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GENERAL TERMS AND CONDITIONS

Captivea Canada - Version 2 - Last updated February 8, 2024

Captivea Canada's general terms and conditions of services (“Terms”)

CAPTIVEA provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.

ARTICLE 1 – APPLICATION - ENFORCEABILITY

These general terms and conditions (hereinafter the "Conditions") set out the terms and conditions for the provision and performance of services by Captivea Inc., a corporation incorporated under the Business Corporations Act, with its registered office located at 2B-1455 Drummond Street, Montreal, QC H3G 1W3 (hereinafter "CAPTIVEA").

In accordance with the above, any contrary condition set forth by the Client will therefore be unenforceable against CAPTIVEA, regardless of when it may have been brought to its attention. The fact that CAPTIVEA does not assert any of these Conditions at a given time cannot be interpreted as a waiver of its right to subsequently rely on any of these Conditions.

ARTICLE 2 – DEFINITIONS

In these Conditions, each of the expressions mentioned below has the meaning given in its definition, namely:

Client: the legal entity that has entered into a contract with CAPTIVEA.

Contract: the Contract consists of the Quote approved by the Client and these General Conditions. In the event of any inconsistency, the provisions of the Quote shall prevail over these General Conditions.

Quote: the Contract consists of the Quote approved by the Client and these General Conditions. In the event of any inconsistency, the provisions of the Quote shall prevail over these General Conditions.

Specific Developments: software developments created by CAPTIVEA in addition to the Software and Complementary Modules to specifically meet the Client’s needs.

Data: data of any kind, including Users’ personal information, collected and processed by the Software, as well as data generated by the Software.

Study: information technology consulting services, such as audits, needs analysis, or assistance in drafting specifications.

Publisher: a company that publishes and markets the Software(s), for which CAPTIVEA acts as a reseller.

Installation: provision of the Software to the Client, by creating one or more user accounts.

Software: the software published by a third-party company, distributed and/or integrated by CAPTIVEA at the Client’s premises, in object code form together with the related documentation. 

Go-live / Production: the actual use of the Software by the Client in its working environment, either directly or through the entry of real data, for the purpose of carrying out effective work. 

Complementary Modules: computer programs developed or distributed by CAPTIVEA, designed to be provided to multiple users for a common application or function, to complement the basic functionalities of the Software as detailed in the Quote. 

Acceptance: Client's validation of the Software Installation, either expressly or tacitly by Putting into Production of the Software. 

Software Solution: software set integrating a Software, Complementary Modules, and Specific Developments. 

Information System: all hardware, software, applications, databases, and telecommunication networks of the Client. 

Services: all services offered by CAPTIVEA, namely Study, Scoping, Audit, Training, Software Integration, Data Migration, Support, Maintenance, Specific Developments, and any other services related to the Client's Information System. 

User: a natural person, under the authority of the Client, authorized to use the Software. 

ARTICLE 3 – FORMATION OF THE CONTRACT

Every Service is subject to a prior Quote or commercial proposal. Only the prices and information appearing in this Quote or commercial proposal have contractual force, to the exclusion of the prices and information shown in CAPTIVEA’s catalogues, brochures, and website, which are provided for informational purposes only. 

The Contract is deemed to be formed as soon as CAPTIVEA becomes aware that the Client has accepted the Quote or commercial proposal, either by postal mail sent to CAPTIVEA’s registered office or by email. Where acceptance is given by email, the Contract is formed only as of the date on which CAPTIVEA sends an acknowledgement of receipt or of reading of the Client’s email. 

Acceptance of the Quote or commercial proposal may also be formalized by means of a certified electronic signature process (such as Docusign or another certified electronic signature provider) in accordance with articles 2837 and following of the Civil Code of Québec. 

Unless otherwise specified in the Quote or commercial proposal, the Contract comes into force on the date it is formed. 

Once the Contract has been formed, it may not be cancelled. However, in the event of unilateral termination of the Contract by the Client, for any reason whatsoever, all amounts owing under the Contract become immediately due and payable, and the Client must pay them within a maximum of thirty (30) days upon presentation of an invoice. 

ARTICLE 4 - DURATION

For Software licences, the Contract takes the form of a subscription entered into for an initial term of one (1) year from the Software Installation, unless a longer commitment is specified in the Quote. 

This Contract is renewable by automatic renewal upon expiry for successive periods of one (1) year, unless one of the parties informs the other of its intention to terminate it by registered letter with acknowledgement of receipt, subject to a minimum notice period of three (3) months prior to the initial or renewal expiry date. Any change made during this last quarter will incur a flat-rate management fee. 

The Contract ends when all Services have been performed by CAPTIVEA and paid for by the Client. 

In all cases, the Contract ends on the date of its termination or non-renewal, regardless of the reason. 

ARTICLE 5 – ACCEPTANCE AND AMENDMENT OF GENERAL CONDITIONS 

In the absence of a special written provision in the Quote or commercial proposal that departs in whole or in part from these General Conditions, any acceptance by the Client of a Quote or commercial proposal from CAPTIVEA shall constitute full and unconditional acceptance by the Client of these General Conditions, to the exclusion of any other documents issued by the Client, provided that the Client has had the opportunity to review them. 

CAPTIVEA reserves the right to modify these General Conditions at any time. The modifications to the General Conditions will apply to ongoing contracts thirty (30) days after sending these modifications to the Client by email. If the Client refuses these modifications, they may terminate the Contract by sending a registered letter with acknowledgement of receipt to CAPTIVEA during the notice period. In this case, the provisions of Article 19: Consequences of Contract Termination shall apply. 

ARTICLE 6 – PERFORMANCE OF SERVICES 

CAPTIVEA's liability remains subject to the provisions of Article 9.

Article 6.1 – Definition of the contractual scope 

CAPTIVEA does not commit to a predefined contractual scope, but only to a volume of time, with the aim of meeting the Client's needs as effectively as possible. CAPTIVEA may provide the Client with an overall project estimate so that the Client has information allowing for the broadest possible view of their project; however, this does not constitute a fixed commitment. 

Article 6.2 – Analysis Phase 

CAPTIVEA may propose, prior to the performance of the Services, carrying out an analysis phase to define the functional or technical scope to be covered, the Client's Specifications, and to ensure alignment between the Client's needs and the software solution or Service selected. This analysis phase will be included in the first Quote or commercial proposal with an obligation of means. 

Where applicable, the Client accepts that this phase may lead CAPTIVEA to re-evaluate the overall estimate and the volume of time necessary for the performance of the Service. 

ARTICLE 7 – CLIENT'S UNDERTAKINGS 

The Client undertakes to actively collaborate in the successful completion of the Services by providing CAPTIVEA, in a timely manner, with accurate and truthful information, as well as all data and documents necessary for the progress of the project and compliance with the deadlines specified in the Contract. The Client shall notify CAPTIVEA of any elements that may compromise the proper performance of the services and undertakes to inform CAPTIVEA of any changes concerning the information provided. The Client shall be solely responsible for any resulting malfunctions. 

If the services chosen by the Client are to be performed on the Client's premises and/or using the Client's equipment, the Client undertakes to ensure CAPTIVEA has free access to its premises and/or equipment and to provide CAPTIVEA with the work resources strictly necessary for the proper performance of the services. 

The Client undertakes to comply with all technical prerequisites necessary for the installation and operation of the Software and Software Solution. The technical prerequisites communicated by CAPTIVEA are provided for information purposes only and are subject to change by software publishers and providers of the Client's Information System. 

The Client will designate a person capable of responding to functional and/or technical questions from CAPTIVEA, who will be CAPTIVEA’s primary contact person for monitoring the project’s progress and its use following delivery of the Software Solution. To be able to provide informed answers to questions posed by CAPTIVEA’s teams, the designated person must also have been trained in the basic operation of the Software Solution. 

In case of absence, the Client shall promptly designate a replacement contact person to ensure the project's progress is not hindered and shall request CAPTIVEA to provide additional basic training for the new contact person.

Unless otherwise decided by the Client, this designated person will also be the sole point of contact for CAPTIVEA regarding Support.

ARTICLE 8 – CAPTIVEA'S UNDERTAKINGS

CAPTIVEA undertakes to devote the time and necessary human, material, and technical resources to the performance of the Services ordered by the Client and to execute them professionally and in accordance with industry standards, subject to the Client's proper fulfillment of its own obligations.

In the absence of specific stipulations, the Documentation of the Software or Software Solution and Complementary Modules is that available on the Publisher's website, in English version, or French where available. CAPTIVEA also undertakes to regularly inform the Client of the progress of the Services and any difficulties it becomes aware of and their consequences, particularly in terms of time and/or cost implications.

ARTICLE 9 – LIABILITY - WARRANTIES

It is expressly agreed between the parties that CAPTIVEA is only bound by an obligation of means. Consequently, CAPTIVEA's liability can only be incurred in the event of proven fault on its part by the Client.

Expressly, CAPTIVEA cannot be held liable for indirect damages that the Client may suffer, such as commercial loss, loss of profit, damage to brand image, data loss, or others resulting from the performance of the Services, or the use of the Software, inability to use the Software, or the use of the results obtained through the use of the Software. Any action directed against the Client by a third party constitutes an indirect damage. 

Notwithstanding the foregoing, it is expressly agreed between the parties that CAPTIVEA's liability, in the event of proven fault by the Client, is expressly limited to the amount of the sums paid by the Client under the Contract in the twelve (12) months preceding the occurrence of the damage; even in the event of termination or cancellation of the Contract. 

CAPTIVEA undertakes to maintain these warranties throughout the duration of this contract and to provide evidence thereof upon the Client's request.

ARTICLE 10 – DEADLINES

The delivery deadlines and dates indicated in the Quote or commercial proposal are provided for information purposes only, unless otherwise stated. Therefore, delivery delays attributable to CAPTIVEA shall not give rise to any penalty or compensation, nor justify any price revision or the cancellation or refusal of the order by the Client. 

If the delay is attributable to the Client (modification requests, pending items, etc.), or to a supplier of CAPTIVEA, the delivery date will be postponed accordingly based on CAPTIVEA's availability, without CAPTIVEA being held responsible for this delay. 

If the delay exceeds thirty (30) days after unsuccessful follow-up, CAPTIVEA reserves the right to terminate the contract, with the Client remaining liable for all invoices and orders issued before termination.

ARTICLE 11 – FINANCIAL TERMS 

Article 11.1 – Rates 

The rates for the Services are expressed in Canadian dollars, net and excluding all applicable taxes and duties.

However, if the price of Software Licences is based on a supplier price outside Canada, it may be expressed in foreign currencies, in which case it will be converted into Canadian dollars based on the applicable exchange rate on the date the Licence (or its renewal) is invoiced. 

Annual fees for licence management, specified in the Quote or commercial proposal, may be charged to the Client. 

Article 11.2 – Rate Revision 

CAPTIVEA reserves the right to modify its prices at any time to reflect pricing changes from its own suppliers (Publisher), or to reflect changes in its internal costs.

The Client may refuse this change and terminate the Contract without penalty by sending a registered letter with acknowledgement of receipt to CAPTIVEA within thirty (30) days from the date on which CAPTIVEA sends these new rates.

In the absence of termination within the aforementioned period, the rate changes will automatically apply to the ongoing Contract. 

In the event of termination, the provisions of Article 18 shall apply.

Article 11.3 – Invoice Delivery

Invoices are issued in electronic format; however, the Client may request delivery in paper format. This request may be subject to administration fees.

Article 11.4 – Payment

Unless otherwise agreed between the parties, the Client undertakes to pay the total amount for the services set out in the quote or commercial proposal upon confirmation of the order.

Services provided on a subscription basis are invoiced annually, at the beginning of the period. Unless otherwise agreed between the parties, invoices are payable upon receipt. 

Payment shall be made by bank transfer or by cheque payable to CAPTIVEA, it being understood that all bank fees (including rejection fees) charged by a financial intermediary or paid by CAPTIVEA will be invoiced to the Client.

In the event of total or partial late payment, for any reason whatsoever, a late payment penalty of 12% per year will be applied from the due date, without the need for any reminder. 

Article 11.5 – Execution and Payment of Services

The Client may purchase a "time booklet," allowing them to acquire a reserve of time from CAPTIVEA for the performance of the various services set out in the quote or Commercial Proposal. 

Time booklets are invoiced and payable in full in advance upon receipt of the order, unless otherwise agreed. The validity period of time booklets is two (2) years from the date of the order.

The applicable hourly rate is the rate in effect at the time of the order or the renewal of the time booklet. 

All services performed in "time booklet" mode, excluding functional support, are subject to an estimate of the time consumed, according to the procedure indicated in the quote or Commercial Proposal. 

All requests that, in CAPTIVEA’s estimation, require a maximum of four (4) hours of work are processed without prior approval from the Client. Time estimates are provided for information purposes only and must be approved in advance by the Client, it being understood that the actual time spent will be deducted from the time booklet once the work is completed, and that for any request that has not been approved, the time spent qualifying the request is deducted in real time.

The time spent on fulfilling a request is counted in fifteen (15)-minute increments.

Services that can be provided under the “time booklet” model are billable services. They do not include any travel expenses.

To ensure that CAPTIVEA’s support is provided under the best possible conditions, the Client agrees that at least one thirty (30) minute quarterly meeting will be held between their CAPTIVEA contact person and themselves.

In the event the Contract is terminated, for any reason whatsoever, the remaining time balance acquired under the time booklet is non-refundable.

Article 11.6 - Security deposit clause for monthly invoiced services on a deferred payment basis: 

  1. Security deposit for monthly invoiced services: For services invoiced on a monthly basis, a security deposit will be required from the Client. The security deposit must be at least equal to 100% of the estimated total amount for the month. Payment of the security deposit will be made using any method of payment accepted by the company.
  2. Adjustment of the security deposit:  If the amount invoiced during the month exceeds the initial security deposit, the security deposit will be adjusted.  This adjustment is intended to ensure that the security deposit is at all times at least equal to 100% of the total monthly invoice amount.
  3. Billing of the security deposit and regular monthly billing: At the beginning of the service period, the security deposit will be billed to the Client. Subsequently, the regular monthly billing system will come into effect. 
  4. At the end of the contract:  Upon termination of the contract, the refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee.  The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted.

ARTICLE 12 – CONFIDENTIALITY

The Parties agree not to disclose the confidential information of the other Party that they may become aware of in the course of performing CAPTIVEA's services and/or for the application of these terms. The Parties therefore undertake to strictly respect this confidentiality and not to disclose to anyone any non-public information they may become aware of, both during the term of the contract and after its expiry. In particular, the Client undertakes not to communicate to any third party, in whole or in part, the information collected about CAPTIVEA's software solutions, and CAPTIVEA undertakes not to disclose the Client's confidential information and not to use it for any purpose other than what is strictly necessary for the provision of services to the Client. The terms and conditions of the relationship between CAPTIVEA and the Client are themselves confidential. 

Information that is publicly available at the time of disclosure, or that subsequently becomes available without breach by either Party of its confidentiality obligation, or that is legitimately obtained from a third party without any violation by that third party of a confidentiality agreement concerning this information, is not considered confidential. 

ARTICLE 13 – PERSONAL DATA

The Parties must comply with appropriate industry standards regarding their organization and security with respect to information security and data, including any mandatory legal provisions.

To the extent that personal data is processed and managed for the Client by CAPTIVEA, the following rules apply, and CAPTIVEA must inform the Client accordingly: the user is the controller of their personal data processed and used by CAPTIVEA in the performance of the Contract.

If applicable privacy or data protection laws require the signing of a data processing agreement or other agreements between data controllers and the Client, then CAPTIVEA and the Client must enter into such a data processing agreement and/or other agreements directly with each other.

For any questions regarding the processing of your personal data or to share any concerns in this regard, please contact us at the following email address: [email protected]

ARTICLE 14 – NON-SOLICITATION 

During the entire term of the Contract and for a period of one (1) year from the end of the Contract, regardless of the cause, the Client undertakes not to solicit, hire, or engage, directly or indirectly, any employee or former employee of CAPTIVEA during the term of the Contract, whether or not they have participated in the performance of the Contract. 

In the event of a breach of this clause, the Client shall pay CAPTIVEA compensation equal to one year of the gross salary, including benefits and employer contributions, of the employee concerned. 

ARTICLE 15 – COMMERCIAL REFERENCES 

By accepting these General Terms and Conditions and during the term of the Contract, the Client expressly authorizes CAPTIVEA to cite them as a reference customer and to reproduce on its website and in its commercial documents the logo or trademark model that the Client will have provided, to ensure faithful reproduction in accordance with the Client's graphic standards. Similarly, the Client may state that it is a customer of CAPTIVEA. 

ARTICLE 16 - FORCE MAJEURE

CAPTIVEA shall not be held responsible for delays or failure to perform under this Contract caused by a force majeure event. 

Force majeure events are events beyond CAPTIVEA’s control, unforeseeable and irresistible, resulting in the prevention of the Contract’s performance. Such situations include, without limitation: 

  • War
  • Strikes
  • Major climatic events
  • Floods, fires
  • Earthquakes
  • Health crises with a local state of emergency declared by authorities

In all cases, it is expressly stipulated that a force majeure event does not automatically suspend the Contract. The Parties agree to: 

  • Notify the other Party of the force majeure event, specifying how this event constitutes an unforeseeable and irresistible cause preventing the performance of the Contract;
  • Meet physically or virtually as soon as possible after the notification of the event to consider alternative solutions to the Contract's suspension;
  • If it is proven that it is impossible to continue performing the Contract, the Contract will be suspended for a period of thirty (30) days, after which the Parties agree to meet again, either virtually or in person, to determine either a new suspension period not to exceed ninety (30) days, or to definitively terminate the Contract.

In any event, CAPTIVEA shall not be held liable for the non-performance of any of its obligations to the extent that it proves that such non-performance was due to a force majeure event as defined by article 1470 of the Civil Code of Québec and the courts. 

ARTICLE 17 – ASSIGNMENT

The benefits of the Contract may not be assigned or transferred by the Client to a third party without the prior written consent of CAPTIVEA. However, CAPTIVEA shall have the right to assign its rights and obligations under the Contract at any time, provided that it informs the Client accordingly.

In such a case, CAPTIVEA shall be released from all obligations under the Contract, both for obligations already fulfilled and for obligations relating to the future performance of the Contract by the assignee.

ARTICLE 18 – EARLY TERMINATION

In the event of a breach by either Party of its essential obligations (failure to pay or, for the Client, failure to cooperate), and if such breach is not remedied within one (1) month of receipt of a notice sent by registered mail with acknowledgement of receipt setting out the existence of the breach, the other Party may terminate the Contract automatically by registered mail with acknowledgement of receipt.

Furthermore, in the event of early termination resulting from the Client’s breach, CAPTIVEA reserves the right to apply a penalty to the Client equal to 10% of the price, before taxes, of the remaining amounts owing, without prejudice to any damages that CAPTIVEA may additionally claim as compensation for losses suffered.

In the event of unilateral cancellation of the Contract by the Client, the amounts due under the Contract shall become immediately payable, and the Client shall settle them within a maximum period of thirty (30) days upon presentation of the invoice.

ARTICLE 19 - CONSEQUENCES OF CONTRACT TERMINATION

Upon termination of the Contract, for any reason whatsoever, the Client shall:

  • Immediately cease using the Software; 
  • Return to CAPTIVEA all components of the Software and any copies thereof within ten (10) days following termination or expiry; 
  • Pay any outstanding sums due to CAPTIVEA within fifteen (15) days.

At the end of the Contract, regardless of the cause, the fees accrued for the current contractual period shall not be refundable, nor shall any remaining balance of time acquired under time booklets.

Upon termination of the Contract, CAPTIVEA undertakes to return to the Client or destroy all items or documents belonging to the Client and to which CAPTIVEA may have had access in the course of performing the Services, and to retain no copies thereof.

ARTICLE 20 - SEVERABILITY OF CONTRACTUAL PROVISIONS

In the event that any provision of these Conditions is held to be invalid or unenforceable, it shall be deemed null and void, but the other provisions shall remain in full force and effect, unless the disputed clause is considered by CAPTIVEA to be essential and determinative of its consent, or its nullity upsets the overall balance of the Contract between the Parties.

ARTICLE 21 - LANGUAGE

These Conditions are written in French. In the event of translation into one or more foreign languages, only the French text shall prevail in the event of a dispute.

ARTICLE 22 - APPLICABLE LAW - DISPUTE RESOLUTION

These Conditions shall be governed by and interpreted in accordance with the laws applicable and in force in the Province of Quebec, including the laws of Canada applicable therein. 

In the event of a dispute, the Parties agree to undertake prior mediation with a view to reaching an amicable agreement and will communicate to each other all necessary information for this purpose. 

If an amicable settlement of the dispute is not reached within a maximum period of three (3) months, the Parties agree that, for any claim or legal action for any reason whatsoever, they will choose the judicial district of Montreal, Quebec (Canada) as the appropriate venue for the hearing of such claims or legal proceedings, to the exclusion of any other judicial district that may have jurisdiction over such dispute, as prescribed by law.

In the event of a judgment in favour of the plaintiff, the losing party agrees to reimburse the prevailing party for all reasonable legal fees incurred by the latter in the course of the legal proceedings, including, but not limited to, lawyers’ fees, court costs, procedural expenses, and any other expenses related to the prosecution or defence of the case.