GENERAL TERMS AND CONDITIONS OF SERVICES.
PURPOSE – CONTRACTUAL FRAMEWORK – SCOPE OF APPLICATION
For a standard non-transactional website, Solutions Publissoft Inc. generally requires one (1)
to two (2) months before completion. Completion meaning for the website to be fully functional and launched on the internet. For a transactional website, Solutions Publissoft Inc. generally requires three (3) to four (4) months before completion.
These time frames are estimates and may vary based on the project, and could also be shortened if there is efficient collaboration between the client and Publissoft.
A projected time frame for the provision of the Services is set out for each project once the service proposal has been signed by both parties.
TERMS AND CONDITIONS
The following terms and conditions apply to the provision by Publissoft of the Services
described in the proposal to which these terms and conditions are attached as a Schedule (the “Proposal”), to the client to which the Proposal is attached (the “Client”). Upon acceptance by the Client of the Proposal, the terms of the Proposal and its Schedules, including these terms and conditions, shall come into effect and constitute the agreement between Publissoft and the Client for the provision of the Services (the “Agreement”).
1.PURPOSE – CONTRACTUAL FRAMEWORK – SCOPE OF APPLICATION
1.1 SOLUTIONS PUBLISSOFT INC (hereinafter Publissoft) is an independent global communications agency, more specifically specializing in consulting and communication on the Internet (creation and hosting of Internet sites, purchase and management of domain names, e-mail management, webmail, referencing, commercial links, web reminder service, digital marketing services, etc.). Publissoft does not control or have any interest in the capital of companies selling advertising media or space from which it purchases services on behalf of its clients and, more generally, does not have any financial ties with vendors of advertising media or space. Conversely, the said media or advertising space vendors do not control or have any interest in the capital of Publissoft. At the end of the Contract, as defined below, the Client entrusts Publissoft with the management of all or part of its communications budget.
1.2 All services provided by Publissoft are subject to the service agreement concluded with the client (hereinafter the Client), which includes (i) the special terms and conditions set out in this Agreement, and (ii) these general terms and conditions of service (hereinafter the Conditions). The said documents constitute an indivisible contractual whole (hereinafter the Contract) and the Customer expressly acknowledges having received the said documents at the time of signing the Contract. The Contract supersedes any order or purchase terms and conditions to which the Client may be bound, unless expressly waived by Publissoft. The Agreement constitutes the entire and complete agreement between the parties.
1.3 The signing of the Contract by the Customer, subject to the specific terms and conditions set out in this Contract, shall constitute full and unconditional acceptance by the Customer and full compliance with the terms and conditions of the Contract, including these Terms and Conditions, which shall prevail over any terms and conditions of purchase or any other document of the Customer, unless otherwise expressly agreed to by Publissoft in advance in writing.
2. SERVICES PROVIDED BY PUBLISSOFT
2.1 Details of the products and/or services subscribed to by the Client for the implementation of the communication plan (hereinafter the Services) are set out in the special conditions contained in this Agreement. Their descriptions and/or conditions are detailed in the Publissoft Welcome Guide provided to the Client.
2.2 Publissoft’s Services are provided at the price specified in the special conditions of this Agreement. This price is fixed, firm and non-revisable for the duration of the Contract.
2.3 Unless otherwise specified, any price, amount or sum specified in the Contract is in Canadian dollars and excludes all applicable taxes (GST, QST or other).
3. TERMS OF PAYMENT – DEFAULT
3.1 The annual price for Publissoft’s services will be paid by the client each year during the term of the contract, on the date indicated in the special conditions set out in this contract; the monthly price for Publissoft’s services will be paid by the client each month during the term of the contract, on the date indicated in the special conditions set out in this contract. The payment schedule is agreed upon with the client and is set out in the special terms and conditions contained in this Agreement. Publissoft’s invoices are payable upon receipt.
3.2 The price(s) is (are) payable by cheque to the order of Publissoft or by pre-authorized debit, according to the payment method chosen by the Client in the special conditions set out in this Contract. It is calculated net without discount, unless otherwise agreed by the parties.
3.3 In the event of non-payment of any amount by the due date, Publissoft is entitled, without further notice or delay, to charge the Client interest at the rate of twenty percent (20%) annually, compounded on a daily basis. Such interest shall be payable by Publissoft automatically and without further formality or notice of default, and without prejudice to any other action Publissoft may take against the Customer.
3.4 Publissoft reserves the right to require the customer to pay by direct debit after late payment. If the customer fails to accept this, Publissoft reserves the right to suspend its services. Failure to pay an instalment by its due date will result in the forfeiture of the term and the remainder of the Contract price will become due and payable. Publissoft reserves the right to charge a $25 fee to the Client’s account in the event of a non-sufficient funds cheque.
3.5 Publissoft will not be obliged to perform the Services ordered by the Customer if the Customer fails to pay the agreed price in accordance with the terms and conditions set out above. In the event of non-compliance with the payment terms agreed to in this Contract, Publissoft will have the right to suspend or cancel the provision of the Services in progress and to retain any deposit already received.
3.6 At the end of the Agreement, the Client may demand the delegation or transfer of management of its domain name(s) only if all amounts due to Publissoft, for whatever reason, have been duly and fully paid.
3.7 The Customer acknowledges that performance of the Agreement is strictly conditional upon Publissoft’s approval of the Customer’s credit, and Publissoft may terminate this Agreement if Publissoft, in its sole discretion, determines at any time that the Customer’s credit is not satisfactory. To this end, the Customer authorizes Publissoft to make all customary inquiries of any third party regarding the Customer’s creditworthiness and credit, and to enter the Customer’s credit information in its file and disclose it to third parties.
4 DURATION – TERMINATION
4.1 The Contract is entered into for the term specified in the special conditions of this Contract, expressed in months or years (hereinafter the Initial Term). The Agreement is final and binding on Publissoft and the Customer from the date of signature of the Agreement.
4.2 The Contract will be automatically renewed by tacit renewal beyond the initial period, for successive one-year periods, unless expressly terminated by either party by written notice sent by e-mail to the authorized consultant at least three (3) months before the end of the current period, whether it is the initial period or one of the successive periods mentioned above.
4.3 The Client declares that it is aware of the provisions of Article 2125 of the Civil Code of Quebec, which authorizes the unilateral termination of the Contract before its term, and expressly waives its right to avail itself of this provision.
4.4 The Agreement may not be terminated or terminated prior to its term and/or unilaterally by Customer for any reason, basis or grievance whatsoever.
4.5 The Client’s insolvency, voluntary or forced bankruptcy, proposal of composition on its part to its creditors, assignment of its assets, abandonment of business, liquidation prior to full performance of its obligations, sale, assignment or transfer of its rights under the Contract without the prior written consent of the Provider shall be construed as a default hereunder and shall result in the Provider’s right to terminate the Contract by operation of law by sending a written notice by registered letter.
4.6 In the event of the Client’s failure to comply with any of its obligations under the Agreement, all sums due from the Client shall become immediately due and payable, including the periodic payments for the duration of the Agreement. In addition, the Client will owe Publissoft a penalty of $2,000, payable on first demand and by operation of law, without prejudice to any other right or claim of Publissoft.
5. OBLIGATION OF MEANS – LIABILITY – WARRANTY
5.1 Publissoft performs the services for the client under a general obligation of means.
5.2 In no event shall Publissoft be liable for any punitive, consequential, direct or indirect damages, including, but not limited to, loss of data, loss of revenue or profits, business interruption, financial loss, loss of profit or failure to realize projected savings, even if Publissoft has been advised of such faults. The Customer alone is responsible for the choice of products or services and the results the Customer desires to achieve by using them, even if the Customer has advised Publissoft of its objectives.
5.3 The provisions of this section shall apply without regard to the success or effectiveness of any other action, regardless of the nature, cause or reason for any claim, action or proceeding by the Customer, including, without limiting the generality of the foregoing, any breach of the Agreement and any damages.
5.4 Any claim under this section must be received by Publissoft within three (3) months from the date the events giving rise to such claim occur.
5.5 Publissoft’s obligation to the Customer in respect of the performance of all services subscribed to by the Customer is exclusively one of means, and not one of result. The Client has been informed that certain services (e.g. referencing) are dependent on numerous technical, technological or other parameters that Publissoft cannot fully control. Publissoft therefore reserves the right to refuse or modify certain choices of natural keywords or commercial links.
5.6 With respect to the elements or content provided by the Client to Publissoft for the creation of a Web site or any other service provided by Publissoft on behalf of the Client (e.g. video), the Client declares that it holds all rights and authorizations to reproduce, represent and exploit these elements in any form whatsoever. The Client is also solely responsible for obtaining, in a timely manner, any necessary authorizations concerning the right to use the image of any person or element or property involved directly or indirectly in the creation of a Web site or any other services provided by Publissoft. The Client guarantees to support Publissoft and to hold it harmless against any claim by a third party to these elements and/or to this title.
5.7 The Client has one month (1) from the date the Contract comes into force to provide Publissoft with any elements required for the creation of its communication plan (e.g. website). Publissoft will not be liable if the Client fails to meet the deadline.
5.8 Publissoft will not be liable to the Client if the Client fails to comply with its obligations under the Agreement.
5.9 In the event of any failure by Publissoft to perform its obligations (failure to perform or improper performance), the Client must notify Publissoft within a maximum of five (5) days from the date the Client’s Web site goes online, or from the date on which Publissoft performs the disputed service or obligation, or from the date on which the disputed service or obligation should have been performed. In the event that the Customer fails to do so, or in the event that the Customer has signed an acceptance report, Publissoft shall be deemed to have performed its obligations in accordance with the Contract, and the Customer shall be deemed to have irrevocably waived all claims in this regard.
5.10 For the purposes hereof, the parties acknowledge and agree that no partial or isolated obligation of the Contract shall be considered an essential obligation of the Contract, as the subject matter of the Contract is based on the performance of a number of obligations and services considered indivisible and forming part of the Client’s communication plan. The Customer also undertakes to mitigate any damage it may suffer by taking all necessary measures to that effect.
6.1 It is the Customer’s responsibility to proceed with the steps, declarations, and requests for legal and administrative authorizations in order to be able to carry out its activities in full legality and compliance with the laws and regulations in force.
6.2 The Customer declares more particularly that it has met the legal requirements concerning the processing of personal data, access to information, protection of privacy and confidentiality of personal information. The Client acknowledges that it is solely responsible for the content submitted to Publissoft with respect to its legality and informational reliability.
6.3 The Client agrees to comply with federal and provincial laws in force in Canada that may govern the Internet, any international convention ratified or not by Canada, as well as any recommendation on Internet ethics of Canadian origin or issued by the United Nations or one of its official bodies, regardless of the Client’s permanent place of representation.
6.4 The Client, as the principal publisher of the content, undertakes in particular to comply with the provisions relating to intellectual property, respect for privacy, protection of confidential information, protection of minors on the Internet, freedom of the press and, more generally, all provisions aimed at ensuring the protection of public order.
6.5 The Customer acknowledges that Publissoft has neither the power nor the duty to exercise permanent and effective control over the lawfulness of the content and, therefore, the Customer undertakes to exercise such control itself. The Customer acknowledges that Publissoft has no control over the data processed and used by the Customer.
6.6 The Client agrees to correct and amend any information found to be unlawful under any of the rules or recommendations issued by any of the organizations referred to in this section within the timeframe specified by the said organization or, failing that, within a maximum of forty-eight (48) hours. In the event of failure to do so, Publissoft reserves the right to suspend access to the Customer’s service without delay and without prior notice, until such time as it is fully compliant, without any reimbursement or indemnity.
6.7 The Customer agrees to indemnify and hold Publissoft harmless from and against any and all claims, suits, actions or demands, including court and out-of-court costs, whether or not such claims have merit, judgments and awards for damages to any person or corporation arising out of the Customer’s failure to ensure the lawfulness or informational reliability of the content provided to Publissoft for the provision of the Services.
6.8 Publissoft does not warrant that the domain name and/or content published does not conflict with any copyright, trademark, trade name, registered or commercially exploited design of any third party, and it is the sole responsibility of the Client to verify the absence of such conflicts and to indemnify Publissoft against any claims that may be made against it in this regard.
6.9 The Customer agrees to make reasonable use of electronic messaging, including not disseminating messages with content that may offend public order, cause discrimination, jeopardize national security or violate applicable laws or the rights of others.
7. FORCE MAJEURE
7.1 A party shall not be considered to be in default of its obligations and shall not be liable for damages or delays if such default, damage or delay results from an event of force majeure, as described in Article 1470 of the Civil Code of Quebec. Force majeure events include damage, strikes, transportation breakdowns, disasters or serious events beyond Publissoft’s control that would prevent or hinder the performance of its obligations.
8. INDEPENDENT CONTRACTORS
8.1 The parties acknowledge that they are acting as independent contractors and that nothing in the Contract shall be construed to alter their status or to constitute, intentionally or in fact, a partnership, joint venture or agency of any kind between Publissoft and its Clients.
8.2 Each party has full control over the manner and means of performing its obligations under the Contract. Nothing in the Contract shall be construed to permit a party to require the other party to do anything that may have the effect of impairing its status as an independent contractor.
8.3 Neither party shall have any right or authority, express or implied, to create or assume on behalf of the other party any obligation or liability to third parties, other than in the manner described above.
9. LITIGATION – APPLICABLE LAW
9.1 The Contract and any act arising therefrom shall be governed by and construed in accordance with the laws of Quebec and Canada, to the exclusion of any other law or jurisdiction.
9.2 Any dispute relating to the application of the Contract and these Terms and Conditions, their interpretation, performance, the contracts for services and orders entered into by Publissoft, or the payment of the price, shall be subject to the sole jurisdiction of the courts of the judicial district of Montreal, in the province of Quebec, regardless of the place where the Contract was concluded, the order was placed, the delivery was made, the payment was made, or the method of payment was made, even in the event of a third party claim or multiple defendants, unless otherwise provided by mandatory public policy.
9.3 In the event of legal action or any other debt collection action against Publissoft, the costs of summons and court proceedings, as well as legal and bailiff’s fees, and all related costs, will be borne by the Customer, as well as any costs related to or resulting from the Customer’s failure to comply with its obligations under the Contract.
10. GENERAL PROVISIONS
10.1 If for any reason any provision of these Terms and Conditions and of the Contract generally shall be held to be illegal, inoperative, void or unreasonable, in whole or in part, the remaining provisions shall remain in full force and effect as if these Terms and Conditions or the Contract had been entered into without the invalid provision. The provision found to be invalid shall be replaced by a valid provision that is as similar in scope as possible.
10.2 All written notices must be sent or delivered to Publissoft at the following address: email@example.com, or verbally by telephone at 1-888-382-4831. Notices sent by registered mail will be deemed to have been given when received; notices delivered by hand, when received; and notices by facsimile, when electronically confirmed.
10.3 No forbearance by Publissoft, regardless of its nature, extent, duration or frequency, shall be deemed to create any right or expression of waiver by Publissoft of any of the provisions of these terms and conditions or of the Contract as a whole, nor shall it operate to limit in any way Publissoft’s ability to invoke any of the provisions of these terms and conditions or of the Contract at any time.