BOOXI SERVICE AGREEMENT
Latest update: November 17th, 2020
THIS SERVICE AGREEMENT («AGREEMENT») IS A LEGAL AGREEMENT BETWEEN BOOXI INC. («BOOXI») AND THE INDIVIDUAL OR LEGAL ENTITY («CUSTOMER») USING OR ACCESSING THE BOOXI PRODUCTS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION OR A FREE TRIAL. THIS AGREEMENT ALONG WITH THE SUBSCRIPTION DOCUMENTATION SIGNED BY THE CLIENT ARE TO BE REGARDED AS FORMING AN INDIVISIBLE WHOLE. IF THERE IS ANY CONTRADICTION BETWEEN THOSE DOCUMENTS, THE SUBSCRIPTION DOCUMENT PREVAILS OVER THE AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING. BY AGREEING TO THESE TERMS OR USING THE BOOXI PRODUCTS, WHICHEVER OCCURS EARLIER, CUSTOMER IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Subscription to BOOXI Product(s) and Account
Customer hereby agrees to license the BOOXI product(s) (each a «Product») identified in the subscription documentation (i.e., the quote or invoice)(the «Subscription») exchanged by the parties in conjunction with Customer’s acceptance of this Agreement. The specific Products and the fees payable with respect to such Products are set forth in the Subscription. Each Product may include updates, cloud-based services, support services, applications or documentations, each of which is subject to the terms of this Agreement as applicable. BOOXI may add to, change or discontinue any component of the Products at any time; however, if such change shall materially increase Customer’s obligations or materially decrease Customer’s entitlements under this Agreement, Customer will be able to terminate his Subscription.
Customer agrees to be responsible for the confidentiality of their account credentials, and for any activity resulting from the use of their account. Customer agrees to make reasonable efforts to prevent unauthorized access to, or use, of the BOOXI Products. Customer may not share their account and password, allow third parties to use the account nor assist anyone who is not a registered user to gain access to the BOOXI Product.
Customer is responsible for all actions taken under its BOOXI account credentials, regardless of whether such actions are taken by Customer, its employees or a third party. BOOXI is not liable for any loss or damage arising from any unauthorized use of Customer’s account.
«Customer» means the person who is using or accessing the BOOXI Products through a subscription or free trial. The Customer can then give access to the BOOXI Products through an end user.
«Users» means end users who access the BOOXI Products through the Customer, including any employees or clients of the Customer.
2. Grant of License and Intellectual Property
During the Term (as defined below), BOOXI grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use, the Products on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by BOOXI, including all associated documentation and materials are owned exclusively by BOOXI or its licensors. All rights not granted to Customer in this Agreement are reserved by BOOXI. The content included in or made available through the Products is our property. No portion of the Products may be reproduced in any form or by any means, except as expressly permitted by this Agreement. Customer shall remain the sole and exclusive owner of all right, title, and interest into its Intellectual Property.
BOOXI retains all title to, and, except as expressly licensed herein, all rights to the Products, all copies, derivatives and improvements thereof and all related documentation and materials.
Our trademarks, logos and Product are our Intellectual Property. Except as otherwise permitted by law, please do not use or display in any manner our trademarks without our prior consent.
«Intellectual Property» means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trademarks and any and all proprietary rights provided under patent law, copyright law, trademark law, design patent or industrial design law, semiconductor chip or mask work law, or any other statutory provision or civil or common law principles applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.
3. Acceptable Use
Customer and any Users shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Products, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Products; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Products; (iv) remove any product identification, copyright or other notices from the Products; (v) sell, lease, lend, assign, sublicense; (vi) use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Products; (viii) use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement; (ix) use the Products for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Products, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; (xi) use the Products to distribute or share pornographic images; (xii) use the Products to support an activity that is contrary to the law; or (xiii) use the Products in any way that is contrary to applicable local, state/provincial, federal and foreign laws, including without limitation those relating to privacy, data protection, electronic communications and anti-spam legislation. Customer shall at all time remain liable for the acts and omissions of end users of the Product provided to Customer.
Customer shall not enter comments that are defamatory, obscene or offensive when using the Products.
4. Term of Agreement
The «Initial Term» shall mean the number of months in the term as specified in the Subscription beginning on the date specified in the Subscription («Activation Date»). Upon expiration of the Initial Term and unless otherwise stated in the Subscription, this Agreement will automatically renew on a yearly basis (each a «Renewal Term», and the Initial Term and all Renewal Terms collectively, the «Term») until terminated by Customer or BOOXI by delivery of written notice to the other party at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as applicable. In the case of Products licensed on a trial basis, the Term of this Agreement shall be limited to the duration of the trial period identified in the Subscription.
Except as specified in Section 12 below, Customer may not terminate this Agreement prior to the expiration of the Initial Term. Following expiration of the Initial Term, BOOXI may increase the fees payable by Customer under this Agreement, upon not less than 60 days’ written notice.
5. Fees and Payment
Customer shall pay BOOXI the annual and/or monthly fees («Fees») specified in the Subscription, in accordance with the timing and currency specified in the Subscription. Except as set forth in this Agreement, all payments by Customer to BOOXI under this Agreement are non-refundable and made via the payment methods offered by BOOXI in the Subscription, or as otherwise agreed by the parties. Customer shall undertake any additional actions reasonably requested by BOOXI to implement the foregoing automated fee payment process (If applicable). Any amounts past due from Customer under this Agreement shall accrue interest at a rate corresponding to one and a half percent (1.5%) monthly or eighteen percent (18%) annually. Any applicable federal, state, provincial, or other goods and services or sales taxes might be added to fees owing pursuant to this Agreement.
6. Confidential Information
«Confidential Information» means any and all information of a party (the «Disclosing Party») which has or will come into the possession of the other party (the «Receiving Party») of confidential or proprietary nature, including information of a technical nature; such as know-how, software, source code, algorithms, specifications, formulas, trade secrets, list of orders, Products ordered, employees and contractor lists, and information of a business nature, such as information about costs, profits, pricing policies, markets, sales, suppliers, customers, plans for future development, plans for future products, marketing plans or strategies, and other information of a similar nature, which is not generally disclosed by a party to the public.
The Receiving Party shall take commercially reasonable steps as necessary to prevent the unauthorized access and disclosure of the Disclosing Party’s Confidential Information, such as enforcing access on a need-to-know basis.
The Receiving Party and the Disclosing Party will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the receiving party without reference to the disclosing party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information that is independently developed by either of the parties, or (iv) information required to be disclosed pursuant to applicable law.
Upon termination of this Agreement for any reason, the Receiving Party shall, at the Disclosing Party’s option, (i) return the Confidential Information without undue delay and/or (ii) securely destroy the Confidential Information without undue delay, and in accordance with industry’s best standards. Upon request, the Receiving Party shall confirm in writing that the Confidential Information has been returned and/or deleted. Notwithstanding the foregoing, the Receiving Party is authorized to keep a copy of the Confidential Information as required for business continuity purposes, pursuant to international retention schedules, and for legal, auditing or financial reasons.
The foregoing shall also not prevent BOOXI from using Customer data on an aggregate, anonymized basis.
7. Representations and Indemnification
Customer represents and warrants that currently and throughout the Term (i) it is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products, (ii) Customer and any Users are and will remain in compliance with all applicable laws and regulations with respect to its and their activities related to this Agreement, including but not limited to privacy laws; and (iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communications (e.g., emails, texts) to such list, or otherwise collects electronic addresses for the purpose of sending electronics messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer and that the content of such communications by Customer will comply with applicable laws and regulations.
Customer shall indemnify, defend and hold harmless BOOXI and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively «Costs»), attributable to any breach by Customer or any User, employee, independent contractor, or affiliate thereof, of (a) its representations, warranties or other obligations set forth in this Agreement (b) its willful misconduct, intentional fault, gross negligence and/or criminal or fraudulent conduct. BOOXI reserves its exclusive right, at Customer’s expense, to conduct the defense of any such claims and assume control of any matter, subject to indemnification by Customer, in which event, the Customer shall cooperate with BOOXI in asserting any and all available defenses.
Customer and each of its Users agree to comply with all BOOXI policies and all laws, rules and regulations relating to the use of the Products. Customer will indemnify BOOXI for any Costs, fines or damages incurred by BOOXI due to Customer’s or its User’s failure to comply with this section.
Customer agrees not to include any Sensitive Personal Data about any individual in the comments section when filling out appointment information. Customer agrees not to include any financial information, including credit card numbers or bank account information, in the comments in the appointment section.
«Sensitive Personal Data» includes personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data processed solely to identify a human being, health-related data or data concerning a person’s sex life or sexual orientation.
If Customer is subject to the General Data Protection Regulation, the Data Processing Agreement is available below.
Customer agrees that any feedbacks that it provides to BOOXI, including but not limited to comments, suggestions and regarding BOOXI or the Products, shall belong exclusively to BOOXI, without any requirement to acknowledge or compensate Customer, and Customer hereby assigns to BOOXI, without limitation of any kind, all of their rights, titles and interests therein, and BOOXI accepts such assignment.
10. Third-Party Services
Customer may decide to enable, access or use any Third-Party Services (as defined below). Customer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that BOOXI is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services, including, without limitation, their content or the manner in which they handle data (including Customer’s data) or any interaction between Customer and the provider of such Third-Party Services, regardless of whether or not such Third-Party Services are provided by a third party that is a member of a BOOXI partner program or otherwise designated by BOOXI as «certified», or «approved» by BOOXI. Any use by Customer of Third-Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against BOOXI with respect to such Third-Party Services. BOOXI is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services. We encourage you to review their terms and conditions, as well as their privacy practices, before using such Third-Party Services.
«Third-Party Services» means third-party products, applications, services, software, products, networks, systems, directories, websites, databases and information which one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products.
11. Maintenance Activities
BOOXI may perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Product, which may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. BOOXI will endeavor to carry out such repairs or maintenance during times that will cause the least disruptions to Customer’s business. Customer shall cooperate, if necessary, to perform maintenance or repair work.
12. Termination and Suspension
12.1. Termination for Breach
In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a «Termination Notice»). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Customer is in breach of any material provisions of this Agreement, including the license restrictions of Section 3, the payment terms of Section 5, or the confidentiality restrictions of Section 6, then BOOXI may immediately suspend or terminate Customer’s use of the Products. Any such suspension shall not relieve Customer of any of its obligations under this Agreement or entitle Customer to any refund of payments previously made. If the Agreement is breached as a result of a fault by Customer, all fees due for the Initial Term shall be due immediately and payable by Customer upon receipt of an invoice. If the Agreement is breached as a result of a fault by BOOXI, BOOXI shall reimburse any fees paid in advance and in proportion of the time remaining in the Subscription after the termination date.
12.2. Termination without Breach
Customer hereby waives the application of articles 2125 and 2129 of the Civil Code of Quebec.
BOOXI may suspend Customer’s access to the Products immediately if BOOXI, in its sole reasonable discretion, believes: (i) such suspension is required by law; (ii) Customer has breached this Agreement and has not remedied such breach within 15 days of receiving notice of the alleged breach from BOOXI; or (iii) there is a security or privacy risk. Any suspension of Customer’s access to the Products will not limit or waive BOOXI’s rights to terminate this Agreement or Customer’s access to the Products.
12.4. Effect of Termination
Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by BOOXI shall not limit Customer’s obligation to pay all of the applicable fees, nor restrict BOOXI from pursuing any other remedies available to it, including injunctive relief. Sections 3, 5, 6, 7, 9-14, and 16-20 shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
12.5. Disclaimer: Customer Data
Customer understands and agrees that BOOXI has no control over the content of the data, including personal information that is collected, used or disclosed by BOOXI on Customer’s behalf. Customer is responsible for the content quality, validity, legality and for taking its own steps to maintain appropriate security, confidentiality, protection and back-up of its data and software, including the use of appropriate back-up and archiving. Customer remains responsible for properly providing notices regarding its data practices to its clients.
Customer understands and agrees that BOOXI is not responsible for any loss or corruption of Customer data or other software. Customer agrees that following termination of Customer’s account and/or use of the Product, BOOXI may immediately deactivate Customer’s account and delete Customer data. Customer further agrees that BOOXI shall not be liable to Customer nor to any third party for any termination of Customer access to the Product or deletion of Customer data. It is Customer’s responsibility to retrieve any such Customer data before the end of the Term.
13. Limitation of Liability
BOOXI (INCLUDING AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS) AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. EXCEPT WITH RESPECT TO (i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF BOOXI’S, ITS AFFILIIATES’ OR SUPPLIERS’ INTELLECTUAL PROPERTY RIGHTS; (ii) A BREACH OF APPLICABLE LAWS BY CUSTOMER AND (iii) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE BOOXI TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.
14. Disclaimer of Warranties
CUSTOMER ACKNOWLEDGES THAT (i) BOOXI CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS, OR THAT THE PRODUCTS WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, AND (ii) THE PRODUCTS ARE PROVIDED «AS-IS», ON AN «AS AVAILABLE» BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, AND BOOXI HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY.
15. Assignment and Contractors
Except in the context of a merger and acquisition or a sale of part or all of its assets, or in the case of a bona fide corporate reorganization, Customer may not assign any of its obligations under this Agreement without BOOXI’s prior written consent, which shall not be unreasonably withheld. BOOXI may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. BOOXI shall be free to perform all or any part of this Agreement through one or more subcontractors.
16. Governing Law, Venue and Attorneys’ Fees
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec, Canada. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of and venue in the courts of the Province of Quebec, in the judicial district of Montreal. Each party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens in connection with any action brought in the foregoing courts.
17. Severability, Force Majeure, Entire Agreement, Amendment
If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected.
Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, epidemic, pandemic (including any additional consequences or situations arising from the outbreak of coronavirus COVID-19) or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence, or any other cause to the extent it is beyond the reasonable control of such party.
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.
BOOXI may amend this Agreement at any time upon reasonable prior notice. Upon receiving the notice, Customer shall have ten (10) days to object to the change.
The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
BOOXI may provide any and all notices, statements and other communications to Customer through either e-mail, posting on its Site, or by mail or express delivery service.
The Parties acknowledge that they have required these Terms of Services and all related documents to be prepared in English only. Les Parties reconnaissent avoir demandé que ces termes et conditions ainsi que tous documents qui s’y rattachent soient rédigés uniquement en langue anglaise.