Canada
GENERAL TERMS AND CONDITIONS

Captivea Canada - Version 3 - Last Updated 16 May 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 governing the provision and performance of services by Captivea Inc., a company incorporated under the Business Corporations Act, with its registered office 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 the 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 the 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 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 formed as soon as CAPTIVEA becomes aware of the acceptance of the Quote or commercial proposal by the Client, either by postal mail 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 of sending the acknowledgment of receipt or reading of the Client's email by CAPTIVEA.

The acceptance of the quote or commercial proposal may also be formalised by a certified electronic signature procedure (such as Docusign or other 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 of its formation.

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 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 letter with acknowledgment 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 specific written stipulation on 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 the Client’s full and unconditional acceptance 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 modify these General Conditions at any time. The modifications to the General Conditions will apply to ongoing contracts thirty (30) days after these modifications are sent to the Client by email. If the Client rejects these modifications, the Client 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 

Prior to the performance of the Services, CAPTIVEA may propose carrying out an analysis phase to define the functional or technical scope to be covered, the Client’s Specifications, and to ensure that the selected software solution or Service is adequate for the Client’s needs. 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 time required 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 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 information purposes only and are subject to change by the software publishers and the providers of the Client's Information System. 

The Client will designate a person able to respond 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 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 devote the time and necessary human, material and technical resources to perform the Services ordered by the Client and to carry them out professionally and in accordance with industry standards, subject to the Client’s proper fulfilment of its own obligations.

In the absence of specific stipulations, the Documentation for the Software or Software Solution and Complementary Modules is that available on the Publisher's website, in the English version, or in French where available. CAPTIVEA also undertakes to keep the Client regularly informed of the progress of the Services and any difficulties of which it becomes aware 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 subject to an obligation of means. Accordingly, CAPTIVEA’s liability can only arise where the Client proves fault on its part.

For the avoidance of doubt, CAPTIVEA cannot be held liable for any indirect loss or damage that the Client may suffer, such as loss of business, loss of profit, damage to brand image, loss of data, or any other loss resulting from the performance of the Services, 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 loss.

Notwithstanding the above, it is expressly agreed between the parties that CAPTIVEA’s liability, in the event of proven fault as established 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 loss or 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 only, unless expressly stated otherwise. Accordingly, delays in delivery 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 any delay is attributable to the Client (change requests, pending provision of information or 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 before termination.

ARTICLE 11 – FINANCIAL CONDITIONS 

Article 11.1 – Rates 

The rates for the Services are stated 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 of Canada, it may be stated in foreign currencies, in which case it will be converted into Canadian dollars based on the applicable exchange rate on the day 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 will have the opportunity to refuse this change and terminate the Contract without penalty by sending a registered letter with acknowledgment 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 order confirmation.

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

Payment is to be made by bank transfer or by cheque payable to CAPTIVEA, with the understanding that all bank charges (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 interest charge 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 will enter into an arrangement 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 order.

The applicable hourly rate is the rate in force 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, in accordance with the procedure indicated in the quote or Commercial Proposal.

All requests which, 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 and must be validated in advance by the Client, with the understanding that the actual time spent 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 carried out in “time booklet” mode are subject to service fees. 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 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 purchased under the time booklets 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 billed on a monthly invoice, 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. The security deposit may be paid using any payment method accepted by the company.
2. Adjustment of the security deposit:  If the invoiced amount during the month exceeds the initial security deposit, the security deposit will be reviewed.  This review 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 arrangement will take 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 security deposit.  The request for the refund of the deposited security deposit 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 the other Party’s confidential information that they may have become aware of in the course of providing CAPTIVEA’s services and/or in connection with the application of these terms. Accordingly, the Parties undertake to strictly maintain 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 of disclosure, or that subsequently becomes available without any breach by either Party of its confidentiality obligations, or that is legitimately obtained from a third party without that third party having breached a confidentiality agreement relating to such information, is not considered confidential.

ARTICLE 13 – PERSONAL DATA

The Parties must comply with satisfactory industry standards in relation to their organisation and security for information and data security, and in particular with 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 signing of a data processing agreement or other agreements between data controllers and the Client, 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 reason for its termination, 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 such person has 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 (1) year of the concerned employee’s gross salary, including employer contributions and related charges.

ARTICLE 15 – COMMERCIAL REFERENCES 

By accepting these General Terms and Conditions and during the term of the Contract, the Client expressly authorises CAPTIVEA to refer to the Client as a reference customer and to reproduce, on its website and in its commercial documents, the logo or trademark file supplied by the Client so as to ensure faithful reproduction in accordance with the Client’s brand guidelines. Similarly, the Client may represent itself as a customer of CAPTIVEA.

ARTICLE 16 - FORCE MAJEURE

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

Events of force majeure are events beyond the control of CAPTIVEA, unforeseeable and irresistible, which 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 provided that an event of force majeure shall not automatically suspend the Contract. The Parties agree to:

• Notify the other Party of the force majeure event, detailing how this event constitutes an unforeseeable and irresistible cause preventing the Contract's execution;
• 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 performance, the Contract shall be suspended for a period of thirty (30) days, after which the Parties agree to meet again, either virtually or physically, to determine either a new suspension period not exceeding ninety (90) days or to terminate the Contract definitively.

In any event, CAPTIVEA shall not be held liable for any failure to perform its obligations insofar as it can show that such failure was due to an event of force majeure as defined by Article 1470 of the Civil Code of Quebec 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 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 stop using the Software;
• Return to CAPTIVEA all components of the Software and any copies of it within ten (10) days after termination or expiry;
• Pay any outstanding sums due to CAPTIVEA within fifteen (15) days.

At the end of the Contract, regardless of the reason, the fees accrued for the current contractual period shall not be refundable, nor shall any remaining balance of time purchased 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 providing the Services, and not to retain any copies of them.

ARTICLE 20 - SEVERABILITY OF CONTRACTUAL PROVISIONS

If any provision of these Conditions is found 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 clause in question is considered by CAPTIVEA to be essential and decisive to its agreement 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 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.