Terms and Conditions

Synfony Platform Rental

Last updated : 2023-11-14

WHEREAS the CLIENT wishes to lease the Synfony platform (hereinafter referred to as the “Platform”) in order to operate it on its infrastructure;

WHEREAS Prosomo agrees, on a non-exclusive basis and for a fee, to provide its Platform on behalf of the CLIENT at the established monthly fees provided that the CLIENT complies with all the provisions of the terms and conditions;

WHEREAS the CLIENT understands that the Platform is hosted and managed by Prosomo;

By choosing to rent the Platform, the CLIENT accepts the following terms and conditions.

OWNERSHIP OF THE SYNFONY PLATFORM

The Platform, its code and all related components are the property of Prosomo.

Unless expressly provided otherwise in the terms and conditions, all ownership rights and all intellectual property rights, titles and interests in the Platform are owned by Prosomo, including but not limited to:

the interface, source code and object code of the Platform;
any copy of the Platform, whether or not made by Prosomo;
any corrected or updated version of the Platform;
any new, enhanced or improved version of the Platform;
any error corrections, bug fixes, program fixes or updates relating to the Platform;
any documentation relating to the Platform and its operation, regardless of the form or medium of such documentation; and
any trademarks used in connection with the Platform,
all programming specific to the CUSTOMER is, and shall remain, the exclusive property of Prosomo and, if applicable, third party developers who have licensed any portion of the Platform to Prosomo. The only rights granted to the CLIENT hereunder are rights to rent the Platform.

SPECIFICATIONS

Modifications to the Platform will be made exclusively by Prosomo unless otherwise specified in writing.

The Platform is leased for an initial term of 12 months with automatic monthly renewal following the end of the term unless terminated by either party.

FEES AND TERMINATION

Rental of the Platform is payable by pre-authorized payment on the 1st day of each month (or the next business day) by credit card in accordance with the terms established between the parties.

If Prosomo is unable to process the payment of the fees using the pre-authorized payment provided for in the agreement, Prosomo will make a second attempt to process the payment within 3 business days. If the second attempt is unsuccessful, we will make a final attempt 3 days after the second attempt, Prosomo reserves the right to suspend your rental of the Platform until full payment of the fees in default.

Aucun remboursement ne sera effectué pour quelconque raison.

The Platform rental agreement may be terminated at any time by mutual agreement of the parties. Any balance owing to Prosomo shall be immediately due and collected by authorized means of payment. Prosomo may suspend or terminate your rental without notice if we suspect that you have engaged in fraudulent activity of any kind in connection with the use of the Services or if you have violated these rental terms.

OBLIGATIONS AND COMMITMENTS

The CLIENT undertakes to:

Use the Platform in accordance with Prosomos’ instructions;
Inform Prosomo without delay of any defect, fault or problem affecting the Platform and actively participate if required by Prosomo in the identiﬁcation and resolution of the problem;
To comply with the policies and procedures issued from time to time by Prosomo relating to the Platform and its use;
To ensure that its employees, suppliers, collaborators and subcontractors, where applicable, fully comply with the provisions of these terms, particularly with regard to intellectual property and conﬁdentiality;
To assume sole responsibility for the content placed on the Platform and for any damage that may arise from its use;
To assume sole responsibility for the proper functioning of the computer equipment used by the CLIENT and for any damages that may result from the lack of such proper functioning;
To take up the cause of Prosomo if the latter is impleaded or made party in a legal proceeding brought by a third party and alleging a fault of Prosomo arising from the use of the Platform by the CLIENT or the information contained therein, and indemnify Prosomo from any monetary condemnation in capital and interest as well as all judicial and extrajudicial costs that Prosomo may incur as a result;
To pay the licensing fees due to Prosomo in accordance with the terms and conditions of payment set forth herein and in the speciﬁcations;
Not to contest, usurp or violate, directly or indirectly, any of the rights, titles and intellectual property interests of Prosomo or third parties, nor to participate in or facilitate the commission of any such act. In this regard, the CLIENT acknowledges that it is solely responsible for the information, data, images, graphics and text that he displays on the Platform;
Not to copy, reproduce or permit the copying or reproduction, in any manner whatsoever, of all or part of the Platform without the prior written permission of Prosomo for the benefit of the CLIENT or a third party;
Not to reverse engineer, decompile, disassemble, decode, reduce to decipherable form all or any part of the Platform, nor otherwise access its source code, nor participate in or promote the commission of any such act without the prior written consent of Prosomo;
Not to design or permit the design of similar or derivative Platforms, nor to use the speciﬁcations of the Platform aﬁn to design or permit the design of similar or derivative Platforms;
Not to modify, alter, correct, develop or adapt the Platform without the prior written consent of Prosomo;
Not to use any part of the Platform independently of the Platform as a whole;
Not to sell, market, distribute, license, sub-license, grant a right of use, give, assign or otherwise transfer to anyone its license rights in the Platform;
Not to rent, lend, publish, give access to or otherwise make available to anyone access to the Platform;
Respect any intellectual property right, title or interest belonging to Prosomo or any third party;
Comply with all applicable laws, regulations, treaties and restrictions relating to the public use of the Platform;
Comply with all requirements and policies of Prosomo relating to the protection of intellectual property rights, titles and interests of Prosomo or third parties in the use of the Platform and trademarks;
Promptly notify Prosomo of any violation, actual or apprehended, of any right, title or interest belonging to Prosomo or third parties, which is brought to the knowledge of the CLIENT;

Subject to all its other rights and recourses, Prosomo may terminate these terms and conditions, without notice of any kind whatsoever, in any of the following cases: the CLIENT fails to comply, in whole or in part, with the undertakings herein subscribed to by it; or the CLIENT does an act or omits to do an act, the consequences of which adversely affect or are likely to adversely affect the rights, titles and interests of Prosomo or third parties.

WARRANTIES

Except as otherwise provided in these terms, the Platform is provided “AS IS”, without any warranty, express or implied, of any kind or scope whatsoever. Accordingly, Prosomo makes no warranty, express or implied, to the CLIENT with respect to:

Uninterrupted or error-free operation of the Platform;
The suitability of the functions and capacity of the Platform for the CLIENT’s needs and expectations;
To the CLIENT’s computer equipment, its operation, and that of its hardware components during use of the Platform; To the benefits, ﬁnancial or otherwise, actual or apprehended, positive or otherwise, resulting or that may result from use of the Platform.

The warranties contained in these terms are the only warranties provided in connection with the subject matter and constitute a limited warranty. The CLIENT expressly waives all other warranties, express or statutory.

LIMITATION OF LIABILITY

Except in the case of gross negligence on its part, Prosomo shall not be liable to the CUSTOMER for any negligence and for any damages, direct or indirect, that may result therefrom, and the CUSTOMER shall hold Prosomo harmless from any and all claims, including any warranty claims, in any of the following cases:

Modiﬁcations made to the Platform by a person other than Prosomo and/or a person provided for in these terms;
The use of the CLIENT’s computer equipment affecting the proper operation of the Platform;
The introduction of a computer virus into the CLIENT’s computer equipment, affecting the proper functioning of the Platform;
Loss of business opportunities or revenues related to the operation or non-operation, or use or non-use, of the Platform;
Interruption of service by Internet service providers, power failure, telephone service failure, hosting service failure, or any other similar inconvenience;
Cyber attack or any other malicious act by a third party intended to render the Platform inoperative;
Loss of the CLIENT’s content stored on the Platform.

Except as otherwise provided in these terms, in no event shall Prosomo be liable to the CUSTOMER or any third party for any indirect, incidental, special, punitive or exemplary damages, including without limitation any loss of proﬁt or other economic loss.

GENERAL

Application of the Law

The terms and conditions of the rental of the Platform shall be interpreted and enforced in accordance with the applicable laws of the Province of Quebec, and it is agreed between the PARTIES that any legal action or arbitration shall be taken in the District of Gatineau;

Monetary references

All sums of money are in Canadian currency. Unless otherwise indicated in the text, the amounts indicated do not include the Goods and Services Tax (GST), the Harmonized Sales Tax (HST) and the Quebec Sales Tax (QST), as well as any other tax applicable to such amounts by public authorities;

CLIENT’s data

The CLIENT is the owner of the data implemented in the Platform;

Cooperation between parties

The CUSTOMER agrees to cooperate fully with Prosomo to enable it to perform its obligations hereunder in an efficient and timely manner;

Transfer

The rights and obligations arising from the lease of the Platform may not be assigned by either PARTY to any other person without the prior written consent of the other PARTY;

Relationship between parties

The rental of the Platform does not and shall not be construed to create any agency, partnership or employment relationship between the PARTIES. The PARTIES have entered into the lease as independent PARTIES and intend to maintain this status for the duration of the lease. Neither PARTY has the right or authority to assume, create or increase any obligation or commitment on behalf of the other, nor to hold itself out as having the authority to bind the other in any way;

Dispute resolution

If a dispute cannot be resolved by mediation within THIRTY (30) days from the commencement of the mediation process, then it shall be finally resolved by arbitration involving a single arbitrator in accordance with the provisions of the Quebec Platform of Civil Procedure, it being understood that the arbitration shall take place in the judicial district of Gatineau unless the PARTIES agree otherwise;

Force majeure

Neither PARTY shall be considered in default under these terms if the performance of its obligations, in whole or in part, is delayed or prevented as a result of force majeure. Force majeure is an external, unforeseeable, irresistible event making it absolutely impossible to perform an obligation;

Notices

Any notice to a party shall be deemed to have been validly given if it is in writing and sent by electronic mail;

Waiver

No failure, neglect or delay by any party to exercise any right or remedy under these terms shall be construed as a waiver of such right or remedy;

Agreement

These terms represent the entire agreement between the PARTIES. No statement, representation, promise or condition not contained in these terms can or shall be admitted to contradict, modiﬁer or affect in any way the terms hereof;

CONFIDENTIALITY STANDARDS

The PARTIES hereby acknowledge that all Confidential Information disclosed during the term of the Platform lease remains the exclusive property of the disclosing PARTY and, accordingly, the ISSUING PARTY acknowledges that any unauthorized disclosure of such Confidential Information by the other PARTY may cause serious harm to the disclosing PARTY. Consequently, the ISSUING PARTY undertakes to the disclosing PARTY, in order to protect the interests of the latter, to :

Use the disclosed Confidential Information solely for the purposes for which it was disclosed;
Not to allow any third party to have access to such Confidential Information unless disclosure of such Confidential Information is necessary to achieve the purpose for which it was disclosed;
Take all appropriate measures, when disclosure of Confidential Information to a third party becomes necessary, to protect the confidentiality of such information by requiring the third party to provide a confidentiality undertaking designed to ensure the same protection of such information as that provided for herein;
Take all reasonable means appropriate to limit access to said Confidential Information;
Notify the disclosing PARTY of any unauthorized access to or use of the Confidential Information by a third party;
Assist the disclosing PARTY in lawsuits or legal proceedings to protect the Confidential Information.

The PARTIES agree that upon termination of the Platform lease, the ISSUING PARTY shall, upon request by the ISSUING PARTY, return any Confidential Information transmitted to it by the ISSUING PARTY, including, if applicable, any copies authorized by the ISSUING PARTY, without retaining any copies or extracts whatsoever.