PLEASE READ THE FOLLOWING LICENSE AGREEMENT BEFORE ACCESSING AND USING THE B-CITI PLATFORM AS A SERVICE OFFERING ASSOCIATED WITH THIS AGREEMENT.
BY CLICKING ON THE “ACCEPT” OR “YES” BUTTON IN RESPONSE TO THE ENQUIRY AS TO ACCEPTANCE OF THE TERMS OF THIS LICENSE AGREEMENT, OR BY LOGGING IN AND ACCESSING THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO, AND LEGALLY BINDING YOU, AS A LEGAL ENTITY OR A LEGAL ENTITY WHICH YOU REPRESENT AS AN EMPLOYEE OR AGENT (COLLECTIVELY THE “YOU” OR “CLIENT”) TO, THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) AND THIS AGREEMENT SHALL BE A LEGALLY BINDING AGREEMENT BY AND BETWEEN THE CLIENT AND B-CITI. IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT THEN YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SERVICE.
THE RIGHT TO USE THE SERVICE IS CONDITIONAL UPON ACCEPTANCE OF THIS AGREEMENT, UNLESS YOU HAVE ENTERED INTO A WRITTEN AND DULY SIGNED LICENSE AGREEMENT WITH B-CITI, IN WHICH CASE SUCH SIGNED LICENSE AGREEMENT WILL GOVERN THE CLIENT’S USE OF THE SERVICE.
This is a legal agreement concerning your use of the Service described below. The rights granted to the Service are expressly conditioned upon acceptance of the terms and conditions contained herein by the legal entity or person acquiring the license and, if applicable, responsible for payment. If You are using the Service as an employee, the legal entity that employs you is the licensee of the Service and is referred to herein as the “Client” or “You”. Your employer may have already accepted a version of this Agreement by signing an Order referencing this Agreement. In all other circumstances, you are binding your employer, and yourself personally as an employee, to this Agreement by installing and using the Service. References below to “You”, “Your” or “Client” refer to the licensee of the Service.
For the purposes herein, the following expressions are defined as follows:
“Agreement” refers to this EULA, its appendices and all reference documents, when applicable, as well as all amendments thereto.
“B-CITI” means B-CITI SOLUTIONS INC., a private corporation with its head office at 1864 Suzor-Coté Longueuil Québec J4N 1P6.
“BCITI Platform” means the multi-service, multi-city platform that provides a unique resident identity, connects multiple systems, access ethically data and digitizes resident services of B CITI called bciti Smart City Platform which is available via web and mobile.
“BCITI Services” means the services through which BCITI hosts and makes available the BCITI Platform and any component thereof. The term “BCITI Services” includes the BCITI Platform, Support Services and the Initial Training.
“CLIENT Data” refers to any information, data, content, records and files that CLIENT (or any of its Permitted Users) loads, receives through, transmits to or enters into the BCITI Platform.
“Initial Training” means the training that will be provided by B-CITI to the CLIENT by webinar during the first three months of this Agreement.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Permitted Users” has the meaning set out in Section 3.
“Personal Information” means any information about and identifying a natural person.
“Services” means, collectively, the B-CITI Services and B-CITI Platform.
“Website” means any websites used by BCITI to provide the BCITI Services, including the website located at www.bciti.com.
2. b-citi Services
(a) Provisioning the BCITI Services. Subject to CLIENT’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, BCITI will make the BCITI Services available to the CLIENT on the terms and conditions set out in this Agreement during the Term. The CLIENT is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the BCITI Service and for Permitted User’s compliance with this Agreement.
(b) Restriction of Use. The CLIENT will not itself, and will not permit others to:
(i) sell, lease, sub-license, or distribute the BCITI Services or any intellectual rights therein, or otherwise make the BCITI Services available to others;
(ii) use the BCITI Services to permit timesharing, service bureau or commercially exploit the BCITI Services;
(iii) use or access the BCITI Services (A) in violation of any applicable law or intellectual property right, or (B) in a manner that threatens the security or functionality of the BCITI Services C for any purpose or in any manner not expressly permitted in this Agreement;
(iv) decompile, disassemble, reverse engineer; reconstruct or otherwise copy, reproduce or inquire about the structure and components of the BCITI Platform;
(v) make any modification, correction, improvement or addition to the Platform;
(vi) provide, disclose in detail or otherwise make the Platform available to third parties other than its own users by any means without the prior written consent of BCITI;
(vii) use the Platform (except for the use of publicly accessible features) in the presence of third parties who are competitors of BCITI; or
(viii) use the BCITI Services for the purpose of broadcasting, publishing, transmitting, or hosting: (A) content that is illegal, unlawful to BCITI, other users or third parties, (B) data intended to impersonate a third party, (C) data that infringes on BCITI’s intellectual property rights, or (D) data containing computer viruses, malware, or spyware, or any other data or document that may adversely affect BCITI Services’ operations or the underlying technology or damage BCITI’s facilities or systems.
(c) Suspension of Access; Scheduled Downtime; Modifications. BCITI may, from time to time and in its discretion, without limiting any of its other rights or remedies, under this Agreement:
(i) suspend the CLIENT’s access or use of the BCITI Services:
(A) for scheduled maintenance;
(B)due to a Force Majeure;
(C) if BCITI believes in good faith that CLIENT or any Permitted User has violated any provision of this Agreement; or
(D) to address any emergency security concerns;
(E) if required to do so by a regulatory body or as a result of a change in applicable law; and
(F) if the CLIENT neglects or refuses to pay the Fees in accordance with the terms and conditions of the Agreement, after the expiry of a thirty (30) day notice period;
(ii) make any Modifications to the BCITI Services.
When circumstances permit, BCITI will give reasonable notice to the CLIENT of its intention to suspend the BCITI Services;
3. Administrator and CLIENT User Accounts
Upon the CLIENT’s request, BCITI will issue one or more administrator accounts (“Administrator Accounts”) to CLIENT that provides the CLIENT with the capability to create, modify or delete user accounts (each, a “CLIENT User Account”) for use by CLIENT and all individuals who are employees or contractors of CLIENT and CLIENT wishes to have access to and use of the BCITI Services (each user, and each administrator, a “Permitted User”).
The CLIENT will ensure that Permitted Users only use the BCITI Services through the CLIENT User Account. CLIENT will not allow any Permitted User to share the CLIENT User Account with any other person. CLIENT will promptly notify BCITI of any actual or suspected unauthorized use of the BCITI Services. BCITI reserves the right to suspend, deactivate or replace the CLIENT User Account if it determines that the CLIENT User Account may have been used for unauthorised purpose. CLIENT will ensure that all individual users of the BCITI Services, included Permitted Users, are contractually bound to the terms and conditions with CLIENT that are no less restrictive or protective of BCITI right than those set forth in the Agreement.
4. CLIENT’S RESIDENTs
The CLIENT acknowledges and agrees that the CLIENT’s residents who will access the B-CITI Platform will need to download an application from the App Store and consent to the terms and conditions of that application. In addition, the CLIENT’s residents will also be asked to accept the terms and conditions set out on the Website.
5. Ownership and Reservation of Rights
(a) The CLIENT retains all ownership and intellectual property rights in and to CLIENT Data. The CLIENT grants to BCITI a nonexclusive, worldwide, royalty free, irrevocable, sublicensable, and fully paid up right to access, collect, use, process, store, disclose and transmit CLIENT Data to: (i) provide the BCITI Services; (ii) improve and enhance the BCITI Services and its other offerings; (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). BCITI may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to CLIENT of any kind.
(b) The CLIENT grants BCITI a free and non-exclusive license to use its name and trademarks to the extent required for the purpose of providing the BCITI Services and performing its obligations under the terms of this Agreement and warrants that it holds all necessary rights, including all intellectual property rights, to enable BCITI to fully exercise the rights and licenses granted to it by the CLIENT hereunder, where applicable. Without limiting the generality of the foregoing, BCITI will have the right to add the CLIENT’s logo on the BCITI user interface with may be developed with the CLIENT. It is agreed that the BCITI logo will also appear on the B-CITI Platform interface.
(c) The CLIENT grants B-CITI a free and non-exclusive sublicense to set up the required connections with its third party supplier products or systems to connect the B-CITI Platform in order to read, write and analyze multi-system data. Notwithstanding the foregoing, f the CLIENT does not have the right to grant such sub-license at the time of the execution of this Agreement, the CLIENT undertakes to use its best efforts to obtain promptly such right from its third party supplier.
(d) BCITI and its licensors retain all ownership and intellectual property rights in and to (i) the BCITI Services; (ii) anything developed or delivered by or on behalf of BCITI under this Agreement and (iii) any Modifications to the foregoing (i) and (ii).
(e) All rights not expressly granted by BCITI to CLIENT under this Agreement are reserved.
(f) The CLIENT further undertakes not to take any action that calls into question the scope and validity of the Intellectual Property.
The CLIENT will provide Level 1 support to the Authorised Persons. The CLIENT will generally have access to BCITI’s technical support services (“Support Services”): (i) via online customer support request portal for Level 2 support from 9 am to 5 pm Monday to Friday; (ii) via telephone at 514266-1464 for Level 3 support 24 hours a day each day of the week.
Any suspension of the BCITI Services by BCITI pursuant to the terms of this Agreement will not excuse CLIENT from its obligation to make payments under this Agreement.
9. Warranty; Disclaimer; Indemnity
(a) CLIENT Warranty. The CLIENT represents and warrants to, and covenants with BCITI that the CLIENT Data will only contain Personal Information in respect of which the CLIENT has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable BCITI to provide the BCITI Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to BCITI and to or from all applicable third parties.
(b) GENERAL DISCLAIMER. BCITI DOES NOT WARRANT THAT THE BCITI SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BCITI SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE BCITI SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BCITI TO THE CLIENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CLIENT AND THE THIRD PARTY.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, BCITI HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BCITI EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO THE CLIENT IN CONNECTION WITH CLIENT’S USE OF THE BCITI SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.
(d) Indemnity. The CLIENT will defend, indemnify and hold harmless BCITI, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) CLIENT Data; (ii) CLIENT’s breach of any of CLIENT’s obligations, representations, warranties or covenants under this Agreement; or (iii) use of the BCITI Services (or any part thereof) by CLIENT or any Permitted User in combination with any third party software, application or service. CLIENT will fully cooperate with BCITI in the defense of any claim defended by CLIENT pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of BCITI.
10. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BCITI IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CLIENT FOR THE BCITI SERVICES IN THE 12MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL BCITI’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BCITI BE LIABLE TO CLIENT OR ANY PERMITTED USER FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE EXTRA-CONTRACTUAL (INCLUDING NEGLIGENCE) OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
11. General Provisions
(a) Severability. Any provision of this Agreement found by a tribunal or a court of competent jurisdiction to be invalid, illegal or unenforceable will be deemed to be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect or amended to the extent required, in the opinion of the court, to preclude its invalidity, illegality or unenforceability.
(b) Waiver. Any waiver of any provision of this Agreement must be made in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(c) Assignment. Neither party may assign the whole or any part of this Agreement without prior written consent by both parties. Notwithstanding the foregoing, either party may assign this Agreement or any of its rights or obligations hereunder to an affiliated entity or to a third party in connection with the sale of all or substantially all of the assigning party’s business or assets relating to this Agreement, whether by merger, sale of stock or shares, sale of assets, or otherwise, without the prior written consent of the other party, provided that the assignee agrees to assume all of the assignor’s obligations under this Agreement. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(d) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Montreal, Province of Québec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent BCITI from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.