TERMS AND CONDITIONS

This agreement (hereinafter the “Agreement“”) is entered into between the Customer (as defined in section 1 of the Agreement) and NEXAFE SOLUTIONS CORP., doing business as NEXAFE, having its place of business at 95 Walden Gardens SE, Province of Alberta, Canada, T2X 0M9, the telephone number of which is 1-888-295-2808 (hereinafter “NeXafe” or “we“).

1. Definitions

For the purposes of the Agreement, the terms defined in this section may be used in all their grammatical forms; nouns, adjectives, in plural or singular, and verbs according to their conjugation and tense, without losing the meaning ascribed to them.

1.1 « Account Administrator »

Member of an Organization to which the Organization grants the right to administer the account, which right includes the following prerogatives:

  • amendment of the User Account information;
  • addition of Authorized Users and their User Profiles;
  • amendment of payment information;
  • performance of any operation related to the business relationship of the Organization with NeXafe.

An Organization may have one or more Account Administrators.

1.2 « Partner »

An entity whose limited access to the platform has been assigned and is controlled by one or more Customer.

1.3 « User Account »

The right to access the NeXafe Products associated with a user name and password which NeXafe grants to a Customer or Authorized User. A User Account may be associated with Google or Facebook accounts or with an email address provided by the Customer or the Authorized User.

1.4 « Customer »

Une Organisation désignée au formulaire d’inscription ayant reçu un courriel de confirmation de la commande de Produits de NeXafe. Afin d’alléger le texte, un Client peut être désigné ci-après par le pronom « Vous ».

1.5 « Data »

Computer data, images of content or other materials of any type which the Customer communicates (including through its Authorized Users) through the Platform.

1.6 « Member of a Customer », « Member of an Organization », or « Member of a Partner »

Means any natural person who is a member of an Organization, a Customer or a Partner, as the case may be, as an employee, volunteer, officer, mandatary, consultant, agent or other third party acting on behalf of or in the name of the Customer, the Organization or the Partner. An Authorized User may be a member of several Customers, Organizations or Partners. Such a Member may also be referred to using the possessive form, in the singular or plural, with the pronouns “his/her” and “their”.

1.7 « Organization »

A person who carries on a business, limited partnership, limited liability company, partnership, union, employer organization, sole proprietorship, business corporation or company (with or without share capital), legal person, cooperative, trust, unincorporated association, joint venture, non-profit or not-for-profit organization, government authority or any other entity, regardless its legal form, incorporation status or the jurisdictions in which it operates, carrying on an organized activity of any nature whatsoever and which uses the NeXafe Products. An Authorized User who manages the schedules of other Authorized Users is considered an Organization.

1.8 « Persons Concerned »

Natural persons concerned by Personal Information.

1.9 « Platforme »

The NeXafe Products as well as the website www.nexafe.com.

1.10 « NeXafe Products »

Means :

  • NeXafe solutions, software offered as a remote service (software as a service) for compliance management and communication between Authorized Users, including data capture, document approval, monitoring, instant and deferred notification services, as well as passport sharing in the field and at customer premises;
  • the NeXafe solutions offered in whole or in part as mobile apps for smartphones or tablets;
  • any other solution providing new functionalities which may be added in the form of a module to the solutions listed in (1) and (2); and
  • support for Authorized Users and related maintenance provided by NeXafe.

1.11 « Free NeXafe Products »

NeXafe Products in non-definitive form (“Beta NeXafe Products“) as well as free accounts and trial periods, as provided in section 8.

1.12 « User Profile »

All Personal Information concerning an Authorized User transcribed in an intelligible and structured manner which is accessible and modifiable via the Platform.

1.13 « GDPR »

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [2016] OJ L 119.

1.14 « Personal Information »

Any information about a natural person which directly or indirectly allows the person to be identified. For the purposes of the Agreement, Personal Information is considered the equivalent of “personal data” within the meaning of the GDPR.

1.15 « Controller »

The Organization which, alone or jointly with others, determines the purpose and principal means of Processing. Controller corresponds to the following, as the case may be:

  • “Any person carrying on an enterprise who may, for a serious and legitimate reason, collect personal information on another person” within the meaning of section 4 of the Act respecting the protection of personal information in the private sector, CQLR, c. P-39.1, as amended by the Act to modernize legislative provisions as regards the protection of personal information, SQ, 2021, c. 25 (hereinafter the “Amended Act“); and article 1525 of the Civil Code of Québec, CQLR, c. CCQ-1991 (hereinafter the “Civil Code of Québec“).
  • A “client” in connection with a contract for services within the meaning of article 2098 of the Civil Code of Québec.
  • A “mandator” in connection with a mandate within the meaning of article 2130 of the Civil Code of Québec.

1.16 « Joint Controller »

The Organization which determines the purpose and means of Processing jointly with another Organization.

1.17 « Processor »

The Organization which Processes Personal Information on behalf of the Controller although it may determine the secondary Processing means. Processor corresponds, as the case may be, to:

  • A “provider of services” in connection with a contract for services within the meaning of article 2098 of the Civil Code of Québec.
  • A “mandatary” in connection with a contract of mandate within the meaning of article 2130 of the Civil Code of Québec.

1.18 « Processing »

Any transaction or set of transactions whether or not carried out using automated procedures applied to Personal Information or sets of Personal Information such as the collection, recording, organization, structuring, preservation, adaptation or modification, extraction, consultation, use, communication through transmission, release or any other means of making them available, merging or linking them or limiting, erasing or destroying them.

1.19 « Authorized User »

Member of a Customer, Organization or Partner which an Account Administrator authorizes to use the NeXafe Products after the Customer has paid all related charges. An Authorized User may be a member of several Customers, Organizations or Partners, as the case may be.

2. Scope of Agreement

The Agreement shall only bind NeXafe to Customers, which may only be Organizations (within the meaning of paragraphs 1.7. and 1.4.). FOR GREATER CERTAINTY, THIS AGREEMENT IS NOT INTENDED FOR CONSUMERS.

This Agreement shall govern any free or paid use of NeXafe Products by Customers (including support, the purchase of subscriptions as well as future purchases referring to this Agreement). Unless indicated otherwise, the terms of this Agreement shall apply to all NeXafe Products.

This Agreement incorporates by reference the Acceptable Use Policy and Privacy Policy. In the event of inconsistency between such policies and the terms hereof, this Agreement shall prevail.

NeXafe acts as a Processor. Customers who use NeXafe Products and who are governed by the GDPR may ask to sign an Appendix respecting the Processing of Personal Information (“Data Processing Agreement”). Such requests shall be treated on a case-by-case basis at the discretion of NeXafe.

In certain cases, NeXafe and an Organization may set up a partnership for the joint Processing of Personal Information which shall be the subject of a separate written agreement, and NeXafe shall act as Joint Controller. Such cases shall be treated on a case-by-case basis at the discretion of NeXafe.

3. Account Registration

An Organization shall fill out a registration form to obtain a User Account which will allow it to place orders, access to and receive NeXafe Products. All registration information the Organization provides must be accurate, up-to-date and complete. An Organization shall be considered a Customer as soon as it receives a confirmation email. NeXafe reserves the right, but shall not be required, to ask for proof of the information provided.

You must update the information found in all the User Profiles associated with your Organization so we can send notifications, statements and other information by email or via the NeXafe Products. The Account Administrator may allow Authorized Users to fill out and change such information themselves.

You accept full liability for any error, missing information or inaccuracy in the User Profiles associated with your Organization and the actions taken via the User Accounts associated with it, provided however that you may correct inaccurate, unclear or incomplete information at any time. The Account Administrator may allow Authorized Users to correct such information themselves.

The entire registration procedure, including changes to the information provided, may be carried out by one or more Account Administrators, and the Customer shall be responsible for appointing and dismissing the said Account Administrators.

The person with the highest authority at the Customer may contact NeXafe at any time to make the necessary changes to the list of Account Administrators. We shall not be liable if an Account Administrator makes changes without having the necessary authority to do so.

The Customer acknowledges that an Authorized User has the ability to be a Member of a third party Organization that also uses the Platform. In this regard, the Authorized User may share certain identifying information related to his or her registration such as his or her User Account and contact information with multiple Organizations.

4. Price

Other than Free NeXafe Products, the NeXafe Products are offered as a service payable on a monthly, quarterly or annual basis. The price of each Product is determined based on the number of Authorized Users, the number of active/inactive Passports, the number of forms, the quantity of storage data, except when a fixed price is predetermined for a specific functionality. The price for each NeXafe Product is that posted on NeXafe platform registration home page. Prices may vary from time to time in accordance with section 26 hereof. NeXafe reserves the right to correct any error in the price displayed on its home page upon simple notice to the Customer.

Initial configuration fees may be charged, according to a previously established agreement.

NeXafe also offers the printing of passport cards and QR code labels for a unit fee also subject to prior agreement.

You agree to pay all costs based on each order made on NeXafe platform registration home page or agreed to with NeXafe in writing. Unless indicated otherwise in your order, you must pay all amounts in Canadian or American dollars or in Euro when you receive your order, according to the currency in the geographic location of the head office of the entity making the payment or the contact information provided by you, as determined by NeXafe. If you add Authorized Users, active/inactive Passports, forms, storage data or features during the subscription period, we will retroactively bill you for such additions in accordance with the then-current rates and bill such additions for the next cycle billing. Please note that adjusting the number of Authorized Users, active/inactive Passports, forms, amount of storage data or features will be charged on a monthly basis.

The Client acknowledges that an Authorized User has the capacity to be a Member of a Third Party Organization also using the Platform. In this regard, the Authorized User may share certain identification information related to his registration, such as his User Account and contact details, with several Organizations, and may access the data of other Organizations. Customer agrees to pay the individual cost of that Authorized User in their Account, although they may also be an Authorized User in a third-party Customer Account.

5. Orders and Changes

This Agreement shall bind you whether it was entered into through an NeXafe reseller or directly with NeXafe. You must ensure that all information provided for your order is accurate, including:

  • the number and type of Authorized Users for the NeXafe Products;
  • the NeXafe Products ordered; and
  • all other conditions or restrictions agreed to with NeXafe.

Resellers are not authorized to offer warranties or make undertakings on behalf of NeXafe, and we shall not be bound by any obligations other than as expressly provided for in this Agreement.

Subject to section 18, you may add optional modules and downgrade or end the services we provide you at any time. You may change your plan by clicking on the “Billing” tab in your User Account.

6. Payment

We accept MasterCard, Visa and American Express credit cards. However, we reserve the right to remove any of these payment methods at any time. We also accept bank transfers or pre-authorized withdrawals. Your credit card information will be processed by Stripe servers in accordance with the PCI standard. You agree that we may charge you on your credit card for renewal, supplemental users and unpaid charges, as the case may be.

7. Taxes

Your payments under this Agreement do not include the taxes or fees payable with regard to NeXafe Products in the country in which the payment was made or received. To the extent such taxes or fees are payable by NeXafe, you must pay NeXafe the amount thereof in addition to all costs owed under this Agreement. NeXafe may ask for payment of such taxes any time after the NeXafe Products are billed if NeXafe is charged such taxes retroactively by a government or tax authority anywhere in the world. If you are tax-exempt, you must provide us with proof thereof and NeXafe shall make reasonable efforts to provide the billing documents which will allow you to obtain a refund or credit from any tax authority for the amount paid, if such a refund or credit is available.

8. Free NeXafe Products

Your use of Free NeXafe Products is subject to additional conditions which we will indicate and is only authorized for a specific period. You shall not use Free NeXafe Products to analyze the competition or for similar purposes. We may end your right to use Free NeXafe Products at any time and for any reason at our sole discretion, without liability toward you.

In certain cases, we may charge a fee to allow you to access Beta NeXafe Products, but their use will still be subject to this section.

You understand that all Beta NeXafe Products we make available to you are under development, may be unusable or incomplete, and could contain more errors and bugs than generally available NeXafe Products. WE THEREFORE DO NOT OFFER ANY WARRANTY FOR BETA NEXAFE PRODUCTS, AND YOU ASSUME ALL RISKS RELATED TO ANY USE THEREOF.

9. Management of Authorized Users and User Accounts

Only Authorized Users and Account Administrators may access and use NeXafe Products. The permissions you grant to Authorized Users outside your Organization imply that you agree to share the information contained in your Account with them.

The functionalities may vary according to the type of Authorized User and the Account Administrators shall be responsible for determining, validating and keeping such allocation up-to-date. You acknowledge that you must pay the necessary fees for any increase in the use of the components of the platform in your Account.

You are responsible for ensuring that each of your Authorized Users complies with this Agreement. Any use of NeXafe Products by you and your Authorized Users must abide by the scope of use solely for your benefit or that of your business partners.

You must set up information security policies which require Authorized Users to adopt safe practices with regard to passwords, including with respect to the number and type of characters used, to keep them strictly confidential and not to disclose them to any other person.

You also agree to inform NeXafe forthwith of any unauthorized use of a User Account, whether it belongs to an Authorized User or an Account Administrator, as well as any incident affecting the confidentiality of passwords, difficulty or inability to access a User Account or a change in the account information for which the Authorized User or the Account Administrator, as applicable, is not responsible. NeXafe further reserves the right to require that an Authorized User or Account Administrator to change his or her password.

10. Limited License

Subject to the terms and conditions of this Agreement, NeXafe grants you a non-exclusive and non-transferable license to use the NeXafe Products throughout the term of this Agreement only.

11. Hosted Services and Data

Pour l’application de l’Entente, les termes définis au présent article peuvent être utilisés dans toutes leurs formes grammaticales; les noms, les adjectifs suivant leur genre et leur nombre, les verbes, suivant les modes et les temps, sans perdre le sens qui leur est attribué.

11.1 Hosted Services

Your Data is securely stored and your connection to the application is encrypted by SSL/TLS (https). We use Amazon servers, known for hosting high-traffic sites and which are located in highly secured spaces. Subject to the terms and conditions of this Agreement, NeXafe grants you a non-exclusive right to access the NeXafe Products which are hosted thereon and to use them throughout the term of this Agreement.

11.2 Your Data

You retain all right, title and interest to and in your Data in the format in which you transmit it to NeXafe. Subject to the terms of this Agreement, you grant NeXafe a worldwide, non-exclusive, royalty-free right to (a) collect, use, copy, save, transmit, change and create derivative works of Data, but in every case only to the extent necessary for the conception, use, development, improvement, deployment and maintenance of NeXafe Products, and (b) for NeXafe Products which allow Customers, Account Administrators or Authorized Users to share Data or interact with other persons, to distribute via, and post Data about the NeXafe Products.

11.3 Personal Information

Where the Data includes Personal Information, its Processing shall be subject to our Privacy Policy, but only to the extent provided thereunder.

For greater certainty, with regard to Personal Information concerning its Authorized Users and Account Administrators, the Customer shall remain fully liable for its compliance with any obligation incumbent upon the Controller pursuant to laws protecting Personal Information which are applicable to it. By accepting this Agreement, NeXafe assumes that you fulfill such obligations.

NeXafe may inform you when, in its opinion, one of your instructions infringes the laws protecting Personal Information, without any obligation on its part to consult a lawyer or attorney. Such information shall not constitute a legal opinion. You may thereafter, at your discretion, obtain such an opinion from a lawyer or attorney licensed to practice his or her profession in your jurisdiction. Furthermore, if a request to disclose Personal Information by legitimate authorities is not legally binding, NeXafe will refuse the said disclosure request. If such a request is binding, NeXafe will inform you.

The Customer shall be responsible for setting up its own Confidentiality Policy, obtaining the consent of its Organization’s Authorized Users and responding to their requests to exercise privacy rights. NeXafe shall take all commercially reasonable steps to provide you with the means of complying with the obligations imposed by laws protecting Personal Information which apply to you and information to prove such compliance. This obligation shall be limited to your use of NeXafe Products.

Furthermore, before using the Photo Punch service, Authorized Users may be informed of their rights via a pop-up window and may obtain more details as needed. Please note that you will remain responsible for obtaining the explicit consent of any Authorized User for the use of his or her biometric information according to the law applicable in the jurisdiction in which he or she is situated. By accepting the agreement, you acknowledge that NeXafe may assume that your Organization has obtained the necessary consents with regard thereto.

By accepting this Agreement, you designate NeXafe as your Processor and authorize it to do the necessary Processing of your Authorized Users’ Personal Information for the purposes described in this Agreement and in the Confidentiality Policy. NeXafe agrees to only do such Processing for such purposes. In this regard, NeXafe shall keep up-to-date all necessary documentation proving its compliance with applicable laws, including a register of the Processing it does as well as a register of confidentiality incidents. For greater certainty, NeXafe does not use your Authorized Users’ Personal Information for the purpose of commercial solicitation or advertising.

Upon request, NeXafe offers its Clients, for a fee, the possibility of returning, transferring or securely deleting the Personal Information they communicate to it.

Upon request, NeXafe offers its Customers, for a fee, the possibility of returning, transferring or securely deleting the Personal Information they communicate to it. Requests for deletion are immediately forwarded to NeXafe’s Processors for their handling. However, when an Authorized User becomes a Member of more than one Organization, certain identifying information related to his or her registration such as his or her User Account and contact information may be retained by another Organization.

It is understood that NeXafe will not enter into any contract or make any undertaking contrary to the terms of this section. The Confidentiality Policy also gives you information about the countries in which NeXafe could communicate Personal Information and the protective measures that are set up to ensure it is kept confidential.

11.4 Security

NeXafe implements administrative and technological safety measures in order to maintain the confidentiality, availability and integrity of your Data and reduce the risk of threats and cyber-attacks.

However, as you will understand, the use of hosted services involves the transmission of your Data on networks which are not held, operated or controlled by us, and we shall not be liable for any of your Data which is lost, changed, intercepted or stored thereon. We therefore cannot guarantee that the transmission of your Data will always be secure or that unauthorized third parties will never be able to circumvent our security measures or those of our third party service providers.

11.5 Storage Limits

Storage limits may be associated with a particular hosting service now or in the future. We may impose new storage limits or change existing storage limits for hosted services at any time, at our discretion, with or without notice, subject to maintaining the functionalities of the NeXafe Products.

11.6 Responsibility for Your Data

You must ensure that your use of the NeXafe Products and your Data comply at all times with our Acceptable Use Policy and all applicable laws in your jurisdiction. You represent and warrant that your use of the NeXafe Products and that of your Authorized Users will not breach third party rights, including, without limitation, intellectual property and confidentiality rights. Other than as expressly contemplated herein, NeXafe shall not be liable for your Data, and you shall be solely liable for its transmission and use and for making backup copies, if necessary.

11.7 Suspension of Services

NeXafe shall not be responsible for overseeing the content downloaded on the NeXafe Products. Nonetheless, if we consider such measure to be necessary based on a breach of this Agreement or in response to a request we receive about third party intellectual property rights, or for content infringing our policy, we may take all the steps permitted in the Acceptable Use Policy, including suspending your account. You will continue to be charged for the hosting service during the suspension period. We shall not be liable toward you for the removal of your Data or for having suspended your access to hosted services for the purpose of compliance with the said policy or this Agreement.

12. Support and maintenance

NeXafe shall provide support and maintenance services for the NeXafe Products throughout the term of this Agreement. The support shall include the following: all Authorized Users will have access to technical support via instant messaging or email. Since the NeXafe Products are software as a service, you will be given access to new versions when they are released by NeXafe, at its sole discretion.

NeXafe agrees to use reasonable means to respond to requests for support and maintenance within a reasonable time, it being understood that we will only respond during office hours, which are from 9 a.m. to 5 p.m. Calgary time. NeXafe further reserves the right to refuse to respond to excessive or repetitive user requests.

For more information about support and maintenance and how to reach NeXafe, please see Contact us.

13. Additional Training and Support

At least one training session shall be offered by our experts to a Customer and the Authorized Users of its Organization which may be given in person or by means of telecommunication, at the sole discretion of NeXafe. Additional training or technical support services may be ordered by the Customer, at prices to be determined on a case-by-case basis with NeXafe. Where applicable, you shall reimburse NeXafe the reasonable travel and lodging costs incurred. NeXafe shall retain all intellectual property rights relating to the works or developments related to the training services we offer (such as the training material). Any training material which is provided to you may only be used in connection with the use of the NeXafe Products in accordance with this Agreement.

14. Restrictions

Unless expressly indicated otherwise in this Agreement, you are prohibited from: (a) renting, reproducing, changing, adapting, creating derivative works, granting sub-licenses, transferring or allowing access to the NeXafe Products to a third party who is not an Authorized User, (b) using the NeXafe Products for the benefit of a third party, (c) incorporating the NeXafe Products in a product or service you provide to a third party, (d) interfering with a mechanism to control licenses and rights to the NeXafe Products or otherwise contravening any legitimate mechanism designed to limit your use, (e) carrying out reverse engineering, disassembling, decompiling, translating or otherwise attempting to obtain or derive the source code underlying the ideas, algorithms, file formats or non-public APIs for all the NeXafe Products, (f) removing or hiding any owner or other notice found in any NeXafe Product, (g) publicly releasing information about the performance of NeXafe Products, or (h) recording on or communicating Personal Information of Authorized Users via the NeXafe Products, including biometric information for the Photo Punch service, without obtaining the consents required by law.

15. Attestation and Verifications

At our request, you agree to provide a signed attestation that you are using all the NeXafe Products in accordance with the terms of this Agreement. You agree to allow us (or to allow our authorized mandatary) to audit your use of the NeXafe Products, without notice. We shall pay all related costs we incur if the audit reveals that you have exceeded the use or otherwise breached your obligations under this Agreement. You shall provide reasonable help, cooperation and access to relevant information in connection with an audit, at your expense. We may charge you for any past or current excessive use, and you shall pay the invoice immediately upon receipt. This recourse is without prejudice to any other recourse NeXafe may have under this Agreement or the law. To the extent we are required to do so, we may share the results of the audit with some of our Processors or assign the audit rights referred to in this section to them.

16. Ownership and Comments

The NeXafe Products are available and limited by a restricted license or basic access, and no ownership right is given to you, regardless of the use of terms such as “purchase” or “sale”. NeXafe and its processors have and shall retain all right, title and interest, including all intellectual property rights, in and relating to the NeXafe Products (including Free NeXafe Products), their general appearance, any related or underlying application or technology, and any change or derivative work of the foregoing created by or for NeXafe. From time to time, you may choose to make observations, provide information, ask questions, and give data, ideas, process descriptions or other information to NeXafe, including the sharing of your changes or in connection with support (the “Comments“). In connection with any NeXafe Product, NeXafe may freely use, copy, disclose and develop any Comment in any manner without any obligation, royalty or restriction based on intellectual property or other rights. Improvements to the NeXafe Products incorporating or implementing Comments shall remain the exclusive property of NeXafe.

17. Confidentiality

The source code for NeXafe Products, reports on the performance or operation of NeXafe Products, documents and know-how associated with the NeXafe Products shall constitute confidential information of NeXafe. The Data entered by the Customer and its Authorized Users shall be confidential information of the Customer. The parties agree that they may exchange such confidential information, and the party receiving it shall be the “recipient” for the purposes of the following.

Unless expressly authorized herein, a party shall keep confidential and not use or disclose the other party’s confidential information. The non-disclosure obligation shall not apply to information for which the recipient can prove: (a) that it was legitimately in its possession or that it was aware of it prior to receiving the confidential information; (b) that it is or has become public other than due to the recipient’s fault; (c) that the recipient legitimately obtained it from a third party without breaching a confidentiality obligation; or (d) that it was developed independently by the recipient’s employees who did not have access to such information.

The recipient may also disclose confidential information if necessary in accordance with a law, regulation or court order (but only to the extent required to comply therewith and giving prior notice to the issuing party). The recipient acknowledges that the disclosure of confidential information would cause significant harm for which damages alone would not be a sufficient remedy, and therefore the issuing party shall be entitled to apply for an injunction in addition to any other recourse it may have by law to prevent such a breach or cause it to cease.

For greater certainty, NeXafe may be required to give confidential information to a public authority in order to comply with an applicable law, and in particular labour relations or occupational safety laws. If a public authority asks NeXafe to provide it with confidential or other information relating to a Customer, NeXafe may assume that binding requests from public authorities are well-founded and it will not be required to check whether they are authorized by applicable laws or regulations and whether they are well-founded.

18. Term and Resiliation

18.1 Methods of Resiliating Agreement

The Customer may resiliate this Agreement, at its discretion, upon thirty (30) days’ prior notice to NeXafe. To do this, you must send your termination request in writing to NeXafe. If you cancel the Agreement, you will be billed for 30 days following your request, but you will not be billed again. 

NeXafe may resiliate this Agreement without cause, at its discretion, upon sixty (60) days’ prior written notice to the Customer, which may be sent by email.

NeXafe may also resiliate this Agreement upon five (5) days’ prior written notice to the Customer if the Customer fails to pay, goes bankrupt or is placed under the protection of a law governing an arrangement with its creditors, or if the Customer fails to fulfill any of its obligations under this Agreement and does not correct it by the expiry of the said five (5) days’ notice.

18.2 Effects of Resiliation

Other than in the case of resiliation by NeXafe without cause, you shall not be entitled to any credit or refund for canceling your subscription or for the reimbursement of any prepaid amount.

Any resiliation shall be without prejudice to any other recourse it may have under this Agreement, by law or otherwise. Once the Agreement is resiliated or expired, you (and your Authorized Users) shall have no further right to use or access the NeXafe Products or any other information or material we make available to you under this Agreement or your Data. We may withdraw or delete your Data within a reasonable time following the resiliation of your subscription and we shall not be obliged to provide copies to you. The terms of sections 19, 20, 21, 23, 24, 25 and 28, in addition to those which, due to their nature, shall survive any resiliation or the expiry of this Agreement.

19. Warranty and Liability

19.1 Signatory’s Authority

Each party represents and warrants that it has the legal authority and power to enter into this Agreement and that, if you are an Organization, this Agreement and each order shall be entered into by an employee or agent of such party with full authority required to bind such party according to the terms and conditions of this Agreement.

19.2 Exclusion of Warranty

ALL NEXAFE PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL ITS FLAWS”. YOU DECLARE THAT YOU HAVE RECEIVED THE NECESSARY EXPLANATIONS AND HAVE HAD THE OPPORTUNITY TO EXAMINE THE FUNCTIONS OF THE NEXAFE PRODUCTS, AND YOU CONFIRM THAT THEY ARE TO YOUR COMPLETE SATISFACTION. NEXAFE AND ITS SUPPLIERS EXPRESSLY DECLINE ALL WARRANTIES OF NON-INFRINGEMENT, COMMERCIAL VALUE AND FITNESS FOR A PARTICULAR USE, WHETHER EXPRESS, IMPLIED OR LEGAL. IN ADDITION, NEXAFE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ITS REASONABLE CONTROL. NEXAFE DOES NOT MAKE ANY REPRESENTATION OR GIVE ANY WARRANTY THAT: (A) THE USE OF THE NEXAFE PRODUCTS WILL BE SECURE, RAPID, WITHOUT INTERRUPTION OR WITHOUT ERROR; (B) THE NEXAFE PRODUCTS WORK IN COMBINATION WITH OTHER MATERIALS, SOFTWARE, SYSTEMS OR DATA; (C) THE NEXAFE PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (D) ALL RECORDED DATA WILL BE ACCURATE AND RELIABLE OR THAT RECORDED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFAULTS WILL BE CORRECTED (OTHER THAN TO THE EXTENT NEXAFE IS NOTIFIED OF THE ERROR OR DEFAULT, IN WHICH CASE ITS OBLIGATION SHALL BE TO TAKE REASONABLE MEANS TO CORRECT IT) OR (F) THE NEXAFE PRODUCTS AND THEIR FUNCTIONING WILL NOT HAVE ANY ADVERSE EFFECT ON YOUR SYSTEMS.

20. Limitation of liability

OTHER THAN IN THE CASE OF GROSS FAULT, IN NO EVENT SHALL NEXAFE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, SERVICE INTERRUPTION, DELAY IN SERVICES RENDERED OR FOR ANY INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING LOSS OF PROFIT), EVEN IF NEXAFE OR THE SUPPLIER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, NEXAFE’S OVERALL LIABILITY TOWARD YOU IS TWENTY CANADIAN DOLLARS ($20) IF YOU ONLY USE FREE NEXAFE PRODUCTS AND IS LIMITED TO THE AMOUNT PAID TO NEXAFE FOR NEXAFE PRODUCTS WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM IN ALL OTHER CASES.

21. Relationships with Third Parties

You accept full liability and agree to indemnify NeXafe and hold it harmless with respect to any liability or claim (including reasonable attorneys’ fees and experts’ fees) related to your use of the NeXafe services with regard to (i) your contractual obligations toward Authorized Users; (ii) respecting the confidentiality and privacy of Authorized Users; and (iii) the application of any law or regulation governing labour relations with respect to your employees and those of your Partners. In all such cases, you agree to cooperate fully and to provide any information required for NeXafe’s defense.

22. Products of Third Party Supplier

NeXafe or third parties may make third party products or services available to you from time to time including, without limitation, complementary products as well as implementation, personalization, training and other consulting services. If you obtain any such third party product or service, you do so pursuant to a separate agreement exclusively between you and the third party supplier. NeXafe does not guarantee support for third party (non-NeXafe) products or services, whether or not they were recommended by NeXafe, and denies all liability for such products or services. If you install or activate third party products or services for complementary use with NeXafe Products, you acknowledge that NeXafe may allow suppliers of such products and services to access your Data if necessary for the interoperability and support of such complementary products with NeXafe Products. NeXafe shall not be liable for the disclosure, modification or deletion of your Data as a result of any access by complementary third party products.

Without limiting the generality of the foregoing, you may configure certain NeXafe Products to send messages or notifications by email, social media (e.g. Facebook) or SMS. NeXafe shall not be liable for the compatibility of such external means of communication with NeXafe Products and does not offer any warranty that the messages or notifications thereby transmitted shall be error-free and immediate.

23. Publicity Rights

We may identify you as a Customer in our promotional documents and on our commercial website; in this regard, you allow us in particular to post your business name or one of your trade-marks identifying you (including a graphic mark), at our discretion. You may ask us to cease doing so by sending an email to info@NeXafe.com at any time. Please note that it could take us up to thirty (30) days to process your request.

24. Improvement of NeXafe Products

We are always striving to improve NeXafe Products. To do so, we need to measure, analyze and aggregate how users interact with NeXafe Products, such as habits of use and the characteristics of our user base. We collect and use the data captured about the use of NeXafe Products.

Where such data allows the person to be directly or indirectly identified, it shall be considered Personal Information and shall be subject to the applicable sections of this Agreement.

25. Dispute Resolution

25.1 Dispute Resolution

In the case of any dispute or claim stemming from or related to this Agreement, the parties shall consult and negotiate with each other, acknowledging their mutual interests, in order to attempt to arrive at a solution that is satisfactory for both parties.

If the parties do not come to a settlement within sixty (60) days, any unresolved dispute or claim stemming from or related to this Agreement shall be submitted exclusively to arbitration according to the rules of the Quebec Code of Civil Procedure, as it is in force at that time. The arbitration shall be decided by a single arbitrator. The parties shall attempt to name a mutually acceptable arbitrator. If they cannot agree on the choice of arbitrator, the arbitrator shall be designated by the Superior Court for the district of Saint-François, Province of Quebec, at the request of either party. The arbitration shall take place in Sherbrooke, Quebec, Canada and it shall be conducted in French.

25.2 Governing Law

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein, without referring to private international law regarding conflict of laws.

25.3 Injunctions

Nothing in this Agreement shall prohibit NeXafe from applying for an injunction with regard to the breach of its intellectual property rights or the application or recognition of a decision or order in any appropriate jurisdiction.

26. Changes to Agreement

We may update or amend this Agreement from time to time, including the above-mentioned policies and other related documents.

With respect to paid NeXafe Products, we shall inform you at least fifteen (15) days in advance by written notice sent via your NeXafe account or by email. The amended version shall take effect the 16th day after the notice is sent. If you oppose the updated Agreement, you may choose to end the Agreement upon written notice in accordance with section 18 hereof.

27. Relationship between the parties

The parties are independent contractors; this Agreement may not be interpreted as making one of the parties a partner of the other or creating any other form of legal association which would give one party the explicit or implicit right, power or authority to create any obligation binding the other party.

28. General provisions

Any notice under this Agreement shall be given in writing. We may notify you by email or through your account. Notices sent shall be deemed to have been received on the first business day in the Province of Quebec, Canada after we have sent it. You must send any notice to NeXafe by mail to “NeXafe (c/o Administration Department), 95 Walden Gardens SE, Calgary, Alberta, Canada, T2X 0M9“. Any notice you send shall be deemed to be received once we receive it. You may not assign this Agreement without our prior written consent. We will not unduly deny our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. This Agreement constitutes the entire agreement between you and NeXafe with respect to the NeXafe Products and replaces all prior or contemporaneous verbal or written communications, proposals and statements with regard to the NeXafe Products or any other subject covered by this Agreement. If any term of this Agreement is held to be null and void, inapplicable or illegal, the other terms shall remain in full force and effect. This Agreement may not be modified or amended without our written consent (which may be withheld at our complete discretion, without being required to give reasons). No breach of this Agreement or delay by the injured party in exercising any right, power or privilege hereunder shall be construed as a waiver thereof and shall not deprive it of any other right or recourse under this Agreement.

Review the NeXafe Acceptable Use Policy and Privacy Policy. See NeXafe’s Acceptable Use Policy and Privacy Policy.

The Terms and Conditions were last amended on March 6, 2024.