"Affiliate" means an entity that controls Aïdi, is controlled by Aïdi or is under common control with Aïdi.
"Analytics Data" means the data recorded, generated or compiled by Aïdi in connection with Platform use, including by the Customer, Collaborators and Authorized Users, not including, however, Customer Data or any Personal Information.
"Authorised Users" means employees or subcontractors of the Customer or Collaborators who are authorised by the Customer or a Collaborator (as the case may be) to use the Platform.
"Business Hours" means 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, excluding statutory holidays in the Province of Quebec.
"Collaborators" means companies invited by Customer to use the Platform through Customer's subscription.
"Confidential Information" has the meaning set forth in Section 10.1.
"Customer Data" means any information or data that is uploaded to the Platform by the Customer, a Collaborator or an Authorized User;
"Documentation" means any human-readable documentation provided by Aïdi describing the Platform features and facilitating the configuration of the Platform.
"Fees" means the fees payable by the Customer in consideration for the Software Services, as set forth in the terms of the subscription selected by the Customer or the Proposal, as applicable.
"Hosting Provider" means a provider retained by Aïdi to provide the hardware and software infrastructure necessary for the operation of the Platform and the hosting of the Platform and Customer Data;
"Login Credentials" means a method, including a username and password, for a user to access a specific account on the Platform.
"Personal Information" means information about an identifiable individual.
"Platform" means the software solution marketed under the Aïdi trademark that is accessible from a web browser or other method designated by Aïdi from time to time, including the software and hardware infrastructure necessary for its operation.
"Proposal" means, if applicable, the document describing the terms and conditions of the Customer's subscription to the Software Services, as accepted in writing by the Customer and by Aïdi.
2.1. Nature of Services
Subject to compliance with the terms and conditions of this Agreement by the Customer, the Collaborators and the Authorized Users, Aïdi allows the Authorized Users to access and use the Platform in accordance with these terms.
The Software Services are limited to enabling access to the Platform's features and technical support included in the Customer's subscription. Any work by Aïdi or its employees to customize the Platform or develop new features at the Customer's direction is not included in the Software Services, is at Aïdi's sole discretion and shall be subject to a separate agreement.
2.2. Guest Account
Authorized Users or Collaborators accessing the Platform through a Customer’s subscription acknowledge that :
a) This Customer can manage their account and access all information available through their account;
b) Aïdi will process the information they upload to the Platform in accordance with the relevant Customer’s instruction only and that they are responsible for entering into an agreement with the relevant Customer for the transfer of any files or data relating to their activities;
c) Aïdi is not responsible for the Customer's actions, in particular the modification of the Platform's configuration and the modification of the access rights associated with a guest account.
2.3. Operations carried out on the Platform
The Platform allows certain operations to be carried out (e.g. receiving or accepting quotes or carrying out a ROI calculation) and communications to be carried out and recorded between different actors in a project (e.g. subcontractor notice in the context of a construction project). The Customer and the Collaborators are solely responsible for ensuring that the communications and operations carried out through the Platform are appropriate and enforceable against their co-contractors, if applicable, in the context of the relevant project. Without limiting the generality of the foregoing, the Customer or Collaborator acknowledges and agrees that:
a) Aïdi is not responsible for the enforceability or validity of any communication or notice transmitted through the Platform.
b) Any model or template of communication or legal document available on the Platform is for information purposes only and the validity or appropriateness of such documents is in no way guaranteed and is at the sole discretion of the Customer or the Collaborator.
c) There is no guarantee that the calculations and the data obtained through the Platform are free of errors. The Customer or the Collaborator is responsible for the business decisions based on the results obtained through the Platform and Aïdi disclaims any liability in this respect.
The Platform may be updated from time to time and new features may be added to the Platform. Aïdi will make such updates and new features available to the Customer at its sole discretion and makes no commitment regarding the development of future versions of the Platform. The Customer acknowledges that its subscription is not based on any promise of development of a future feature nor on any communication from Aïdi regarding a future feature of the Platform.
Aïdi and/or its Hosting Providers may from time to time perform maintenance on the Platform. Aïdi will use reasonable efforts to ensure that maintenance is carried out in a manner that minimizes the impact of periods of unavailability of the Platform. When maintenance resulting in a period of unavailability of the Platform is scheduled in advance, Aïdi will notify the Customer of the time and expected duration of unavailability.
The Customer acknowledges that maintenance work is necessary for the proper operation of the Platform and that the unavailability of the Platform due to maintenance does not constitute a failure to provide the Software Services.
2.6. Third Party Services
3.1. Login Credentials
The Customer or Collaborator is responsible for maintaining control and security over the Login Credentials and shall be solely responsible for any action taken under the Login Credentials of Authorized Users whether or not such access or use is authorized by the Customer.
The Customer agrees to promptly notify Aïdi if a Login Credential is compromised or if the Customer has reason to believe that a Login Credential may be used in an unauthorized manner.
3.2. Roles and permissions
Customer and Collaborators may attribute roles and permissions to Authorized Users. Customer or Collaborator, as the case may be, is solely responsible for properly configuring the roles and permissions on the Platform and to perform any required verifications. Aïdi shall not be responsible for the accidental disclosure of certain information to Authorized Users due to an incorrect configuration of access permissions by the Customer or a Collaborator.
3.3. Limits of use
The Software Services may be offered to the Customer in the form of a subscription plan comprising usage limitations, including as set forth in the Proposal. Where applicable, the Software Services are limited:
a) To the features included in the subscription selected by the Customer, if applicable.
b) By the usage limits imposed by the subscription selected by the Customer, if any, including limits based on the financial volume of projects managed through the Platform.
3.4. Permitted use
Customer, Collaborators and Authorized Users are authorized to use the Platform and Documentation internally for project management purposes. Customer and Authorized Users are not permitted to use the Platform and Documentation for any other purpose or to commercialize access to the Platform in any form.
3.5. Prohibited use
The Customer agrees, for himself as well as on behalf of Collaborators and Authorized Users, not to, directly or indirectly, do the following nor to allow or tolerate that anyone do the following:
a) access, or attempt to access, the source code or object code of the software included in the Platform;
b) copy all or part of the Platform, the content available through the Platform (except Customer Data) or the Documentation, except as expressly permitted by these terms;
c) decompile, disassemble or reverse engineer the Platform, in whole or in part, or create any derivative work in whole or in part of the Platform or the Documentation;
d) access or attempt to access data belonging to other Aïdi customers;
e) do anything that a reasonable person would consider would impose an unreasonable load on the Platform;
f) use the Platform or Documentation to develop software or services that are similar or offer the same features;
g) use the Platform to perform comparative performance tests (benchmarking);
h) disable or circumvent any protection mechanism related to the Platform or Documentation;
i) use Aïdi’s trademarks or logos without the express written permission of Aïdi;
j) upload content to the Platform that violates applicable law or infringes the intellectual property rights of third parties;
3.6. Usage audit
Aïdi is authorized to audit and monitor the Customer’s, Collaborators’ and Authorized Users’ use of the Platform for the purpose of ensuring compliance with the terms and conditions of this Agreement, including by collecting information to determine whether the Customer is complying with the limits on the financial volume of projects. Such verification and/or monitoring may be performed by Aïdi or by a third party retained by Aïdi at its expense. Any monitoring of the activities of Authorized Users will be for the sole purpose of ensuring compliance with the terms of this Agreement. Aïdi will not provide the Customer or Collaborators with any information regarding the use of the Platform for employee monitoring purposes.
The Customer acknowledges that the use of the Platform requires computer systems and an Internet connection that meet the minimum configuration standards reasonably determined by Aïdi from time to time, if any.
Aïdi will use commercially reasonable efforts to provide technical support to Authorized Users during Business Hours using the communication channels made available from time to time to Customer and Collaborators by Aïdi. Aïdi will minimally accept support requests by email.
Aïdi does not make any commitment to keep all communication channels open or to respond to technical support requests within a specified time frame.
4.2. Incident Response
In the event of an Incident detected by Aïdi or reported by the Customer, Aïdi will provide a response (if applicable) and initiate the work necessary to correct the Incident within a reasonable timeframe within Business Hours.
When an Incident is reported outside Business Hours, Aïdi undertakes to provide its best efforts to offer a prompt response, depending on the availability of its technical support team members and the severity of the anticipated consequences of the Incident.
Without broadening the definition of an Incident, the following events, among others, shall not be considered Incidents, and Aïdi's obligations with respect to responding to Incidents shall not apply:
a) Occurrences caused by the Customer's, Collaborators’ or Authorized Users’ hardware and software equipment;
b) Occurrences caused by the Customer's, Collaborator’s or Authorized Users’ Internet connection;
c) Occurrences caused by prohibited use or attempted use of the Platform;
d) Occurrences caused by force majeure;
5.1. Hosting provider
The Customer agrees that the Platform and Customer Data may be hosted by a third party. Except as set forth in a Proposal, if applicable, Aïdi may change its hosting provider at its sole discretion. The Customer acknowledges and agrees that Customer Data may be stored in facilities located in jurisdictions other than Quebec or Canada and that the companies operating these facilities may be subject to laws different from those applicable in the Customer's jurisdiction.
5.2. Safety standards
Aïdi shall select Hosting Providers that offer industry standard security measures and that commit in writing to Aïdi to maintain the confidentiality of Customer Data and to use Customer Data only for the purposes necessary to provide the hosting services agreed upon with Aïdi.
Aïdi will instruct the Hosting Provider to make a backup copy of the Customer Data once every 24 hours. If the Customer requires more frequent backups, the Customer must enter into an additional agreement with Aïdi.
Aïdi does not claim any ownership rights to the Customer Data and acknowledges that no assignment of the Customer's rights in and to the Customer Data in favour of Aïdi is made under this agreement. Aïdi undertakes not to use the Customer Data other than to the extent necessary to provide the Software Services or after having been duly authorized to do so by the Customer.
All Customer Data, including data uploaded to the Platform by Collaborators, is available to the Customer and is, from Aïdi's perspective, constitutes the property of the Customer. Collaborators must enter into their own agreements with Customers with respect to data uploaded to the Platform.
6.2. Limited license
The Customer or the Collaborator grants Aïdi a non-exclusive, universal and royalty-free license to reproduce, use and modify the Customer Data only to the extent necessary to provide the Software Services.
6.3. Customer Data Statement
6.4. Analytics data
Aïdi and its Affiliates may generate Analytics Data using, in part, Customer Data and information derived from Customer’s and Authorized Users’ use of the Platform. Analytics Data including information allowing the identification of a Customer is never used other than for the benefit of such Customer or with the Customer’s consent.
Analytics Data may be used for the following purposes:
a) Improving the Platform's features;
b) Providing technical support and improving technical support;
c) Training and development of algorithms;
d) Auditing of the security of the Platform and the integrity of the Customer Data;
e) Identifying of trends and creating comparative analyses (without reference to a specific Customer);
6.5. Customer Data Archive
Aïdi may from time to time offer Customer Data archiving services that allow Customer Data to be exported from the Platform in a structured or enhanced format. These services constitute additional services and are subject to additional fees except as provided in the Proposal, if any. Customer Data is always available for download in raw format without additional charge.
6.6 Privacy officer
Name: Marc Parenteau
7.1. Roles of the parties
To the extent that Customer Data includes Personal Information and such Personal Information is processed through the Platform:
a) the Customer is deemed to control the purposes for which Personal Information is processed through the Software Services;
c) Aïdi will use Personal Information only in accordance with the Customer's instructions;
d) any action taken by the Customer, by a Collaborator or by an Authorized User on the Platform interface shall be deemed a valid instruction from the Customer with respect to the processing of Personal Information;
e) Aïdi is authorized to use subcontractors for the processing of Personal Information, but remains responsible for the compliance of any subcontractor with the obligations set forth herein.
Aïdi will use reasonable efforts to cooperate with the Customer regarding requests for access to Personal Information under applicable privacy legislation. Any work by Aïdi to enable the Customer to comply with privacy requests or orders is not included in the Software Services and may result in additional charges.
8.1. No assignment
The Customer acknowledges that no assignment of intellectual property is effected by the agreement between Customer and Aïdi and that the Customer may not claim any intellectual property rights in or to the Platform, the content accessible through the Platform (except Customer Data) or the Documentation. Aïdi reserves all its rights with respect to the Platform, all Platform components, all content available through the Platform (except Customer Data) and the Documentation.
If the Customer or any person having access to the Platform under these terms communicates with Aïdi about improvements and modifications to the Platform or the Software Services ("Feedback"), the Customer acknowledges that: (i) Aïdi has no obligation of confidentiality, express or implied, with respect to the Feedback (except regarding information otherwise deemed confidential hereunder) ; (ii) Aïdi is entitled to use or disclose (or choose not to use or disclose) the Feedback for any purpose whatsoever, in any manner whatsoever, on any medium whatsoever, anywhere in the world; (iii) Aïdi may already have considered or be developing the same or similar elements to those mentioned in the Feedback; and (iv) no remuneration or compensation will be paid by Aïdi in consideration of the Feedback.
8.3. List of Customers
The Customer authorizes Aïdi to display its name, trademark and logo on a website and on any other material promoting the Platform for the sole purpose of identifying the Customer as a user of the Platform. This authorization is subject to the Customer's reasonable requirements regarding the use of its trademarks and logos and may be withdrawn by written notice at any time.
Aïdi will be given a reasonable time to respond to the withdrawal of authorization and will have no obligation with respect to printed material already in circulation and materials no longer under its control.
In consideration of the Software Services, the Customer agrees to pay Aïdi the Fees provided for in the package selected when subscribing to the Software Services or the Fees set forth in the Proposal, as the case may be.
The Fees do not include applicable taxes, including sales, value-added, goods and services, special and harmonized taxes.
The Customer is responsible for all applicable taxes arising from or resulting from its subscription to the Platform or the provision of the Software Services except taxes levied on the income of Aïdi and its Affiliates. To the extent that Aïdi charges such taxes, they are calculated using the applicable tax rates based on the billing address provided by the Customer. These amounts are in addition to the Fees and will be charged to the Customer. If the Customer is exempt from paying taxes, the Customer must provide proof of such exemption, which in some jurisdictions includes an original certificate, which meets the applicable legal requirements attesting to the exemption status. Any tax exemption will only apply from the date on which Aïdi is satisfied with the satisfactory proof of exemption, in its sole discretion. If Aïdi does not charge taxes, Customer is responsible for determining whether taxes are due, and if so, for remitting any applicable taxes to the appropriate tax authorities in its jurisdiction.
9.3. Suspension of services
If the Fees are not paid when due for any reason, Aïdi will send a written notice to the Customer and may suspend the Software Services and access to the Platform 10 days after receipt of this notice if the Customer does not pay all Fees due in full.
Any amount payable to Aïdi and not paid 30 days after the due date bears interest at an annual rate of 18%, compounded monthly.
Aïdi's obligations with respect to Confidential Information do not apply to any information:
a) Which becomes public knowledge through no fault of Aïdi;
b) Which was already known to Aïdi before it was disclosed by the Customer;
c) Which is developed independently by Aïdi;
d) Which is disclosed to Aïdi by a third party who is not bound by an obligation of confidentiality to the Customer;
10.3. Permitted disclosure
Aïdi may disclose and/or use the Confidential Information if it is compelled to do so by an order of a court or competent authority in accordance with applicable law, provided that reasonable steps have been taken, if possible, to notify the Customer of such forced disclosure or use and to allow the Customer to take appropriate steps to protect the Confidential Information.
11.1. Conventional warranty
Subject to the terms of this Section 11, Aïdi warrants to Customer that the Platform will perform in all material respects in accordance with the Documentation provided to Customer. Upon receipt of notice from Customer that the Platform is not performing substantially as set forth in the Documentation (a "Defect"), Aïdi will replace or repair the Platform at its expense to correct the Defect. If Aïdi determines, in its sole discretion, that the Defect cannot reasonably be corrected, Aïdi may terminate Customer's subscription to the Platform or to the features affected by the Defect and refund any Fees paid in advance by Customer for periods during which Customer did not have access to the features compromised by the Defect. The foregoing is Customer's sole and exclusive remedy under this warranty. This warranty does not cover, among other things, damages that may be suffered by the Customer as a result of a Defect, including the failure to obtain expected results from using the Platform.
This warranty is for the benefit of the Customer only and does not extend to Collaborators or Authorized Users.
11.2. No implied warranty
With the exception of the conventional warranty provided herein, the Platform and the Software Services are provided by Aïdi "as is" and without any warranty, express or implied. The parties acknowledge that any warranty provided by law that may be disclaimed by contract is hereby excluded. Notwithstanding the conventional warranty provided for herein, Aïdi does not warrant (a) that the Software Services will be rendered in an uninterrupted, secure, error-free, accurate and complete manner, (b) that the Customer will obtain any results following the use of the Platform or the Software Services.
12.1. Nature of the contract
The parties acknowledge that Aïdi’s obligation hereunder is limited to the provision of a software tool including certain functionalities facilitating project management and does not include any obligation to provide advice or any commitment regarding the results obtained by using the Platform. Each of the Customer or Collaborator is responsible for ensuring that the Platform is adequate for its needs.
12.2. Exclusion of certain damages
Subject to any public policy limitations provided by law that cannot be waived by contract, Aïdi disclaims any liability for any indirect or consequential damages, including punitive, incidental or special damages, arising out of the Software Services, the Customer's or Authorized Users' use of the Platform, or Aïdi's failure to provide the Software Services, whether such liability is based on contract, tort, negligence, strict liability or any other legal theory, even if Aïdi has been advised of the possibility of damages that may be caused to Customer by the provision of the Software Services or by any interruption or suspension of the provision of the Software Services.
Without limiting the generality of the foregoing, the parties exclude Aïdi's liability for damages for loss or corruption of data, loss of profits or business opportunities, failure to realize expected savings, cost of replacement goods and services, fees and expenses of consultants or legal advisors. The Customer agrees that Aïdi will not be liable for damages caused directly or indirectly by the Customer's or an Collaborator’s business decisions based on data obtained through the Platform, even if such data is erroneous due to a defect in the Platform.
12.3. Monetary limitation
Subject to the limitations of public order provided for by law that cannot be set aside by contract, Aïdi's liability based on the present contract will be limited to a sum corresponding to the Fees paid by the Customer during the 12 months preceding the occurrence generating liability.
13.1. By the Customer
The Customer agrees to indemnify, defend and hold harmless Aïdi and its directors, officers, employees, shareholders, consultants and Affiliates (collectively the "Aïdi Indemnitees") from and against any and all third party claims brought against any of the Aïdi Indemnitees (including, without limitation, any direct or indirect costs, losses, liabilities, fines, judgments, costs, interest, penalties or expenses, including reasonable disbursements and fees of their legal counsel, which they may incur as a result of any such claims) arising from:
b) the authorized use of the Customer Data by Aïdi;
c) the failure of the Customer or a Collaborator to comply with its obligations with respect to the protection of Personal Information;
d )the violation by the Customer, a Collaborator or their personnel of any applicable law or regulation;
e) gross negligence or intentional acts of a member of the Customer’s or Collaborator’s personnel.
13.2. By Aïdi
Aïdi agrees to indemnify, defend and hold harmless the Customer and its directors, officers, employees and shareholders (collectively the "Customer Indemnitees") from and against any third party claims brought against any of the Customer Indemnitees (including, without limitation, any direct or indirect costs, losses, liabilities, fines, judgments, costs, interest, penalties or expenses, including reasonable disbursements and fees of their legal counsel, which they may incur) arising from:
a) an alleged infringement of a third-party intellectual property right existing in Canada by the Platform or the Software Services, except if such infringement results from the use of the Platform with a product not provided or approved by Aïdi, any unauthorized use of the Platform or use contrary to Aïdi's instructions, a trial or "beta" functionality, any modification of the Platform by a person not authorized by Aïdi.
b) Aïdi's failure to comply with its obligations regarding the protection of Personal Information or Confidential Information.
13.3. Preventive measures
If Aïdi determines or reasonably suspects that the Platform may infringe the intellectual property rights of a third party, Aïdi may, at its option: (a) procure the right to continue to provide the Platform to the Customer, (b) replace any potentially infringing element with another non-infringing functionally equivalent element, or (c) immediately suspend the Customer's access to any potentially infringing element of the Platform and reimburse the Customer for the Fees paid in advance associated with such element.
In order to benefit from the provisions of this Section 13, the party seeking indemnification must promptly notify the indemnifying party in writing no later than ten (10) days after the indemnifying party becomes aware of a claim or reasonably should become aware of a claim. The indemnifying party shall then be at liberty to conduct the defense of such claim and to retain counsel reasonably acceptable to all parties, but shall not settle or make any admission of liability without the consent of the indemnified party, who shall not unreasonably withhold consent.
14.1. Duration of the contract
The duration of the Customer's subscription to the Platform and the Software Services is determined as agreed between Aïdi and the Customer, including as set forth in the Proposal.
14.2. Termination of the contract
Aïdi may terminate the Customer's subscription and stop providing the Software Services immediately if the Customer fails to comply with his obligations under this contract and does not remedy such failure within 10 days of a written notice stating the default.
14.3. End of the contract
In the event that this agreement is terminated or ceases to be in force for any reason, Aïdi agrees to return to the Customer any documentation or material belonging to the Customer and to use commercially reasonable efforts to allow the Customer to take possession of all Customer Data.
The obligations of the parties with respect to intellectual property, confidentiality, indemnification and fees owed to Aïdi shall continue to apply notwithstanding the termination of the agreement.
Upon termination of this Agreement for any reason, Aïdi will retain and allow the Customer to download the Customer Data hosted through the Platform for a minimum period of thirty (30) days. At the end of this period, Aïdi may destroy the Customer Data without further notice. Customer Data will be made available to the Customer at no cost in a common format (sql, csv) of Aïdi's choice, in raw form, without additional formatting. The Customer will be responsible for providing an IT infrastructure capable of receiving the Customer Data, if applicable.
At the Customer's request, Aïdi may offer reasonable cooperation, taking into account the circumstances of the termination of the agreement, to facilitate the transition of the Customer Data to another service provider or to facilitate the uploading of the Customer Data to the Customer's IT infrastructure or to provide the Customer Data in a structured or enhanced format (the "Transition Services"). The provision of Transition Services is conditional upon the Customer paying the fees and disbursements, the estimate of which will be provided in writing upon the Customer's request, prior to the Transition Services being rendered.
Any notice required or permitted to be given under this Agreement shall be in writing by means of a message delivered in person, in which case the notice shall be deemed to have been received on the day of delivery, or sent by email from the email address of one party to the email address of the other party, in which case it shall be deemed to have been received on the next business day after it is sent. The parties are free to change their e-mail addresses by providing written notice to the other party in accordance with this section.
15.3. Applicable law
This Agreement shall be governed in all respects by, and construed in accordance with, the laws in force in the Province of Quebec, including the laws of Canada applicable therein, including any question as to its validity or enforcement.
15.4. Dispute Resolution
The parties agree to choose the judicial district of Montreal, Province of Quebec, to the exclusion of any other judicial district that may have jurisdiction, as the exclusively appropriate venue for the institution and hearing of any legal proceedings relating to this contract.
15.5. No Waiver
The failure of a party to exercise its rights under this agreement, or the delay in exercising them, shall not constitute a waiver by that party of any right. Any waiver of a right under this Agreement shall be effective only if made expressly and in writing.
15.7. Independence of provisions
To the extent possible, each provision of this Agreement shall be construed so as to be enforceable and valid under applicable law, but in the event that any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason under applicable law or regulation in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity of the remaining provisions of this Agreement.
The Customer may not assign or otherwise transfer any of its rights and obligation under this Agreement without the prior written consent of Aïdi which shall be at Aïdi's sole discretion.