USER LICENCE AGREEMENT
« TRACKANDFIX.COM »
The « trackandfix.com » website (hereinafter “Website”) allows users-licensees to access, online, a variety of specialized computer tools for real estate developer, construction professionals as well as real estate property owners (hereinafter “Platform”).
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1. IMPORTANT NOTICE
This agreement governs your use of the Website and Platform, and constitutes an executory contract between UpperBee INC. (hereinafter "UpperBee"), a legally constituted legal entity and owner of the Website and Platform, and you, the user-licensee (hereinafter “Licenced-User”). Please read the following carefully and make sure you understand this agreement as it contains the terms and conditions you must accept BEFORE accessing the Platform. UpperBee agrees to give you access to the Platform only if you have the legal capacity and agree to all terms and conditions of this Agreement, including any subsequent changes posted on the Platform or to the Website in the future.
By accessing the Platform, you agree to be bound by the terms and conditions contained in this Agreement. This agreement is IMPORTANT and contains several rules that affect your rights and obligations. THE TERMS CONTAINED IN THIS AGREEMENT MAY BE SUBSEQUENTLY MODIFIED, if necessary, you will be notified by a notice posted on the Website or by email. By checking the “I Agree” box at the end of this Agreement, you agree to be personally bound by all terms, including any subsequent changes that may be made from time to time at UpperBee's discretion and posted on the Website in the future. IF YOU REFUSE THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, SUCH AS MAY BE CHANGED IN ACCORDANCE WITH THE PRESENT, DO NOT ACCESS THE PLATEFORM.
This Agreement may be printed or downloaded to your computer.
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2. SITE WORKING
UpperBee allows all Licensed-Users who have agreed to the terms of this Agreement to access their online account and a variety of specialized computer tools for real estate developer, construction professionals as well as real estate property owners. The Website and Platform including its various computer tools may be modified from time to time by UpperBee. Unless expressly stated otherwise, all new elements added to the Website and Platform are subject to this Agreement. Your eligibility for the Platform is subject to various factors, such as your acceptance of the terms contained in this Agreement, your right of access to the Internet (World Wide Web), your registration to the Platform and the final approval of your account User-licensed by UpperBee. To open a User-License account, you must complete the registration form. Registration fees and license fees are payable at the time of registration. You should be aware that UpperBee makes no warranty, makes no representation, and assumes NO RESPONSIBILITY with respect to accessibility, data entered by you or any Licensed-User, speed of execution, performance and reliability, availability of the Platform, deletion, backup defects, loss of password or access code, as well as any other difficulties of a computer nature arising due to force majeure, error, fault or negligence of the Licensed-User.
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3. DEFINITION
In this Agreement, the words and expressions that follow when they appear in this Agreement or in any documentation subordinate thereto, mean and be interpreted according to the following definitions:
3.1 « Agreement » means this agreement, including the preamble, any documentation subordinate thereto, and any amendments that may be made to it in the future.
3.2 « Data » means any information, including personal information, belonging to the Licensed-User and its customers that he has registered on the Website or the Platform.
3.3 « Intellectual Property » means, without limitation, any right, title and interest in intellectual property, including any derivative right, moral right and personal right, in any work, invention, trade-mark, industrial design, circuit topography corporate information, confidential information or trade secret, as the case may be, any certificate or application for registration, attribution or recognition of ownership or interest in any of the intellectual property rights affected by this Agreement.
3.4 « Module(s) » means each of the programs dedicated to a specific function included in the Platform that You may choose to use under this Agreement.
3.5 « Project(s) » means any building, or any other entity or place registered in the Platform in respect of a Licensed-User.
3.6 « Parties » means You and UpperBee for the purposes of this Agreement.
3.7 « Platform » means the "trackandfix.com" wed based software designed and developed by UpperBee and includes all web pages hyperlinked to each other including programming, all files, source codes, scripts, tables, spreadsheets, computer tools, Modules, documentation, information and forms constituting the Platform including the graphics, the visual aspect, the intellectual and structural organization of the Platform and its elements of conviviality ("look and feel").
3.8 « Website » means the "trackandfix.com" website designed and developed by UpperBee and includes all web pages hyperlinked to each other including programming, all files, source codes, scripts, tables, spreadsheets, computer tools, documentation, information and forms constituting the Website including the graphics, the visual aspect, the intellectual and structural organization of the Website and its elements of conviviality ("look and feel").
3.9 « You » designates you as a Licensed-User registered on this Platform.
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4. OBJECT
4.1 LICENCE
4.1.1 Subject to the terms, conditions and other provisions of this Agreement and for a specified period of time UpperBee hereby grants You a personal, revocable license including, a non-transferable, limited and non-exclusive right to access your Licensed-User account and use, via the Internet, the Platform, namely the right to use, the various Modules made available to you, the right to download, save, save on diskette or other media the Data and make a single digital copy of the pages containing the Data under the following conditions: (1) that the reference of the origin of the document is indicated on the documentation such as "document realized thanks to the " trackandfix.com ", (2) that the copyright notice appears at any time on any and all copies used, such as "© 2019 trackandfix.com" and finally (3) no changes are made the visual presentation of the Data;
4.1.2 No other use is permitted. Without limiting the generality of the foregoing, You may not do the following, or permit anyone to do so:
4.1.2.1 include, copy or integrate all or part of the Platform into another site, software or derived product;
4.1.2.2 reproduce, copy, sell, rent or sublicense all or part of this Platform or your right of access to it;
4.1.2.3 create a hyperlink with the Platform or any page of the Platform, without the written consent of UpperBee;
4.1.2.4 use the Platform to engage in unlawful activities, including defaming, harassing, threatening or otherwise violating the rights of any person;
4.1.2.5 transmit any material containing computer viruses or other programs that may limit, alter, destroy or interrupt the operation of any computer program, the Website or the Platform.
4.2 SERVICES.
UpperBee undertakes to provide you with maintenance, Plateform update and technical support services available from Monday to Friday from 8:00 am to 6:00 pm Eastern time, in the event that You encounter technical difficulties related to the access to the Platform or Services included in this Agreement (hereinafter referred to as the "Services").
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5. TERM
This Agreement is valid for a one-month period from the time of your registration or any renewal after which the fees have been duly paid (hereinafter the "Term").
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6. COUNTERPART
6.1 FEES. The cost of this license also includes the Service fee and is allocated on a monthly basis based on the package chosen, the number of registered users and the number of inspections acquired, if any. Rates related to the use of the Platform may be modified at any time without notice, unless a specific license agreement has been entered into between You and UpperBee.
6.2 MODALITY. The cost of the license provided for in section 6.1 must be paid by the Licensed-User, at the time of registration on the Platform, to UpperBee by credit card. Payment must be made monthly from the date of registration.
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7. UpperBee UNDERTAKINGS
7.1 ACCESS. UpperBee is committed to making the Platform available seven days a week (7/7) and twenty-four hours a day (24/24), with the exception of maintenance periods resulting from breakdowns, updates to the Platform or a case of Force Majeure. For more information on the definition of "Force majeure".
7.2 LIMITATION. UpperBee can not be held responsible for fluctuations in the speed or changes in the response time to your requests due to your Internet connection.
7.3 MAINTENANCE. UpperBee reserves the right to warn you of any exceptional interruption of the Platform and the Services, due to the maintenance, updating, repair or improvement of the Platform, within five (5) days prior to this interruption, if applicable.
7.4 INDUSTRY PRACTICES. UpperBee is committed to rendering the Services in a professional and efficient manner, according to the generally accepted practices in the industry.
7.5 RESPECT. UpperBee agrees to respect any right, title and interests of Intellectual Property belonging to any third party, so that the Website and Platform does not infringe any right, title and interests of intellectual property belonging to a third party.
7.6 CONFIDENTIALITY.For more information on our privacy statement, please click on this link.
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8. REPRESENTATIONS AND WARRANTIES
8.1 OWNERSHIP. UpperBee represents and warrants (1) that it is the sole owner of all intellectual property rights, title and interests related to the Platform; (2) that there are no legal, judicial or conventional impediments to granting usage licenses, in accordance with the terms hereof; (3) that he is responsible for the operation of the Platform; (4) that the Platform is functional, subject to any minor corrections or adjustments that may be required from time to time.
8.2 ORIGINALITY. UpperBee represents and warrants that the Platfrorm is an original work that does not infringe any copyright or other intellectual property rights of any third party.
8.3 CONFIDENTIALITY AND INTEGRITY. UpperBee represents and warrants that the Website is equipped with a powerful system that preserves the confidential nature and integrity of the Data compiled in the Platform database to your Licensed-User account. All Data that UpperBee collects through this Platform is subject the following Privacy Policy. For more information, please consult Privacy Policy by clicking on this link.
8.4 BACKUPS. UpperBee represents and guarantees that a backup of the data will be done once a week. You remain solely responsible for the one-time safeguarding of your Data upon each entry of the Data to the Platform.
8.5 LIMITATION OF WARRANTY. Except as otherwise provided in this Agreement, UpperBee does not give You any express or implied warranties as to:
8.5.1 the expectation of the purposes for which this license is granted;
8.5.2 the benefits, financial or otherwise, actual or apprehended, positive or otherwise, resulting from or that may result from the use of the Platform;
8.5.3 the Data entered in the Account of a Licensed-User, any information contained in the links, hyperlinks or references included in this Website or Platform. These links, hyperlinks and references are provided for convenience only. UpperBee does not endorse any notice or content from these websites.
8.6 LIMITATION OF LIABILITY. Except in the case of gross negligence on its part, UpperBee can not be held liable to You for any damages, direct or indirect, that may arise from the use of the Website or Platform, and You hold UpperBee free and unscathed from any claim, including any warranty claim, as to:
8.6.1 the quality, veracity or accuracy of the Data you enter on this Platform or those entered in the Licensed-User Account;
8.6.2 any changes made to the Website or Platform by anyone other than or dependent on UpperBee;
8.6.3 any changes or additions you make to your hardware, software, or computer equipment that affect the operation of the Platform or your connection to the Platform;
8.6.4 any changes or additions you make to your hardware, software, or computer equipment that affect the operation of the Platform or your connection to the Platform;
8.6.5 the loss of business opportunities or revenues related to the operation or lack thereof, or the use or non-use of the Platform;
8.6.6 Loss of Data not saved on the Platform.
8.7 DAMAGES and LOSSES. Except as otherwise provided in this Agreement, in no event shall UpperBee (including, as applicable, its subsidiaries, directors, shareholders, officers, executives, employees, associates and contractors) be held liable to You or third parties for any indirect, incidental, special, punitive or exemplary damages, including but not limited to any loss of profit or other economic loss (as a result of contractual negligence, delictual 'negligence' even though UpperBee has been warned of the possibility of such damage occurring. In the event that UpperBee is nevertheless liable for damages, the total liability of UpperBee shall in no case exceed the value of the fees paid by You in the current year. You expressly disclaim by this UpperBee any liability beyond this limit.
8.8 SUSPENSION OF SERVICES IN CASE OF NON-PAYMENT. If You refuse or neglect to pay UpperBee the sums payable to it under this Agreement, the latter may deny you access to the Plateform and / or suspend the performance of the Services concerned, without further notice and, subject to any other rights that UpperBee may have under this Agreement.
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9. USER-LICENSEE’S REPRESENTATIONS
9.1 READING. You represent and warrant that, prior to your registration on the Platform, You have made a careful reading of these Terms and You declare that there is no legal, judicial or conventional impediment to acceptance and enforcement present.
9.2 BASIC KNOWLEDGE. You represent and acknowledge having a basic understanding of Internet functionality, limitations, performance, and opportunities offered by the Internet.
9.3 REGISTRATION. You declare and acknowledge having provided UpperBee, at the time of your registration on the Platform, accurate, up-to-date and complete information. You are entirely responsible for the information thus transmitted. UpperBee reserves the right to suspend or terminate this Agreement or deny you access to the Platform if You have transmitted false, inaccurate or incomplete information or information that UpperBee could reasonably believe to be false, inaccurate or incomplete.
9.4 EQUIPMENT. You represent and warrant that you have all the necessary equipment to access the Internet and the trackandfix.com mobile application.
9.5 DISCLOSURE. You represent and warrant that you have not failed to disclose material facts or information about your legal or financial position that would affect your ability to honor the commitments made hereunder or to relinquish UpperBee.
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10. USER'S COMMITMENTS
10.1 COMPLIANT USE. You agree to use the Website and Platform as a prudent and diligent person, in accordance with the rules described herein. You agree not to use the Website or Platform in any way that could damage, disable, overburden or harm the Website or Platform, the UpperBee server or any network connection or prevent the peaceful use of the Website or Platform by any other user.
10.2 USAGE. You agree to abide by the terms of this license and not to use the Platform for purposes prohibited by the terms and conditions of this Agreement or for any unlawful purpose.
10.3 PIRACY. You agree not to attempt, through computer hacking, reverse engineering or any other means, to gain unauthorized access to the programming or source code of the Website or Platform, to any Module or part of the Platform for which You do not have a license, any other user account, or the UpperBee system or database.
10.4 INTELLECTUAL PROPERTY. You acknowledge that all Intellectual Property elements relating to the Platform belong to UpperBee. You agree not to contest the UpperBee Intellectual Property relating to the Platform. Except as expressly provided in this Agreement, the rights granted in Section 4.1 do not include the right to copy, use, modify, distribute, transmit, reproduce, publish, create a derivative work, to sell, to make available to others or to transfer all or part of the Platform without the written permission of UpperBee.
10.5 NON-COMPETITION. For a period of thirty-six months following the entry into force of this Agreement and for the entire territory of Canada, You agree not to design or develop, directly or indirectly, any site, software or any identical derivative , similar or performing the same operations as the Platform subject of this Agreement.
10.6 SECURITY. You agree to choose a password and UpperBee will assign You a User Code (hereinafter "Access Code") as soon as your registration to the Site is complete. You agree to keep your Access Code secure and confidential. You declare to be entirely responsible for any use made to your account or under your Access Code. To this end, You agree to properly leave your account at the end of each use of the Site. You agree to notify UpperBee of any security breach that You may be aware of.
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11. SPECIAL PROVISIONS
11.1 RELATIONS BETWEEN THE PARTIES. The Parties hereby acknowledge that they act as independent contractors and that nothing in this Agreement shall be interpreted so as to modify their status or to constitute a company, a corporation or a mandate of any kind between the Parties.
11.2 FORCE MAJEURE. None of the Parties hereto shall be considered in default in the performance of its obligations hereunder, if such performance is delayed, withheld or prevented as a result of force majeure. Force majeure is any cause not dependent on the will of the Parties hereto, which they could not reasonably have foreseen and against which they could not protect themselves. Force majeure includes, without limitation, any fortuitous event, strike, partial or complete stoppage of work, lockout, fire, riot, network failures, hacking, any other computer event beyond the control of the Parties, intervention by civil or military authorities, acquiescence to the regulations or orders of any governmental authority and warfare (declared or not).
11.3 INCESSIBILITY. You may not assign or transfer any of the rights, duties and obligations set forth herein without the prior written permission of UpperBee. Any assignment or other transfer of the rights, duties and liabilities provided herein, in violation of the foregoing, is void and not enforceable against UpperBee.
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12. TERMINATION
12.1 AWITHOUT PRIOR NOTICE. Subject to any other rights that UpperBee may have, this Agreement shall terminate immediately, without any refund of fees paid, including for the purchase of inspections, in the event of any of the following events occurring during the term of this Agreement:
12.1.1 If YOU fail to pay the required monthly fees;
12.1.2 if You violate or fail to perform, comply with or comply with any of the covenants, terms or conditions of this Agreement and do not remedy such breach or default within fifteen (15) days of written notice to UpperBee stating the nature of the contravention or defect. Notwithstanding the foregoing, the provisions of this paragraph will not apply in the event of non-payment of the fees stipulated in paragraph 12.1.1;
12.1.3 if You attempt to assign your rights and obligations under this Agreement without the prior consent of UpperBee.
12.2 CONSEQUENCES
12.2.1 Upon termination of this Agreement: :
12.2.1.1 You must immediately stop using the Platform; You may retain a digital copy, a PDF copy or a hard copy (printable report) of the Data entered into the Platform;
12.2.1.2 any amount due to UpperBee becomes immediately payable, if any;
12.2.1.3 UpperBee may terminate your access to the Platform.
12.2.2 After the termination of this Agreement, UpperBee agrees to destroy all Data compiled in its database to your Licensed-User Account.
12.2.3 In the event of the termination of this Agreement, the Confidentiality, Intellectual Property, and UpperBee Limited Warranty and Liability Agreements shall survive.
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13. GENERAL PROVISIONS
Except as expressly provided in this Agreement to the contrary, the following provisions apply:
13.1 ILLEGALITY. The possible illegality or nullity of an article, paragraph or provision (or part of an article, paragraph or provision) can not in any way affect the legality of other articles, paragraph or provision of this Convention, or the remainder of that article, paragraph or provision, unless the intention to the contrary is evident in the text.
13.2 NOTICE. Any notice to a party is deemed to have been validly given if it is made in writing and sent by registered or certified mail or by courier to such party at the address indicated on the Website or in your contact details at the time of your registration or any other address that the party concerned may make known by email to the other party. A copy of any notice sent by e-mail must also be sent using one of the delivery methods mentioned above.
13.3 SECURITIES. The titles used in this Agreement are for reference and convenience only. They do not affect the meaning or scope of the provisions they designate.
13.4 NON-WAIVER. Inaction, negligence or delay by a party in exercising a right or remedy under this Agreement shall not be construed as a waiver of such right or remedy.
13.5 CUMULATIVE AND NON-ALTERNATIVE RIGHTS. All rights mentioned in this Convention are cumulative and not alternative. The waiver of the exercise of a right shall not be construed as a waiver of any other right.
13.6 TOTALITY AND ENTIRE AGREEMENT. This Agreement represents the entire and entire agreement between the Parties. No declaration, representation, promise or condition not contained in this Agreement may be and shall be admitted to contradict, modify or in any way affect the terms of this Agreement.
13.7 MODIFICATION OF THE AGREEMENT. This Agreement may be amended from time to time by UpperBee. In the event of any amendment to this Agreement, UpperBee will send You a Change Notice by e-mail or will post it on the entry page of your Licensed-User Platform Account. You must accept by clicking on the button "I accept" any changes posted to access the Platform.
13.8 GENDER AND NUMBER. All words and terms used in this Agreement shall be construed as including masculine and feminine, as well as singular and plural, according to the context or meaning of this Agreement.
13.9 APPLICABLE LAW. This Agreement is subject to the laws in force in the province of Quebec and the federal laws of Canada applicable in that province. The Parties agree to elect domicile in the judicial district of Montreal, province of Quebec, and choose this one as the appropriate district for the hearing of any claim or questions resulting from the access to the Platform or the use of the one and with respect to any matter relating to this Agreement.
13.10 SCOPE OF THE AGREEMENT. This Agreement is binding upon the Parties and their respective successors and assigns.
13.11 PASSAGE OF TIME. If a party is required to fulfill an obligation under this Convention within a specified period of time, the mere passage of time shall have the effect of constituting such party in default.
13.12 CONTACT. If You have any questions about this Agreement, the Website, the Platform or the Services offered, please contact UpperBee at [email protected] or by phone at 514-935-6999 ext. 240.
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EFFECTIVE DATE
This Agreement comes into force on the day your User Account is created by UpperBee following your registration.