LAST UPDATED: 2020 PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. IF YOU HAVE A WRITTEN AGREEMENT WITH ELSE FOR THESE SERVICES, THEN THAT AGREEMENT WILL GOVERN, AND THE AGREEMENT BELOW WILL NOT APPLY.
This agreement is between Les Services Else Inc a Canada corporation (Else), and the user agreeing to this agreement (User).
1. INVENTORY AND ORDER MANAGEMENTSERVICE.
This agreement provides User with access to and usage of anInternet-based inventory and order management software service as specified onan order and as further outlined at: else.app (Service). All Service weband mobile app users need to download and install the web or mobile app thataccompanies the Service, and usage of such web or web and mobile apps aregoverned under the terms of the end user license agreement provided with that app.
2. USE OF SERVICE.
a. Trial. If User has notagreed to pay for the Service, then User is under a trial period as designatedby Else. During the trial period, the Service is provided AS IS. All data willbe deleted at the end of trial period, unless User converts to a paid account.
b. User Owned Data. All datauploaded by User remains the property of User, as between Else and User (UserData). User grants Else the right to use the User Data solely for purposes ofperforming under this agreement. During the term of this agreement, User mayexport or print reports regarding certain User Data as allowed by functionalitywithin the Service.
c. Contractors andEmployee Access and Usage.User may allow its contractors (including withoutlimitation, third party logistics companies) and employees to access theService in compliance with the terms of this agreement, which access must befor the sole benefit of User. User is responsible for the compliance with thisagreement by its contractors and its employees.
d. UserResponsibilities. User (i) must keep its passwords secure and confidential; (ii) issolely responsible for User Data and all activity in its account in theService; (iii) must use commercially reasonable efforts to prevent unauthorizedaccess to its account, and notify Else promptly of any such unauthorizedaccess; and (iv) may use the Service only in accordance with the Service’s UserGuide and applicable law.
e. Else Support. Else mustprovide user support for the Service under the terms of Else’sSupport and Maintenance Terms (Support), and is incorporatedinto this agreement for all purposes.
3. BETA RELEASES.
From time to time, Else may grant User access to “alpha”, “beta”, orother early-stage products (“Beta Releases“). While Else may provide assistancewith Beta Releases in its discretion, notwithstanding anything to the contraryin this Agreement, USER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS”AND “AS AVAILABLE” BASIS. USER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASESMAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS,OMISSIONS, AND OTHER PROBLEMS FOR WHICH ELSE WILL NOT BE RESPONSIBLE.ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT USER’S SOLE RISK. Else makes nopromises that future versions of a Beta Release will be released. Else mayterminate User’s right to use any Beta Release at any time for any reason or noreason in Else’s sole discretion, without liability.
User must payall fees as specified on the order, but if not specified then within 30 days ofreceipt of an invoice. No refunds of prepaid fees, unless otherwise provided inthis agreement. User is responsible for the payment of all sales, use,withholding, VAT and other similar taxes. Else may elect to charge you interestat the rate of 1.5% per month (or the highest rate permitted by law, if less)on all late payments. This agreement contemplates one or more orders for theService, which orders are governed by the terms of this agreement. User must provide current, complete and accurate billing and credit card information. Useragrees to pay all costs of collection, including attorney’s fees and costs, onany outstanding balance. In certain instances, the issuer of User’s credit cardmay charge User a foreign transaction fee or related charges, which User willbe responsible to pay.
5. MUTUAL CONFIDENTIALITY.
Definition of Confidential Information. ConfidentialInformation means all non-public information disclosed by a party (Discloser)to the other party (Recipient), whether orally or in writing, that isdesignated as confidential or that reasonably should be understood to beconfidential given the nature of the information and the circumstances ofdisclosure (Confidential Information). Else’s Confidential Information includeswithout limitation the Service (including without limitation the Service userinterface design and layout, and non-public pricing information).
a. Protection ofConfidential Information. The Recipient must use the same degree ofcare that it uses to protect the confidentiality of its own confidentialinformation (but in no event less than reasonable care) not to disclose or useany Confidential Information of the Discloser for any purpose outside the scopeof this agreement. The Recipient must make commercially reasonable efforts tolimit access to Confidential Information of Discloser to those of its employeesand contractors who need such access for purposes consistent with thisagreement and who have signed confidentiality agreements with Recipient no lessrestrictive than the confidentiality terms of this agreement.
b. Exclusions. ConfidentialInformation excludes information that: (i) is or becomesgenerally known to the public without breach of any obligation owed toDiscloser, (ii) was known to the Recipient prior to its disclosure by theDiscloser without breach of any obligation owed to the Discloser, (iii) isreceived from a third party without breach of any obligation owed to Discloser,or (iv) was independently developed by the Recipient without use or access tothe Confidential Information. The Recipient may disclose ConfidentialInformation to the extent required by law or court order, but will provideDiscloser with advance notice to seek a protective order.
6. ELSE PROPERTY.
Reservation of Rights. The software,workflow processes, user interface, designs, know-how and other technologiesprovided by Else as part of the Service are the proprietary property of Elseand its licensors, and all right, title and interest in and to such items,including all associated intellectual property rights, remain only with Else. Usermay not remove or modify any proprietary marking or restrictive legends in theService. Else reserves all rights unless expressly granted in this agreement.
a. User may not (i)sell, resell, rent or lease the Service; (ii) use the Service to store ortransmit infringing, unsolicited marketing emails, libelous, or otherwiseobjectionable, unlawful or tortious material, or to store or transmit materialin violation of third-party rights; (iii) interfere with or disrupt theintegrity or performance of the Service; (iv) attempt to gain unauthorizedaccess to the Service or their related systems or networks; (v) reverse engineerthe Service; or (vi) access the Service to build a competitive service orproduct, or copy any feature, function or graphic for competitive purposes.
b. Aggregate Data. During andafter the term of this agreement, Else may use and retains all rights in all non-personallyidentifiable data within the Service for purposes of enhancing the Service,aggregated statistical analysis, technical support and other internal andexternal business purposes.
7. TERM AND TERMINATION.
Term. This agreement continues untilall orders have expired or are terminated under Section 8(b) below.
a. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the otherparty may terminate this agreement at the end of a written 30-day notice/cureperiod, if the breach has not been cured.
b. Return of User Data. Within 60-daysafter termination, upon request Else will make the Service available for Userto export such data as provided in Section 2(b).
After such 60-day period, Else has no obligation to maintain the User Data andmay destroy it.
c. Return Else PropertyUpon Termination. Upon termination of this agreement for any reason, User must pay Elsefor any unpaid amounts, and destroy or return all property of Else. Upon Else’srequest, User will confirm in writing its compliance with this destruction orreturn requirement.
d. Suspension forViolations of Law. Else may temporarily suspend the Service or remove the applicable UserData, or both, if it in good faith believes that, as part of using the Service,User has violated a law. Else will attempt to contact User in advance.
8. LIABILITY LIMIT. EXCLUSION OF INDIRECT DAMAGES.
Else is not liablefor any indirect, special, incidental or consequential damages arising out ofor related to this agreement (including, without limitation, costs of delay;loss of data, records or information; and lost profits), even if it knows ofthe possibility of such damage or loss.
a. TOTAL LIMIT ONLIABILITY. Else’s total liability arising out of or related to this agreement(whether in contract, tort or otherwise) does not exceed the amount paid by Userwithin the 12-month period prior to the event that gave rise to the liability.
Defense of Third Party Claims. Else willdefend or settle any third-party claim against User to the extent that suchclaim alleges that the Else technology used to provide the Service violates acopyright, patent, trademark or other intellectual property right, if User,promptly notifies Else of the claim in writing, cooperates with Else in thedefense, and allows Else to solely control the defense or settlement of theclaim. Costs. Else will pay infringement claim defense costs incurred aspart of its obligations above, and Else negotiated settlement amounts, andcourt awarded damages. Process. If such a claim appears likely, then Else maymodify the Service, procure the necessary rights, or replace it with thefunctional equivalent. If Else determines that none of these are reasonablyavailable, then Else may terminate the Service and refund any prepaid andunused fees. Exclusions. Else has no obligation for any claim arising from: Else’scompliance with User’s specifications; A combination of the Service with othertechnology where the infringement would not occur but for the combination; Useof User Data; or Technology not provided by Else. This section contains User’sexclusive remedies and Else’s sole liability for intellectual propertyinfringement claims.
a. User Indemnity. To the extent allowed by law, if any third-party brings a claim against Else related to User acts, omissions,data or information within the Services, User must defend, indemnify and hold Else harmless from and against all damages, losses, and expenses of any kind(including reasonable legal fees and costs) related to such claim.
10. GOVERNING LAW ANDARBITRATION.
This Agreement is governed by the laws of Québec,without regard to conflict of laws principles. Any dispute between Userand Else arising out of or related to this agreement must be determined bybinding arbitration in Montreal, QC, CA. Depending on whether User is located in Canada or outside of Canada. The decisions of the arbitrators may be entered in any court of competent jurisdiction. Nothing in this Agreement prevents either party from seeking injunctive reliefin any court of competent jurisdiction. The prevailing party in anyarbitration or litigation is entitled to recover its attorneys’ fees and costsfrom the other party.
11. OTHER TERMS.
Entire Agreement and Changes. This agreementand the order constitute the entire agreement between the parties and supersedeany prior or contemporaneous negotiations or agreements, whether oral orwritten, related to this subject matter. User is not relying on anyrepresentation concerning this subject matter, oral or written, not included inthis agreement. No representation, promise or inducement not included in thisagreement is binding. No modification of this agreement is effective unlessboth parties sign it or User agrees to a new agreement or modification asprovided by an online process designated by Else, and no waiver is effectiveunless the party waiving the right signs a waiver in writing.
a. No Assignment. Neither partymay assign or transfer this agreement or an order to a third party, except thatthis agreement with all orders may be assigned, without the consent of theother party, as part of a merger, or sale of substantially all the assets, of aparty.
b. Independent Contractors. The parties are independent contractors with respect to eachother.
c. Enforceability andForce Majeure. If any term of this agreement is invalid or unenforceable, the otherterms remain in effect. Except for the payment of monies, neither party isliable for events beyond its reasonable control, including, without limitationforce majeure events.
d. Money DamagesInsufficient Any breach by a party of this agreement or violation of the otherparty’s intellectual property rights could cause irreparable injury or harm tothe other party. The other party may seek a court order to stop any breach oravoid any future breach.
e. No Additional Terms. Else rejectsadditional or conflicting terms of any User form-purchasing document.
f. Order of Precedence. If there is aninconsistency between this agreement and an order, the order prevails.
g. Survival of Terms Any terms thatby their nature survive termination of this agreement for a party to assert itsrights and receive the protections of this agreement, will survive. The UNConvention on Contracts for the International Sale of Goods does not apply.
h. Feedback. If Userprovides feedback or suggestions about the Service, then Else (and those it allowsto use its technology) may use such information without obligation to User.
Address: 214-2525 Boulevard Cavendish Montreal, Quebec