Effective Date: June 5, 2025
Terms of Services
You will find the general terms of services below. If you wish to consult the specific terms of services for buyers and suppliers, please take a look at the options below.
Date: June 5, 2025
General Terms of Services
SCHEDULE C – GENERAL TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
Definitions. In addition to the definitions found elsewhere in these General Terms and Conditions or any other Schedule, the following definitions apply to the Agreement:
"Affiliate" means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than 50% of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity.
“Axya Intellectual Property” means all Intellectual Property developed by or first conceived or reduced to practice by Axya, its Affiliates, its licensors or by any third party on Axya’s behalf relating to the Platform, Platform Data, the Services, the Documentation, all related products or services and any other Axya products or services.
“Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including any information relating to the existence or content of the Agreement, the Services, the Documentation, the Deliverables, Client Data, and a Party’s business, products, services, activities, operations, business affairs, clients and prospects, Intellectual Property (of either Party), technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential; and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing.
"Client Data" means any and all electronic data or other information that is: (i) uploaded or inputted by Client to the Platform; (ii) stored by Client via the Services; or (iii) provided by Client to Axya to be used in connection with the Services.
“Client Intellectual Property” means all Intellectual Property developed by or first conceived or reduced to practice by Client, its Affiliates, its licensors or by any third party on Client’s behalf provided to Axya during the course Term of the Agreement.
“Documentation” means all documents, user manuals or other information, available in writing, online or otherwise, relating to the Platform and the Services provided by Axya.
"Force Majeure" means any circumstances beyond a Party's reasonable control, including natural disasters, acts of government, floods, fires, earthquakes, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency civil unrest, terrorism, strikes or other labour problems (other than those involving such Party’s employees), internet service provider failures or delays, or denial of service attacks.
“Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including all source and object codes, algorithms, architectures, structures, user interfaces, display screens, lay-out and development tools), databases, designs, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration.
“Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing, in effect worldwide.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Module” means any of the four modules (RFQ Management, PO Management, Supplier Management and Contract Management) that are part of the Platform.
“Patches” means updates, upgrades, patches, bug fixes and other interim modifications applicable to the Platform Services.
“Platform” means the Axya proprietary online procurement software tailored for manufacturing companies which includes the Modules and various additional functions.
“Platform Data” means (i) any and all data provided by Axya through the Platform; and (ii) any and all data (other than Client Data) generated by the Platform, including (a) all metadata; and (b) any Client Data that has been transformed by the Platform or converted by the Platform into anonymous and/or non-Client identifiable data. Client acknowledges that Platform Data is used, among other things, as inputs for the proprietary algorithms of the Platform.
“Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Supplier” means an individual or entity who may supply parts, equipment or materials to the Client and who interacts with the Client through or via the Platform in any way.
“Trademarks” means trademarks, tradenames, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin, whether registered or not, and any goodwill associated therewith.
“User” means an employee of Client or its Affiliates or an independent contractor, consultant or agent of Client or its Affiliates: (i) who is authorized by Client to access and use the Services; (ii) for whom a subscription to the Services have been ordered or is included in a subscription package; and (iii) who has been supplied user identification codes and passwords by Client (or by Axya at Client's request). It is understood that Users are not clients or customers of Client or its Affiliates.
Expressions. Where the word “including” or the word “includes” is used in the Agreement, it means “including (or includes) without limitation”.
Order of Precedence. In the event of any inconsistencies between the provisions set forth in these General Terms and Conditions and any of the Service Agreement’s Schedules, the provisions of the Service Agreement’s Schedules shall prevail.
Standard Forms. Nothing in Client standard forms or any other documents transmitted by Client in connection with the Agreement shall be construed to modify, amend or supplement the terms of the Agreement.
Currency. Unless otherwise specified, all references in the Agreement to sums of money are expressed in lawful money of Canada and “$” refers to Canadian dollars.
Negotiation. The Parties acknowledge that the Agreement has been freely negotiated between them and is not a contract of adhesion under Quebec law.
Language. The Parties have requested that this Agreement and all documents related thereto be drafted in English. Les Parties ont exigé que le Contrat, ainsi que tous les documents y afférents, soient rédigés en anglais.
SERVICES
Scope of Services. Subject to the terms and conditions of the Agreement and payment in full of the applicable Fees, Axya shall (i) make the Platform available to Client and its Affiliates (the “Platform Services”); and (ii) provide any additional services as further set out in any Service Agreement’s Schedules (the “Additional Services” which include Development Services, and collectively with the Platform Services, the “Services”).
Specifications. Access and use of the Services by Client, its Affiliates and the Users shall be subject to specifications and/or restrictions set forth in the Agreement.
Assumptions. Client acknowledges and agrees that Axya’s performance of the Services is dependent on: (A) the information provided by Client; (B) the assumptions, if any, made by Axya in the Agreement; and (C) Client’s timely and effective satisfaction of all Client obligations.
PLATFORM SERVICES
Scope and License Grant. Axya shall make the Platform available to Client and Users, subject to the terms set out elsewhere in the Agreement. Axya shall use commercially reasonable efforts to make the Platform Services available 24 hours a day, 7 days a week. Axya hereby grants Client a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license (except to Affiliates and Users) to use the Platform including the Modules specified in the Service Agreement during the Term.
Service Suspension. Axya may suspend Client’s account, access to or use of the Platform if: (i) Client, its Affiliates or a User breaches any provision of the Agreement, and such breach is not remedied within 15 days of Client receiving written notice from Axya; (ii) Axya detects fraud, a security breach or any other similar threat that causes or that could cause, in Axya’s reasonable opinion, damage to the Platform, Axya’s IT infrastructure or Client Data; or (iii) Axya is undertaking scheduled maintenance. Axya will use commercially reasonable efforts to restore the access to or use of the Platform, as soon as possible after the suspension. Any suspension by Axya of the Platform Services in application of this Section 3 shall not release Client from its payment obligations under the Agreement.
ADDITIONAL SERVICES
Additional Services. Axya may provide the Development Services further to the Service Agreement, and shall perform the Additional Services specified in the Service Agreement’s Schedules.
Development Services. Axya shall provide Client with a submission / quotation for Development Services upon request of Client, in a form to be determined by Axya.
CLIENT OBLIGATIONS AND RESPONSIBILITIES
Use; Equipment. Client shall: (i) be responsible for the means by which Client acquires Client Data, the accuracy, quality, legality and use of Client Data (which includes Client having obtained all license and other rights for the use of Client Data by Axya under this Agreement); (ii) implement commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Axya promptly of any such unauthorized access or use; (iii) use the Services only in accordance with the Agreement and the Documentation and applicable laws and government regulations; and (iv) be responsible for the purchase and maintenance in good working order of all the equipment (including network equipment and systems), software and internet connection necessary to access and use the Services.
Restrictions. Access and use of the Platform by Client, its Affiliates and the Users may be subject to additional specifications and/or restrictions set forth in the Service Agreement’s Schedules. Except as provided herein, Client may not: (i) loan, rent, lease, transfer, convey, assign, sell or distribute the Services or grant sublicenses for the Services or any part thereof; (ii) modify, combine or distribute the Platform Services (or any part thereof) with any other software or code in a manner that would subject the Platform Services to open source license terms; (iii) use the Platform Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material (including Client Data) in violation of third party privacy rights; (iv) use the Platform Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services; (vi) copy, frame or mirror any part or content of the Platform Services, other than copying or framing on Client’s own intranets or otherwise for Client’s own internal operational purposes; (vii) reverse engineer, decompile or disassemble the Platform Services or attempt to gain unauthorized access to the Platform or Axya’s systems or networks; or (ix) use or access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.
Assistance and Information. Client shall provide Axya with all necessary Client Data, information and assistance for the proper functioning of the Platform and for the performance of Axya’s obligations hereunder or otherwise that is reasonably requested by Axya. Without limiting the generality of the foregoing, Client shall update all required Client Data inputs, parameters and settings on the Platform on a regular basis.
Passwords. Client is solely responsible (i) for preserving the confidentiality of the Users’ user identifications and passwords; and (ii) for restricting or protecting access to Client equipment (hardware and software) required to access and use the Platform Services.
Users. Client is responsible for all use and misuse of the Services by its Affiliates or Users, or their breach of the terms of the Agreement, and shall indemnify Axya for any damages, costs and expenses suffered as a result of such use, misuse or breach.
CLIENT PLATFORM USE AND RELATIONSHIP WITH SUPPLIERS
Permitted Use. Client may use the Platform solely to: (a) issue a request for a quote, information, tender or proposal (“RFQ”) for parts and materials that Client is seeking; (b) review quotes and responses to an RFQ made available by Suppliers with the objective of entering into a Supplier-Client Agreement (as defined below); (c) connect with matched Suppliers; (d) upload and centralize the documents required for subcontracting and processing of purchase orders (“PO”s); (e) follow the progress of the production of requested parts and materials and POs; and (f) use any other function presented through the Platform from time to time.
Agreements with Suppliers. The Platform is designed to facilitate and provide the necessary assistance to complete the steps required to issue a RFQ and have Client be matched with Suppliers and manage POs. Client may enter an agreement with any Supplier (a “Supplier-Cient Agreement”) by contacting the Supplier and negotiating terms with the Supplier directly. Axya has no role in negotiating or completing any Supplier-Client Agreement or any terms thereof, and disclaims all responsibility relating to any matter relating to a Supplier-Cient Agreement.
Additional Disclaimers and Acknowledgments Regarding Supplier-Client Agreements. Client acknowledges and agrees that: (i) Axya is not a party to any Supplier-Client Agreement; (ii) Axya will be in no way responsible for the payment to, or the performance of, any Supplier under any Supplier-Client Agreement; (iii) Axya does not make any representations or warranties of any kind with respect to a Supplier or a Supplier-Client Agreement; (iv) Axya is not an agent or representative of Client or any Supplier; (v) Axya does not facilitate any payments between Client and Suppliers under any Supplier-Client Agreement; any (vi) Axya shall in no way be responsible for any fee dispute or any other disputed matter between a Supplier and Client, and Client shall be responsible for resolving such disputes without any involvement of Axya.
Disclaimer Regarding Suppliers. SUPPLIERS ARE INDEPENDENT LEGAL PERSONS AND NOT PARTNERS, AGENTS OR EMPLOYEES OF AXYA. CLIENT ACKNOWLEDGES AND AGREES THAT AXYA ONLY PROVIDES QUOTES FROM SUPPLIERS AND HAS NO CONTROL OVER THE QUALITY, PUNCTUALITY, KNOWLEDGE, TRAINING OR LEGALITY OF THE SERVICES OR PRODUCTS THAT SUPPLIERS DELIVER. AXYA SHALL NOT BE LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY SUPPLIER OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGES OR EXPENSES RESULTING FROM ANY ACTS, ERRORS OR OMISSIONS OF ANY SUPPLIER OR ANY SUPPLIER-CLIENT AGREEMENT. AXYA CLAIMS NO RESPONSIBILITY WHATSOEVER RELATED TO ANY SUPPLIER-CLIENT AGREEMENTS ENTERED INTO BY CLIENT AND ANY SUPPLIERS (INCLUDING ANY DELAYED OR INCORRECT PAYMENTS OR NON-PAYMENTS UNDER SUCH SUPPLIER-CLIENT AGREEMENTS). AXYA DOES NOT RECOMMEND OR ENDORSE ANY SUPPLIERS AND RECOMMENDS THAT CLIENT PERFORM ITS OWN DUE DILIGENCE BEFORE CONTACTING ANY SUPPLIER OR ENTERING INTO ANY SUPPLIER-CLIENT AGREEMENT.
PRIVACY AND DATA PROTECTION
Protection of Client Data. Axya maintains appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Client Data. Axya shall not access Client Data except: (i) in connection with the performance of its obligations hereunder; (ii) to prevent or address service or technical problems; or (iii) at Client’s request in connection with Client support matters. In no event will Axya share Client Data with any third parties other than to its subcontractors who need to have access to Client Data for the performance of Axya’s obligations hereunder, or as required by applicable law or a governmental authority.
Client Data Retention and Deletion. Axya will retain any Client Data in its possession until deleted in accordance with the Agreement. Except as otherwise required by applicable law, Axya may delete all Client Data in its possession (i) within 30 days after the termination of the Agreement; and (ii) within a commercially reasonable period of time after receiving Client’s written request in respect thereof.
Privacy Laws Compliance. Client represents and warrants that it will comply with all applicable privacy laws and regulations, including with respect to the collection, use, Processing, disclosure and handling of personal information that is part of Client Data or that is otherwise provided to Axya for the purposes of this Agreement. Without limitation of the foregoing, Client represents, warrants, and covenants that: (i) it has (and will have) provided any notice and obtained all consents and rights required by applicable law to enable Axya to lawfully Process Client Data as permitted by this Agreement; (ii) it has the full right and authority to make Client Data available to Axya under this Agreement; and (iii) Axya’s Processing of Client Data in accordance with this Agreement will not infringe upon or violate any applicable laws or any rights of any third party. Axya represents and warrants that it will comply with all applicable laws (including privacy laws) and regulations with respect to the handling of Client Data.
Data Leak. Axya will promptly notify Client of any exposure or misappropriation of Client Data from the Platform (“Leak”) that comes to Axya’s attention. Axya will reasonably cooperate with Client and with law enforcement authorities in investigating any such Leak, at Client’s expense. Axya will likewise reasonably cooperate with Client and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at Client's expense, except to the extent that the Leak was caused by Axya’s intentional or gross fault.
INTELLECTUAL PROPERTY
Axya Property. Axya (or its licensors) retains any and all rights, title and interest (including all Intellectual Property Rights) in and to: (i) the Platform, including any Patches, enhancements or other modifications to the Platform; (ii) Platform Data; (iii) the Axya Intellectual Property; (iv) the Documentation relating to any of the foregoing; and (v) all Axya Trademarks. Client will acquire no rights or licenses to any Axya property unless otherwise expressly provided in the Agreement. Client shall not remove any Intellectual Property Rights notice that appears on the Documentation or that is redisplayed through or embodied in the Services.
Client Property and Licenses. Client owns all rights, title, and interest in and to Client Data, Client Intellectual Property and Client Trademarks, including all Intellectual Property Rights therein and thereto. Client grants Axya a royalty-free, worldwide and non-exclusive license to host, use, copy, reproduce, display, save, Process and transmit Client Data, Client Intellectual Property and Client Trademarks for the purposes of, and to the extent necessary for, the operation of the Platform and the provision of the Services.
Ownership of Deliverables. Unless otherwise agreed in writing between the Parties, all rights, title and interest in and to the deliverables and work products (including, without limitation software, specifications, reports, notes, interfaces and Documentation) provided by Axya under the Agreement as a result of the performance of the Services (collectively, the “Deliverables”), and all related Intellectual Property Rights thereto, shall remain Axya’s sole property, except for any Client Intellectual Property or Client Data included therein. Axya hereby grants Client and Users a limited, royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license to use the Deliverables during the Term of the Agreement.
Feedback. Axya shall own all rights, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services that Client (including any of the Users) may, alone or jointly with Axya, propose or make during the term of the Agreement (collectively, “Feedback”). Client hereby irrevocably (i) assigns all rights, title and interest in and to the Feedback to Axya; and (ii) waives in favour of Axya, its successors and assigns any and all moral rights that Client has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction.
FEES AND TAXES
Fees and Payment Terms. In consideration of the Services, Client shall pay the fees set out in the Service Agreement of the Agreement (the “Fees”). Payment terms are set out in the Service Agreement. The Fees are not refundable or reimbursable, except as otherwise provided for in the Agreement.
Suspension of Services. If any amount owing by Client under the Agreement is overdue by more than 30 days from the date of the applicable invoice, Axya may, without limiting Axya's other rights and remedies, suspend the Services to Client until such amounts are paid in full.
Interest. In addition to any other rights or remedies of Axya, any uncontested amount not paid by Client when due shall bear interest at the rate that is the lesser of 1.5% per month or the maximum rate allowable by law.
Taxes. Unless expressly stated in the Service Agreement, the Fees and costs set forth in the Agreement do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. Axya will invoice the Client for any applicable taxes.
TERM AND TERMINATION
Term and Renewal. The Term of the Agreement and renewal is specified in the Service Agreement.
Termination for Convenience. Either Party may terminate this Agreement, at any time upon 90 days’ prior written notice to the other Party.
Termination for Cause. Each Party may terminate the Agreement, at any time: (i) if the other Party is in breach of any of its material obligations hereunder as applicable, and such breach is not cured within 15 days after a written notice delivered to the Party in default; or (ii) by written notice to the other Party, if such other Party takes or is bound by any person to take one of the following measures: (a) an assignment, an arrangement or a comparable act in favour of its creditors; (b) seizure or receivership of its assets; (c) the filing of a petition in view of bankruptcy, insolvency or relief of debtors or the instituting of any proceedings related to bankruptcy, insolvency or the relief of debtors; (d) the execution or threat of execution of any act of bankruptcy; or (e) the liquidation, winding-up or dissolution of the enterprise in application of a court order rendered by a competent court.
Consequence of Early Termination. If Client terminates this Agreement for convenience pursuant to Section 10.2, all Fees owed to Axya until the end of the then current Term shall remain due by Client if not already paid, and/or the Client shall not be entitled to any refund of Fees already paid, notwithstanding Client’s rights under articles 2125 and following of the Civil Code of Quebec, which are hereby expressly waived by Client.
Recourse. The termination of the Agreement for any reason whatsoever, will in no way affect either Party’s rights and recourses against the other Party, at law or in equity, for damages for failure to discharge an obligation under the Agreement.
Effect of Termination. At the expiry or termination of the Agreement: (i) Client will cease to have access to the Platform; (ii) Axya shall be entitled to the payment of any Fees accrued as of the date of termination or owing; (iv) Recipient shall return immediately to Discloser (such as these terms are defined in Section 13.1) all Confidential Information and all copies thereof in any form whatsoever under the possession or control of Recipient that relate to the Agreement, or destroy said Confidential Information and its copies, as directed by Discloser; and (v) except in the case of a written agreement to the contrary between the Parties, Axya, without incurring any liability to Client or any third party, may delete all Client Data found in Axya’s systems or otherwise in Axya’s possession or control in accordance with Section 7.2.
Surviving Provisions. The provisions of this Agreement which should by their very nature survive termination shall survive termination.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of Client. Client represents and warrants to Axya that: (i) Client is a corporation, duly incorporated, organized and in good standing under the laws of its jurisdiction of formation; (ii) Client has the full right, power and authority to enter into the Agreement; (iii) Client has (or shall obtain) all necessary rights and consents to Client Data and Client Intellectual Property to grant Axya the licenses granted hereunder (including to enable Axya to lawfully Process Client Data as permitted by this Agreement); and (iv) to its knowledge, any licenses granted hereunder to Axya do not breach or violate any third party Intellectual Property Rights.
Representations and Warranties of Axya. Axya represents and warrants to Client that: (i) Axya is a corporation, duly incorporated, organized and in good standing under the laws of Quebec; (ii) Axya has the full right, power and authority to enter into the Agreement; (iii) Axya has all the rights necessary to provide the Services; (iv) to its knowledge, the provision of the Services does not violate any third party Intellectual Property Rights; (v) Axya, its employees and subcontractors have the necessary knowledge, experience, and skills to perform the Services; (vi) Axya has and/or will acquire and maintain all licenses and permits required of them in order to perform the Services; and (vii) the Services will be performed in a competent and professional manner.
Warranty Disclaimer. AXYA DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICES OR CLIENT DATA WILL REMAIN VIRUS-FREE. EXCEPT TO THE EXTENT SET FORTH IN SECTION 11.2, AXYA EXPRESSLY DECLINES, ON ITS OWN BEHALF AND ON BEHALF OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS, AND LICENSORS ANY AND ALL EXPRESS, LEGAL OR IMPLICIT REPRESENTATIONS, WARRANTIES AND CONDITIONS NOT CONTAINED HEREIN, INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS OF COMMERCIALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY. IN PARTICULAR, AXYA EXPRESSLY DECLINES THE FOLLOWING AND MAKES NO REPRESENTATION OR WARRANTY IN THESE REGARDS: (I) THE FACT THAT THE SERVICES WILL MEET CLIENT’S OPERATIONAL REQUIREMENTS; (II) THE FACT THAT THE OPERATION OF THE PLATFORM SERVICES AND THE DELIVERABLES WILL BE ERROR-FREE OR UNINTERRUPTED OR, THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; AND (III) THE FACT THAT ALL PROGRAMMING OR PLATFORM SERVICE ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED.
INDEMNIFICATION; LIMITATION OF LIABILITY
Indemnification. Client agrees to indemnify, hold harmless and defend Axya and its shareholders, directors, officers, employees, agents, representatives, successors and assigns from and against any and all claims, actions, losses, liabilities, damages, judgments, interest, fines penalties, costs and expenses of any kind or nature, including reasonable attorneys’ fees and all other expenses of investigation and defense relating to any claim or dispute of a third party (collectively, “Losses”), arising out of, relating to, resulting from or in connection with: (i) Client’s or any User’s breach of or activities under this Agreement (including any failure to fulfill the Client Responsibilities or comply with its obligations under this Agreement); (ii) Client’s or any User’s use of the Services (including for greater certainty, its interpretation and use of any reports, summaries, statements or other documents generated by the Platform); (iii) any disputes between the Client and Suppliers or any matter relating to any Supplier-Client Agreement; or (iv) any disputes in connection any third-party services provided directly or indirectly as a result of the Platform
Exclusion of Certain Damages. Axya shall not be liable for any losses or damages arising directly or indirectly from (i) the modification or alteration in any manner by Client of any part of the Platform; (ii) the use of any Client Data and any other materials provided by Client hereunder; (iii) any offline activity imitated by the Platform, including any Supplier-Client Agreement; and (iv) any failure by Client to comply with its obligations under Section 5.
Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT MAY EITHER PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS AND LICENSORS BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES; OR (II) ANY LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER FINANCIAL LOSS, ARISING DIRECTLY OR INDIRECTLY FROM THE AGREEMENT, OR CAUSED BY THE SERVICES OR THE PLATFORM, ANY OFFLINE ACTIVITY INITIATED BY THE PLATFORM, OR THE MISUSE OR INABILITY TO USE THE SERVICES, THE PLATFORM, THE DELIVERABLES OR THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION: WHETHER IN CONTRACTUAL LIABILITY, APPLICATION OF THE WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY OF MANUFACTURERS AND VENDORS, STRICT CIVIL LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
Amount Limitation. THE OVERALL LIABILITY OF AXYA AND ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS AND LICENSORS, IN RESPECT OF CLAIMS OF CLIENT OR OF ANY OTHER PERSON ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CLIENT TO AXYA UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES.
CONFIDENTIALITY
Obligation of Confidentiality. The Party (“Recipient”) receiving from the other Party (“Discloser”) any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect such information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information (but at least with a reasonable degree of care).
Use of Confidential Information. Recipient may not use Discloser's Confidential Information in any manner except as reasonably required for the purpose of the Agreement or as permitted herein.
Disclosure. Recipient shall not, without Discloser’s prior written consent, disclose Discloser’s Confidential Information to any third party, except to those of its employees, consultants, and subcontractors who have a need-to-know Confidential Information for the purpose of this Agreement and who are bound by confidentiality provisions at least as stringent as those set out herein. Recipient remains liable for any breach of the terms of this Section 12 by its employees, consultants, or subcontractors (including, in the case of Client, the Users).
Exclusions. The restrictions imposed by this Section 13 shall not apply to Confidential Information that Recipient can demonstrate (i) is now, or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available to the public without breach of this Agreement; (ii) is known to Recipient at the time of disclosure of such Confidential Information provided that Recipient can satisfactorily demonstrate such prior knowledge by appropriate written records antedating the disclosure and that such knowledge was not gained from third parties through breach of secrecy; (iii) is hereafter furnished to Recipient in good faith by a third party without breach by such third party, either directly or indirectly, of an obligation of secrecy to Discloser; or (iv) is approved for such use or disclosure by written authorization of Discloser.
Legal Disclosure. In the event that Recipient becomes legally compelled to disclose any portion of Discloser’s Confidential Information, Recipient immediately shall give notice thereof to Discloser and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse.
Injunctive Relief. Each Party acknowledges and agrees that the remedies at law for the breach of any of the provisions of this Section 13 may be insufficient, that such breach will cause irreparable harm within a short period of time and that the other Party shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the other Party shall have at law and in equity for the enforcement of those undertakings and provisions.
GENERAL
Publicity. Neither Party shall publicize or disclose to any third party the existence or provisions of the Agreement or any of the fees, terms or conditions hereof, without the prior written consent of the other Party. Notwithstanding the foregoing, Client acknowledges and agrees that Axya may mention, in its corporate brochures, marketing material, press releases, social media and website, that Client is a Client of Axya and uses the Services. In that regard, Client agrees that Axya may use Client's corporate names and logos, subject to applicable Client trademark and logo policies.
Subcontracting. Axya may subcontract any of or all of its obligations under the Agreement to any third party. Axya shall be responsible for any acts, errors or omissions of such sub-contractors.
Applicable Laws and Competent Courts. The Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination shall be submitted to the exclusive jurisdiction of the courts of the Province of Québec, Canada (District of Montreal). The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
Force Majeure. In no event shall either Party be responsible or liable for any failure or delay in the performance of its obligations hereunder (except for any payment obligations) arising out of or caused, directly or indirectly, by a Force Majeure event; it being understood that the Party subject to a Force Majeure event shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
Relationship Between the Parties. The Agreement is an agreement between independent legal entities and nothing in this Agreement shall be construed as creating an employer-employee relationship (including between Client and any employee or subcontractor of Axya), a partnership or a joint venture. Except as otherwise expressly agreed between the Parties, Client will not have control over Axya or its employees or subcontractors. Axya has the sole responsibility to comply with all laws, rules and regulations relating to the provision of the Services, including requirements under applicable laws for deducting any and all applicable taxes, deductions, premiums and amounts owing with respect to the Fees. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party.
Entire Agreement. The Agreement (including its Schedules A through E which form an integral part thereof), constitutes the complete agreement between the Parties and cancels and replaces all prior or concomitant agreements, representations or warranties, oral or written, between the Parties concerning the subject matter of the Agreement. The Agreement may not be modified or amended, in whole or in part, except in writing signed by a duly authorized representative of each Party; no other act, document, usage or custom will be deemed to modify the Agreement.
Assignment. Neither Party may assign the Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; provided, however, that Axya may, without such consent, assign the Agreement (i) to any person in the event of a transfer of all of its shares, all or substantially all of its assets, a merger, amalgamation or similar business combination; or (ii) to an Affiliate in connection with an internal reorganization.
Successors and Assigns. All obligations set forth in the Agreement will bind and apply to the benefit of the respective successors and assigns of the Parties.
Severability. If a competent court rules a provision of the Agreement invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of the Agreement shall in no way be affected or compromised.
Waiver. The failure of a Party to enforce any provision of the Agreement shall not constitute a waiver of such provision or the right of such Party to enforce such provision and every other provision.
Notices. All notices, demands or other communications required or permitted to be given or made under the Agreement shall be in writing and delivered personally or sent by prepaid registered post or by email addressed to the intended recipient thereof at its address or email address, and marked for the attention of such person as is set out on the Cover and Signature Page of this Agreement, or at such other address as a Party may by notice advise.
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