1. OBJECT – CONTRACTUAL WHOLE – FIELD OF APPLICATION
1.1 SOLUTIONS PUBLISSOFT INC, (hereinafter referred to as Publissoft) is an independent global communications agency specialising in consultancy, Internet communication (creation and hosting of websites, purchase and management of domain names, email management, webmail, referencing, commercial links, Web Call Back service and digital marketing services, etc.). Publissoft does not control or hold any equity interest in companies that sell media or advertising space to which it purchases services on behalf of its customers and, more generally, has no financial links with media sellers or advertising space. Similarly, such sellers of media or advertising space do not control or hold any equity interest in Publissoft. Under the terms of this Agreement, hereinafter referred to as the Agreement, the Client entrusts Publissoft with the management of all or part of its communication budget.
1.2 Any provision of services by Publissoft is subject to the service agreement signed with the customer (hereinafter referred to as the “Client”), which includes (i) the special conditions hereto, (ii) the general conditions of service (hereinafter referred to as the “Conditions”). Such documents constitute an indivisible contractual whole (hereinafter referred to as the “Agreement”) and the Client expressly acknowledges having received such documents at the time of inking the Agreement. The Agreement supersedes any purchase order or condition which the Client may be bound to, unless Publissoft expressly waives its right to do so. The Agreement constitutes the entire agreement between the parties.
1.3 The signing of the Agreement by the Client, at the bottom of the special conditions appearing herein implies the full and unreserved acceptance by the Client and its full and unreserved adherence to the provisions of the Agreement, including these Conditions, which take precedence over any general purchasing conditions or any other documents of the Client, unless Publissoft has otherwise expressly agreed in writing.
2 PROVISION OF PUBLISSOFT SERVICES
2.1 The details of the products and/or services hired by the Client for the implementation of the communication plan (hereinafter referred to as the “Services”) are specified in the specific conditions appearing herein. Their descriptions and/or conditions are set forth in the Publissoft Welcome Guide delivered to the Customer.
2.2 Publissoft’s services are provided at the price specified in the special conditions hereof. This price is fixed, firm, and is not subject to revision during the term of the Agreement.
2.3 Unless otherwise specified, any price, amount or sum indicated in the Agreement is expressed in Canadian dollars and excludes all applicable taxes (GST QST).
3. PAYMENT MODALITIES – FAILURE TO PAY
3.1 The annual price of Publissoft’s services shall be paid by the Client each year during the term of the Agreement on the date indicated in the special conditions hereof. The monthly price of Publissoft’s services shall be paid by the Client each month during the term of the Agreement on the date indicated in the special conditions hereof. The payment schedule is agreed upon with the Customer and is set forth in the special conditions of this Agreement. Publissoft’s invoices are payable upon receipt.
3.2 The price(s) are payable by cheque payable to Publissoft or by preauthorised debit in accordance with the payment terms chosen by the Client under the special terms appearing herein. The price of the services provided by Publissoft is calculated on the basis of net price and without discount, unless otherwise agreed by the parties.
3.3 In the event of non-payment of any sum on the due date, Publissoft is automatically entitled to charge the Customer default interest at the annual rate of twenty percent (20%) capitalizable on a daily basis, without notice or delay. This interest accrues in full right and is automatically acquired by Publissoft without formality or notice and without prejudice to any other action Publissoft may file against the Client.
3.4 In the event of late payment, Publissoft reserves the right to demand payment by bank withdrawal from the customer. If Client does not accept, Publissoft reserves the right to suspend its services. If the Client fails to pay a payment by the due date, the Client’s right shall be lost and the outstanding balance of the Agreement price shall become due and payable. In the case of an NSF check, Publissoft reserves the right to charge the Client a fee of $25.
3.5 Publissoft shall not be obliged to provide the services requested by the Client if the Client does not pay the price agreed in the Terms and Conditions and in accordance with the terms and conditions stated above. In the event of failure to pay as per the terms hereof, Publissoft shall be entigled to suspend or cancel the provision of services in progress and to withhold any advance payment already received.
3.6 At the end of the Agreement, the Client may only demand the delegation or transfer of management of its domain name(s) if, for any reason, the amount due to Publissoft has been paid in full.
3.7 The Client acknowledges that compliance with the Agreement is strictly conditional upon approval of its credit by Publissoft, which may terminate this Agreement if it considers, at its sole discretion and at any time, that the Client’s credit is not satisfactory. To this end, the Client authorizes Publissoft to carry out all customary credit and credit research with any third party to enter credit information in its file and to disclose it to third parties.
4. DURATION – RESILIATION
4.1 The Agreement is valid for the period referred to in the special conditions of this Agreement, and it is expressed in months or years (hereinafter referred to as the “Initial Period”). With respect to Publissoft, the Agreement becomes enforceable, final and irrevocable between Publissoft and the Client as of the date of its signature.
4.2 The Agreement shall be automatically renewed by tacit extension beyond the initial period for successive periods of one year, unless one of the parties expressly terminates it by written notice emailed to the authorized consultant at least three (3) months before the end of the current period, either at the initial period or at one of the successive, aforementioned periods.
4.3 The Client declares that it is aware of the provisions of article 2125 of the Civil Code of Quebec, which authorizes unilateral termination of the Agreement before its expiry and expressly waives the use of unilateral termination.
4.4 The Customer may not terminate the Agreement unilaterally and/or before its expiration date, for any reason, grounds or claim.
4.5 Insolvency, voluntary or compulsory bankruptcy by the Client, the Client’s proposal to its creditors, asset transfer, abandonment of business, liquidation before full performance of its obligations, sale or asset cession or transfer of its rights pursuant hereof without having obtained the previous Supplier’s written authorization shall be construed as a breach of the provisions hereof and shall imply the Supplier’s right to automatically terminate the Agreement by a written notification sent by registered letter.
4.6 In the event that the Client breaches any of its obligations pursuant to the Agreement, all sums due by the Client shall be payable immediately, including the periodic payments owed during the term of the Agreement. In addition, the Client shall be liable to Publissoft of a fine of $2,000 payable upon simple request and in full right without prejudice to any other right or claim by Publissoft.
5. OBLIGATON AS TO THE MEANS – LIABILITY – GUARANTEE
5.1 Publissoft provides its services for the Client within the framework of a general obligation of means.
5.2 In no event shall Publissoft be liable for any punitive, delinquent, direct or indirect damages, including, but not limited to, loss of data, loss of income or profits, business interruption, financial loss, loss of profits or failure to realize projected savings, even if Publissoft has been advised of such damages. The Client is solely responsible for the choice of products or services and for the results he wishes to obtain from using them, even if the Client has notified Publissoft of its goals.
5.3 The provisions of Section 6 shall apply without regard to the success or effectiveness of any other remedy, irrespective of the nature, cause or reason of any action or proceeding of the Client, including, without limiting the generality of the foregoing, any breach of the Agreement and any damages.
5.4 Any claim under this article must be received by Publissoft within three (3) months of the date on which the events giving rise to such claim occurred.
5.5 To provide all the services hired by the Client, Publissoft is exclusively liable to the Client for an obligation of means, not for an obligation of outcome. The Client has been informed that certain services (e.g. referencing depends on many technical, technological or other parameters that Publissoft cannot fully control). As such, Publissoft reserves the right to reject or modify certain options for 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 website or for any other service provided by Publissoft on behalf of the Client (e.g. video), the Client declares that it owns all the rights and authorizations allowing the reproduction, representation and exploitation, in any form, of such elements. The Client is also solely responsible for the timely acquisition of the necessary authorizations related to the right of use the image of any person or element or to be used directly or indirectly in the creation of a website or any other service provided by Publissoft. The Client guarantees its support to Publissoft and it will hold Publissoft harmless from any claims from any third party regarding the said elements and /or related thereto.
5.7 As of the date of enforceability hereof, the Client has one month (1) to provide Publissoft with all the elements necessary for the creation of its communication plan (e.g. website). Publissoft shall not be held liable if the Client fails to meet the delivery deadline.
5.8 Publissoft shall not be liable to the Client if the Client fails to comply with its obligations pursuant to the Agreement.
5.9 In the event of Publissoft’s breach of its obligations (non-compliance or improper performance), the Client shall notify Publissoft no later than five (5) days from the date on which the Client’s website is put online, or from the date on which Publissoft performs the Service or meets the disputed obligation or from the date on which the disputed service was rendered or the disputed obligation was met. Once the Client signs a report of receipt of the services requested as being rendered, Publissoft shall be deemed to have fulfilled its obligations under the Agreement and the Client shall be deemed to have irrevocably waived all claims in this respect.
5.10 To the ends hereof, the parties acknowledge that a partial or isolated obligation of the Agreement cannot be considered an essential obligation of the Agreement, since the core subject hereof is based on the performance of various obligations and services that are considered indivisible as part of the Client’s communication plan. The Client also commits to mitigating any damage it may suffer by applying all necessary measures to that end.
6. THE CLIENT’s COMMITMENT
6.1 It is the Client’s responsibility to make the necessary arrangements, declarations, applications for legal and administrative authorizations in order to be able to legally carry out its activities and in compliance with the laws and regulations in force.
6.2 In particular, the Client declares that it has complied with the legal requirements relating to the processing of personal data, access to information, protection of privacy and confidentiality of personal data. The Client acknowledges that it is solely responsible for the content provided to Publissoft, both as regards its legality and the reliability of the information.
6.3 The Client undertakes to comply with the federal and provincial laws in force in Canada that may govern the Internet, with any international convention ratified or not by Canada, as well as with any Internet ethics recommendation of Canadian origin or issued by the United Nations or one of its official bodies, regardless of where the permanent representation of the Client is located.
6.4 The Client, as the main publisher of the content, undertakes in particular to respect the provisions relating to intellectual property, respect for privacy, protection of confidential information, protection of minors on the Internet, press freedom and, in general, all provisions created to ensure the protection of public order.
6.5 The Client acknowledges that Publissoft cannot – neither is its role nor its duty – exercise permanent and effective control over the legality of the contents and undertakes to exercise such control itself. The Client acknowledges that Publissoft has no control over the data processed and used by the Client.
6.6 The Client undertakes to correct and amend any information deemed unlawful in accordance with any of the standards or recommendations issued by one of the bodies referred to in this Article 7, within a period corresponding to that provided by such body or, otherwise, within a maximum period of forty-eight (48) hours. Should such requirements be not met, Publissoft reserves the right to suspend, without delay and without prior notice, the Client’s accessibility to the service until the latter is fully compliant without any form of reimbursement or compensation.
6.7 The Client undertakes to indemnify and hold Publissoft harmless in the event of any claim, lawsuit, action, demand, judicial and extrajudicial consultation costs, regardless of whether the case has solid grounds or based not, and of any judgment and compensation for damages caused to any person or company due to the Client’s failure to comply with the legality or informative reliability of the contents delivered to Publissoft for the provision of services.
6.8 Publissoft does not guarantee that the published domain name and/or content will not conflict with any copyright, trademark, company name, design or model registered or commercially exploited by a third party. In this regard, it is the Client’s exclusive responsibility to undertake all necessary verifications to ensure that such conflicts are avoided and the Client undertakes to keep Publissoft harmless from any recourse that may be taken against it in this regard.
6.9 The Client undertakes to make reasonable use of electronic messaging, which consists, among other things, of not sending messages whose content may offend public order, give rise to discrimination, compromise the national security or violate applicable the laws or the rights of third parties.
7. FORCE MAJEURS
7.1 A party is not deemed to have breached its obligations and is not liable for damages or delays if such defects, damages or delays arise from a case of force majeure as described in article 1470 of the Civil Code of Quebec. Such force majeure events include damage, strikes, transport breakdowns, accidents or serious events beyond the control of Publissoft which prevent or hinder the performance of its obligations.
8. INDEPENDENT CONTRACTORS
8.1 The parties acknowledge that they act as independent contractors and that nothing in the Agreement shall be construed as a modification, intentional or factual, of their status, partnership, joint venture or agency of any kind between the Client and Publissoft.
8.2 Each party has full control over the manner and means of performing its obligations under the Agreement. Nothing in the Agreement shall be construed to let either party to compel the other party to do anything that may result in compromising its status as an independent contractor.
8.3 Neither party has the right or authority, express or implied, to create or assume on behalf of the other party any obligation or liability to third parties contrarily to the provisions hereof.
9. LITIGATION – ENFORCEABLE LAW
9.1 The Agreement, in any act resulting therefrom, shall be governed by and construed in accordance with the laws of Quebec and Canada to the exclusion of any other right or jurisdiction.
9.2 Any dispute relating to the application of the Agreement, its Conditions, interpretation, execution, contracts for the provision of services and purchases made by Publissoft or payment of the price, shall exclusively concern the jurisdiction of the courts of the judicial district of Montreal, in the province of Quebec, regardless of the place where the Agreement was concluded, namely the order, delivery, payment or form of payment, and even in case of call of guarantee or plurality of defendants, unless otherwise set forth upon legal request or to ensure the public order according to the law.
9.3 In the event of legal action or any other action aimed at recovering claims by Publissoft, the costs of summons, legal fees, attorneys’ and bailiff’s fees and any ancillary costs shall be borne by the Client, this including any costs related to or resulting from the Client’s failure to comply with its obligations under the Agreement.
10. GENERAL PROVISIONS
10.1 If for any reason any provision of these Terms and Conditions and, generally, of the Agreement is deemed unlawful, inoperative, void or unreasonable, in whole or in part, the remaining provisions shall remain in full force and effect and shall apply as if said Terms and Conditions or the Agreement had been entered into without the invalid provision. The provision declared invalid shall be replaced by a valid provision of a scope that is as similar as possible.
10.2 All written notices must be sent or delivered to Publissoft at the following address: firstname.lastname@example.org, or verbally by telephone at (514) 228-1298. Notices sent by registered mail upon receipt, notices delivered personally upon receipt and faxes sent with electronic confirmation shall be deemed to have been received.
10.3 No tolerance on the part of Publissoft with respect to the extent, duration or frequency or any other concept relating to this Agreement shall mean that a right or expression of waiver by Publissoft to apply the provisions of these Terms or the Agreement as a whole shall have been created, nor shall it limit in any way Publissoft’s ability to invoke at any time each of the provisions of these Terms or the Agreement.