reputation. 
  • Force majeure – None of the Parties may be considered in default of the performance of their obligations hereunder if such performance is delayed, withheld or prevented as a result of force majeure. Force majeure is any cause beyond the control of the Parties, which they were reasonably unable to foresee, and against which they were unable to protect themselves. Force majeure includes, but is not limited to, any fortuitous event, strike, partial or complete work stoppage, lockout, fire, riot, intervention of the civil or military authorities, acquiescence to the regulations or orders of any government authority, and act of war, whether declared or undeclared.
  • Cumulative – All rights referred to in this Agreement are cumulative and not alternative. The waiver of the exercise of a right granted by one Party to the other Party to the Agreement shall never be construed as a waiver of the exercise of any other right, here granted, unless the text of a provision of the Agreement exceptionally indicates the necessity of such an election.
  • Headings – The headings used in this Agreement are not interpretive; they serve only as a means of classifying and identifying the provisions of the agreement between the parties contained in this Agreement and, by reason of that function, shall not be assigned any meaning or influence the interpretation of any provision.
  • Assignment – The PUBLISHER may not assign this Agreement or any part thereof or its rights thereunder without first obtaining the written consent of DE MARQUE, which consent may be given or withheld in DE MARQUE’s sole discretion, but may not be unreasonably withheld.
  • Binding – This Agreement shall be binding upon the Parties hereto and their heirs, executors, assigns and representatives.

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