IMPORTANT — READ CAREFULLY BEFORE USING THE SITE AND SERVICES AS DESCRIBED IN SECTION 3 BELOW. These Terms and Conditions (the “Agreement”) are a legal contract between YOU and HODYSS Evolution Inc. (“HODYSS”), for firstly, the use of www.hodyssevolution.com (the “Site”) and secondly, all related services offered by HODYSS, which includes professional services and, as applicable, associated media, printed materials, and “online” or electronic documentation (all such related services collectively referred to as the “Services”).
If you are using the Services on behalf of an entity, you also represent and warrant that the entity accepts and undertakes to be bound hereto, that you have the authority to bind the entity and that you agree to be bound by the terms and conditions of the professional services agreement entered into between HODYSS and that entity. In this Agreement, HODYSS and you, as a user, are each individually referred to as a “Party” and collectively as the “Parties”. In this Agreement, the terms “you” and “Customer” refer, as the case may be, to: (1) YOU as an individual, if you access the Site and use the Services for personal use; or (2) the entity you represent, if you access the Site or use the Services on behalf of such entity. For the sake of certainty, if you are accessing the Services on behalf of a third-party, you accept that if the said third-party claims that you do not have such authority, you will be held responsible and agree to indemnify and hold HODYSS harmless for this purpose.
BY USING THE SITE OR BY OTHERWISE USING OUR SERVICES NOT OFFERED ON THE SITE, YOU AGREE UNCONDITIONALLY TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL OTHER AGREEMENTS, RULES, POLICIES AND PROCEDURES REFERENCED HEREIN, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW, EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME. IF YOU DO NOT AGREE TO SUCH TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SITE OR THE SERVICES AND EXIT NOW.
In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
1. Limited License to Use
The Services are provided to you by HODYSS. Subject to your compliance with this Agreement, HODYSS hereby grants you a limited, personal, non-exclusive, non-transferable, revocable, non-sub-licensable license until this Agreement is terminated, allowing you to (i) display the content of this Site on the computer or other electronic device you use, solely to access the Services and (ii) use the documentation, HODYSS makes available to you through the use of the Services.
You agree not to, nor allow others to, directly or indirectly, attempt or disrupt, impair or interfere with, alter or modify the Site or any of its content and the Services.
HODYSS may utilize third-party service providers to provide certain tools and/or programs, some of which may be housed on a third-party server or a site which has been independently developed by others. As such, while accessing the Site or the Services you may be linked to such other third-party servers. Access to other sites or use of any third-party tools or programs on this Site is subject to all the terms and conditions found therein or applicable thereto, as the case may be.
The Site and the Services have been developed by HODYSS and are offered under the trademark “HODYSS Evolution” or any other trademark, whether or not they are registered, as may be created by HODYSS from time to time. All information and materials contained on the Site are protected by copyright, trademark and/or other intellectual property rights under applicable laws of Canada and other countries, and are the property of their respective owner(s).
Subject to the limited license to use the Site and the Services as described above, no person may:
A.Copy, redistribute, reproduce or republish the Site or its contents in any form, or link to the Site or its contents in any manner whatsoever, including by way of hyperlinks or framing, unless that person has obtained the prior written consent of HODYSS;
B. Transfer, resell, lease, license, or otherwise make available the Services to third parties;
C. Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Site; and
D. Alter, modify, translate, or otherwise create derivative works of any part of the Services, except as may be authorized by specific licensing terms.
Any infringement of the rights of HODYSS or any third-party may result in appropriate legal action.
3. Accounts and Services
In order to use the Services, you must enter into a professional services agreement.
If you want to access the Site and use the Services on a personal basis, you must accept to be legally bound by this Agreement and, where applicable, the professional services agreement which shall form an integral part of this Agreement.
If you want to use the Services on behalf of an entity, you must accept, on behalf of this entity if you have the authority to bind that entity, to be legally bound by this Agreement and, if applicable, the professional services agreement.
The Services offered by HODYSS are described on the Site and the professional services agreement, which govern the Parties’ respective obligations regarding all Services provided to or used by you or an entity you represent.
HODYSS may update the foregoing agreements and policies from time to time by posting an alert on the Site or by sending you a notification through the Services, or by another appropriate means of electronic communication.
You understand and agree that HODYSS may make changes to the Services from time to time. The Site or the Services may periodically be unavailable to you in order to allow for maintenance, updates or other reasonable causes, including causes beyond the control of HODYSS. It is your responsibility to ensure that the usage of the Services by you and by the entity you represent is compatible with the then-current Services. HODYSS may in its reasonable discretion suspend or discontinue any of the Services or component thereof at any time by posting an alert on the Site or by sending you a notification through the Services, or by another appropriate means of electronic communication.
4. Fees and Payment
Some Services are offered on a free or trial basis. In this case, you have nothing to pay to HODYSS. However, if you agree to use the paid Services that are offered on the Site or through the professional services agreement, these Services will be billed to you(“Charged Services”).
If you use the Charged Services, you agree to pay the fees as set forth on the Site or in the professional services agreement, in the currency indicated on the Site or in the professional services agreement and under the terms and conditions of the Charged Services specific additional terms, as may be updated from time to time, except and only if you have entered into a separate written addendum with HODYSS for special pricing on certain Charged Services and/or country-specific pricing, or HODYSS has otherwise made available special pricing in writing to you. HODYSS reserves the right to change pricing from time to time. The continued use of the Charged Services by you after a price change becomes effective, constitutes your agreement to pay the changed amount.
The Client is responsible for all applicable taxes on the Services. Unless otherwise provided on the pricing page on the Site, all charges and fees for the Services are in addition to any country, province, territory, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). Customer will be solely liable for and will pay upon HODYSS’ demand all Taxes associated with the use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts Customer owes HODYSS, but will not be responsible for taxes based on HODYSS’ net income. Customer may present HODYSS with an exemption certificate eliminating Customer’s and HODYSS’ liability to pay certain Taxes. Once HODYSS has received and approved the exemption certificate, Customer shall be exempt from those Taxes on a going-forward basis. If, a taxing jurisdiction determines that Customer is not exempt from Taxes and assesses those taxes, Customer shall pay those Taxes to HODYSS, plus any applicable interest or penalties. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE HODYSS REASONABLY COULD ACT.
Any account opened with HODYSS on the Site can be cancelled at any time but HODYSS will not issue a refund unless it is legally required. When a credit card is used to open an account or to buy a product or a service, HODYSS redirects the user on the payment processing supplier’s Web Service. A SSL certificate protects the transmission of the user’s credit card information.
5. Proprietary Rights on Information and Trademarks
HODYSS has no rights on your documents and information except for the permission you have granted to HODYSS, its affiliates and trusted third parties it works with to host, access, store, back up, share and scan your documents and information in order to provide you with the Services. Please understand that all information submitted on the Site might potentially be publicly accessible. Therefore, you should protect all your important and private information using the tools provided on the Site. We are not liable for protection of privacy of electronic mail or other information transferred over the Internet or through any other network provider that you may use.
Our network resources may not be used to impersonate another person or otherwise misrepresent an authorization to act on our behalf or on behalf of others. All messages transmitted through the Services should correctly identify the sender; you cannot alter the metadata proving the origin of electronic mail messages.
Any suggestions for improvement and feedback regarding Services are not confidential information as defined herein or in the professional services agreement, and you grant HODYSS an unlimited, irrevocable, fully paid-up, non-exclusive right to use such suggestions and feedback to all purposes.
HODYSS owns or has obtained the right to use by license or otherwise the trademarks, logos and domain names used on or in connection with the goods and services that it provides and displays on the Site. The trademarks are protected by Canada and foreign trademark laws. All rights reserved.
Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. You will not issue any press release or other public statement relating to this Agreement or the professional services agreement, except as may be required by law or agreed by HODYSS in a writing signed by an authorized representative. HODYSS may identify the entity you represent using its name, trademarks and/or logos in its marketing collateral, presentations and websites.
6. Your Responsibilities
Our Service has not been designed and is not intended for a person under the age of 13. By using the Services, you declare and represent to us that you are over 13. If you are not over 13 years old, you cannot use the Services without the consent of your legal guardian who will then be deemed the “Customer” within the meaning of this Agreement until you reach the required age.
If you submit any information through the Site, you agree not to (1) post or transmit anything that is defamatory, abusive, vulgar, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) post or transmit pyramid schemes or chain letters or conduct gambling, (3) post or transmit anything that violates the copyright or intellectual property rights of any person or entity, (4) post or transmit a virus or any other harmful component, or (5) contact other site users through unsolicited email, telephone calls, mailings or any other method of communication.
You may not (1) take any action that imposes an unreasonable load on the Site’s infrastructure, (2) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site, or (3) frame or link to any of the materials or information available from the Site.
When retrieving information from the Site, you are prohibited from (1) using or attempting to use spiders, robots, avatars, intelligent agents, or any other extraction or navigation search except for a normal browser, (2) aggregating, copying or duplicating any of the materials or information available from the Site except for the purpose of the use of the Site.
7. General Disclaimer and Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, ALL MATERIALS, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SERVICES AND THROUGH HODYSS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR GUARANTEES WHATSOEVER, WHETHER EXPRESS OR IMPLIED. HODYSS AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND INFRINGEMENT. HODYSS AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS DO NOT REPRESENT, WARRANT OR COVENANT THAT THE TOOLS, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SERVICES AND THROUGH THE SITE ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, RELIABLE, APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU MAY CHOOSE TO PUT THEM, OR THAT THEY ARE OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE TOOLS AND THE MATERIALS, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HODYSS OR HODYSS’ PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (II) WITH RESPECT TO DIRECT DAMAGES, ANY LIABILITY THAT EXCEEDS THE GREATER OF FIVE HUNDRED DOLLARS ($500.00) CAD OR THE AMOUNT OF FEES ACTUALLY PAID TO HODYSS IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
SOME STATES, TERRITORIES, PROVINCES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, TERRITORIES, PROVINCES AND COUNTRIES, EACH PARTY’S LIABILITY AND THE EXCLUSIONS SET FORTH IN THIS SECTION SHALL BE APPLIED AND WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED AND ENFORCEABLE UNDER APPLICABLE LAW.
The Site and the Services contain links to other sites and applications which may not be maintained or controlled in any way by HODYSS. Links to such sites and applications that are not maintained or controlled by HODYSS are provided for convenience only and are not to be construed as an endorsement by HODYSS that such products, services, advice or opinions or any other content of such sites are or will be accurate, current, complete, reliable, appropriate for any particular use to which you, or your entity, may choose to use them, or that they are or will be available on an uninterrupted and error-free basis, that defects will be corrected, or that the tools and the materials, products and services available on or through the services are free of viruses or other harmful components. Access or use of sites and applications to which links are provided are subject to the terms and conditions of such sites and applications.
No endorsement or approval of any third-party or their statements, opinions, information, products, or services is expressed or implied by the contents of the Services. To the extent any third-party opinions or information are included on our Site or through the Services, they are provided for convenience only and HODYSS assumes no liability and does not approve or endorse such third-party content, or warrant such content to be accurate, complete, reliable, verified, error free, or fit for any purpose.
8. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the province of Quebec and the federal laws of Canada applicable therein, in each case without reference to their principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable hereto. Without limiting the preceding language, you agree to submit, for purposes of this Agreement, to the jurisdiction and venue of the courts of Montréal, province of Quebec, Canada. CUSTOMER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES OR HODYSS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
9. Complaint Handling Procedures and Dispute Resolution
HODYSS takes customer complaints as serious matters. So that we may resolve any complaint or dispute, you agree to contact us by email at email@example.com. After a prompt and thorough investigation into your complaint, you will be notified, no later than fifteen (15) business days, of HODYSS’ intended action. After having received our solution to resolve your complaint, you will have ten (10) business days to communicate with HODYSS to indicate if you are satisfied with our solution or if you have a better solution to resolve your complaint. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DEFINED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND HODYSS SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
If negotiations fail to resolve the dispute within the period of the complaint handling procedure, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of Services, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the French language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent HODYSS or you from terminating Services in accordance with the Agreement or the professional services agreement.
A Party who intends to seek arbitration must first send to the other Party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location of arbitration will be in Montréal, province of Quebec, Canada and in accordance with the rules then in effect of the International Chamber of Commerce (“ICC”). Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Notwithstanding any provision of applicable law, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall not be entitled to recover its reasonable attorneys’ fees and costs.
The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER MAY BRING CLAIMS AGAINST HODYSS ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. The arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.
Notwithstanding the foregoing, each Party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.
HODYSS may cancel any or all of the Services at any time without notice to you. HODYSS will have no liability for any loss, damage or inconvenience that may result from cancellation.
You may stop using the Services at any time by providing notice in writing at our business address indicated in paragraph 12.5 below or by electronic means to HODYSS at firstname.lastname@example.org at least thirty (30) days prior to the effective date of cancellation or by using the tool to close your account available within the Services.
Upon termination of this Agreement and the professional services agreement, for any reason: (i) you remain liable for all fees, charges and any other obligations accrued and owed to HODYSS through the effective date of such termination, (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer shall cease using the Services. Sections 2, 4, 5, 7, 8, 9, 10 and 11 shall survive any termination of this Agreement.
11.1 Entire Agreement; Headings. This Agreement and the professional services agreement, if applicable, constitute the entire agreement between you and HODYSS with respect to the Site and Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and HODYSS with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by HODYSS or its employees and other representatives will create any obligations or warranty on behalf of HODYSS unless otherwise agreed in a writing signed by an authorized HODYSS representative. In the event that the Parties have executed versions of this Agreement drafted in more than one language, the French language version shall govern and prevail.
11.2 Modifications/Waivers. Except as expressly provided elsewhere in this Agreement, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on HODYSS’ behalf may only be given by an authorized signatory of HODYSS. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
11.3 Severability.If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.
11.4 Force Majeure. Neither Party is liable for any failure (in whole or in part) of performance hereunder (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labor difficulties, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either Party’s enforcement of this clause will not relieve Customer of its obligation to pay for any Services provided or permit Customer to terminate any Services except as expressly provided herein.
11.5 Notices.Customer hereby authorizes HODYSS to send notices to Customer relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address Customer provides to HODYSS in its profile on the Site, in addition to the other means and methods set forth in this Agreement. It is Customer’s responsibility to keep Customer’s email address current, and Customer will be deemed to have received any email sent to the last known email address HODYSS has on record for Customer. Notices that HODYSS sends to Customer via email will be deemed effective upon HODYSS’ sending of the email. Notices provided to HODYSS under this Agreement shall be sent to the following address:
HODYSS Evolution Inc.
3115, boulevard de la Pinière
Terrebonne, province of Quebec
J6X 4P7 CANADA
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given, (i) if personally delivered or sent by certified or registered mail, the day of the reception of the return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by facsimile or email; or (iii) the day after it is sent, if sent via next day delivery by recognized overnight delivery service.
11.6 Relationship of the Parties. The relationship of the Parties shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purpose. HODYSS and Customer shall be independent Parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
11.7 Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without HODYSS’ prior written consent.
11.8 Customer from the United States of America. By using the Services, Customer represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, and (ii) Customer and its affiliates have not been designated by any applicable government or any government agency as a prohibited or restricted party under any trade restrictions, export laws or the like. Customer also will not use the Site or Services for any purpose prohibited by applicable law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Customer may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorized by this Agreement and all applicable laws, rules and regulations.
11.9 Customer from European Union. If You are a European Union Customer, you will benefit from any mandatory provisions of the law of the country in which you are resident in.