MASTER TERMS & CONDITIONS

This Customer Agreement (the “Agreement”) is between you (“you”, “your” or the “Customer”) and SuccessFinder Inc. (“SF”, “us” or “our”). You and SF are collectively referred to as the “Parties” or individually, a “Party”.

If you are agreeing to this Agreement not as an individual but on behalf of your company or other legal entity, then “Customer” or “you” or “your” shall refer to such entity, and you represent that you have the authority to bind such entity to this Agreement and you are binding your company or other legal entity to this Agreement.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY USING OR ACCESSING THE PLATFORM AND/OR THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. Scope

This Agreement governs each Order, as well as any future purchases made by you that reference this Agreement. You are responsible for compliance with this Agreement by all your Authorized Users.

2. Access and Use

Subject to payment of all applicable Fees set forth in the Order and the terms and conditions of this Agreement, SF grants you, during the Order Term, a non-exclusive, non-transferable right to access and use (and permit your Authorized Users to access and use) the Platform, the Services, and applicable Documentation solely for your internal business purposes in accordance with the Documentation and in the quantity/volume specified in the applicable Order.

3. Third-Party Applications

Use of the Platform and Services requires certain third-party applications, including a web-browser and an operating system. The third-party applications supported by SF are as set forth in the Documentation. We reserve the right to update our technical requirements and will provide you with an update when changes occur.

4. Upgrades and Updates

We reserve the right to (a) modify the Platform and its components; or (b) substitute any or all such components with their substantial equivalent; or (c) change existing infrastructure, hardware and underlying software used to provide the Platform as expansion and new technology deem necessary.

5. Login Access to the Platform

You are solely responsible for ensuring that: (a) only Authorized Users have access to the Platform; (b) your Customer Account Users have been certified in proper use of the applicable Services, and (c) proper usage of passwords and access procedures with respect to logging into the Platform. You must ensure that your Authorized Users keep their passwords for access to the Platform strictly confidential and do not share such information with any unauthorized person. You are responsible for all actions taken using your Customer Account and passwords, and agrees to promptly notify us of any unauthorized use of which you become aware.

6. Access and Use Restrictions

Neither you nor your Authorized Users shall (directly or indirectly): (a) copy or reproduce the Platform, the Services or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the Platform and the Services as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the Platform, the Services, Documentation or other SF Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to you under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the Platform or the Services; (f) except to the limited extent applicable laws specifically prohibiting such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the Platform or the Services, (g) attempt to recreate the Platform or the Services or use the Platform or the Services for any competitive or benchmark purposes; (h) create, translate or otherwise prepare derivative works based upon the Platform, the Services, the Documentation or other SF Property; (i) interfere with or disrupt the integrity or performance of the Platform; (j) attempt to gain unauthorized access to the Platform or its related systems or networks, or perform unauthorized penetrating testing on the Platform; (k) use the Platform in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party.

7. Fees
7.1. Fees

You shall pay all fees as specified in the Order (the “Fees”). Unless otherwise stated in the Order, Fees are quoted and payable in Canadian dollars. Any usage of the Platform or the Services in excess of the amounts purchased in the applicable Order are subject to additional Fees. If, applicable, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us.

7.2. Payment Processing Services

We reserve the right, but are not obligated, to use an external PCI-DSS compliant payment processing service for all invoicing and receipt of payments under this Agreement. You authorize us to share payment information, which may include Personal Information, with such third-party payment processing service, including for the purpose of updating your payment method.

7.3. Non-payment

If any invoiced amount is not received by the due date, without limiting our rights and remedies, those charges may accrue at the rate of 1% per month or the maximum rate permitted by applicable Law, whichever is less. In the event a payment owed by you under an accurate invoice is overdue, we shall have the further right, at our sole option, to suspend your access to your Customer Account until payment is made.

7.4. Taxes

The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales or withholding taxes assessable by any local, provincial, federal or foreign jurisdiction (collectively “Taxes”). We will invoice you for such Taxes if we have a legal obligation to do so, and you shall pay Taxes if so invoiced.

8. Availability and Support

We will use commercially reasonable efforts to make the Platform and Services available 24 hours a day, 7 days a week, except for: (a) scheduled downtime (which we shall schedule to the extent practicable after business hours Eastern Time), (b) any unavailability caused by an Event of Force Majeure; or (c) as necessary to update the Platform and the Services to ensure their security and integrity. Our availa-bility metrics are available on our Status Page (status.successfinder.com). We will provide customer support in English and in French during Business Days from 9:00 a.m. to 5:00 p.m. (EST) year-round (except statutory holidays), through the following email address : support@succesfinder.com.

9. Ownership Rights
9.1. Intellectual Property

Except for the rights granted in this Agreement, all rights, title, and interest in and to the Platform, Services, Documentation, SF Property and Suggestions are hereby reserved exclusively by us and/or our licensors.

9.2. Customer Data

Between SF and you, you will retain all right, title and interest in and to Customer Data. Subject to the terms of this Agreement, you hereby grant to us a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of Customer Data, in each case solely to the extent necessary to provide the Services to you.

9.3. De-identified Data

You agree that SF can use the Customer Data to create de-identified and aggregated data not identifying you, your Authorized Users or any other individual for the use of assessment validation, benchmarking purposes, our own internal research and for the purpose of product development and improvement (“De-identified Data”). Between you and us, De-identified Data does constitute Customer Data and is owned by us.

9.4. Research Data

You agree that your Participants will be asked and may provide, at their entire discretion, sociodemographic information for our research purposes (“Research Data”). Such Research Data will not be shared with you or any third-party and shall only be used by us in an de-identified format for the purposes described in Section 9.3. Between you and us, Research Data does constitute Customer Data and is owned by us.

10. Security & Compliance
10.1. Security

We collect and process Customer Data in accordance with our Privacy Policy and implements technical, organisational and administrative security, measures and procedures to protect Customer Data.

10.2. Security Incident

In the event of an unauthorized or unlawful processing of, accidental loss of, destruction of or damage to Customer Data on our systems or premises (a “Security Incident”), we will promptly: (a) take such steps we reasonably deem appropriate to contain and control the Security Incident to prevent further unauthorized access to or misuse of the Customer Data; (b) notify you as soon as reasonably practicable thereafter of such Security Incident, but, in any event, not more than twenty-four (24) hours after we become aware of such Security Incident; and (c) unless prohibited by law, continue to provide periodic updates relating to the investigation and resolution of the Security Incident you until it has been resolved.

10.3. Data Protection Laws

The Parties shall comply with their respective obligations under Data Protection Laws. You are responsible to obtain any consent required by Data Protection Laws from your Authorized Users to allow us to process the Customer Data in in order to provide the Services to you in accordance with this Agreement.

11. Confidentiality

Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how, business, technical and financial information or any information specifically designated as confidential or that would reasonably be understood to be confidential or proprietary disclosed to such Party (“Receiving Party”) by the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”). Any SF Property any commercial terms (including pricing) of this Agreement or any Order (but not the mere existence of this Agreement) shall be deemed Confidential Information of SF without any marking or further designation. Except as expressly authorized herein, the Receiving Party will use (and will ensure that its employees, Affiliates, agents, contractors and any approved third parties) use reasonable efforts (which shall be no less than the efforts used to protect its own confidential or proprietary information of a similar nature) to prevent the disclosure of any Disclosing Party’s Confidential Information for any purpose other than as authorized by this Agreement unless authorized in writing by the Disclosing Party. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation towards the Disclosing Party; or (d) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

12. Term And Termination
12.1. General

This Agreement is in effect for the duration specified in your Order (the “Order Term”) and as long as you have a valid Order, unless sooner terminated as permitted in this Agreement. You may not terminate an Order for convenience and except as provided in section 12.2 any Fees paid or payable by you are non-refundable. There are no refunds or credits for partially used Orders. You hereby expressly renounces to the application of Article 2125 to 2129 of the Civil Code of Quebec.

12.2. Termination for Cause

Either Party may terminate an Order for cause if the other Party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy; or (b) breaches any provision of the Agreement (including your failure to timely pay Fees in full) and: (i) the breach is not capable of cure; or (ii) if capable of being cured, the breach is not cured within thirty (30) days after the breaching Party’s receipt of notice of breach stating the specific nature of the breach. Such termination will be without prejudice to any rights or remedies either Party may have accrued up to the termination date. If you terminate this Agreement pursuant to this Section, we will refund any Fees paid by you in advance for Services that remain unused at the effective date of such termination.

12.3. Effect of Termination

Except as otherwise provided in the Agreement, upon expiration or termination of the applicable Order, or portion thereof: (a) we will disable your Customer Account, including any Participant account created by you; and (b) you and each of your Authorized Users will no longer be provided access to the Platform. However, upon your request made within 60 days after the effective date of termination or expiration of this Agreement, we will make the Customer Data available to you for export or download. After that 60-day period, we will have no obligation to maintain or provide the Customer Data, and will thereafter deidentify the Customer Data to create the De-identified Data in accordance with Section 9.3. All provisions herein that, by their very nature, shall survive any termination or expiration of this Agreement will survive.

13. Disclaimer and Limitation of Liability
13.1.

We expressly disclaim all warranties and representations of any kind that are not expressly stated herein, including the implied conditions and warranties of merchantability and fitness for a particular purpose. To the maximum extent permitted by law, neither us nor our suppliers make any representation or warranty that: (a) the use of the Platform and the Services will be timely, uninterrupted or error-free; (b) the Platform and the Services will operate in combination with any other system or data; (c) the Platform, and the Services will meet your requirements.

13.2. Limitation of Liability

Except for our willful misconduct, gross negligence or our material violation of applicable law, we shall not be liable for (a) any indirect, special, incidental or consequential damages of any kind arising out of or related to this Agreement (including lost profits), regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if informed on the possibility of such damages in advance; or (b) amounts exceeding the Fees paid by you for the Platform and the Services in the twelve (12) month period preceding the event giving rise to the claim.

14. Publicity And Limited Trademark License

You hereby grant us a non-exclusive, non-transferable (except as permitted under Section 15.3), royalty-free, worldwide and perpetual licence to use your trade name and logo and allow us to identify you as a customer in promotional materials and on our website.

15. General Provisions
15.1. Notices

We may send notices pursuant to this Agreement to your email contact points provided by you in an Order or otherwise. You may send notices pursuant to this Agreement to us at:
info@successfinder.com

-or-
300 Léo-Pariseau, Suite 2600A
Montreal, Quebec H2X 4B8
Attention: Legal department

-or- through your Customer Account.

All notices will be presumed to have been received: (i) at the time delivered if by personal delivery; (ii) five (5) Business Days after the date of their mailing if by mail; (iii) on the next Business Day following the day of transmission if by email or through your Customer Account.

15.2. Governing Law; Venue

This Agreement will be construed in accordance with the laws of the Province of Quebec, without regard to choice or conflicts of law rules, and the Parties hereby consent to jurisdiction and venue therein. The Parties agree that this Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

15.3. Assignment

Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, we may assign any and all of our rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or otherwise sale of our business or to an Affiliate, upon written notice to you.

15.4. Entire Agreement

This Agreement (and any applicable Order) is the entire agreement between you and us relating to the Platform and the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Platform and Services or any other subject matter covered by this Agreement.

15.5. Modifications

We may make changes to this Agreement from time to time. If we make a material change this Agreement, we will inform you by e-mail to the e-mail address(es) noted on your applicable Order (or subsequently designated by you in writing as a contact for notifications from SF), or through a banner or other prominent notice within the Platform. If you do not agree to the change, you must so notify us within thirty (30) days after SF’s notice. If you so notify us, then you will remain governed by the most recent terms and conditions applicable to you until the end of the then-current year of the Order Term and the updated terms and conditions shall apply upon the commencement of the subsequent year of the Order Term.

15.6. Severability

If any provision of this Agreement is held invalid by an arbitrator or court of competent jurisdiction, such provision will be severed, and the remainder of the Agreement will remain in full force and effect and will be construed to effectuate the Parties’ intent to the maximum extent possible.

15.7. Waiver

No failure or delay by the injured Party to this Agreement in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.

15.8. Independent Parties

The Parties are independent contractors. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give on either Party the express or implied right, power or authority to create any duty or obligation of the other Party.

15.9. Export & Trade Restrictions

You agree to comply with all relevant Canadian, U.S. and foreign export and import laws in using the Platform, Services and Documentation. Without limiting the foregoing, you represent and warrant that none of you or your directors, shareholders, Affiliates or Authorized Users are, and that you will not market or resell the Platform, Services and Documentation to, a person that is listed on any Canadian or U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a Canadian or U.S. government embargo or that has been designated by the Canadian or U.S. government as a “terrorist supporting” country.

15.10. Definitions and Interpretation

The following definitions and rules of interpretation apply in this Agreement:

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Authorized Users” means the Customer Accounts Users and Participants.

Business Days” all of the days of the week excluding weekends and statutory holidays in the Province of Quebec.

Customer Account” the account enabling a Customer Account User to access and use the Platform.

Customer Account User” an employee of the Customer or its Affiliates identified by the Customer to have access and use the Platform in accordance with this Agreement.

Customer Data” means all data and/or content uploaded to the Platform by Customer or its Authorized Users and all data derived from it. Customer Data does not include De-identified Data and Research Data.

Data Protection Laws” means all applicable data protection and privacy legislation, regulations and guidance governing the protection of Personal Information.

Deliverable” means all custom developed documents, designs, computer programs, computer systems, data, computer documentation and other tangible materials authored or prepared by us for you pursuant to an Order.

Documentation” means the user guides, installation documents, and specifications for the Platform that are made available from time to time by us in electronic or tangible form, but excluding any sales or marketing materials.

Force Majeure Event” means an event, or series or related events, that is outside the reasonable control of the Party affected including without limitation, failures of the internet or any public telecommunication network, hacker attacks, virus or other malicious software attacks or infections, power failures, disasters, explosions, fires, floods, riots, terrorist attacks and wars.

Order” means SF’s quote accepted by you via your purchase order, proposal or other ordering document executed or entered into with SF to order the Services which references the Platform and Services pricing, payment terms, quantities, expiration date and other applicable terms set forth in an applicable SF quote or ordering document.

Participant” means any individual identified by you and given access to the Platform and Services for assessment purposes.

Platform” means the internet-based software-as-a-service relating to career assessment diagnostic services for development, selection and talent analytics operated by us.

Privacy Policy” means SF’s privacy policy available at: https://www.successfinder.com/privacy-policy/.

Personal Information” has the meaning set out in Data Protection Laws.

Services” means the software-as-a-service application(s) and Deliverables specified in the Order.

Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the Platform or Services suggested by you or your Authorized Users to us.

SF Property” means all of the following without limitation created or owned by us or our licensors, whether pre-existing or independently created during the term of this Agreement: (i) all websites, software (including the Software), tools, URLs and links, databases, designs, algorithms, user interface designs, architecture, objects and documentation, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades, or ither changes thereto; and any and all derivative works; and (ii) all intellectual property rights therein.

 

Last updated: March 1, 2022