Last Updated: January 12, 2021
These Terms of Service (this “Agreement”) are a legally binding contract between you (“Customer”, “you”, or “your”) and The Croo Group Inc., a Quebec corporation (“Croo”, “we”, or “us”), regarding your use of the Croo managed cloud communication system and related software solutions, and any other services offered by Croo (the “Services”). Customer and Croo may each be referred to as a “party” and collectively referred to as the “parties”. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM COMPANY, BY SIGNING UP FOR AN ACCOUNT OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. If you are not eligible, or do not agree to this Agreement, then you do not have our permission to use our Services. Croo may amend this Agreement in the future. Croo will give you notice of any such amendment as set out in Section 11.5. If you continue to use the Services after any amendment, it will mean that you accept that amendment. If you do not agree, then you may terminate your use of the Services.
1. Croo’s Services.
1.1. Orders. You may place an order through our website or in any other manner which we make available you, which is agreed to by you and which describes the Services and Third-Party Services (as defined in Section 3), if any, you are purchasing, including the Fees (as defined in Section 7.1), the quantities purchased, and any other details specifically related to those services (an “Order”). You agree that your Order is an offer to buy, under this Agreement, all Services listed in your order. All Orders must be accepted by us or we will not be obligated to sell the Services to you. We may choose not to accept Orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
1.2. Services. During the Term (as defined in Section 6.1), subject to the terms and conditions of this Agreement and the applicable addendum to an Order which sets out additional terms and conditions which apply to a specific Service that you have purchased (a “Service Addendum”), if any, we shall make the Services available to you in accordance with the applicable Order describing such Services.
1.3. Hardware. You may purchase from us and we will sell to you certain hardware and third-party equipment or devices (“Hardware”) for you to use in connection with the Services. In such an event, our respective rights and obligations with respect to the Hardware will be set out in separate terms and conditions governing the purchase of such Hardware (the “Hardware Terms”).
1.4. Professional Services. At your request, we may in our discretion agree to perform professional consulting services (including additional training services) relating to the Services or Hardware (collectively “Professional Services”), as expressly set out or referenced in a statement of work that we issue and that is signed or otherwise agreed to by you (a “Statement of Work”). The Statement of Work will describe the Professional Services, if any, you are purchasing, including scope of work, Fees and any other details specifically related to those services. Unless we expressly agree in writing otherwise, Professional Services will be subject to Croo’s standard professional services agreement and any additional terms and conditions (including payment of additional Fees) expressly set out in the Statement of Work.
1.5. Changes to or discontinuance of Services. We in our discretion may change any Service (such as by changing, adding or removing features) or discontinue any Service or any part thereof, at any time, for any reason. We are not required to give you notice of any changes that do not materially and adversely affect the functionality of the Services. To the extent practicable in the circumstances we will give you 90 days’ prior notice of (a) each substantive change to any Service that is likely to materially and adversely affect the functionality of the Services, including a change that is likely to require a corresponding change to any Customer System, and (b) any discontinuance of any material part of any Service. If you reasonably object to any change or discontinuance to the Service described in a notice we deliver to you, then: (i) within 30 days after you receive the notice you must deliver to us a notice setting out details of your objections to the change; and (ii) if we are not able to satisfactorily resolve your objection within 30 days after we receive your objection notice, then either party may terminate your Order for the Service effective on 30 days’ notice of termination to the other party. If we discontinue any Service, we may terminate your Order for the Service effective immediately on written notice of termination to you. This Section sets forth Croo’s sole liability (and Customer’s sole remedy) regarding any change to or discontinuance of the Services.
1.6. Technical Support. We take reasonable steps to provide customers with technical support with respect to the Services. However, unless we have agreed to meet specific service levels with you in a Service Addendum, we have no liability to you for any failure to provide technical support or to meet any service levels. Our liability in regard to the Services is limited as set out in Section 10, below.
1.7. Training. Unless otherwise agreed in a Statement of Work, the Services do not include any training of any of your personnel, or any addition or modification to the standard operation, functionality, performance or results of any Services or Hardware.
1.8. Subcontractors/Service Providers. We may in our discretion engage subcontractors and service providers (including providers of colocation services, infrastructure services and data centre services) to assist us to perform Services, provided that we will remain fully responsible and liable for all Services and the performance of our obligations under this Agreement. For greater certainty, a Service Addendum may contain additional terms and conditions relating to subcontractors or service providers relevant to a particular Service.
1.9. VOIP Service Conditions. There are important terms, conditions and limitations relating to your use of our Services which are Voice Over Internet Protocol (VOIP) services, as set out at https://www.croo.io/voip-terms (the “VOIP Service Conditions”). You and your Authorized Users (as defined in Section 2.3), must acknowledge and agree to the VOIP Service Conditions and your use of the Services is subject to the VOIP Service Conditions.
2. Your Responsibilities.
2.1. Acceptable Use of Services. You and your Authorized Users must use the Services in accordance with applicable laws, any applicable user guides or other technical documentation that we may make available to you that describe any requirements or instructions for the use of any Service, and all updates to such documentation that we make available from time to time (“Documentation”). You and your Authorized Users must not: (a) use, or provide or permit use of, any Service or any Documentation by any person, for any purpose or in any manner or by any means except as expressly permitted by this Agreement;(b) attempt to circumvent the ordinary navigational structure, technical delivery systems or display of any Service or otherwise attempt to access or use any Service by any means that is not purposely made available for that purpose by Croo;(c) use any Service in a way that threatens, damages, disrupts, compromises or degrades the integrity, operation, performance, functionality, results or security of the Service or any other system, network or data, or to attempt to gain unauthorized access to any Service or any other system, network or data;(d) except as expressly permitted by this Agreement, copy, reproduce, translate, modify, enhance, or create derivative works from any Service or any Documentation;(e) except as expressly permitted by this Agreement, license, sublicense, grant, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, commercially exploit, or otherwise give or make available or permit the use of any Service or any Documentation or any functionality or performance of any Service or any results of the use of any Service to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge;(f) alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures, or agreements on, in or in relation to any Service or any Documentation;(g) use any Service or any Documentation in order to create a product or service that is competitive with any Service, any Documentation or any other product or service offered by Croo, or any product or service using similar ideas, features or functions, or to copy any ideas, features or functions of any Service, any Documentation or any other product or service offered by Croo; or(h) permit, assist or encourage any other person to do any of the foregoing in this Section 2.1 or to commit any act or omission that would be a breach of this Agreement if committed by Customer or an Authorized User.A restriction set out in this Section 2.1 does not apply if and to the extent, but only to the extent, that the restriction is prohibited by applicable law.
2.2. Customer Systems. Except as and only to the extent otherwise set out in this Agreement and any applicable Order or Statement of Work or the Hardware Terms, you are solely responsible for obtaining, configuring, supporting, maintaining, paying for, and protecting from damage and loss, all technology infrastructure and services (including telephone adapters, phones, computer hardware, web browsers, interfaces, peripherals, internet connectivity and data storage devices) (“Customer Systems”) necessary for the use of Services or Hardware by you and your Authorized Users. Applicable requirements for Customer Systems to access the Services or use the Hardware will be set out in the applicable Documentation and any Service Addendum and these requirements may change from time to time without notice. Except as and only to the extent otherwise set out in this Agreement and any applicable Order or Statement of Work, (a) you will have sole control over and be solely responsible for the functionality, operation and performance of the Customer Systems and to ensure that the Customer Systems meet all applicable requirements to access the Services or use the or Hardware; and (b) we will have no obligation or liability for any failure of the Services that arises as a result of a failure of any of the Customer Systems.
2.3. Authorized Users. Your Order will specify the number of individuals you authorize to use the Services through your account, which may include your employees, consultants or contractors, or the employees, consultants or contractors of your affiliates (“Authorized Users”), and who may be registered at any one time to use the Services. Additional Authorized Users may be added on request by way of additional Orders (which may be issued and agreed via the administrative controls for the Services, if available) and will be subject to additional Fees. You will ensure that each Authorized User uses the Services accordance with the restrictions and requirements set out or referenced in this Agreement and in the applicable Documentation. You are fully responsible and liable for all acts and omissions of each Authorized User, including any and all unlawful acts and omissions (including fraud) committed by each Authorized User.
2.4. Authorized User Training. Except as expressly set out in an Order or Statement of Work, you are solely responsible for providing each of your Authorized Users with training and technical support regarding the Services or Hardware.
2.5. Security of Credentials. Each Authorized User will have unique access credentials to use the Services. Credentials are specific to the Authorized User for whom they are registered or provided and may not be shared with or transferred to any other person. You will ensure that each Authorized User keeps the Authorized User’s credentials secure and confidential at all times, does not permit any other person to use the credentials, and immediately notifies you if the Authorized User knows or suspects that the credentials have become known to or used by any other person. You will immediately notify us if you discover or suspect any unauthorized disclosure or use of any credentials or any unauthorized access to or use of any Services. You are fully responsible and liable for the security of all credentials and all use and misuse of any credentials. If we in our discretion consider any credentials to be no longer secure and confidential or to have been used inappropriately, then we may immediately cancel the credentials without prior notice. We may require an Authorized User to change the Authorized User’s credentials from time to time
2.6. Administrators. You must designate one or more Authorized Users (each an “Administrator”) to administer the use of administrative controls for the Services, including restricting or limiting the functionalities of the Services that may be used by other Authorized Users. You are responsible to determine whether to authorize an individual to be an Administrator, or to suspend or cancel an individual’s status as an Administrator, and to monitor and review the Administrator’s use of administrative controls. You acknowledge that an Authorized User’s use of administrative controls presents risks of substantial damage, loss and liability to you, and other persons, including damage, loss and liability resulting from fraud.
2.7. Monitoring Use. The Services may contain technologies that monitor, record and report to Croo information about each Authorized User’s use of the Services, and Croo may use that information for system administration purposes and to perform Services, and may disclose or make that information available to Customer (including Administrators). You will obtain from each Authorized User the Authorized User’s informed consent to the collection, use, disclosure and retention of information regarding the Authorized User’s use of the Services or Hardware as set out in this Section 2.7 and as otherwise permitted by applicable law.
2.8. Contract Management. You shall maintain within your organization a contract manager to serve as your primary point of contact for day-to-day communications, consultation and decision-making regarding the Services (a “Contract Manager”). The Contract Manager shall be responsible for providing all day-to-day consents and approvals on your behalf under this Agreement. You must ensure that your Contract Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Your initial Contract Manager is identified as the main contact person who is responsible for your account on your initial Order or using the functionality that we may make available to you for such purposes through the administrative controls for the Services. You shall use commercially reasonable efforts to maintain the same Contract Manager in place throughout the Term. If your Contract Manager ceases to be employed by you or you otherwise wish to replace your Contract Manager, such party shall promptly name a new Contract Manager by written notice to us. Details regarding Croo’s representatives for purposes of sales, contract management, technical support and other matters are set out in the Documentation, and may change from time to time.
3. Third-Party Services.
3.1 Third-Party Services. We may, in performing the Service, use technologies, services or data licensed from independent third parties, including third-party services which are resold by Croo as an authorized reseller (“Third-Party Services”). Your use of any Third-Party Service may be subject to additional terms and conditions and you agree to comply, and ensure that your Authorized Users comply, with those additional terms and conditions. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. We make no representation and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence, agreements or transactions with, any Third-Party Services.
4.1. Customer Data. You are responsible to ensure that all data and information that are transmitted by the Customer Systems to us in connection with your use of the Services (“Customer Data”) complies with all applicable laws, with the Applicable Use Provisions and this Agreement. You must ensure that you have and maintain all required valid and subsisting permissions, licenses, agreements and consents to transmit and store the Customer Data and to ensure that the Customer Data does not infringe on the rights of any third party. We reserve the right to immediately remove from our Services any Customer Data that is in violation of this Section
4.2. Ownership of Customer Data. As between the Parties, you will at all times retain sole ownership of all Customer Data and full custody and control over all Customer Data, even if the Customer Data is in Croo’s possession. Nothing in this Agreement will be interpreted or construed to grant to Croo any rights in, to or associated with any Customer Data, or any control over any Customer Data, except a limited license to use Customer Data for the purposes and in the manner expressly set out in this Agreement.
4.3. License; Use by Croo of Customer Data. Customer hereby grants and agrees to grant to Croo a non-exclusive, royalty-free right and license during the term of this Agreement to use Customer Data for the sole purposes of performing Services to or for the benefit of Customer. Croo may rely on, and is not obligated to test, assess or verify, the accuracy, currency, completeness, integrity and reliability of Customer Data.
4.4. Ownership of Croo Data. Croo may, as part of a Service, make available to Customer certain data and information that is created or otherwise obtained by Croo without reference to any Customer Data (“Croo Data”). Croo will at all times retain sole ownership of all Croo Data. Nothing in this Agreement will be interpreted or construed to grant to Customer any rights in, to or associated with any Croo Data, or any control over any Croo Data, except a limited license to use Croo Data for the purposes and in the manner expressly set out in this Agreement.
4.5. License; Use by Customer of Croo Data. Croo hereby grants, and agrees to grant, to Customer a non-exclusive, non-transferable, non-sublicensable, restricted and limited license to use Croo Data for the sole purposes of Customer’s internal business operations and to make use of the Services as contemplated by this Agreement. Customer will not use, or provide or permit use of, any Croo Data by any person, for any purpose or in any manner or by any means except as expressly permitted by this Agreement. Customer will promptly, permanently delete Croo Data if and to the extent that Customer no longer requires Croo Data for a legitimate business purpose and if Customer is not required by applicable law to retain Croo Data. For greater certainty, Customer will not be permitted to use Croo Data at any point after termination or expiration of this Agreement, or the termination or expiration of a relevant Order for a Service.
4.6. Anonymized Data. Croo may, in order to provide, maintain or improve the Services or its other products or services, monitor and analyze Customer’s use of the Services or apply statistics or data analytics to Customer Data. In so doing, the Croo may generate data that is anonymized and cannot be associated with any specific person (“Anonymized Data”). Croo will solely own all Anonymized Data and may use Anonymized Data without any limitation, for its own benefit.
5. Croo Intellectual Property.
5.1. Services. Except for the limited licenses expressly set out or referenced in this Agreement, as between the Parties, Croo and its licensors will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with the Services and the Documentation. Customer will not acquire any right, title or interest in, to or associated with any Service or any Documentation.
5.2. Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant Croo a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
5.3. Croo Trademarks. CROO™, CROO CONNECT™ and other related logos and marks are registered or unregistered trademarks of Croo or its licensors. Customer does not have and will not acquire any license or right to use any of those trademarks.
6. Term and Termination.
6.1. Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your first Order and will continue in effect until terminated in accordance with this Agreement (the “Term”). If all Orders have been fully performed or have expired or been terminated in accordance with this Agreement, then either party for its sole convenience may terminate this Agreement effective immediately on notice of termination to the other party. This Agreement will terminate automatically (without notice to any party) 90 days after the day on which all Orders have been fully performed or have expired or been terminated in accordance with this Agreement.
6.2. Term of Orders. The term of each Order will start on the first day of the initial term specified on the Order and will continue for the specified term. Except as expressly stated otherwise in an Order, all Orders will automatically renew as follows:(a) Orders which are on a 12-month term will renew for subsequent 12-month renewal periods unless a party gives the other party written notice of non-renewal at least 30 days prior to the end of the then-current term. Croo reserves the right to increase the Fees for Services or Third-Party Services that are resold by Croo on renewal by providing Customer written notice thereof (which notice may be provided by email) at least 45 days prior to the end of the then-current term.(b) Orders which are on a monthly term will renew for subsequent monthly renewal periods unless a party gives the other party written notice of non-renewal at least 30 days prior to the end of the then-current monthly term. Croo reserves the right to increase the Fees for Services or Third-Party Services that are resold by Croo on renewal by providing Customer written notice thereof (which notice may be provided by email) at least 25 days prior to the end of the then-current term.
6.3. Termination By Croo for Cause. Croo may terminate this Agreement, effective on written notice to Customer, if Customer:(a) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Croo’ delivery of written notice thereof; or(b) breaches any of its obligations under Section 2.1 (Acceptable Use of Services).
6.4. Termination By Either Party for Cause. Either party may terminate this Agreement, effective on written notice to other party, if such other party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the defaulting party does not cure such breach within 30 days after receipt of written notice of such breach.
6.5. Effects of Termination. Upon termination of this Agreement for any reason: (a) all Orders will automatically terminate; (b) your access to Croo accounts, Services and Third-Party Services will be terminated and you will immediately cease all use thereof; and (c) you will pay all unpaid amounts you owe to Croo. If you terminate this Agreement in accordance with Section 6.4, or if the Agreement is terminated under Section 1.5, Croo will refund any Fees you paid in advance for the Services and Third-Party Services applicable to the period after termination. If Croo terminates this Agreement in accordance with Section 6.3 or Section 6.4, then you will pay any unpaid Fees for the remainder of the term of each Order. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to Croo for the period prior to the date of termination.
6.6. Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 4 (Data), 5 (Croo Intellectual Property), 6 (Term and Termination), 8 (Confidentiality), 10 (Warranties, Indemnities and Limitations on Liability) and 11 (General) will survive the expiration or termination of this Agreement.
6.7. Waiver of right to terminate for convenience. The Customer waives any right to terminate this Agreement under article 2125 of the Civil Code of Quebec and acknowledges and agrees that Customer’s only termination rights are as expressly set out in this Section 6.
6.8. Transition. Upon expiry or termination of an Order, if Customer requires services in order to assist with Customer’s transition to another Service Provider, Customer may make the request and Croo will consider the technical feasibility of request. If Croo in its sole discretion determines that the request is technically feasible, Croo and Customer will agree to the scope of the transition services to be provided by the Croo as Professional Services pursuant to a Statement of Work. Croo reserves the right to charge an additional Fee for such transitional services.
6.9. Suspension of Services. Croo may in its discretion suspend provision of any Service immediately on notice to Customer if any of the following events (each a “Suspension Event”) occurs:(a) Customer breaches any of its obligations under Section 2.1 (Acceptable Use of Services);(b) Customer fails to make any payment when due under this Agreement and fails to cure the breach (by making the required payment) within 14 days after Customer’s receipt of notice of the breach from Croo;(c) Croo’s right or license to lawfully use any infrastructure, technologies, services or data provided by or obtained from any third party (including a service provider or subcontractor) required for provision of the Service is disputed, suspended or terminated for any reason; or(d) Croo reasonably believes that the integrity, functionality, operation, performance, results, reliability or security of the Service may have been damaged, disrupted, compromised or degraded, or to prevent a risk of damage, disruption, compromise or degradation to the integrity, functionality, operation, performance, results, reliability or security of the Services; or(e) Croo reasonably believes that the suspension of the Service is required by applicable law or is reasonably necessary to prevent or mitigate an imminent risk of harm, loss, damage or liability.
6.10. Effect of Suspension Event. To the extent reasonably practicable, Croo will give Customer reasonable prior notice of the suspension of a Service pursuant to Section 6.9. If Croo suspends provision of a Service due to the occurrence of a Suspension Event, then, (a) the parties will reasonably cooperate and assist each other to resolve the Suspension Event (if practicable); (b) Croo will reinstate provision of the Service promptly after the Suspension Event is resolved to Croo’s reasonable satisfaction; and (c) Customer’s payment obligations will be suspended during the suspension unless the Suspension Event is caused by or results from any breach of this Agreement by Customer or a wrongful act or omission by or on behalf of Customer or any person for whom Customer is responsible under this Agreement or at law. For greater certainty, Croo’s suspension of a Service due to the occurrence of a Suspension Event will not be a breach of this Agreement by Croo, entitle Customer to a refund of previously paid fees or give rise to any liability by Croo to Customer or any other person.
7. Fees and Payment.
7.1. Fees. You will pay all fees as and when described in each Order as well as any other applicable fees based on usage of any particular Service as set out in the fee schedule located at to https://croo.io/usage-fees or in any other fee schedule which we may make available to you from time to time (the “Fees”). Unless otherwise stated on the Order, Fees for the entire committed Term of the Order are payable in advance.
7.2. Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Order. Unless otherwise stated on the Order, all invoices are payable immediately upon receipt. Any disputed amounts will not affect payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice.
7.3. Invoice Disputes. If you dispute an amount on any invoice or monthly statement that is provided to you by us, you must notify us in writing within 30 days of receipt of the invoice or statement, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts immediately. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
7.4. Late Payment. If any undisputed amounts invoiced are not received by Croo by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 1.5% per month (18% per year); or (b) the maximum rate permitted by law from the date such payment was due until the date paid.
7.5. Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Services, which for clarity does not include any taxes based on Croo’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 7.5, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement will be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.
8.1. Definitions. In this section, “Confidential Information” means non-public information relating to a party, whether written or oral, which is provided to the other party by that party or of which the other party becomes aware in connection with this Agreement, whether before or after the date of this Agreement, including:(a) that party’s financial information, know-how, trade secrets, technical information, data, source code, customer information, marketing information and information as to business opportunities, strategies, research and development;(b) any information that is identified by that party as confidential at the time of disclosure; and(c) the existence of and the terms and conditions of this Agreement.
8.2. Use of Confidential Information. Neither party will use, nor permit its directors, officers, employees, representatives, subcontractors or agents (“Agents”) to use, any Confidential Information of the other party for any purpose other than the performance of the Services.
8.3. Disclosure of Customer Confidential Information. Neither party will disclose, nor permit its Agents to disclose, any Confidential Information of the other party except with the consent of such other party or as expressly permitted by this Agreement. Each party may disclose Confidential Information of the other party to its Agents, but only to those of its Agents who:(a) need to have the information in order to perform the Services and only to the extent required for the provision of the Services;(b) have been informed of the confidential nature of the Customer Confidential Information; and(c) are bound by confidentiality obligations that are at least as restrictive as those set out in this Section 8.
8.4. Protection of Confidential Information. Each party will, and will ensure that its Agents will, protect and maintain the confidentiality of the Confidential Information of the other party.
8.5. Notice of Suspected Unauthorized Disclosure of Confidential Information. As soon as a party becomes aware of any use or disclosure of the Confidential Information of the other party that is contrary to this Agreement, it will notify such other party.
8.6. Responsibility for Breach by Agents. Each party will be responsible for any breach of this Section 8 or any improper use or disclosure of the other party’s Confidential Information by such party’s Agents or by any other person to whom the other party’s Confidential Information was provided by such party or its Agents.
8.7. Injunctive Relief. Each party acknowledges that a breach of this Section 8 would cause irreparable harm to the other party for which damages would not be an adequate remedy. Accordingly, each party will be entitled to specific performance of the other party’s obligations under this Section 8 and to injunctive and other equitable relief in addition to any other remedy to which it may be entitled.
8.8. Disclosure Required by Law. If a party is required by law to disclose any Confidential Information of the other party, such party will:(a) notify the other party within a reasonable period of time before making any disclosure;(b) use its best efforts to resist disclosure and maintain the confidentiality of the Confidential Information; and(c) disclose only that portion of the Confidential Information that is legally required to be disclosed.
8.9. Information Available From Other Sources. The obligations of a party with respect to Confidential Information do not apply to information:(a) that is in the public domain otherwise than as a result of disclosure by that party or its Agents;(b) that was legitimately possessed by that party before its disclosure as evidenced by prior written records;(c) that was independently obtained by that party or its Agents from a source that was permitted to disclose it; or(d) that was independently developed by that party without reference to the Confidential Information of the other party.
8.10. Return of Confidential Information. At the request of a party, which may be made at any time, the other party will promptly return to the requesting party or destroy (as the requesting party may direct) all documents embodying the requesting party’s Confidential Information, including documents provided by the requesting party to the other party and documents prepared by the other party or its Agents, provided that the foregoing does not apply to either (a) electronic records containing the disclosing party’s Confidential Information that are maintained as archive copies on Croo’s disaster recovery or information technology backup systems that are protected by commercially reasonable security measures, provided that such archive copies will be destroyed upon the normal expiration of the Croo’s backup files; or (b) the disclosing party’s Confidential Information that the receiving party is required to retain to comply with applicable law. If required by the requesting party, the other party will, when returning documents, provide to the requesting party a statutory declaration duly executed by an officer of such other party confirming that, to the best of the declarant’s knowledge, such other party has complied with all of its obligations under this Section 8.
8.11. Duration of Confidentiality Obligations. The obligations of the parties under this Section 8 will remain in force during the term of this Agreement and will continue to apply to each item of Confidential Information unless and until the item no longer qualifies as Confidential Information by virtue of the application of one or more of the exceptions set out in Section 8.9.
9. Security & Data Protection
9.1. Information Security Practices. During the Term, we will use commercially reasonable efforts to implement and maintain information security practices in accordance with industry standards.
9.3. GDPR. If your use of the Services includes the processing of personal information that is subject to the General Data Protection Regulation (EU) 2016/679, you must provide us with notice disclosing this fact and you are solely responsible to ensure compliance with all applicable laws and regulations of the European Union and its member states.
9.4. Security and Data Protection for Customer Systems. You are solely responsible and liable for the security of your Customer Systems and all data stored in the Customer Systems. Without limiting the foregoing, but except as and only to the extent otherwise set out in this Agreement and any applicable Order or Statement of Work, you are solely responsible for (a) scanning for and preventing the transmission and receipt of viruses and other harmful components to or from your Customer Systems, and (b) maintaining complete and current backup copies of all data contained in each Customer System to mitigate the risk of data loss or damage.
10. Warranties, Indemnities and Limitations on Liability. WARRANTIES & DISCLAIMER
10.1. Mutual Warranties. Each party represents and warrants to the other party that: (a) if it is a corporation, it is duly organized and validly existing in the jurisdiction of its incorporation; (b) it has all required power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (c) if the party is an individual, the party is at least 18 years of age, or the age of legal majority in the party’s jurisdiction (if different than 18); (d) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action; and (e) when executed and delivered by each of the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, or similar laws related to or affecting creditors’ rights generally or the effect of general principles of equity.
10.2. Not a Consumer. Customer represents and warrants that it will only use the Services for business and professional reasons. Customer acknowledges and agrees that the Services are not intended for use by consumers.
10.3. Disclaimer.(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER THE SERVICES AND HARDWARE “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NON-INFRINGEMENT, THAT THE SERVICES OR HARDWARE WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES OR HARDWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE THE SERVICES AND HARDWARE AT YOUR OWN RISK.(b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. INDEMNITIES
10.4. Indemnification by Customer. Customer will defend, indemnify, and hold harmless Croo, its affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that any Customer Data or Customer System, infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; (b) arising from Customer’s breach of Section 2.1; or (c) relating to, or arising from, Customer’s use of any Third-Party Services (including Customer’s breach of any terms or conditions applicable to any Third-Party Services).
10.5. Indemnification Procedures. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defence and investigation of such claim and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any claim in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 10.5 shall not relieve the indemnifying party of its obligations under this Section 10.5 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense. LIMITATIONS ON LIABILITY
10.6. Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 10.6 THROUGH 10.8, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED TO COMPANY HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES AND HARDWARE SUBJECT TO THE CLAIM DURING THE 6 MONTH PERIOD (OR THE PERIOD SINCE THE BEGINNING OF THE TERM IF SHORTER) IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 10.6 EXCLUDES ANY FEES PAID BY CUSTOMER TO A THIRD PARTY OR FOR ANY THIRD-PARTY SERVICES, EVEN WHERE THE SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH THIRD-PARTY SERVICES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10.6 ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF COMPANY AND OUR AFFILIATES AND TO CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.
10.7. Excluded Damages.(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR HARDWARE OR ANY OTHER ASPECT OF THIS AGREEMENT.(b) UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.(c) CUSTOMER ACCEPTS AND ASSUMES ALL RISK OF DAMAGE, LOSS AND LIABILITY RESULTING FROM THE UNAUTHORIZED USE OF A SERVICE BY AN AUTHORIZED USER OR THE UNAUTHORIZED USE OR DISCLOSURE OF CREDENTIALS. COMPANY IS NOT REQUIRED TO VERIFY THE ACTUAL IDENTITY OR AUTHORITY OF ANY PERSON USING CREDENTIALS, AND COMPANY MAY ACT ON ANY COMMUNICATION THAT IS GIVEN WITH THE USE OF CREDENTIALS.(d) CUSTOMER ACKNOWLEDGES THAT SERVICES OR HARDWARE MIGHT BE AFFECTED BY CIRCUMSTANCES BEYOND COMPANY’S CONTROL, MIGHT NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE, AND ARE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, FAILURES OR ANY DAMAGE, LOSS OR LIABILITY RESULTING FROM ANY OF THOSE PROBLEMS. CUSTOMER ACKNOWLEDGES THAT SECURITY MEASURES USED BY OR ON BEHALF OF COMPANY AND ITS SUBCONTRACTORS AND SERVICE PROVIDERS MIGHT NOT PROTECT A COMPANY SYSTEM OR DATA STORED IN A COMPANY SYSTEM AGAINST UNAUTHORIZED ACCESS, USE OR DISCLOSURE. COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, A COMPANY SYSTEM OR ANY DATA STORED IN A COMPANY SYSTEM, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.(e) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR HARDWARE OR YOUR ACCOUNT OR THE CUSTOMER DATA CONTAINED THEREIN.
10.8. Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10.9. Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 10.6 THROUGH 10.8 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF COMPANY WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
11.1. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Orders and Statements of Work), without your consent, to any of our affiliates, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
11.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
11.3. Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Services and may use your name(s) and logo(s) in: (a) Croo’s digital, online, and printed marketing materials (including on our websites); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.
11.4. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) national or regional emergency; (f) outbreak of a pandemic disease; (g) strikes, labour stoppages or slowdowns or other industrial disturbances; or (h) any other event which is beyond the reasonable control of such party.
11.5. Amendment.(a) Croo may amend this Agreement in the future. Croo will give you notice of any such amendment and the amendment will come into effect 24 hours after we provide the notice. Notice of any such amendment may be given in any of the following ways:(i) By posting a notice of the amendments on Croo’s website or within any administrative controls for the Services, or(ii) By sending a notice of the amendments to you at the email address associated with your account.(iii) If you continue to use the Services after any amendment, it will mean that you accept that amendment. If you do not agree, then you may terminate your use of the Services.(b) Transactions that are already in process prior to the effective date of the amendment will continue to be governed by the terms and conditions that were in effect at the date of the transaction. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.(c) We may change the online terms or documents incorporated by reference in this Agreement at any time by posting the revised terms or documents on the Croo website, provided that we will notify you of any changes that, in our sole discretion, materially impact this Agreement
11.6. Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
11.7. Notices to You. Croo may give notice to you by using notification features within the Services or on the Croo’s website. We may also contact you or your Authorized Users through your Croo account or contact information you provide, such as email or telephone. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about the Services or this Agreement. Without limitation, we may also contact you at the address information provided on the signature page hereof.
11.8. Notices to Croo. For any notice to Croo that you give under or regarding this Agreement, you must notify Croo by email to firstname.lastname@example.org with a duplicate copy sent via registered mail to the following address: The Croo Group Inc. 33 rue Prince, Montreal, Quebec H3C 2M7.
11.9. Waivers. The rights of each party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
11.10. Certain Matters of Interpretation.(a) The headings and subheadings in this Agreement are inserted for convenience of reference only and will not affect the interpretation of this Agreement.(b) All references to dates and times are to Montréal time, unless otherwise specified.(c) All references to dollars or “$” are to Canadian Dollars unless otherwise specified.(d) References in this Agreement to Sections or Schedules are to Sections of or Schedules to this Agreement, unless otherwise provided.(e) The words “include” or “including” (or any similar term) will not be construed as implying any limitation.
11.11. Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
11.12. Governing Law. This Agreement is an agreement between you and The Croo Group Inc., a Quebec corporation, this Agreement is governed by the laws of Province of Quebec, Canada, and you agree to submit to the personal and exclusive jurisdiction of the courts located within Montreal, Quebec, Canada for the purpose of litigating any dispute relating in any way to this Agreement, your use of the Services, or any items you purchase through the Services.
11.13. Priority of Documents. If there is a conflict or inconsistency between any of the documents that are incorporated in this Agreement (including any online terms, any Schedule and any Order or Service Addendum) then:(a) a document that expressly states that it amends or revises another document takes priority over the other document;(b) in the absence of an express statement of amendment or revision the order of priority is as follows: (1) any Order and its Service Addendums (if any) or any Statement of Work; (2) this Agreement and its Schedules; and (3) any online terms or other document;(c) with respect to your rights and obligations governing your use of any Third-Party Services, the terms and conditions applicable to such Third-Party Services will take priority; and(d) if there is a conflict or inconsistency between two or more documents having the same priority level, then the document most directly and specifically related to the subject matter of the conflict or inconsistency will take priority to the extent of the conflict or inconsistency.
11.14. Entire Agreement. This Agreement, including the other documents referred to as applicable to the Services in this Agreement, is the entire agreement between you and Croo for your use of the Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.