TERMS AND CONDITIONS

  1. Definitions

In these Terms and Conditions, the following definitions are used, both in the singular and in the plural form. 

    1. Account” means the right to access a user interface on the Edgegap Platform that enables the Client to manage and configure Software Services (or certain aspects thereof), access files that have been stored on the Client’s behalf and/or request and manage other Services.

    2. Agreement” means these Terms and Conditions, together with every purchase order, quote, offer, contract or other agreement between Edgegap and the Client on the basis of which Edgegap delivers products and/or provides Software Services or other Services to the Client.

    3. Client” means the person entering into an Agreement with Edgegap, on the basis of which products are delivered and/or Software Services or other Services are provided, offered or made available to such person.

    4. Client Content” means any Material supplied or provided by the Client to Edgegap or uploaded to Edgegap’s Platform or an Infrastructure in the context of, or in relation to Software Services or other Services, including Personal Data.

    5. Edgegap means Edgegap Technologies Inc., a corporation governed by the Canada Business Corporation Act, having its registered office and its principal place of business at 109-923 boulevard du Séminaire North, Saint-Jean-sur-Richelieu, Quebec J3A 1B6 Canada and its successors and assigns.

    6. Edgegap Platform means the Edgegap platform and software available at www.edgegap.com and any other platform or infrastructure set up by Edgegap and through which Edgegap provides Software Services or other Services and exchanges with the Client from time to time.

    7. Edgegap Policies” means Edgegap’s End User License Agreement, Personal Information and Data Protection Policy, and the Edgegap Platform’s Standard Terms and Conditions, together with any other policy, guideline or code of conduct adopted by Edgegap from time to time, in each case, such Edgegap Policies will be made available on the Edgegap Platform and may be updated, amended or replaced from time to time.

    8. Terms and Conditions” or “T&C” means these Terms and Conditions, regardless of the form in which they are communicated (including any paper or e-mail copy or via the Edgegap Platform).

    9. in writing/written” means any written or recorded evidence of an act, such as paper documents, as well as electronic messages and messages sent using the Edgegap Platform, recordings and videos, provided that the sender’s identity and the integrity of the message have been sufficiently established.

    10. Infrastructure” means a third-party infrastructure, software, platform or other product or service required or useful to Edgegap in providing the Services under an Agreement, including, without limitation, a cloud based or other form of server, a software or a hardware product.

    11. Infrastructure Provider means a third-party providing Infrastructure to Edgegap or to the Client, as required or useful for the fulfilment of the Software Services or other Services under an Agreement.

    12. Major Change” means a change, update, replacement or discontinuance initiated by Edgegap and affecting a Software Service or other Service, an Infrastructure or their Specifications, that detrimentally and substantially affects the Client or its use of the foregoing, namely if it requires a substantial update of its hardware or network or other major investment.

    13. Materials means all work products, data, content and other material, such as websites and applications, software, trademarks, texts, reports and other documents, advertisements, plans, images, recordings and codes, as well the data carriers (whether or not decoded) on which the Materials are stored.

    14. Personal Data” means an information about an identifiable individual within the scope of applicable law governing privacy and personal data protection.

    15. person” means any natural or legal person, including governmental authorities, trust, corporation and organization.

    16. Services means all the services offered to the Client by Edgegap from time to time under an Agreement, such as but not limited to consulting, support, hardware supply and training, but excluding Software Services;

    17. Software Services” means the services offered to the Client by Edgegap via a software, Infrastructure or other technological platform, such as access to or use of the Edgegap Platform, any other software as a service (SAAS) and any access to (via a license or otherwise) a technological Infrastructure.

    18. Specifications” means the technical specifications issued in writing by Edgegap in connection with a Software Service or other Service or product supplied to a Client from time to time.

  1. Scope of the T&C and Changes

    1. The Terms and Conditions apply to and form part of all Agreements, regardless of whether they are entered into orally, in writing or in any other form, with regard to Edgegap’s provision of Software Services or other Services to or for the benefit of the Client. The Specifications are integrated to the Agreement by reference and form an integral part thereof.

    2. The Terms and Conditions also apply to Infrastructure that Edgegap sources from a third party, in whole or in part, and supplies to the Client, whether in processed or unprocessed form, as well as to Infrastructure that a third party delivers or supplies directly to the Client through a Software Service or other Service pursuant to an Agreement.

    3. Any derogations from or waivers of these Terms and Conditions are only legally valid if the waiving party has expressly agreed to such derogation or waiver in writing. Edgegap expressly rejects the application of any general purchase conditions of the Client.

    4. Insofar as any provision of these Terms and Conditions is voided or declared invalid or unenforceable, the other provisions of these Terms and Conditions will remain fully in effect. In such case, Edgegap and the Client will consult on a new provision to replace the voided or invalid provision, taking the intent of the voided or invalid stipulation into account as much as possible.

    5. Edgegap reserves the right to amend, update or supplement these Terms and Conditions or another Agreement by providing written notice to the Client. Such amendments shall enter into force immediately with respect to any Agreement entered into after the notification date. With respect to any Agreement entered into prior to the notification, the amendment shall apply upon its renewal, to the extent the notification has been received prior to the date on which the Client must confirm or deny renewal. Notice of amendments will be published on the Edgegap Platform and by means of an email to the Client or via another channel that allows Edgegap to reasonably prove that the Client received the notice. If the Client enters into or renews an Agreement, or makes use of a Software Service, other Service or Infrastructure after receiving notice of an amendment, such amendment shall be deemed accepted and form an integral part of the Agreement.

    6. Edgegap reserves the right to amend, update, replace or discontinue a Software Service or other Service, the Infrastructure and the Specifications, by providing written notice to the Client. Such changes shall be mandatory and apply to the Client and each applicable Agreement, unless it constitutes a Major Change. Edgegap will provide Specifications and instructions with respect to any required update, which the Client agrees to implement and upload. Notice of amendments will be published on the Edgegap Platform and notified by means of an email to the Client or via another channel that allows Edgegap to reasonably prove that the Client received the notice.

    7. If an amendment, update, replacement or discontinuance constitutes a Major Change and the Client refuses such Major Change, then the Client shall notify Edgegap in writing and Edgegap shall have the option to: (a) continue supporting the prior version until the end of the then current term of the affected Agreement(s); (b) amend the affected Agreements by mutual consent with the Client confirmed in writing; or (c) terminate the affected Agreement(s) on the date on which the Major Change enters into force. Edgegap shall provide the Client with a reasonable prior notice (at least 30 days) if it is aware that an amendment, update, replacement or discontinuance will constitute a Major Change for the Client.

    8. In the event that, in consultation with the Client, an Agreement entered into between Edgegap and the Client is derogated from or requires additional Software Services or other Services, the resulting costs for additional or amended Services will be charged to the Client at the prices and/or rates that apply at the time of execution. Such prices and rates will be made available to the Client upon request.

  2. Term and Renewal

    1. An offer or quote made by Edgegap shall only become a binding Agreement if (a) it is accepted during the time period stated therein; (b) the conditions indicated in such offer or quote are fulfilled and (c) it is governed by and subject to these Terms and Conditions. If no time period is stated, the quote is valid for sixty (60) days from its issuance. Agreements are formed when Edgegap accepts the Client’s order, or when Edgegap proceeds with carrying out a Software Service or other Service.

    2. Each Agreement shall be entered into for a specific term and is tacitly renewed for successive periods of twelve (12) months, unless the Agreement stipulates otherwise or unless it is terminated in accordance with Article 13.

  3. Services, Edgegap Performance and Support

    1. Subject to Section 11, Edgegap will perform the Services with diligence and professional competence. Edgegap will provide reasonable efforts to ensure uninterrupted availability of the Software Services and to provide the Client with access to the Edgegap Platform and Client Content, as per the Specifications. Edgegap warrants that it has the right and authority perform the Services and to supply the Software Services and Infrastructure as per the Specifications and the terms and conditions of the Agreement. If no Specifications have been issued, Edgegap provides no guarantee of quality or availability other than reasonable commercial efforts.

    2. Edgegap may have part of the Software Services or other Services performed through one or more Infrastructure(s) or supplied, in whole or in part, by one or more Infrastructure Provider(s). Any costs (including registration, license, set-up, update and other fees and expenses) relating to such Infrastructure(s) or other third-party service will be borne by the Client. Edgegap reserves the right to invoice the Client for such fees or set-up a direct payment mechanism. Such costs, fees and expenses will be disclosed to the Client prior to being incurred, unless they are included or authorized in a general or specific form in an Agreement. Edgegap does not provide any warranty on Infrastructure(s) but assigns to the Client its rights under any warranty granted by the Infrastructure Provider(s). Edgegap reserves discretion in the selection of Infrastructure(s) and Infrastructure Provider(s) appropriate for the performance of the Services and Software Services. Such selection will be available on the Client Account and the Client will have access to a link to each such Infrastructure Provider(s)’ standard terms and conditions or policies on the Edgegap Platform.

    3. Edgegap may provide the Client with access to an Account. The Account will be accessible by entering a password and a username. Each action performed by means of the Client’s Account or an Account created by the Client is deemed to take place under the responsibility and at the risk of the Client and any acceptance or Agreement entered into via such Account shall be binding on the Client. If the Client suspects or should reasonably suspect or know that the Account is being misused, the Client must report this to Edgegap as soon as possible to enable the latter to take measures.

    4. Edgegap will provide remote Client support by telephone and email, during regular local office hours, as indicated on the Edgegap Platform, insofar as a specific Agreement does not determine otherwise. Edgegap does not provide support to end users.

    5. The Client acknowledges that Edgegap and any Infrastructure Provider has the right to relocate the performance or supply of any Software Service or other Service or Infrastructure. This applies to the location of servers, the physical room within a data center or the performance of Services by natural persons. Unless the Agreement provides for a specific location, no notice will be provided to the Client.

  4. Client Obligations

    1. The Client accepts to perform its obligations under the Agreements correctly and on time. Edgegap reserves the right to monitor compliance with the Terms and Conditions.

    2. Without limiting the generality of the foregoing, the Client will provide the data required or requested by Edgegap for the provision of the Services, the supply of a Software Service or Infrastructure and the set-up of an Account, on time and in the format indicated by Edgegap. The Client guarantees that such information is correct and complete, and that it is authorized to provide that information to Edgegap in connection with its performance of the Agreement(s). The Client also undertakes to maintain updated contact and payment information on the Account. The Client will provide Edgegap access (in person or remotely) to the Client’s office or systems for the purpose of providing Services, as well as support to enable Edgegap to perform Services. The term within which Edgegap is required to provide a Software Service or perform another Service will not commence until all the data has been received and such delays shall not release the Client from payment obligations under the Agreement(s).

    3. The Client acknowledges that it has verified the suitability of its Material and systems with the Specifications. Any change to the Client’s hardware, software, servers, infrastructures or other information must be reported to Edgegap to identify incompatibility with the Software Service, Service or Infrastructure.

    4. The Client will inform Edgegap without delay if it becomes aware that Edgegap has failed to comply with an obligation or if a Software Service or other Service or an Infrastructure may be affected by circumstances known to the Client, such as an exceptional anticipated peak load. Upon receiving warning thereof, Edgegap will provide reasonable effort to prevent the Software Services or other Services from becoming unavailable. To the extent such efforts require Services additional to those contemplated under an Agreement, additional costs incurred for this purpose may be charged to the Client in accordance with Section 2.8.

    5. The Client is allowed to supply or sub-license the Software Services only in combination with or as part of the Client’s own products or services. An Agreement may limit the number of end users allowed or specify costs per users or per volume, which shall be enforced by the Client. A Client may supply or sub-license the Software Services or assign any other Service to its affiliates, to the extent it (a) provides Edgegap with prior written notice; (b) each such affiliate agrees in writing to the be bound by the Agreement(s); and (c) it is solidarily (jointly and severally) liable with such affiliate for the performance and enforcement of the Agreement(s). The Client is responsible toward Edgegap and the Infrastructure Providers for any use of Software Services or other Services and Infrastructure by its affiliates, customers or end users and to ensure that they comply with the Edgegap Policies, any Infrastructure Provider policies and applicable laws. To the extent permitted under applicable law, the Client shall indemnify Edgegap and any Infrastructure Provider and save them harmless from and against any claims, liability, loss or damages caused by or resulting from its affiliates, customers or end users. Edgegap may also deny access or use of a Software Service, Service or Infrastructure or enforce any other measure in the event that a Client’s affiliate, customer or end user violates these Terms and Conditions, the Edgegap Policies, any Infrastructure Provider policies or applicable laws.

    6. The Client is responsible, to Edgegap’s complete exoneration, to obtain and maintain all license or further consent from government authorities or third parties required for the Client (and its affiliates, customers and end users) use or intended use of the Software Services or other Services and the Infrastructure.

    7. The Client shall comply at all times with applicable laws and industry standards and more specifically, but without limitation, all export laws and regulations of Canada and foreign jurisdictions where the Software Services or other Services or the Infrastructure is made available by the Client, and shall ensure that neither the foregoing nor any product thereof are used or intended to be used in any jurisdiction for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. The Client represents and warrants that its intended use of the Software Services or other Service and the Infrastructure complies with all applicable laws.

    8. Without limiting the foregoing, to the extent the Client supplies or allows its end users, clients or representatives to supply Personal Data to Edgegap, it shall ensure that if has obtained all consents required under applicable law. Namely, it shall ensure that its contract with such users, clients or representatives refer explicitly to the relevant Edgegap Policy. The parties may set-up protocols to avoid transfer of Personal Data, such as obfuscation (confusion) protocols to remove or make certain information unavailable and unidentifiable.

    9. The Client acknowledges that Edgegap does not provide its Software Services, other Services or Infrastructures directly to consumers or end users and may not provide all guarantees required under applicable consumer protection laws. The Clients shall be responsible, to Edgegap’s complete exoneration, of its compliance under such legislation and shall handle all consumer complaints.

  5. Prices and Financial Terms and Conditions

    1. Unless expressly indicated otherwise in writing, all the prices and rates stated by Edgegap are denominated in US dollar.

    2. Prices and rates set forth in an Agreement shall apply for the initial term of such Agreement and any renewal term unless they are subject to an amendment as set forth in Section 2.5. Notwithstanding the foregoing, Edgegap reserves the right to increase all prices on an annual basis, with immediate effect upon written notice to Client, by a percentage that shall not exceed the Consumer Price Index for all urban consumers (CPI-U) issued by the US Department of Labor Bureau of Labor Statistic (all index) for the current year. Prices and rates applicable to an Agreement between Edgegap and the Client shall not automatically apply to another Agreement, and may be quoted differently. Prices for additional Services or established on information provided by the Client which proves to be incorrect shall be adjusted in accordance with Section 2.8. Edgegap will make available to the Client upon request its standard rates and prices for some Services, such as hourly rates for remote training, technical support or customization. Edgegap is authorized to revise such prices and rates at any time, in its entire discretion.

    3. All prices stated by Edgegap are exclusive of turnover tax (VAT), import, export, sales, customs or other taxes, duties and levies which may be imposed by a government (“Taxes”). Edgegap reserves the right to charge for all applicable Taxes, which the Client agrees to pay, together will all applicable penalties or late charges.

    4. Edgegap may provide the Client with estimates and forecasts from time to time, based on hypothetical use or volume. The Account may also provide information on use, volume or forecasted or accumulated monthly fees. Such estimates and forecasts are not binding and the invoices shall prevail.

    5. To the extent permitted under applicable law, and unless as specifically set forth in an Agreement, Edgegap is authorized to charge the Client for the following costs, fees and out-of-pocket expenses:

      1. Fees associated with the use of a payment platform, such as, without limitation, credit card and PayPal;

      2. Increased license costs or fees for Infrastructure;

      3. Transportation, delivery and cargo insurance charges, travel expenses, provided however that Edgegap will notify the Client in writing prior to incurring such expense or type of expense;

      4. Use above the agreed service levels agreed to in an Agreement, for example with regard to data traffic, energy consumption or number of end users; and

      5. Taxes associated with the Services, such as digitax, energy tax and energy transmission costs.

    6. Unless as otherwise set forth in an Agreement, Edgegap will provide monthly invoices for Software Services, other Services and Infrastructure provided during the previous month, in accordance with the provisions of each Agreement. Edgegap may charge set-up fees or require deposits or advance payment or require other security, in which case it and may suspend the delivery or performance until the payment is made or the security is received.

    7. Invoices may be made available on the Account or sent by email to the Client or via another channel that allows Edgegap to reasonably prove that the Client received it. The Client undertakes to pay Edgegap’s invoices within the payment term stated therein. In the absence of term, a net 30 days policy shall apply. Edgegap may request automatic payment authorization from a credit card or bank account, in which case the Client agrees to file and sign the relevant forms via its Account or as otherwise agreed to with Edgegap.

    8. All payments made by the Client to Edgegap may be applied to the Client’s oldest outstanding invoices, regardless of any indication to the contrary by the Client. Any reliance by the Client on suspension, set-off or deduction is not allowed and hereby waived by the Client.

    9. If the Client fails to pay any of Edgegap’s fees when due, the Client will automatically be in default, without any notice of default or demand being required. Overdue amounts will bear interest at an annual rate of 18%, calculated daily and composed monthly. The Client shall indemnify Edgegap from all collection costs incurred if an amount due under the Agreement remains unpaid after a 30 day written notice of default, including the costs of a collection agency or the reasonable fees of its legal representatives (judicial and extrajudicial expenses and any legal costs).

    10. All expenses, costs and damages suffered by Edgegap in the event of a denied payment (ex. Insufficient funds) shall be charged to the Client, subject to a $50 minimum. An administrative charge of $500 will be payable by the Client in case of repeated reversals or denials.

    11. The Client shall notify Edgegap no later than 14 days from receipt of any invoice if it has any objections with respect thereto, failing which it shall be deemed to have accepted the charge and invoice.

  6. Maintenance and Suspension of Service

    1. Edgegap is authorized to temporarily suspend one or more Software Service (including access to the Edgegap Platform) or other Service or Infrastructure, in whole or in part:

      1. for maintenance purposes; other than in case of emergency, Edgegap shall provide a 24 hours prior notice;

      2. pursuant to an order, judgment or decision from a competent court, enforcement authority or other government institution;

      3. if the Client fails to pay amounts due under an Agreement or otherwise fails to comply with an obligation under an Agreement or Edgegap Policies, in which case Edgegap will provide the Client a written notice of suspension. In such case, the suspension is without prejudice to the Client’s other obligations under the Agreement, which terms and conditions shall continue to apply. Suspended Software Services, other Services or Infrastructures may resume upon payment of all outstanding amounts and payment or reconnection fee, as applicable, if all defaults have been remedied.

    2. Client’s customers or end users may see their access to the Software Services, Services or Infrastructure suspended if they fail to comply with the Edgegap Policies or the policies of an Infrastructure Provider applicable from time to time.

  7. Integrity, Policies and Client Liability

    1. The Client and its customers and end users are forbidden from using the Software Services, other Services or an Infrastructure and from uploading, downloading or otherwise adding Content thereto or therefrom and from creating or spreading Material thereon or deriving therefrom):

      1. to violate or in a manner which breaches applicable laws and regulations, Edgegap Policies, any Infrastructure Provider policies or to infringe the rights of third persons;

      2. to infringe or to aid others in infringing the rights of third parties, such as providing hack tools or information;

      3. in a libelous, defamatory, insulting, racist or discriminatory way or to incite hatred, in relation to child pornography or bestiality pornography or obviously aim to assist others in locating such Materials;

      4. to violate the privacy of third parties, which in any case includes but is not limited to distributing third-party Personal Data, or harassing third persons with unwanted communications;

      5. to share hyperlinks, torrents, references or other Material that infringes copyright, neighboring rights or other intellectual property or moral rights;

      6. to market or share unsolicited commercial or other solicitation Material or communications; or

      7. to spread malicious content, such as viruses or spyware.

    2. The Client will refrain from hindering other customers or end users or inflicting damage on Edgegap, any Infrastructure Provider, the Software Services, Infrastructures or other systems or networks. The Client is forbidden from starting up processes or programs via any Software Service or Infrastructure which obstruct or inflict damage to the Software Services, Infrastructures or other Edgegap platforms, property, customers or end users.

    3. The Client and Edgegap shall ensure sufficient security to protect the integrity of its systems and networks and hinder third party intrusions or breaches.

    4. The Client shall not, and shall not allow any third party to, directly or indirectly, reverse engineer, disassemble, compile, decompile or otherwise attempt to copy, derive, reconstruct or discover any source code, underlying ideas, algorithms, files, formats, programming or interface designs of the Software Service, the Infrastructure or any other technology made available to it under the Agreement(s). It shall maintain the confidentiality of its Account credentials (user name, passwords, security questions) and refrain from disclosing them to third parties.

    5. If, in the opinion of Edgegap, its Software Service, any Infrastructure or any other systems or networks is hindered, damaged or otherwise at risk, including due to the Client (or its customer or end users) transmission of excessive Content, inadequately secured systems or virus activities, Trojan horses and similar software or due to a failure to comply with the terms and conditions of the Agreement(s), Edgegap is authorized to take all reasonable measures it deems necessary to avert or prevent such risk. Without limiting the generality of the foregoing, Edgegap may block or limit access to the Software Service and Infrastructure or implement a change or Major Change. Edgegap will inform the Client of the measures taken out of the ordinary course of business.

    6. Edgegap will at all times be authorized to report any criminal acts discovered or witnessed. In addition, Edgegap is authorized to provide the Client’s name, address and its customer or end user Personal Data to a third party if required under applicable law or pursuant to a judgment, order, decree or decision of a competent authority.

    7. While Edgegap endeavors to act with due care and as reasonably and adequately as possible, it can under no circumstances be held liable for damage or loss arising from the measures referred to in this Article 8.

    8. Client agrees to indemnify, defend and hold Edgegap, its directors, officers, shareholders, employees, affiliates and licensees harmless from and against any losses, expenses, liabilities, claims, damages and costs, including reasonable attorney’s fees, incurred in connection with any claims, suits, demands, causes of action or other proceedings arising out of (a) Client’s failure to comply with the terms and conditions of the Agreement(s), (b) any violation by Client or its customers or end users of Edgegap’s or any third party’s intellectual property rights.

  8. Intellectual Property Rights

    1. Edgegap is the exclusive owner or authorized provider of all Software Services (including the Edgegap Platform) and Material developed or made available as part of the Software Services and other Services. The Infrastructure Provider is the exclusive owner or authorized provider of the Infrastructure. The source code or other components will not be disclosed to or otherwise shared with the Client.

    2. Any development or improvement to, or other product deriving from the Software Services, other Services or Infrastructures shall remain the exclusive ownership of Edgegap or the applicable Infrastructure Provider, as the case may be, whether or not they were developed with the feedback, work, help or collaboration of the Client, its representatives, customers or end users. The Client hereby assigns any right it might have to such intellectual property and irrevocably waives all moral rights thereto.

    3. No right or interest is vested to the Client or its customers and end users, other than the limited licenses or user rights and powers expressly assigned in writing under the Agreements.

    4. Unless this has been agreed otherwise in writing, the Client is forbidden from removing or modifying any references relating to copyrights, trademarks, trade names or other intellectual property rights with regard to any Material made available to it under the Agreement, including references relating to the confidential nature and secrecy of the Materials provided by Edgegap or an Infrastructure Provider. If Edgegap has protected Materials, the Client is not permitted to remove or circumvent the technical or other safeguards.

  9. Confidentiality and Non-Solicitation

    1. The Client and Edgegap will treat the confidential information that they receive from each other before, during or after the performance of the Agreement as confidential if such information has been marked as confidential or if the receiving Party is aware or should reasonably assume that the information was intended to be confidential. They shall limit access to the other party confidential information to such employees and other representatives who have a need to know in relation to the Services, which shall also be bound by similar confidentiality obligations. Edgegap’s price lists and the terms and conditions of the Agreements shall be considered confidential information of Edgegap.

    2. The Client and Edgegap will not use the other party’s confidential information for any purpose other than the performance or enforcement of the Agreement(s) or as otherwise authorized under the Agreement(s).

    3. Edgegap may be required, by law or by an order of a competent governmental authority, to access and/or disclose confidential information. In such case, Edgegap will make reasonable efforts to limit access to and disclosure of the information.

    4. The foregoing confidentiality obligations shall remain in force after termination of the Agreement for whatever reason, and for as long as the disclosing party can reasonably claim that the information is confidential in nature.

    5. For as long as the relationship between the Client and Edgegap lasts under an Agreement, as well as for one year after it has ended, the Client agrees not to solicit or employ Edgegap employees, or have them work as independent contractors or suppliers, directly or indirectly, without Edgegap’s prior written consent. For more certainty, "Edgegap employees" must be understood to be persons employed by Edgegap or one of its affiliates at the time of, or within six (6) months prior to the solicitation or hiring by the Client.

  10. Edgegap Guarantee and Limited Liability

    1. Edgegap’s liability in connection with the Services and the performance of its obligations under the Agreement shall be limited to the reperformance of the non-complying Service or remedy of the breach.

    2. THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS ARE THE SOLE GUARANTEE AND WARRANTIES PROVIDED BY EDGEGAP UNDER ANY AND ALL AGREEMENTS, AND EXCLUDES ANY OTHER GUARANTEE OR WARRANTY, WHETHER EXRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY LEGAL WARRANTY UNDER THE CIVIL CODE OF QUEBEC OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

    3. The warranty is void if the Client, its customer or end users or any other person (a) has modified or tempered with the Software Service, Infrastructure, the Account or any tool or product used in the Services, (b) has otherwise failed to comply with the Specifications or the terms and conditions of the Agreement or an infrastructure Provider policies; (c) uses hardware, software or connection which is incompatible with the Software Services, other Services, the Infrastructures or the Specifications; or (d) misuses the Software Services, other Services or Infrastructures. In any of the foregoing event, Client agrees to reimburse Edgegap for its correction efforts in accordance with its then standard rates.

    4. Without limiting the generality of the foregoing, to the extent permitted under applicable law, Edgegap is not liable for:

      1. any loss or personal injury suffered by the Client or its employees, customers, end users, representatives, or auxiliary persons, except where such loss or personal injury is a direct consequence of Edgegap’s gross negligence or willful misconduct;

      2. the Content or any other information or data, in any form, that the Client or its customers or end users send, upload or communicate via the Software Services (including the Edgegap Platform) or the Infrastructure;

      3. damage to or loss of Client’s data or databases, unless this damage is a direct consequence of Edgegap’s gross negligence or willful misconduct;

      4. loss or damage that results from Client’s breach of an obligation under the Agreement, from an incorrect information provided to Edgegap;

      5. loss or damage that is a direct or indirect consequence of an authorized suspension by Edgegap under these Terms and Conditions;

      6. loss or damage that results, directly or indirectly from a failure in the Client (or its customers or end users) portal, network, system, platform, hardware, connection, software or their compatibility with the Specifications;

      7. loss or damage that is a direct or indirect consequence of the Client using software not licensed from Edgegap or an Infrastructure Provider, such as a custom interface or configuration; 

      8. loss or damage that is a direct or indirect consequence of a Denial-of-Service (DDoS) attack or other attack causing a peak in data traffic, or loss caused by one or more successful or unsuccessful hacking attempts, regardless of whether the Software Service, Service or Infrastructure is protected or managed by Edgegap;

      9. any loss or damage resulting from the Infrastructure or the failure by the Infrastructure Provider to maintain the Infrastructure, provided however that all guarantee issued by the Infrastructure Provider is assigned to the Client in accordance with Section 4.2; and

      10. any loss or damage resulting from the unauthorized use of the Software Services, Services or Infrastructures by third parties.

    5. Edgegap’s total liability under the Agreement(s) or in relation to the performance of its obligations thereunder will, under no circumstances, exceed the amount of the fee stipulated for the relevant Agreement for the year in which the failure takes place.

    6. To the extent permitted under applicable law, the Client shall notify Edgegap, in writing, within thirty (30) days of the discovery of a breach, loss, damage or non-compliance of a Service, failing which the Client shall be deemed to have waived its claim irrevocably.

    7. In no event will Edgegap be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Software Services or other Services or an Infrastructure or otherwise arising in connection with the Agreement(s), including, without limitation, damages for lost profits, loss of goodwill, work stoppage, computer failure or malfunction, loss of data, or any and all other commercial damages or losses, even if advised of the possibility thereof. Edgegap makes no representation and gives no warranty that the Software Services or other Services or the Infrastructure will be error-free or free from interruptions or other failures or that they will meet any or all of Client’s anticipated revenues, profits or other expectations.

  11. Force Majeure 

    1. For the purposes of this Agreement, “Force majeure” has the meaning set forth in the Civil code of Quebec and includes, but is not limited to, failures of public infrastructure over which Edgegap has no control or in respect of which Edgegap cannot rely on a contractual obligation to perform (ex. Internet service or hardware failure) failures caused by computer crimes to the extent Edgegap has not been negligent, government measures, changes in laws, strikes, wars, terrorist attacks and internal civil commotion.

    2. Neither Edgegap nor Client will be deemed in default under an Agreement if its performance (other than a payment obligation) is delayed or made impossible by an event of Force majeure. Suspension or amendment to the Software Services, other Services, Infrastructures or these Terms and Conditions and other measures Edgegap considers necessary in connection with a Force majeure event shall be permitted, with effect upon notice to the Client, and shall not form a basis for early termination. Rather than suspending, Edgegap may offer a comparable replacement Software Service, other Service or Infrastructure.

    3. If the period of Force majeure lasts longer than sixty (60) consecutive days, and Edgegap has not secured an alternative Software Service, other Service or Infrastructure upon substantially comparable terms and conditions, the Client or Edgegap will have the right to terminate the affected Agreement(s), by notice in writing, without liability to the other party.

  12. Termination

    1. Each of Edgegap and the Client shall have the right to terminate this Agreement upon the occurrence of any of the following events affecting the other party:

      1. the Client fails to pay outstanding amounts when due and does not remedy its default within 30 days of receipt of a written notice of default or immediately upon the occurrence of a repeated default (more than 2) or if the Client indicates to Edgegap that payment will not be forthcoming;

      2. the other party fails to comply with a material obligation under an Agreement and does not remedy the breach within 30 days of the receipt of a written notice of default or upon the occurrence of repeated defaults (more than 5) under the Agreements, whether or not they are material or remedied (to the extent the defaulting party was notified of each such default);

      3. if the other party is subject to a provisional or definitive moratorium, a petition, proceeding or judgment in bankruptcy or insolvency, all or a portion of its assets are seized, it is wound up or its business is discontinued or a manager or receiver is appointed to its property;

      4. if the other party fails to comply with applicable law or is subject to a public scandal which detrimentally affects the non-defaulting party.

    2. Edgegap is authorized to terminate access to an Infrastructure and suggest alternative Services, upon terms and conditions substantially similar to those of the Agreement, by providing Client upon prior notice, if its license or agreement with an Infrastructure Provider is terminated or suspended.

    3. Unless otherwise stated in an Agreement, Edgegap or the Client may terminate the Agreement by providing a notice in writing to the other party at least 30 days prior to the end of the then current term.

    4. Upon termination or expiry of the Agreement, for any reason whatsoever:

      1. Edgegap will stop providing the Software Services or other Services and may deactivate the Account immediately and deny access to the Account, the Software Service and the Infrastructure;

      2. the Client will stop using the Software Service and Infrastructure made available to it and will return all copies Materials that have been made available to the Client within the framework of the Agreement;

      3. Edgegap may delete Client (or its customer or end users) Content and other data; the Client is responsible for safeguarding and keeping copies of its Content before the Agreement is terminated; however, if the Content is available, Edgegap will provide reasonable efforts to transfer a copy thereof to the Client upon request (if and when all outstanding amounts are paid); and

      4. the Client is not released from any payment obligation with regard to Services performed and Software Services and Infrastructures supplied and other fees payable under the Agreements up and until the termination date, which will become immediately due and payable.

    5. If the Client was intended to be assigned any Material or intellectual property developed or provided by Edgegap under an Agreement (ex. a report or custom application pursuant to a Service), such assignment shall only become effective once outstanding invoices have been paid.

  13. Final provisions

    1. Law and Forum. The Agreements and other legal acts concerning Edgegap’s provision of Software Services, other Services and Infrastructures are subject to laws of the Province of Quebec and federal laws applicable therein. All disputes between Edgegap and the Client will be submitted to the exclusive jurisdiction of the courts of the province of Quebec, in the district of Montreal.

    2. Paramountcy. In the event of any inconsistencies between information set forth on the Edgegap Platform or any other Material and an Agreement, the Agreement will prevail. In case of inconsistency, a specific Agreement issued by Edgegap will prevail over these Terms and Conditions.

    3. Remedies. Remedies under the Agreements are cumulative and shall not exclude Edgegap’s other rights or recourses under applicable law.

    4. Contact. Contact information will be updated on the Account and Edgegap Platform.

    5. Assignment. Edgegap is unilaterally authorized to assign its rights and obligations under the Agreement to a third party or one of its affiliates that takes over the Software Service or other Service or the relevant business activity from Edgegap. The Client is not allowed to transfer or assign an Agreement or its rights or obligations under an Agreement to another person without Edgegap’s prior written consent.

    6. Language. The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais.