USER AGREEMENT for “BiLL MANAGEMENT TOOL” SERVICE AND DATA HOSTING SERVICE, concluded in the city of Saint-Jean-sur-Richelieu, judicial district of Iberville, Province of Quebec, on the date of reading and acceptance of this agreement on the Web site www.billoutildegestion.com.
BETWEEN: MEGAVOLT DESIGN INC. (also doing business under the name of Megavolt Strategies), legal person established for a private interest duly constituted under the authority of the Canada Business Corporations Act, with head office at 184 Longueuil Street, in the city of Saint-Jean-sur-Richelieu, judicial district of Iberville, Province of Quebec, J3B 6P1, duly registered under number 1149149115 according to the Act respecting the Legal publicity of sole proprietorships, partnerships and legal persons, represented by its president Steve Trinque, duly authorized herein as he so declares;
HEREAFTER REFERRED TO AS “THE SUPPLIER”;
AND: Any enterprise, whether corporate or individual, having requested and obtained at least one customer code, user number and password from the SUPPLIER in order to use “BiLL Online”.
HEREAFTER REFERRED TO AS “THE USER”.
THE PARTIES AFFIRM THE FOLLOWING:
A) THE USER is an enterprise performing project management.
B) THE SUPPLIER exercises the functions of developer of the management tools “BiLL Management Tool” and “BiLL Online” hereafter referred to as “BiLL”, and host of THE USER’s management data.
C) THE USER wishes to be able to use BiLL and to have their project management information and data archived and accessible online.
D) THE SUPPLIER agrees to provide the required login information for the use of BiLL and to host and make the latter accessible on the Internet together with the data belonging to THE USER.
E) It is in the interest of the parties hereto to record the terms of their agreement in a private writing.
F) The parties wish this text to be interpreted as a contract by mutual agreement.
FOR THIS PURPOSE, THE PARTIES AGREE AS FOLLOWS:
The following words and expressions, when they appear capitalized in the Contract or in any subordinate documentation, are interpreted according to the following definitions, unless implicit or explicit exception is made in the text:
designates the possibility for users possessing a computer, access to the Internet and a compatible browser, to access BiLL using their computer.
0.01.02 Hard Disk
designates the central memory of THE SUPPLIER’s computer.
0.01.03 Disk Space
designates the space required and reserved for the hosting of THE USER’s Data on the THE SUPPLIER’s Hard Disk.
designates a communication medium made up of a web of interconnected networks that allows the dissemination, distribution and exchange of information.
0.01.05 Online Setup
designates the operation that makes BiLL accessible to THE USER using the Internet.
0.01.06 Legal Representatives
designates, for each party to the Contract, considering their status and their organization, either their estate liquidators, heirs, legatees or claimants, or their representatives or agents.
designates the main computer of THE SUPPLIER hosting BiLL and the Data, and making it accessible to USERS.
designates the collection of management or other data recorded in BiLL by THE USER.
0.01.09 Information Systems
designates the computerized technologies for creation, processing, conservation and exchange of any type of informational data.
0.01.10 Prime Rate
designates, for each day, the annual interest rate that the principal commercial bank of THE SUPPLIER establishes for this day and makes public, considering the situation of the market, and based on which they determine the interest rate on loans they grant in Canada in Canadian currencies.
The Contract represents the totality and the whole of the agreement concluded between the parties, to the exclusion of any other document, commitment or previous or concomitant verbal contract that may have been concluded in the context of negotiations preceding the final execution of the Contract, and which the parties affirm inadmissible as element of proof liable to change or affect in any way whatever any provisions of the Contract.
0.03.01 Applicable laws
This Contract, its interpretation, execution, application, validity and effects are subject to applicable laws in effect in the Province of Quebec and in Canada, that govern in whole or in part all provisions herein; accordingly, no matter where THE USER may be located, the Contract shall be considered domiciled in Quebec.
any provision of this Contract violating applicable laws is presumed without effect insofar as it is prohibited by any of these laws. The same is true of all clauses subordinate to or related to such a provision, insofar as their applicability depends on the said provision.
If a provision of the Contract violates a law, the provision must be reinterpreted, if applicable, so as to make it compliant with the law or, failing that, be interpreted in the way closest to the intention of the parties without violating the law.
0.03.04 Continuation or cancellation
If the Contract contains a prohibited provision, all other provisions remain in effect and continue to bind the parties, unless the prohibited provision concerns an essential and indivisible stipulation of the Contract. If this is the case, the Contract can be cancelled and the parties fully compensated, insofar as it is possible by taking into account the evolution of their situation, since the Contract came into effect, in order to calculate corresponding compensation.
All deadlines indicated in the Contract are final unless indicated otherwise in the text. When calculating a deadline, the following rules apply:
- the start day is not counted but the end day is;
- non-juridical days, that is Sundays and holidays identified in section 6 of the Quebec Code of Civil Procedure, are counted; however, if the day of the deadline is non-juridical, the term or deadline is deferred to the first following juridical day; and
- the term “month” used in the Contract, designates the months of the calendar.
If the Contract indicates a specific calendar date and this date is a non-juridical day, the deadline then becomes the first juridical day following the indicated date.
All rights mentioned in the Contract are cumulative and not alternative. The waiver of a right granted by one of the parties in favour of the other party to the Contract must never be interpreted as a waiver of any other right granted herein, unless the text of a provision of the Contract indicates exceptionally the necessity of such a choice.
0.04.03 Canadian currency
All monies specified in the Contract refer to Canadian currency. Furthermore, unless indicated otherwise in the text, the sums mentioned in the Contract must not be interpreted so as to include, in the stipulated amount, the Goods and Services Tax (GST), the Quebec Sales Tax (QST) or any other tax applicable to this kind of payment during the entire duration of the Contract.
0.04.04 Gender and number
Insofar as required by the understanding of the text, a word of masculine gender includes the feminine and vice versa; the same is true of a word expressing a number, in that the singular includes the plural and vice versa.
Any expression containing such words should be read, when required by the meaning of the text, so that necessary grammatical changes are made in accordance with the version of the word, so as to provide a logical meaning to the expression in question.
The headings used in the Contract have no interpretive value; they serve only as subdividing and identifying elements for provisions making up the agreement between the parties that are documented in the Contract, and because of this function, they can not be attributed meanings nor influence the interpretation of a provision.
1.00 UTILISATION AND HOSTING
Subject to payment of the consideration and the terms of the Contract, THE USER shall obtain the required login information for the use of the BiLL project management tool, which shall be issued by THE SUPPLIER, and the latter will provide the Disk Space necessary for the hosting of the Data.
2.01 Use of BiLL
2.01.01 Basic pricing
THE USER agrees, in consideration of the rental of Disk Space and Online Setup, to pay the SUPPLIER the sum required according to the pricing table given in the section "Fee Schedule" of the web site http://www.billoutildegestion.com.
It is understood between the parties that the amount of the said monthly fee is subject to change from time to time by THE SUPPLIER and may be reevaluated in case of a change in the number of users required by THE USER.
If there is an increase in the number of users, the cost of use shall be modified according to the pricing table given in the section "Fee Schedule" of the web site http://www.billproject.com. The new fee is then applicable immediately.
Inversely, if there is a decrease in the number of users, the cost of use shall be modified according to the pricing table given in the section "Fee Schedule" of the web site http://www.billproject.com. The new fee is then applicable to the next month.
3.00 TERMS OF PAYMENT
3.01 Usage and hosting fees
3.01.01 Basic pricing
THE USER agrees to pay the SUPPLIER the basic price specified in section 2.00, at the time of Online Setup, and on the same day of each month subsequently or every year depending on the plan chosen in the section "Fee Schedule" of the web site http://www.billproject.com.
3.01.02 Price Variation
Any change of pricing is payable only at the time specified for the monthly payment mentioned above.
All sums stipulated in this contract do not include either current or future taxes, in particular those mentioned in clause 0.04.03 that are the exclusive responsibility of THE USER.
If THE USER fails to pay on time the amounts specified in this part of the Contract, they must pay the SUPPLIER interest on arrears calculated at the Prime Rate in effect at the date of default, plus fifteen percent (15 %) per year, calculated and compounded monthly. The interest on arrears is payable on demand and, in any case, at the latest by the due date of the next monthly payment.
4.00 PAYMENT GUARANTEES
4.01 Suspension of service
Without restricting in any way the application and scope of sections 3.03 and 11.01 herein, if the sums specified in section 3.00 herein are paid late, THE SUPPLIER may suspend Accessibility to the Site www.billenligne.com immediately and without need of a formal notice to THE USER. The responsibility of the SUPPLIER can not under any circumstances be invoked in this regard.
5.00 ATTESTATIONS OF THE SUPPLIER
THE SUPPLIER affirms that they have the technical capabilities, equipment and know-how necessary for the proper accomplishment of their obligations.
THE SUPPLIER attests that they keep abreast of technological innovations related to Information Systems and that they are qualified to assimilate these innovations for the benefit of THE USER, both with respect to equipment, and the currency of their knowledge.
THE SUPPLIER has not failed to disclose any important fact or information concerning their legal or financial situation that would affect their capacity to honour the commitments made in the Contract or that would cause THE USER to withdraw their interest.
6.00 ATTESTATIONS OF THE USER
6.01 Quality of contents
THE USER attests that BiLL shall not be used for the management of projects that are defamatory, false, obscene, hateful, racist or illicit in any way whatever considering applicable laws.
THE USER has not failed to disclose any important fact or information concerning their legal or financial situation that would affect their capacity to honour the commitments made in the Contract or that would cause THE SUPPLIER to withdraw their interest.
7.00 OBLIGATIONS OF THE USER
7.01.01 Obedience to the law
THE USER accepts total responsibility for any Data both concerning its licitness and its informational reliability. THE USER agrees to comply with Canadian federal and provincial laws in effect that may govern the Internet, any international agreement ratified by Canada, and any ethical recommendation concerning the Internet of Canadian origin or issued by the United Nations Organization or by any of its official agencies, whatever the permanent or temporary location of the Server or THE USER.
THE USER recognizes the impossibility for THE SUPPLIER to exercise a permanent and effective control of the licitness of the Data and agrees to exercise this control themselves.
THE USER agrees to indemnify and take the side of THE SUPPLIER in case of any claim, suit, legal proceeding, formal demand, including legal and extra-legal consulting fees, whether a cause is founded or not, or any judgment or any indemnity granted because of damages caused to any person, because of a breach BY THE USER with respect to the licitness or the informational reliability of the Data.
As long as the Contract is in effect and for a period of FIVE (5) years from the end of the latter, THE USER agrees not to encourage employees of the SUPPLIER to quit their job and not to recommend them to a third party for employment.
If THE USER does not abide by the abovementioned obligation, they must pay a penalty equivalent to the yearly salary of the ex-employee. This penalty is payable to the SUPPLIER without prejudice to other legal remedies that the latter may consider appropriate to put an end to the violation or claim the resulting damages.
8.00 OBLIGATIONS OF THE SUPPLIER
8.01 Conditions concerning BiLL Online
Subject to payment of the amounts specified in section 2.00 according to the terms of section 3.00, THE SUPPLIER agrees to perform an update of their interface and to make backup copies of the Data, according to the information provided by THE USER.
THE SUPPLIER agrees to make at least one backup copy per day of THE USER’s data as soon as Online Setup is completed.
8.02 Hosting of Data
8.02.01 Disk space
THE SUPPLIER agrees to reserve sufficient Disk Space for the hosting of the Data on the Hard Disk of their Server.
Once Online Setup is completed, THE SUPPLIER must ensure that the Data is accessible at all times to THE USER.
However, THE SUPPLIER reserves the possibility of warning THE USER of any exceptional interruption of Server service, at least THREE (3) days preceding this interruption, if made necessary because of maintenance and enhancement operations to the Server.
THE SUPPLIER agrees to protect the confidentiality of the USER’s Data. Any action by the SUPPLIER affecting the Data OF THE USER that is not motivated by superior force and, in particular, by an urgent need to protect the Data, must be previously and specially authorized by a valid written text FROM THE USER.
A detailed affidavit stipulating what Information was seen, who had access to the information, under what circumstances it was seen and confirming that no one will use the information for any purpose. This affidavit must be signed by the individuals having had access to the information.
For purposes of this agreement, the term “Information” does not include information that:
a) was known by the SUPPLIER before the date of its receipt and for which THE SUPPLIER can, at the request of THE USER, provide written documentation establishing the proof of this prior knowledge;
b) was known by the public or accessible to the latter before the date of its receipt by THE SUPPLIER (ex: press kits, publications in scientific journals, promotional brochures and other material freely distributed by THE USER);
c) becomes known by the public or accessible to the latter after the date of its receipt by THE SUPPLIER without a breach of the current agreement by the latter;
d) was received at any time from a third party that is not subject to a confidentiality agreement with THE USER concerning this Information;
If THE SUPPLIER is forced to disclose the Information by virtue of a final court order or a government regulation or directive, such divulgation is not considered a breach of this agreement, insofar as before the application of such an order, regulation or directive, THE SUPPLIER notifies and assists THE USER in their initiatives to obtain an appropriate order or any other effective measure to ensure confidential treatment of the Information subsequent to its divulgation.
If THE SUPPLIER violates the current agreement, it is understood that THE USER can have considerable difficulty to establish the amount of damages resulting directly or indirectly. This being the case, as soon as THE USER produces proof of a violation of this confidentiality agreement by THE SUPPLIER, the parties shall submit the matter directly to arbitration according to the rules stated in section 10.02.
Notwithstanding the foregoing, it is understood between the parties that any penalty payable under the regime of the current agreement can be reduced by the court of competent jurisdiction, if it is shown by THE SUPPLIER that it is abusive or excessive, regardless of section 10.02.04.
9.00 SPECIFIC PROVISIONS
9.01 Superior force
Neither party hereto may be considered to have defaulted on the execution of their obligations under this agreement, if such execution is delayed, stopped or prevented as a result of superior force. Superior force represents any cause not dependent on the will of the parties hereto, that they could not reasonably have foreseen and against which they could not protect themselves. Superior force includes, but without limitation, any fortuitous event, strike, partial or complete work stoppage, lock-out, fire, riot, action by civil or military authorities, submission to regulations or orders of any governmental authorities and state of war (declared or not).
The Contract is non-transferable; none of the rights, duties or obligations stated herein may be assigned or transferred by either party without the prior written authorization of the other party. Any attempt to assign or transfer any rights, duties or obligations of the Contract is null and void. Exception is allowed to this principle if BiLL online is sold and if the assignee intends to comply with agreements already in effect.
The parties affirm and recognize expressly that the essential Stipulations of the Contract were not imposed by either of them on the other, but on the contrary, they were freely discussed between them.
Furthermore, each of the parties, after obtaining sufficient explanations concerning the nature and scope of each essential Stipulation of the Contract and having received counsel as to their scope, declares themselves satisfied with the state of legibility and clarity of the said Stipulations.
In addition, each of the parties declare and recognize that each of the essential Stipulations of the Contract, including those that impose penalties or restrictive obligations, is reasonable and necessary for purposes of protecting their respective interests.
In consideration of the foregoing, each of the parties hereby expressly foregoes invoking the nullity of any Contract provision for the motive that it is incomprehensible, illegible or abusive.
10.00 GENERAL PROVISIONS
Any document appended to the Contract and initialled by the parties for identification purposes, or accepted online similarly to the way this contract can be accepted, is an integral part of the latter. If there is a contradiction or conflict of interpretation between the Contract and an appendix, the parties agree that the provisions of the appendix, that are in conflict with the Contract, are without effect.
10.02 Arbitration clause
10.02.01 Mediation and arbitration
In the case of any dispute or disagreement occurring with respect to this contract or because of it, the parties must try to solve their dispute or disagreement through mediation.
In case of failure or rupture of negotiations under mediation, the said dispute or disagreement shall be decided once and for all by way of arbitration, thus excluding recourse to the courts, according to sections 940 and following of the Code of Civil Procedure of Quebec in effect at the time of signing hereto.
Exception is made for disputes or disagreements that can be decided by the Court of Quebec – Small Claims Division, or that could be so decided, if the plaintiff, to make themselves eligible before the Court, reduced their claim. This Court would then have full authority to settle the dispute or disagreement.
The parties reserve the right to change by common agreement provisions of the Code of Civil Procedure at the beginning of procedures.
10.02.02 Choice of arbitrator
Arbitration shall take place before a single arbitrator. The arbitrator chosen by common agreement must be a notary, member of the Association des Notaires Arbitres du Québec. If the parties fail to agree on the choice of the arbitrator within sixty (60) days following the receipt of the notice of a dispute or disagreement, one of the parties can ask the Association des Notaires Arbitres du Québec to assign them one of their arbitrators practicing in the judicial district of Longueuil or in the judicial district closest to the latter if applicable. The arbitrator chosen must be independent, impartial and competent.
10.02.03 Protective and interlocutory measures
The request by a party to a court, before or during the arbitration procedure, for interim measures of protection and the granting of such measures by a court does not constitute a renunciation of this arbitration agreement. The arbitrator can act since as they see fit in order to arrive at a decision as would a reasonable person.
10.02.04 Power of the arbitrator
The arbitrator may only express themselves on the question or disagreement that was submitted to them, and their decision shall be final and without appeal, each of the parties taking it on themselves to ensure that they and their representatives comply with the decision of the arbitrator.
The arbitration costs shall be paid by the losing party unless the arbitrator apportions the costs otherwise.
Except for sections of the Contract where otherwise specified, any notice required herein is sufficient if it is recorded in a written text and sent by a mode of communication that allows the sending party to prove that the said notice was actually delivered to the receiving party, at the address indicated at the beginning of the Contract or at any other address the latter may make known as prescribed in this section of the Contract.
The parties agree, in case of any claim or lawsuit on any grounds concerning the Contract, to choose the judicial district of Saint-Jean-sur-Richelieu, Province of Quebec, Canada, as the place appropriate to the hearing of said claims or lawsuits to the exclusion of any other judicial district that may have jurisdiction over such a dispute according to the prescriptions of the law.
The Contract may be amended or changed in whole or in part, by common agreement between the parties. In such case, any change or amendment thus agreed upon does not take effect until the day it is recorded in a written text duly signed by the parties and appended to the Contract.
The silence of either party, their negligence or delay in exercising a right or recourse that is granted them under the Contract can never be interpreted against the party as a renunciation of their rights and recourses, as long as the conventional or legal time limit prescribed for the exercise of such a right or recourse has not expired.
11.00 TERMINATION OF THE CONTRACT
11.01.01 With notice of FIVE (5) days
THE SUPPLIER may, at any time, by means of a notice to this effect to THE USER, terminate the Contract, within FIVE (5) days of the said notice, in one or another of the following cases:
a) if THE USER fails to pay the amounts specified in sections 2.00 and 3.00 herein;
b) if THE USER fails to meet their obligation of correction stipulated in section 7.00 of Contract;
c) if THE USER initiates procedures under any law concerning insolvency or bankruptcy or if any procedure under such laws is initiated against THE USER;
d) if THE USER fails to pay any amount payable and due under the Contract.
11.01.02 With notice of THIRTY (30) days
Except for the Initial Duration, THE USER may, at any time, terminate the Contract by a written notice of THIRTY days (30) to the SUPPLIER. However, since the cancellation is not attributable to the SUPPLIER, no sum is refunded to THE USER.
12.00 EFFECTIVE DATE
The Contract comes into effect on the day of its acceptance, that is as soon as Online Setup is completed and the first payment is made.
13.00 LENGTH OF CONTRACT
13.01 Initial duration
The contract has an initial duration of six (6) months in the case of a monthly payment agreement or 12 months in the case of an annual payment agreement, starting from the date of acceptance of this agreement.
The Contract is renewed automatically, at the end of each term, for a duration equivalent to the initial duration. However, THE USER may forego renewal of the Contract by sending a notice to the SUPPLIER thirty (30) days before the end of the term.
The Contract is binding and enforceable on the parties and their Legal Representatives.