Canada
GENERAL TERMS AND CONDITIONS

Captivea Canada - Version 4 - Last Updated July 23, 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 (hereinafter the "Conditions") aim to define the conditions for the provision and performance of services by Captivea Inc., a company 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 shall have 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 case of contradiction, the provisions of the Quote shall prevail over the General Conditions. 

Quote: the contract consists of the Quote approved by the Client and these General Conditions. In case of contradiction, the provisions of the Quote shall prevail over the General Conditions. 

Specific Developments: software developments developed 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 data, collected and processed by the Software, as well as data generated by the Software. 

Study: computer consulting services, such as audit, needs analysis, or assistance in drafting specifications. 

Publisher: a company that publishes and markets the Software(s), and of which CAPTIVEA is a reseller. 

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

Software: 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 associated documentation. 

Putting into Production: the actual use of the Software by the Client in its work environment, either directly or through the input 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 value, to the exclusion of any prices and information set out 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 of the Client’s acceptance of the Quote or commercial proposal, either by mail addressed to CAPTIVEA’s registered office or by email. In the case of acceptance by email, the Contract will only be formed as of the date on which CAPTIVEA sends an acknowledgment of receipt or of having read the Client’s email. 

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

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

Once the Contract has been formed, it may not be cancelled. However, in the event of unilateral cancellation of the Contract by the Client, regardless of the reason, all amounts due under the Contract will become immediately 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, concluded for an initial term of one (1) year from the Software Installation, unless a longer commitment is mentioned in the Quote. 

This Contract is renewable by tacit renewal upon expiry for periods of one (1) year, unless one of the parties informs the other of its intention to terminate it by registered mail with acknowledgement of receipt, subject to a minimum notice period of three (3) months before the initial or renewal expiry. Any modification 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 any case, the Contract ends on the date of its termination or non-renewal, regardless of the reason. 

ARTICLE 5 – ACCEPTANCE AND MODIFICATION OF GENERAL CONDITIONS 

In the absence of a special and written stipulation on the Quote or commercial proposal, deviating 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 all other documents issued by the latter, provided that the Client has had the opportunity to acquaint himself with them. 

CAPTIVEA reserves the right to modify these General Conditions at any time. The modifications to the General Conditions will be applicable 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 responsibility 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 covering 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 is not a fixed commitment. 

Article 6.2 – Analysis Phase 

Before performing the Services, CAPTIVEA may propose carrying out an analysis phase to define the functional or technical scope to be covered, establish the Client’s Specifications, and ensure that the Client’s needs align with the selected software solution or Service. This analysis phase will be included in the initial Quote or commercial proposal, with an obligation of means. 

Where applicable, the Client agrees that this phase may lead CAPTIVEA to re-evaluate the overall estimate and the amount of time required to perform the Service. 

ARTICLE 7 – CLIENT'S UNDERTAKINGS 

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

If the services chosen by the Client are to be performed at the Client’s premises and/or using the Client’s equipment, the Client undertakes to ensure that CAPTIVEA has free access to its premises and/or equipment and to provide CAPTIVEA with only those working 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 the 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 progress of the project and its use after delivery of the Software Solution. To be able to provide informed answers to questions from our 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 the Client decides otherwise, this designated person will also be the sole point of contact for CAPTIVEA with respect to 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 for the Software or Software Solution and the Complementary Modules is the version available on the Publisher's website, in English, or in French where available. CAPTIVEA also undertakes to keep the Client regularly informed of the progress of the Services and of any difficulties of which it becomes aware and their consequences, particularly in terms of timing 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.

It is expressly agreed that CAPTIVEA cannot be held liable for any indirect damages that the Client may suffer, such as loss of business, loss of profit, damage to brand image, loss of data, or any other indirect damage resulting from the performance of the Services, the use of the Software, the inability to use the Software, or the use of the results obtained through use of the Software. Any action brought against the Client by a third party constitutes indirect damage. 

Notwithstanding the foregoing, it is expressly agreed between the parties that CAPTIVEA's liability, in the event of a fault proven against 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, including 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 timelines and dates indicated in the Quote or commercial proposal are provided for information purposes only, unless otherwise specified. Therefore, delivery delays attributable to CAPTIVEA shall not give rise to any penalty or compensation, nor justify a price adjustment or the cancellation or refusal of the order by the Client. 

If the delay is attributable to the Client (change requests, waiting for materials, etc.) or to a CAPTIVEA supplier, the delivery date will be postponed accordingly based on CAPTIVEA’s availability, without CAPTIVEA being held liable for this delay.

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

ARTICLE 11 – FINANCIAL TERMS

Article 11.1 – Rates 

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

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

Annual licence management fees, specified in the Quote or commercial proposal, may be applied 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 will have the opportunity to 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 sent in electronic format; however, the Client may request delivery in paper format. This request may be subject to administrative fees.

Article 11.4 – Payment

Unless otherwise agreed between the parties, the Client undertakes to pay the full 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 is made by bank transfer or by cheque payable to CAPTIVEA, with the understanding 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 apply from the due date, without the need for a reminder. 

Article 11.5 – Execution and Payment of Services

The Client will be supported by purchasing a "time booklet," allowing them to acquire a reserve of available time from CAPTIVEA for the performance of the various services detailed 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 at 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, according to CAPTIVEA’s estimate, require a maximum of four (4) hours of work are carried out without prior validation from the Client. The requests are estimated for information purposes only and must be validated in advance by the Client, with the understanding that the actual intervention time will be deducted from the time booklet upon completion, and that for any non-validated request, the qualification time is deducted on an actual-time basis. 

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

Services that can be delivered in "time booklet" mode are billed as services. They do not include any travel expenses. 

For CAPTIVEA's support to be provided under the best possible conditions, the client agrees that at least one quarterly meeting of thirty (30) minutes shall be held between their CAPTIVEA contact person and themselves.

In the event of termination of the Contract, regardless of the cause, the remaining balance of time acquired within the framework of time books is non-refundable.

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

1. Security deposit for monthly billed services: For monthly billed services, a security deposit will be required from the client. The security deposit must be equivalent to at least 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 billed during the month exceeds the initial security deposit, the security deposit will be revised.  This revision is intended to ensure that the security deposit is equal to at least 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 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 11.7 - Billing for Maintenance Service

After the delivery of the services, if corrections are deemed necessary, CAPTIVEA will issue an invoice for the additional time required. The client will be informed in advance of the necessary extra hours.

Article 11.8 - Flat Rate Warranty

CAPTIVEA offers a flat-rate warranty option covering post-delivery corrections. To benefit from this service, the Client may subscribe to it for an additional 25% of the initial service amount. This warranty option must be expressly subscribed to by the Client and is not included by default. If this option is not subscribed to, any post-delivery correction will be billed based on the time spent.

Article 11.9 - Annual price revision for pay as you go

For pay-as-you-go with monthly billing for the time spent on the project, service rates are reviewed annually on the contract anniversary date. 
This price revision will apply a maximum increase of 5% on the initial contract price.

ARTICLE 12 – CONFIDENTIALITY

The Parties agree not to disclose the confidential information of the other party that they may have become aware of in the course of performing CAPTIVEA's services and/or in connection with the application of these terms. The Parties therefore undertake to strictly respect this confidentiality and not 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, in particular.

Information that is publicly available at the time it is disclosed, or that subsequently becomes publicly available without either Party breaching its confidentiality obligations, or that is legitimately obtained from a third party without that third party violating a confidentiality agreement concerning such 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 all mandatory legal requirements.

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 execution of the Contract.

If data protection laws require the execution of a data processing agreement or of any other agreement between data controllers and the Client, CAPTIVEA and the Client must enter into such a data processing agreement and/or such 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 

For the entire term of the Contract and for a period of one (1) year following the end of the Contract, regardless of the cause of termination, the Client agrees not to solicit, hire, or engage, directly or indirectly, any employee or former employee of CAPTIVEA, whether or not they were involved in performing the Contract.

If this clause is breached, the Client shall pay CAPTIVEA compensation equal to one year of the gross salary, including benefits and charges, of the employee concerned.

ARTICLE 15 – COMMERCIAL REFERENCES 

By accepting these General Terms and Conditions and for the duration of the Contract, the Client expressly authorizes CAPTIVEA to refer to the Client as a reference customer and to reproduce on its website and commercial documents the logo or trademark model provided by the Client, in order to ensure accurate reproduction in accordance with the Client’s graphic standards. Likewise, 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, that prevent the performance of the Contract. 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 any case, it is expressly agreed 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 that prevents 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 becomes clearly impossible to continue performance, 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 (90) 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 by 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 case, CAPTIVEA shall be released from any obligations under the Contract, both for obligations already fulfilled and for obligations related to future performance of the Contract by the assignee.

ARTICLE 18 – EARLY TERMINATION

If either Party breaches its essential obligations (failure to pay or failure to cooperate on the Client’s part) and such breach is not remedied within a period of one (1) month after receipt of a notice sent by registered mail with acknowledgement of receipt specifying 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 due to the Client's breach, CAPTIVEA reserves the right to apply a penalty to the Client equal to 10% of the price excluding taxes of the remaining amounts due, without prejudice to any damages that CAPTIVEA may claim additionally as compensation for the damages 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

When the Client uses the software under a direct licence from the publisher, the termination of the Contract does not affect the Client’s usage rights as defined in the publisher–Client agreement.

Specific developments made by CAPTIVEA under the Contract remain the intellectual property of CAPTIVEA. Subject to full payment for the corresponding services, CAPTIVEA grants the Client a non-exclusive, perpetual licence to use these developments for its internal purposes.

The Client must cease using CAPTIVEA’s developments only if the granted licence is expressly limited or revocable under the terms of the Contract. Otherwise, the termination of the Contract does not affect the granted right of use.

The Client shall pay, within fifteen (15) days following the termination of the Contract, all amounts remaining due to CAPTIVEA.

Fees earned for the current contractual period are non-refundable, as is any remaining time balance within time sheets, unless expressly provided otherwise.

Upon termination of the Contract, CAPTIVEA undertakes to return to the Client, or, at the Client’s written instruction, to destroy all items or documents belonging to the Client that CAPTIVEA received during the performance of the Services. CAPTIVEA shall not retain any copies, except where required by law or for secure internal archival purposes, in which case the Client will be informed.

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 as essential and determinative of its consent or its nullity upsets the general 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 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.