Last Updated: November 1, 2021
The following terms and conditions constitute a binding legal agreement (“Agreement”) between QReserve Inc. (“QReserve”) and Customer (defined below). This Agreement sets forth the terms and conditions that govern Customer’s access to and use of the resource management software platform made available by QReserve (“Software”).
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
BY CLICKING “ACCEPT”, OR BY DOWNLOADING, INSTALLING, ACTIVATING, ACCESSING, OR USING THE SOFTWARE, CUSTOMER (I) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) IF APPLICABLE, REPRESENTS THAT THE INDIVIDUAL CLICKING “ACCEPT” HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER; AND (III) ACCEPTS, AND AGREES TO BE BOUND BY AND TO COMPLY WITH, THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NOT DOWNLOAD, INSTALL, ACTIVATE, ACCESS OR USE THE SOFTWARE AND MUST NOT CLICK “ACCEPT” AND, IN SUCH CASE, Q RESERVE DOES NOT GRANT CUSTOMER ANY RIGHTS TO USE THE SOFTWARE. FOR GREATER CERTAINTY, CLICKING “ACCEPT” IS THE EQUIVALENT OF CUSTOMER EXECUTING AND DELIVERING THIS AGREEMENT AND, NOTWITHSTANDING THE FIRST SENTENCE OF THIS PARAGRAPH, INDICATES CUSTOMER’S ACCEPTANCE OF, AND AGREEMENT TO BE BOUND BY AND TO COMPLY WITH, THE TERMS AND CONDITIONS OF THIS AGREEMENT.
In this Agreement, “Customer” means the end-user of the Software and means: (i) if the individual who clicks “Accept” below is not acting on behalf of another person, that individual, or (ii) if the individual who clicks “Accept” is acting on behalf of another person (including an individual or any type of corporation, company, partnership, association, organization, joint venture, or trust), that other person and, in such case, the individual who clicks “Accept” represents that they have the authority to bind that other person.
The date on which this Agreement is accepted by Customer (whether by clicking “Accept” below or by first downloading, installing, activating, accessing, or using the product) is the “Effective Date”.
3.1 Grant of License. QReserve grants to Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free right to use the Software, solely for its internal business purposes and subject to the limitations, restrictions and requirements specified in this Agreement, until this Agreement expires or is terminated in accordance with its terms (the “Term”). The right granted to Customer in the preceding sentence of this Section 3.1 (“License”) includes the right for Customer to use during the Term any software documentation and manuals that may be provided by QReserve to the Customer in any form (“Documentation”).
3.2 Restrictions on Use. In addition to the other terms and conditions set out in this Agreement, the License is subject to the following restrictions and limitations:
3.3 General Support and Maintenance: During the Term, QReserve shall provide technical support for the Software during business days from 9:00 a.m. to 5:00 p.m. (EST) during which time frame the Customer may call QReserve for technical support. The Customer may also email QReserve’s support desk at any time. In any case, Customer acknowledges that (a) QReserve does not guarantee that it will respond to any request for technical support within any specific time period, regardless of the manner in which the support is requested, although in all cases QReserve will endeavor to respond to any such request as soon as reasonably possible, and (b) the support will not be available during system maintenance periods, or such times as QReserve may require for purposes of upgrades and maintenance to the Software, and (c) QReserve will make reasonable efforts to announce the scheduled downtime via e-mail to Customer's designated e-mail address, but shall not be liable to the Customer if it fails to do so. Support does not include services required as a result of (x) Customer misuse, improper use or alteration of the Software; (y) any problem caused by modifications in any version of the Software not made or authorized by QReserve; or (z) any problem resulting from Customer combining or merging the Software with any software not supplied by QReserve, or not identified by QReserve as compatible with the Software.
3.4 Maintenance Releases: During the Term, QReserve shall provide the Customer, at no additional charge, with any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, that QReserve may generally provide to its licensees from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, each of which will constitute the “Software” and be subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, to the extent any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, is specifically requested by, or developed, accelerated or prioritized for, a Customer, additional fees may apply.
3.5 Customer Responsibilities: In consideration of the grant of the License, Customer shall:
3.6 Communications: QReserve uses email and other electronic means to stay in touch with our customers. The Customer agrees that when it provides QReserve with its e-mail address or personally identifying information (e.g. name, address) during or prior to its use of the Software, the Customer: (1) consents to receive communications from QReserve in electronic formats, including via the email address the Customer has submitted or other agreed upon contact methods; (2) acknowledges that it can opt-out from receiving communication from QReserve at any time by completing the formalities on the Software or otherwise on the QReserve website, but QReserve does not take on any liability for any communication you receive from a third party, particularly if the Customer has provided your contact information to them independently; and (3) agrees that any notices, disclosures and other communications that QReserve provides the Customer electronically satisfy any legal requirement that such communications would satisfy if they were in writing and physically presented to the Customer.
4.1 Payment: If the Customer has elected to pay by automatically credit card, all payments shall be automatically charged to the credit card provided by the Customer on a monthly or annual basis and the Customer authorizes QReserve to do so without further action or authorization of any kind from the Customer. In all other cases, all payments are due net thirty (30) days from the invoice date by cheque, electronic funds transfer, wire transfer (or such other means as QReserve may agree) to QReserve.
4.2 Taxes and Withholding: QReserve’s rates exclude charges for taxes, excises, fees, duties or other government charges required by law to be paid (collectively, “Taxes”) related to the Software. The Customer will pay to QReserve all Taxes owing under this Agreement or otherwise relating to the Software. All payments are subject in each case to any withholding required pursuant to Regulation 105 of the Income Tax Act (Canada).
4.3 Late Payments: Late payments shall bear interest at an annual percentage rate of ten percent (10%) or the highest rate allowed by law, whichever is lower, or a rate agreed upon through an agreement amending these terms.
4.4 Suspension/Termination Right: QReserve may suspend Customer's access to the Software, or reduce the Customer’s Software functionality to that of the non-paid version of the Software, if an undisputed invoice remains unpaid for thirty (30) days or more after notification of non-payment from QReserve. QReserve may terminate this Agreement if an invoice is more than thirty (30) days past due.
5.1 Confidential Information: In connection with this Agreement, Customer may obtain Confidential Information relating to QReserve. “Confidential Information” means information relating to the QReserve that is confidential (howsoever disclosed and with or without any indicia of “confidentiality”) and may include (a) technical, trade secret or business information, including but not limited to financial information, marketing plans or strategies, experience and know-how, product information and data, product development and customer and supplier information, (b) any memorandum, analysis, compilation, summary, interpretation, study, report, or other document, record or material that contains, reflects, interprets or is based directly or indirectly upon such information, and (c) all Intellectual Property and Assessment Data (each defined below). No representation or warranty, express or implied, is being made as to the accuracy or completeness of any Confidential Information disclosed or provided by QReserve to the Customer, and QReserve shall have no liability to the Customer relating to the use of any Confidential Information or any inaccuracies, errors or omissions.
5.2 Use of Confidential Information: The Customer shall be permitted to use the Confidential Information solely for the purposes expressly set forth in this Agreement. The Customer shall hold in confidence and protect the Confidential Information with the same degree of care that it uses to protect its own confidential information, but in no case with less than commercially reasonable care and shall ensure that, without QReserve’s prior written consent, such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided in this Agreement. The Customer shall be fully responsible and liable for ensuring that any persons to whom it discloses Confidential Information comply with the confidentiality obligations contained herein, and shall be liable for any breach of this Agreement by such persons. The Customer acknowledges and agrees that the Confidential Information is the sole and exclusive and valuable property of QReserve, and nothing in this Agreement grants the Customer any rights in or to the Confidential Information, except the limited right to review such Confidential Information for purposes of the License. The Customer agrees that disclosure of the Confidential Information would be detrimental to the interests and business of QReserve, and that it shall notify QReserve immediately upon discovery of any unauthorized use or disclosure of any Confidential Information, and cooperate in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure. The Customer shall have no obligations under this Agreement with respect to any Confidential Information that is: (a) already known to the Customer without breach of the terms hereof, (b) publicly known at the time of disclosure without breach of the terms hereof, (c) lawfully disclosed by a third party without restriction on disclosure or breach, (d) is approved for use or disclosure by written authorization of QReserve; or (e) is required to be disclosed by law or court order or governmental authority, provided that prompt notice is given to QReserve to attempt to limit or prevent such disclosure. The Confidential Information shall be returned or destroyed by the Customer immediately upon the request of QReserve for any reason and at any time.
6.1 Ownership of Software: Customer acknowledges and agrees that the Software and Documentation and all Intellectual Property rights therein (including, without limitation, all technical information, technical data, inventions, products, data, algorithms, design, methods, knowhow, processes, copyrights, patents, trade secrets, software (including object code and source code), models, patterns, drawings, specifications, prototypes, discoveries, techniques systems, works of authorship, ideas, and concepts, and all intellectual property rights therein (whether or not patentable or registerable under patent, copyright, trademark, trade secret or similar legislation or subject to analogous protection) (“Intellectual Property”)) and all modifications, changes, enhancements or additions thereto from time to time, shall remain the exclusive property of QReserve (to the extent owned by QReserve) or its licensors, and that, other than the License as granted in this Agreement, Customer acquires no rights in or to the Software or the Documentation
6.2 Customer License of Data and Systems: For purposes of this Agreement, “Customer Data” shall include any and all data, information or materials supplied or disclosed by the Customer to QReserve in connection with its use of the Software or obtained by QReserve as a result of Customer’s use of the Software. The Customer retains all right, title and interest in and to all Customer Data, and hereby grants to QReserve a non-exclusive, royalty-free, worldwide, transferable and sub-licensable right and license to use, copy and modify Customer Data for purposes of providing or supporting the Software. In addition, Customer hereby grants to QReserve a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable and sub-licensable right and license to collect, organize, and repurpose Customer Data, and combine and aggregate Customer Data with other customer data, on an anonymous basis, for the purposes of QReserve generating Assessment Data (defined below). Customer may provide QReserve access (on-site or via remote access) to Customer systems (“Customer Systems”) in connection with this Agreement (including for the purpose of requesting that QReserve either assist Customer in, or directly perform, any use or application of the Software for Customer). In no event will QReserve be liable for any loss of Customer Data or other information, or any claim arising out of QReserve’s access to and use of any Customer Systems in the performance of this Agreement, unless caused by the gross negligence of QReserve.
6.3 Assessment Data: Including as a result of the Customer’s use of the Software under this Agreement, QReserve may generate certain information, data, statistics, analyses, reports and other files or documentation regarding the use and features of the Software, which may include and incorporate anonymized Customer Data, and which may be combined with data from other sources (collectively, the “Assessment Data”). Customer acknowledges and agrees that any and all Intellectual Property rights in and to the Assessment Data, including as created by or resulting from QReserve’s use of Customer Data, shall be exclusively owned by QReserve. QReserve shall have the right to use any and all Assessment Data for its general business purposes in its sole discretion, including for purposes of (i) further development, testing, operating and improvement of the Software, (ii) providing maintenance and support for the Software, (iii) use in studies, reports and programs, and promotional and marketing efforts, and (iv) trend analysis that may assist QReserve with respect to its services and general business purposes.
6.4 Feedback: During or after the Term, Customer may voluntarily provide suggestions, comments or other feedback relating to the Software (“Feedback”). The Customer hereby grants to QReserve a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable and sub-licensable right and license to such Feedback and authorizes QReserve to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback in any manner as it may determine from time to time in its sole discretion.
7.1 Events of Termination: This Agreement may be terminated:
- Customer breaches, or threatens to breach, any term of this Agreement;
- Customer becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute;
- it is determined that QReserve would be prohibited from doing business with the Customer under any applicable law, including any export regulations and controls; or
- a material adverse change in the Customer’s financial condition occurs, including, but not limited to bankruptcy, insolvency, or liquidation.
7.2 Effects of Termination: In the event of termination of this Agreement for any reason:
7.3 Loss of Data: Any data entered into or stored in the Software by Customer, and any reports generated and accessed by Customer through the Software, and any similar information, may, following the end of the Term, be permanently deleted and lost.
7.4 Survival: Notwithstanding anything else in this Agreement, all provisions of this Agreement that expressly or by their nature are intended to survive the termination of this Agreement, including without limitation provisions regarding ownership, Intellectual Property, confidentiality, warranty and indemnity and limitations of liability, shall survive the termination of this Agreement.
8.1 No Warranties: CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, ALL DOCUMENTATION, AND ALL RELATED SOFTWARE, INFORMATION, DATA, PRODUCTS AND/OR SERVICES OR ASSISTANCE PROVIDED BY Q RESERVE TO CUSTOMER, IS PROVIDED FOR USE ON AN “AS AVAILABLE” AND “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND OR NATURE WHATSOEVER INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT THE SOFTWARE WILL BE ERROR FREE, OR CONCERNING THE SOFTWARE’S FUNCTIONALITY, PERFORMANCE, OPERATION OR USE BY CUSTOMER AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY Q RESERVE THAT HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE ACCESS, USE, OR PERFORMANCE OF THE SOFTWARE, AND ANY SERVICES OR ASSISTANCE PROVIDED BY Q RESERVE IN CONNECTION THEREWITH, REMAINS WITH CUSTOMER.
8.2 Limitation of Liability: CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT Q RESERVE SHALL NOT BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO LOSS OF OR DAMAGE TO CUSTOMER OR OTHER DATA, LOSS OF REVENUE OR PROFITS OR BUSINESS INTERRUPTION) SUFFERED BY CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST CUSTOMER OR OTHER DATA, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE) AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR BASIS OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR Q RESERVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, DESPITE REASONABLE PRECAUTIONS TAKEN BY Q RESERVE TO ENSURE SECURITY OF THE SOFTWARE, THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO GAIN ACCESS TO THE SOFTWARE, AND Q RESERVE CANNOT AND DOES NOT GUARANTEE THE PRIVACY OR SECURITY OF ANY CUSTOMER DATA TRANSFERRED OVER OR CONNECTED TO THE INTERNET. THIS SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT.
8.3 Further Limitations:
8.4 Indemnification: Customer indemnifies and saves harmless QReserve and its directors, officers, shareholders, employees, contractors agents and representatives from any and all loss, liability, cost, expense, damage (including reasonable legal fees) arising directly or indirectly out of any claim, suit, action or judgment brought against (or threatened to be brought against) QReserve, or its officers, directors or other representatives, that is associated with Customer's use of the Software and/or breach of the terms of this Agreement or any violation by the Customer of any applicable law or any third party rights, or that arises as a result of any third party alleging that the use of the Software by Customer infringes, misappropriates or violates any Intellectual Property of the third party, provided however, that Customer’s breach does not arise solely from QReserve’s breach of such third party’s Intellectual Property rights. This indemnity shall survive any termination or expiration of this Agreement.
10.1 Entire Agreement: This Agreement, at the sole discretion of QReserve, may constitute the entire agreement between Customer and QReserve pertaining to the License and the Software and would supersede all prior agreements, negotiations and discussions between the parties, whether oral or written and may only be amended or modified by written agreement executed by the parties, with the strict and sole exception being all existing and executed software license contracts.
10.2 Governing Law; Arbitration: This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The parties irrevocably attorn to the non-exclusive jurisdiction of the courts within the Province of Ontario in respect of all matters and disputes arising hereunder. Any controversy, dispute, disagreement, or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the Rules of ADR Institute of Canada. The legal seat of arbitration shall be Hamilton, Ontario, Canada. The language of the arbitration, including the hearings, documentation and award, shall be English.
10.3 General: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Customer may not assign all or any part of this Agreement, without the prior written consent of QReserve, and QReserve may assign this Agreement without the consent of Customer at any time. If any provision hereof is held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall not be affected and shall continue to be valid and enforceable.
10.4 Notices: All notices given hereunder shall be in writing and made by delivery by registered or certified mail or by email or other electronic means, if to QReserve at firstname.lastname@example.org and, if to the Customer, to the address or email provided by the Customer to QReserve in connection with its registration for the Software.
10.5 Export Law Assurances: Customer acknowledges that the Software may be subject to export and import control laws of Canada and other countries, and agrees to comply fully with all such laws and regulations.
10.6 Force Majeure: Neither party hereto shall be liable to the other for delay in any performance or for the failure to render any performance of obligations when such delay or failure is a direct result of any present or future statute, law, ordinance, regulation, order, failure to deliver on the part of its suppliers, judgment or decree, act of God, earthquake, epidemic, pandemic, explosion, lockout, boycott, strike, labor unrest, riot, war, or similar catastrophic occurrence. Notwithstanding the foregoing, these provisions shall not be applicable to any obligation involving the payment of money by Customer.
10.7 Amendments: QReserve reserves the right, in its sole discretion, to make changes to this Agreement at any time and for any reason during the Term. QReserve may notify Customer of such changes by posting them to the Software or by sending them to the Customer by e-mail. Any changes to this Agreement will be effective immediately upon the earlier of (i) being posted to the Software and (ii) notice being sent to Customer. Customer’s continued use of the Software after any changes have been made to this Agreement shall constitute Customer’s acceptance of those changes and of this Agreement as modified by those changes. If Customer does not agree to any changes made to this Agreement, then Customer must immediately stop using the Software.
10.8 Interpretation: In this Agreement, any reference to gender includes all genders; words importing the singular number only shall include the plural and vice versa; the word “or” is not exclusive; the words “including”, “includes” and “include” mean “including without limitation”; and “shall” means “will” and “must”, all three of which can be changed interchangeably and shall not mean “may”.
10.9 Customer Confirmation: Customer expressly acknowledges and agrees that it has carefully read and understood this Agreement and has either obtained, or independently chosen to not to obtain, independent legal advice before accepting the terms of this Agreement.