Latest Update: July 2021
These Terms of Service, including any applicable Order Forms (collectively, the “Terms
”), constitute a legal agreement between the entity that agrees to these Terms (the “Customer
”) and Operam Technologies Inc., with a place of business at 81 Rue Notre Dame O, Thetford Mines, QC G6G 1J4 (“Operam”, “we
These Terms define the legal relationship between you and us in connection with the Services (as defined below). Please read the following Terms carefully before accessing or using our Services, as they contain important information on your obligations while using the Services. The Terms also inform you of our liability towards you and the warranties or disclaimers that apply to our Services.
If you wish to use our Services, you must accept and agree to be bound by and comply with these Terms. Continued use of any of our Services indicates your continued acceptance of the Terms. If you do not agree with these Terms, you shall not use our Services.
If you have any questions related thereto, you can reach us at email@example.com
For the purpose of these Terms:
” means any usage data, customer data, user-generated data and other data generated by the Services which have been processed through an industry-standard de-identification technology or method and which, as a result, does not relate anymore to an identified or identifiable natural or moral person. For the avoidance of doubts, Anonymized Data does not include personal data or personal information (as defined under applicable laws).
” means students, employees, teachers, educators and/or administrators, and any other individual who is authorized by Customer to use and access the Services.
” means any and all intellectual property, including, without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and any and all proprietary rights provided under patent law, copyright law, trade mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.
” means the online web-based platform to enable End Users to create and read working plans as well as time management in connection with courses for which they are registered at the Customer’s institution, as further described in the Order Form and provided documentation.
” means the services described in an Order Form, which include the provision and hosting of the Platform, unless stated otherwise.
” means the term of these Terms,which is indicated in the Order Form.2. Services
Operam shall perform the Services indicated in an order form, subject to the terms and conditions in such Order Form, and these Terms. The order form shall contain a description of the Services (including the number of End User access), the service level agreement, the Services Term, the Services Term Start Date and the payment terms (“Order Form
”). The Order Form may only be modified through a change order describing the amendments to the Services, such as the number of additional End Users, and the fees associated with the change (“Change Order
”). The Order Form(s) and Change Order(s) are executed and effective upon digital approval or signature by both parties or upon the issuance of a purchase order by Customer corresponding to the Order Form(s), or Change Order(s) issued by Operam.
In case of a conflict between the respective terms of these documents, the precedence shall be in the following order:
1. Change Order (the most recent through the least recent);
2. Order Form
You agree and understand that we will need the information indicated in the Order Form to provide access to the Platform to your End Users. You agree and understand that any delays in providing such information is out of our control and not our liability.
You are responsible for understanding the settings, privileges and controls for the Services and for controlling whom you permit to become an End User and what are the settings and privileges for such End User. Operam shall not be responsible for managing End Users, settings and controls of the Platform.
Operam will deploy commercially reasonable efforts to ensure that the Services are available on a 24/7 basis, except during holidays in Quebec. Students may access the Platform anytime at their convenience. Operam reserves the right to conduct maintenance, whether scheduled or unscheduled. Whenever possible, Operam will advise of maintenance in advance. We may, from time to time, develop new modules, versions, functionalities or features to the Services (each an “Upgrade
”). Upgrades are generally included with your subscription to the Services, except if we indicate otherwise (the “Excluded Upgrade
”). Excluded Upgrades can be added to an Order Form through a Change Order, and may be subject to additional fees and terms and conditions. Excluded Upgrades shall not include security patches and updates that are required for the Services to function substantially as described in these Terms.
You agree to comply with third party terms and conditions when using the Services, including those applicable to websites, sites and applications from third parties made available from time to time to you as part of our Services, including integration partners that may be available through third-party Application Programming Interface (“API
You agree and understand that we are not responsible for these third parties, and that you use such third parties at your sole risks. They are not service providers of Operam.
Operam may make available to you APIs that belong to third party services or APIs that are developed by Operam, and which, as between you and us, are Operam’s Intellectual Property, your use of APIs must be in compliance with these Terms and the provided documentation, which may be modified from time to time to account for technical and operational environmental changes. You shall not use the API for any purpose, function, or feature not described in the provided documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the APIs and related documentation from time to time, and may add or remove functionality.
We reserve our rights to make changes to the Services. In case of a material change, we will notify you. Modifications to the Services shall not materially and adversely affect the performance of the Services in accordance with these Terms.
3. Acceptable Use
Customer agrees and acknowledges that the use of the Platform is subject to compliance with these Terms, including the requirements for acceptable use in this Section 3. Customer agrees and understands that Operam may suspend or revoke access to End Users who do not comply with this Section 3, and agrees to deploy commercially reasonable efforts to ensure compliance with these requirements and to assist Operam in enforcing such requirements, the whole in accordance with Operam’s Acceptable Use Policy. In case of a problematic behaviour by an End User, Operam will contact Customer, and Customer will be in charge of any discipline directly with this End User, including contacting parents or parental tutors when appropriate.
Without limiting the generality of the foregoing, Customer represents and warrants that it shall not use the Services in a way which results in:
- Posting or transmitting material that infringes, misappropriates or violates another person’s intellectual property rights;
- Posting or transmitting material that violates End Users and third party’s rights of privacy;
- Using the Platform for purposes of stalking, harassing, threatening, bullying or other similar behavior;
- Posting or transmitting material that is defamatory, sexual in nature (other than as justified in light of the course content), obscene, offensive or discriminatory;
- Selling, leasing, licensing, sublicensing, loaning, encumbering or otherwise transferring its right to use the Platform to a third party, in whole or in part, except as permitted under these Terms;
- Disclosing access credentials to unauthorized parties or fail to implement reasonable security measures to prevent such an occurrence;
- Compromising the integrity or operation of the Platform or attempting to do so;
- Tampering with, reverse-engineering or hacking the Platform, circumventing any security or authentication measures, or attempting to gain unauthorized access to the Platform, related systems, networks or data;
- Using “robots,” “spiders,” “offline readers,” or other automated systems to sends more request messages to the Platform than a human could reasonably send in the same period of time by using a normal browser;
- Making an unreasonable or abusive use of the access provided to the Platform;
- Generating and sending unsolicited commercial communications, advertising chain letters or spam;
- Uploading viruses, bots, worms, scripting exploits or other similar materials;
- Posting or transmitting content that is intended to be inflammatory;
- Using the Platform to recruit or solicit for employment or consulting any of the personnel of Operam; or
- Otherwise engaging in behaviour that is illegal under applicable laws;
each, an “Abuse
Customer agrees to promptly report any alleged Abuse, by any End User, of which it becomes aware via electronic correspondence so as to enable Operam to investigate such alleged improprieties.4. Moderation Rights
Customer agrees and understands that Operam reserves its right to moderate the user-generated content. Operam may delete any user-generated content in violation of these Terms, including Operam’s Acceptable Use Policy. Without limiting the generality of the foregoing, Operam shall be authorized to delete or modify user-generated content as necessary to protect its legal rights and to protect other End Users and their rights. Operam shall communicate any such moderation actions to Customer. Notwithstanding the foregoing, Operam is not responsible for moderating the Services. Customer is solely responsible for ensuring compliance with Operam’s Acceptable Use Policy, applicable laws and standards of conduct by its End Users. The parties will collaborate in good faith to ensure the safety of End Users and the appropriateness of the user-generated content given the age of End Users and the nature of the Services.
5. Technical Support
The Services include technical support between 9 AM (ET) and 5 PM (ET), Monday to Friday, except for national holidays in the province of Quebec, Canada. Technical support is offered through email and phone at the contact details provided in the Order Form. We make commercially reasonable efforts to respond to support requests within a reasonable time depending of the issues encountered.
Technical support services do not cover technical issues caused by third party software and hardware, including End Users’ workstations, or network connectivity issues.
6. Information Security and Privacy
Customer is responsible for obtaining consents from parents or representatives in accordance with the law, such as to allow End Users to use the Services. Customer represents and warrants that it has obtained all consents necessary to allow Operam to perform the Services, the whole in accordance with the law, which may include the Children’s Online Privacy Protection Act of 1998. Operam shall have no responsibility whatsoever for personal information provided without consent to Operam by Customer.
We implement and maintain adequate technical and organizational measures to:
a) Assist you in responding to individuals’ rights requests regarding their personal information;
b) Protect personal information from security incidents;
c) Ensure personnel security, such as through criminal background checks when such personnel have accesses to children’s personal information.
Operam shall not use any service providers to perform the Services, except if:
a) Operam has entered into an agreement with such service providers requiring provision substantially similar to those contained in these Terms, such as regarding the prohibition on secondary uses of personal information;
b) Operam has conducted reasonable due diligence on this service provider, in accordance with the sensitivity of the personal information accessed, if any, by the service provider;
c) Operam shall remain liable for the acts and omissions of service providers in accordance with these Terms;
d) Operam discloses such service providers to Customer upon request.
In the event of a Security Incident, we will notify you without undue delays, providing you with the following information:
a) The nature and description of the security incident;
b) The types of information assets concerned, if any;
c) The types and number of individuals concerned;
d) A description of potential risks and how to mitigate them.
7. Intellectual Property
Operam owns all rights, titles and interests to the Services. All rights not granted herein are reserved.
You agree that suggestions regarding the Services are the Intellectual Property of Operam, and you hereby assign your moral rights into such suggestions to Operam, or renunciate such moral rights if assignments are not authorized. Customer shall not be authorized to use the Services to create derivative works, including competitive work, by leveraging the confidential information of Operam, and shall not be authorized to provide access to the Services to any third parties for the purpose of building a competitive service.
Customer owns all rights, titles and interests in the user-generated content, such as the personal information, conversations and documents transmitted through the Services. Notwithstanding the foregoing and anything to the contrary in these Terms, you hereby grant us a revocable (but only pursuant to these Terms), fully-paid, non-exclusive, royalty-free, limited and worldwide licence to aggregate, reproduce, and otherwise use and display the customer data and user-generated content as may be necessary for us to provide the Services or to exercise our rights and obligations under these Terms.
Notwithstanding anything to the contrary in these Terms, you agree and acknowledge that Operam shall hold all rights, title and interest in Anonymized Data, which may be used for business intelligence purposes, notably.
The Services may include the provision of templates, reports, tables, graphs or similar outputs (each a “Report”), which are Operam’s Intellectual Property. Unless otherwise set forth in an Order Form, Operam hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited license to reproduce, print, download and use all such Reports solely in accordance with these Terms and for your legitimate educational purposes. This license shall survive the Term.
Customer agrees to pay Operam the fees set forth in the Order Form, along with any taxes applicable pursuant to applicable laws (the “Fees
”). Unless otherwise provided otherwise in the Order Form, (a) the Fees are to be paid within thirty (30) days of the receipt of an invoice following the Order Form acceptation; (b) the Fees may be increased by Operam by giving the Customer thirty (30) days’ prior written notice at any point in time and will be applied at the following invoice to be issued to the Customer, and Customer shall have the option of terminating the Terms by providing written notice if it disagrees with the price increase set out in Provider’s written notice, provided this is done no later than at the expiration of the notice period; (c) in the event that Customer adds additional student access during the term, fees associated with such additional accesses shall be payable within thirty (30) days of the end of the term during which they are requested; (d) there are no limits on the number of administrator, educator and teacher End User accesses to the Platform and no charge for such accesses; and (e) all amounts payable under these Terms shall be non-refundable.
Unless otherwise expressly set forth in an Order Form, all prices are expressed in Canadian dollars.
Customer agrees and understands that Operam has no liability whatsoever for (a) user-generated content and any acts or omissions in relation to the moderation of such content; (b) Customer’s failure to obtain appropriate consents to ensure that Operam may deliver the Services, including by collection, using or disclosing the personal information of End Users as necessary to deliver the Services; and (c) Customer’s failure to comply with these Terms.
Customer agrees and understands that Operam has no liability whatsoever for advices and information given in good faith by Operam’s educative personnel via the Services, such as inaccurate, incomplete or misinformed advice and information given in good faith. Operam’s only liability is to ensure that the educative personnel is appropriately trained to provide the Services. Different perspectives may be applicable to educative content, and certain theories may be privileged by certain personnel over other theories, in accordance with generally accepted methods of teaching. Operam strives to provide objective educative support in accordance with markets’ standards. Customer is responsible for communicating with Operam any educative restrictions and providing feedback to Operam as needed to adjust the Services to Customer’s educative culture, where possible and reasonable.
We are not responsible for any links to third parties’ services, websites or applications provided through our Services.
EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE”. NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURATENESS. WE DO NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WILL MEET END USERS’ REQUIREMENTS.10. Indemnification
Customer agrees to defend, indemnify and save harmless Operam from any and all losses, liabilities, expenses (including, without limitation, reasonable fees and disbursements of counsels), claims, liens, damages or other obligations whatsoever resulting from (a) Customer’s failure to obtain appropriate consent for End Users’ access and use of the Services, including the processing of their personal information; (b) user-generated content, including any acts or omissions with regard to moderation; and (c) a breach of Operam’s Acceptable Use Policy. Customer shall not be authorized to accept any settlement unless Operam is freed of liability in any such settlement.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, BE LIABLE FOR ANY INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL AND/OR INCIDENTAL ARISING OUT OF THESE TERMS, INCLUDING CUSTOMER’S USE OF THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPERAM’S LIABILITY IN CONNECTION WITH THESE TERMS OR THE USE OF THE SERVICES EXCEED THE VALUE OF THE SERVICES PAID IN THE SIX (6) MONTHS PERIOD PRIOR TO THE CLAIM.12. Force Majeure
Operam shall not be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labour disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure
”). Notwithstanding anything to the contrary, the parties agree and acknowledge that pandemics such as COVID-19 shall be considered a Force Majeure.
Any delay resulting from a Force Majeure will result in an extension of the corresponding obligation for a period equal to the time lost by reason of such cause. For instance, if the Services are unavailable for a period of two (2) weeks as a result of a Force Majeure, then the Term shall automatically be extended by two (2) weeks.
In the event of a Force Majeure, Operam shall advise Customer without undue delays, providing Customer with reasonable information on the Force Majeure. Operam shall resume performance as soon as possible upon the resolution of the Force Majeure.13. Term; Termination; Suspension
These Terms of Services are effective upon the execution of an Order Form and remain in full force for as long as an Order Form (including any Change Order) is in force (the “Term
”). The Services begin at the date indicated in an Order Form (the “Services Start Date
”) and continue for the length of time identified in the Order Form (including any Change Orders) (the “Services Term
Each party may terminate an Order Form in case of a material breach of these Terms upon written notice to the other party of thirty (30) days, if this party has not cured the material breach by the end of this delay, unless the material breach is uncurable. Operam may terminate the Services for convenience subject to a ninety (90) days prior notice. Upon the termination of an Order Form for any reason whatsoever, the accesses to the Platform will be immediately revoked. Customer agrees and understands that Customer is responsible for extracting any Customer data prior for the termination of an Order Form. Customer agrees and understands that in case of material breach of these Terms, including those relating to payment, Operam may suspend Customer’s access to the Services, in whole or in part, without liability or fault. The Fees continue to accrue during any such suspension.
The following sections shall survive the termination of these Terms for a period of 10 years: 6, 7, 9, 10, 11 and 13.14. Changes to these Terms
We may change these Terms from time to time. The latest update date is indicated above. Any modifications to these Terms will not affect active Order Forms which have been signed prior to the modification date.15. Miscellaneous
Nothing in these Terms shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, nor hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, nor to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. These Terms will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
Customer shall not sell, transfer or assign any right, title or interest it has in or pursuant to these Terms without the prior written consent of Operam. Any assignment not in accordance with this provision shall be void. Operam may, upon notice to Customer, sell, transfer or assign any right, title or interest it has in these Terms, if such sale, transfer or assignment (a) is part of the sale, transfer or assignment of all or substantially all of its assets or business; or (b) is made to one of its affiliates.
These Terms shall constitute the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous agreements and communications. Except as expressly provided herein, it shall not be modified except by a written agreement signed by the parties’ authorized representatives.16. Jurisdiction and Choice of Law
If there is any dispute arising out of these Terms, the parties expressly agree that any such dispute shall be governed by the laws applicable in the Province of Quebec, without regard to its conflict of law provisions, and the parties expressly agree and consent to the exclusive jurisdiction and venue of the provincial and federal courts of the Province of Quebec, judicial district of Montreal, for the resolution of any such dispute.