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GENERAL TERMS AND CONDITIONS

Captivea Canada - Version 2 - Last updated on 08/02/2024

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 governing 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 comprises 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 comprises 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, specifically to 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(s): the software(s) published by a third-party company, distributed and/or integrated by CAPTIVEA at the Client's premises, in the form of object code and associated documentation. 

Putting into Production: actual use of the Software by the Client in its work environment, either directly or via input of real data, for 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, authorised 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 stated in this Quote or commercial proposal have contractual value, to the exclusion of prices and information listed in CAPTIVEA's catalogues, brochures, and website, which are provided for information 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 post addressed to CAPTIVEA's registered office or by email. In the case of acceptance by email, the Contract will only be formed from the date on which CAPTIVEA sends an acknowledgement of receipt or reading of the Client's email. 

Acceptance of the quote or commercial proposal may also be formalised by a certified electronic signature procedure (such as Docusign or another certified electronic signature provider) in accordance with articles 2837 and following 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 is formed, it cannot be cancelled. However, in the event of unilateral cancellation of the Contract by the Client, regardless of the cause, the amounts due under the Contract will become immediately payable, and the Client must settle them within a maximum period 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 stated 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 letter 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 terminates 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 any special written provision in the Quote or commercial proposal, which 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 all other documents issued by the Client, provided that the Client has had the opportunity to review them. 

CAPTIVEA reserves the right to amend these General Conditions at any time. Amendments to the General Conditions will apply to ongoing contracts thirty (30) days after these amendments are sent to the Client by email. If the Client does not accept these amendments, the Client may terminate the Contract by sending a registered letter with acknowledgement of receipt to CAPTIVEA during the notice period. In such a 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 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 to carry out an analysis phase to define the functional or technical scope to be covered, the Client's specifications, and to ensure the alignment between the Client's needs and the selected software solution or Service. This analysis phase will be included in the first Quote or commercial proposal, with an obligation of means. 

Where applicable, the Client acknowledges and accepts that this phase may lead CAPTIVEA to revise the overall estimate and the 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 from the Client's premises and/or using the Client's equipment, the Client undertakes to ensure CAPTIVEA's free access to its premises and/or equipment and to provide CAPTIVEA with the strictly necessary means of work for the proper execution 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 informational purposes only and are subject to modifications 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 the privileged contact person for CAPTIVEA, to monitor the project's progress and its use following the delivery of the Software Solution. To be able to provide informed answers to questions posed by 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 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 allocate the time and the necessary human, material and technical resources for the performance of the Services ordered by the Client, and to carry them out in a professional manner and in accordance with industry standards, subject to the Client duly fulfilling its own obligations.

In the absence of specific provisions, the Documentation of the Software or Software Solution and Complementary Modules shall be that 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 it becomes aware of and their consequences, in particular any implications for time and/or cost.

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 may only be incurred in the event of proven fault on its part established by the Client.

It is expressly stated that CAPTIVEA cannot be held liable for indirect losses or damages that the Client may suffer, such as loss of business, loss of profit, damage to brand image, loss of data, or other losses arising from the performance of the Services, or from the use of the Software, the inability to use the Software, or the use of results obtained through the use of the Software. Any claim 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 proven fault established by the Client, is expressly limited to the total amount 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 of this upon the Client's request.

ARTICLE 10 – DEADLINES

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

If the delay is attributable to the Client (change requests, pending materials, etc.) or to a supplier of CAPTIVEA, the delivery date will be postponed accordingly, based on CAPTIVEA's availability, and CAPTIVEA shall not be held liable for such 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 placed prior to termination.

ARTICLE 11 – FINANCIAL CONDITIONS 

Article 11.1 – Rates 

The rates for the Services are quoted in Canadian dollars, net and exclusive of 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 currency, in which case it will be converted into Canadian dollars based on the applicable exchange rate on the date of invoicing for the Licence (or its renewal). 

Annual fees for licence management, as 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 will have the opportunity to refuse this modification and terminate the Contract without penalty by sending a registered letter with acknowledgement of receipt to CAPTIVEA within a period of thirty (30) days from the date of sending by CAPTIVEA of 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 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 settle the total amount of the services outlined in the quotation or commercial proposal upon order validation.

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 charges (including rejection charges) levied by a financial intermediary or borne by CAPTIVEA will be invoiced to the Client.

In the event of total or partial late payment, for any reason whatsoever, a late payment charge of 12% per year will be applied 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 execution of the various services detailed in the quotation 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 order.

The applicable hourly rate is the one in force at the time of the order, or at the renewal of the time book. 

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

All requests which, according to CAPTIVEA’s estimate, require a maximum of four (4) hours of work will be carried out without prior approval from the Client. The requests are estimated for information purposes 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 unapproved request, the qualification time is deducted on a time-spent basis. 

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

Services that can be provided in "time booklet" mode 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 quarterly meeting of thirty (30) minutes will be held between their CAPTIVEA contact person and themselves. 

In the event of termination of the Contract, regardless of the reason, the remaining balance of time acquired under the 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 invoiced services: For monthly invoiced services, a security deposit will be required from the Client. The security deposit must be at least 100% of the estimated total amount for the month. Payment of the security deposit will be made using any means of payment accepted by the company. 
  2. Adjustment of the security deposit:  If the invoiced amount in any month exceeds the initial security deposit, the security deposit will be revised.  This revision is to ensure that the security deposit is at least 100% of the total monthly invoice amount.
  3. Billing of the security deposit and regular monthly billing: At the start of the service period, the security deposit will be invoiced to the Client. Thereafter, the regular monthly billing cycle will apply.
  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 submitted within 12 months from the date of termination to be considered valid. After this period, the request will be treated as void and will not be accepted.

ARTICLE 12 – CONFIDENTIALITY

The Parties agree not to disclose any 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 maintain this confidentiality and not to disclose to any person 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, any 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 governing the relationship between CAPTIVEA and the Client are themselves confidential.

Information that is publicly available at the time of disclosure, or subsequently becomes available without either Party breaching its confidentiality obligations, or that is legitimately obtained from a third party without that third party breaching a confidentiality agreement concerning such information, is not considered confidential. 

ARTICLE 13 – PERSONAL DATA

The Parties must comply with appropriate industry standards regarding their organisation and security in relation to information security and data, in particular 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 execution of the Contract.

If 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, whether or not they have participated in the execution of the Contract. 

In the event of a breach of this clause, the Client shall pay CAPTIVEA compensation equal to one (1) year of the gross salary, including 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 authorises CAPTIVEA to refer to it as a reference customer and to reproduce, on its website and in its commercial documents, the logo or trademark design that the Client has provided, so as to ensure faithful reproduction in accordance with the Client's graphic charter. Likewise, the Client may state that it is a customer of CAPTIVEA. 

ARTICLE 16 - FORCE MAJEURE

CAPTIVEA shall not be held liable for any delay or failure to perform under this Contract that is caused by a force majeure event. 

Force majeure events are events beyond the control of CAPTIVEA, unforeseeable and irresistible, which prevent the execution 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 all cases, it is expressly stipulated that a force majeure event shall 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 execution 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 to be 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 physically, to decide either on a new suspension period not exceeding ninety (30) days or on the definitive termination of 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 Quebec 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

In the event of a breach by either party of its essential obligations (failure to pay or failure to collaborate for the Client), and if such breach is not remedied within a period of one (1) month after receipt of a notice by registered letter with acknowledgment of receipt notifying the existence of the breach, the other party may terminate the contract automatically by registered letter with acknowledgment 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

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 expiration;
  • 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 the remaining balance of time acquired under time booklets.

Upon termination of the Contract, CAPTIVEA undertakes to return to the Client or destroy all elements or documents belonging to the Client and of 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 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 favor 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, attorney's fees, court costs, procedural expenses, and any other expenses related to the prosecution or defense of the case.