Barracks Solution Inc. (hereafter called “Barracks”) is the developer and owner of certain products consisting of software applications and documentation for the management of software updates on devices connected to the internet, which software applications and documentation are offered as software as a service (“SAAS”).
BY USING THE SERVICES (AS DEFINED BELOW), YOU (“CUSTOMER” or “YOU”) AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH BARRACKS.
IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MUST NOT USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (RATHER THAN IN YOUR PERSONAL CAPACITY), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “CUSTOMER”, AS USED IN THIS AGREEMENT, SHALL REFER TO SUCH ENTITY. IF AFTER YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT, BARRACKS FINDS THAT YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY, YOU WILL BE PERSONALLY RESPONSIBLE FOR THE OBLIGATIONS CONTAINED IN THIS AGREEMENT, INCLUDING THE PAYMENT OBLIGATIONS.
(a) “Account” means the account of Customer through which Customer or Customer Users use the Services;
(b) “Affiliate” in relation to a Party means any entity which, either directly or indirectly controls, is controlled by, or is under common control with, the Party specified, and for the purposes of this definition, “control” of an entity means direct or indirect ownership of more than 50% of the voting rights of the entity;
(c) “Administration Interface” means the administration interface made available by Barracks to segment and manage the versions of Customer’s software installed on the devices of end users;
(d) “Aggregate Form” includes information constituting or descriptive of patterns, statistics, benchmarking analysis, or other descriptive or related data which do not disclose to third parties the identity of any particular Customer or the products or services that Customer offers;
(f) “Business Day” means Monday through Friday, excluding any days that are statutory holidays under the laws applicable in the Province of Québec;
(g) “Confidential Information” means all know-how, trade or other secrets, and any other information or data, directly or indirectly, disclosed by one Party and/or its Affiliates (the “Disclosing Party”) to the other Party (the “Receiving Party”) (whether orally, in writing, or in any other form or medium) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, except to the extent such knowledge, information, or data: (i) is or becomes publicly available through no breach of this Agreement or wrongful act of the Receiving Party or their Personnel; (ii) is known to the Receiving Party without restriction prior to receiving such information from the Disclosing Party; (iii) is required to be disclosed as a matter of legal compulsion, provided, however, that the Receiving Party will provide prior written notice to Disclosing Party to allow it to take such actions to protect its interests; (iv) is lawfully disclosed to a Party by a third party without restriction or breach of a confidentiality covenant; or (v) is independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party;
(h) “Customer Users” means the users who are: (i) informed of the provisions of this Agreement prior to using the Services; and (ii) authorized by Customer to use the Services in accordance with the terms of the Plan Description relating to Customer Users;
(i) “End Users” means the owners of one or more devices on which software managed by Customer using the Services is installed;
(j) “Fees” means the fees payable by Customer for the Services and any other services provided by Barracks to Customer in accordance with this Agreement;
(k) “Parties” means Barracks and Customer, or any of their respective Affiliates, as the case may be, and “Party” means any one of them;
(l) “Personnel” includes directors, officers, employees, agents, consultants, representatives and other individuals employed, engaged or retained by, or acting for, Customer or Barracks, as the case may be;
(m) “Plan” means the service plan selected from time to time by the Customer;
(n) “Plan Description” means the terms and conditions of the Plan available at https://barracks.io/pricing/;
(o) “Services” means the access and use of the Software;
(p) “SDK” means the piece of software to be installed on each device to be managed using the Services to allow Barracks to perform the Services;
(q) “Software” means Barracks’ software application for the management of software updates on devices connected to the internet and other applications included by Barracks in the Plan from time to time, including the Administration Interface and the standard SDK; and
2.1 Subscription to and Provision of Services. Subject to this Agreement and payment of the Fees, Customer subscribes to the Services and Barracks agrees to provide Customer with the Services.
2.2 Account. Customer agrees that an Account must be created in order to use and receive the Services. Customer represents and warrants to Barracks that all information submitted by Customer upon the creation of the Account is accurate, current and complete and that Customer will keep the Account information accurate, current and complete at all time. Customer is solely responsible for the activity that occurs on its Account, whether authorized by Customer or not, and Customer agrees to keep the Account information secure. Barracks recommends that the password of the Account be changed at least every month.
2.3 Provision and use of the Administration Interface. As part of the Services, Barracks offers an Administration Interface allowing Customer to use the Services with respect to connected devices on which software managed by Customer using the Services is installed. Customer may also use Barracks’ application programming interface (the “API”) to develop its own interface or to integrate the Services to an existing interface or dashboard. The API shall be considered a Service Tool for the purpose of section 2.5 below.
2.4 Provision of the SDK. Barracks published free and open-source SDKs available through the website https://barracks.io/ (the “SDKs”). The SDKs may require edition before being implemented on the connected devices. Customer shall be solely responsible for any use or change made to the SDKs. The SDKs are licensed under the Creative Commons Attribution 4.0 International license and their use by Customer shall comply with the terms and conditions of such licence, which may be obtained at the following address: https://creativecommons.org/licenses/by/4.0/legalcode.
2.5 Service Tools. Customer’s right to use any tool, script, software, and utilities, including, for greater certainty, the SDKs, the API and any mobile application (collectively, the “Service Tools”), is governed by the license terms specified by Barracks for each Service Tool. If Barracks does not specify license terms for a Service Tool, Customer shall have, for the duration of the Agreement only, a non-transferable, non-exclusive, limited right to use the Service Tool solely to facilitate Customer’s use of the Services. Any Service Tools are provided by Barracks on an “as is” basis and Barracks does not provide technical support or offer any warranties with respect to any Service Tools and, to the extent permitted by applicable law, expressly disclaims any and all such warranties, whether arising under statute or otherwise, including, without limitation, all warranties of merchantability or fitness for a particular purpose. Customer uses and access the Service Tools at its own risks and perils. Customer’s right to use Service Tools will terminate upon the earlier of Barracks’ notice to Customer, the termination of this Agreement, or the date that the license to use Service Tools ends under the license terms applicable to such Service Tools.
2.6 Changes in Services. Barracks reserves the right, in its sole discretion, to modify, discontinue, substitute, delete, or restrict all or any aspect or feature of the Services without prior notice.
2.7 Control of Services. Barracks has complete control of the Services and will manage, direct, perform, coordinate and supervise the Services. Customer acknowledges and agrees that Barracks may in its sole discretion subcontract the Services or any part thereof without the prior written consent of, or any notice to, the Customer.
2.8 Concealed or Unknown Conditions. In the performance of the Services, if Barracks encounters unknown or unusual conditions, Barracks shall notify Customer of such conditions. If such conditions cause an increase in Barracks’ cost and effort to provide the Services, Barracks may, on notice to customer, implement an equitable adjustment in the applicable Fees.
3.1 Support by Barracks. During the term of this Agreement, Barracks will provide limited support to Customer, the whole as further described in the Plan Description. Barracks shall not be required to provide support if Customer is in default of any of Customer’s obligations under this Agreement.
4. CUSTOMER RESPONSIBILITIES.
4.1 Additional Covenants of Customer. In order to enable Barracks to perform its obligations under this Agreement, Customer agrees as follows:
(i) Customer shall fully cooperate with Barracks by making available information, materials, resources and Personnel as reasonably required by Barracks to perform the Services;
(ii) Customer shall, and shall ensure that Customer Users, keep user IDs and passwords issued by Barracks confidential and shall not disclose such user IDs or passwords to any third party, except that Customer may disclose user IDs and/or passwords to Customer Users;
(iii) Customer will perform and complete any other obligations as specified within this Agreement or any acceptable use policy that Barracks notifies Customer of or such other URL designated by Barracks; and
(iv) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
5. OWNERSHIP OF PROPERTY
5.1 Services. All Services and all trade-marks, patents, copyrights, trade secrets and other intellectual property and similar rights in or related thereto, are and will remain the exclusive property of Barracks and/or its Affiliates (“Barracks Property”). Customer shall have no right, title, ownership, intellectual property, and/or other interest of any kind in and to Barracks Property, howsoever arising, including any intellectual property created or derived as a result of this Agreement.
5.2 Rights Granted. Upon Customer’s acceptance of this Agreement, Customer has the non-exclusive, non-assignable, non-sub-licensable, limited right to access and use the Services solely for Customer’s personal or internal business operations and subject to the terms and conditions of this Agreement. Customer may allow Customer Users to use the Services for this purpose and Customer is responsible for Customer Users’ compliance with this Agreement. Customer acknowledges that Barracks has no delivery obligation and will not ship copies of software products owned or distributed by Barracks to which Barracks grants Customer access as part of the Services. Customer agrees that it does not acquire under this Agreement any license to use the Software in excess of the scope and/or duration of the Services. Upon the end of this Agreement or the Services, Customer’s right to access or use the Services or Software shall terminate.
5.3 Customer Users. Customer shall only be entitled to the number of Customer Users indicated in the Plan Description.
5.4 No Transfer of Personal Information. Customer shall ensure that no personal information (as such expression or similar expression is defined in An Act Respecting the Protection of Personal Information in the Private Sector (Québec), the Personal Information Protection and Electronic Documents Act (Canada) or any similar statute or legislation which may be enacted from time to time by any competent authority (“Personal Information Legislation”)) is transmitted to Barracks at anytime. Customer is responsible for compliance with any obligation relating to the Personal Information Legislation. Should Customer transmits any such personal information to Barracks, Customer shall indemnify, defend and hold harmless Barracks and its Personnel from and against any third party claim against any of Barracks and its Personnel relating to the collection, storage, disclosure or use of such personal information.
5.5 Customer Data. All data transferred by Customer to Barracks shall, as between Customer and Barracks, remain the property of Customer. Customer hereby grants Barracks and Barracks Personnel during the term of this Agreement, worldwide, non-exclusive, royalty-free license to use Customer data for the purpose of providing the Services to Customer. All data will be encrypted and stored by Barracks and will only be accessible with the password of the Customer through the Administration Interface or the API. Barracks and Barracks Personnel shall also have access to Customer data in providing the Services to Customer and in developing the Software. During the Term and following the expiration or early termination of this Agreement, Customer grants Barracks and its Affiliates a perpetual, worldwide, non-exclusive, royalty-free license: (i) to use Customer data for internal research and/or benchmarking purposes; and (ii) to use, share, copy, transmit, distribute, and share Customer data, in Aggregate Form only, with other persons or entities. Customer shall, at all times, be solely responsible for making and keeping a personal back-up of Customer data and for the legality and content of Customer data.
5.6 Rights in Customer Data. By uploading or otherwise using third party content in connection with the Services, Customer represents and warrants that he is the owner of such content or has obtained the necessary licenses from the owner of the content.
5.7 Reservation of Rights. All rights not expressly granted in writing within this Agreement shall be reserved to Barracks or to Customer, as the case may be. In addition to any other rights afforded to Barracks under this Agreement, Barracks reserves the right to remove or disable access to any material that violates the restrictions in section 7 below. Barracks shall have no liability to Customer in the event that Barracks takes such action. Customer agrees to defend and indemnify Barracks against any claim arising out of a violation of Customer’s obligations in section 7 below.
6. Barracks’ Guarantee
6.1 Data Integrity. Barracks ensures that the data sent from Customer’s computer or servers is identical to the data received by Barracks’ servers. Barracks also ensures that the data sent from Barracks’ servers is identical to the data received by the devices provided the portion of code of the SDK installed on the devices pertaining to data integrity has been unaltered and unmodified.
6.2 Effective Segmentation. Barracks guarantees that the devices receiving a particular update will be the devices included in the segmentation defined in the Administration Interface provided the functionality of the SDK pertaining to same has been unaltered and unmodified.
7.1 General. Customer agrees that except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Customer also agrees that it may not: remove or modify any Barracks markings or any notice of Barracks’ proprietary rights; make the Services available in any manner to any third party for use in the third party’s personal or business operations; modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Barracks; disclose results of any Services or program benchmark tests without Barracks’ prior written consent; license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or related materials available, to any third party, other than as expressly permitted under this Agreement; knowingly interfere with service to any of Barracks’ users and clients, including by means of intentionally (i) submitting a virus, worm, bug, Trojan horse or other code, file or program designed to or capable of disrupting, damaging or limiting the functionality of any software or hardware, (ii) overloading, (iii) flooding, (iv) spamming, (v) mail bombing, or (vi) crashing; circumvent in any way any security measure or feature-lock safeguards that are built into the Services; circumvent any user limits or other timing or use restrictions that are built into the Services; and allow Customer Users or any third party to do any of the foregoing. Customer agrees not to use or permit use of the Services for any purpose that may constitute an infringement of intellectual property or other proprietary rights, or otherwise violate any applicable laws, ordinances or regulations.
8. FEES AND PAYMENT
8.1 Fees. Customer agrees to pay the Fees set forth in the Plan Description in accordance with the payment schedule applicable to the Plan, for as long as this Agreement is in force and whether Customer uses the Services or not. Customer shall pay Barracks additional fees, calculated on a time and materials basis, at Barracks’ then current rate, for any additional services performed by Barracks at the request of Customer which are not otherwise included in the Plan. The Fees are not refundable in the event of termination of this Agreement.
8.2 Invoicing and Payment. Customer shall pay the Fees in advance by credit card to Barracks on the first Business Day of each billing period applicable to the Plan. The balance of the Fees, if any, will be invoiced shortly after the end of each month. Customer hereby authorizes Barracks to take payment for the Fees from the payment method associated with the Account at Barracks’ then current rates, which Customer hereby acknowledges and agrees may be lower or higher than the rates applicable at the time of creation of Customer’s Account. If payment with the credit card associated with the Account cannot be processed, Customer undertakes to pay Barracks within seven (7) days of receipt of a notice in this regard.
8.3 Taxes. Fees are exclusive of all applicable taxes. If Barracks is required to pay or collect any federal, state, provincial or local retail sales, use, goods and services, excise, value-added, withholding, or similar taxes or like duties based on the Services provided under this Agreement, then the taxes shall be billed to and paid by Customer.
8.4 Late Payments. Any amounts that remain unpaid after thirty (30) days after they initially become due and payable shall be subject to a late payment charge at the rate of two percent (2%) per month (twenty-four percent (24%) per year) on the unpaid balance, or the maximum rate permitted by law, whichever is lower, from the date of the invoice until the date paid. Barracks reserves the right, in its sole discretion and without liability, to suspend Services to Customer in accordance with section 9.4 below until all outstanding invoices under this Agreement, and all past due amounts under any other agreement of any nature between Customer and Barracks, are paid.
8.5 Invoicing Disputes. Customer shall promptly review all invoices issued by Barracks hereunder and shall notify Barracks in writing of any invoice discrepancies within thirty (30) days of invoice date. If Customer fails to notify Barracks within that time period, Customer shall be deemed to have waived any right to dispute such amounts, either directly or indirectly, or as set-off or defined in any action or effort to collect amounts due to Barracks.
8.6 Rate Adjustment. Barracks reserves the right, in its sole discretion, to increase the Fees at any time with thirty (30) days prior written notice to Customer. If Customer continues to access or use the Services after expiration of the thirty (30) day notice period, Customer is deemed to have agreed to the fee increase.
8.7 A/B Testing. Customer acknowledges and agrees that Barracks may conduct A/B testing on its service offerings from time to time and that other customers of Barracks may be offered service plans differing from the service plans made available to Customer.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall be effective as of the date Customer agrees to its terms and conditions, and shall continue in accordance with the Plan Description unless otherwise terminated as set forth in this Agreement.
9.2 Termination of Agreement by Customer. This Agreement may be terminated by Customer, at any time and without cause, without prior notice to Barracks.
9.3 Agreement Breach. If Customer breaches any term of this Agreement and fails to correct the breach within fifteen (15) days of written notification of the breach, then Barracks may terminate this Agreement immediately upon sending a written notice to the Customer.
9.4 Suspension of Services. Without limiting the generality of section 9.3 above, Barracks may immediately suspend Customer’s password, Account, and access to or use of the Services (i) if Customer fails to pay Barracks as required under this Agreement and does not cure within seven (7) days of written notification, or (ii) if Customer violates any provision within section 2 or 3 of this Agreement. Any suspension of the Services by Barracks under this section 9.4 shall not excuse Customer from its obligation to make payment(s) under this Agreement and Customer shall have no recourse against Barracks and its affiliates in this regard.
9.5 Insolvency/Bankruptcy. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party is adjudged bankrupt, makes, attempts to make or gives notice of intention to make a proposal, arrangement or any general assignment for the benefit of creditors or seeks or threatens to seek to obtain the benefit of any insolvency, liquidation or arrangement laws, or if a receiver, receiver-manager, trustee, liquidator or similar person is appointed in respect of the whole or any part of its property, whether real or personal.
9.6 Obligations on Termination. Upon termination of this Agreement: (i) Customer shall immediately pay to Barracks any and all amounts due and owing under this Agreement, as applicable, as of the effective date of the termination notice; (ii) Receiving Party shall promptly (at the Disclosing Party’s sole option) return to the Disclosing Party or destroy any and all the Disclosing Party’s Confidential Information in accordance with section 10.3 below; and (iii) Customer shall have the possibility to obtain a copy of its data (but not of the settings and segments created through the Administration Interface or API) and Barracks may retain any and all Customer’s data but shall have no obligation to do so. Customer’s data may be irretrievably deleted by Barracks after sixty (60) days.
10. CONFIDENTIAL INFORMATION
10.1 Non-Disclosure / Non-Use. Each Party acknowledges and agrees that all Confidential Information disclosed is: (i) confidential and proprietary to the Disclosing Party, and that as between the Parties, all ownership, license, intellectual property, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party, or (ii) personal information. During the term of this Agreement and thereafter, the Receiving Party shall: (i) keep and maintain all Confidential Information of the Disclosing Party in the strictest confidence and in compliance with any applicable laws; (ii) disclose Confidential Information received hereunder only to such Personnel who have a direct need to know such Confidential Information and who are bound by written confidentiality obligations at least as restrictive as those contained herein; (iii) not use the Disclosing Party’s Confidential Information for the Receiving Party’s own benefit or that of any third party or for any purpose other than lawfully exercising its rights and/or performing its obligations under this Agreement; (iv) exercise the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information which is at least equivalent to that which the Receiving Party uses to protect its own Confidential Information; and (v) take all reasonable steps to protect the Disclosing Party’s Confidential Information from any unauthorized use, duplication, and/or disclosure.
10.2 Injunctive Relief. The Receiving Party acknowledges and agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause irreparable harm and might result in significant damages to the Disclosing Party or its Affiliates, which harm and/or damages might be difficult to ascertain, and in the event of such breach or threatened breach by the Receiving Party, the Disclosing Party, in addition to other remedies which may be available in law, equity or otherwise, has the right to equitable relief, including injunctive relief, against the Receiving Party, without the necessity of proving actual damages or showing irreparable harm.
10.3 Return of Confidential Information. Subject to any license granted to Barracks to make and use copies of Customer Data under section 5.4 hereof, upon expiration or earlier termination of this Agreement, or upon the Disclosing Party’s earlier request, Receiving Party shall promptly return to the Disclosing Party (or, at the Disclosing Party’s written direction, destroy) all the Disclosing Party’s Confidential Information and all copies, partial copies, revisions or modifications thereof, in Receiving Party’s possession, in whatever medium. At the request of the Disclosing Party, an officer of Receiving Party shall certify in writing its compliance with the foregoing obligations.
10.4 Insurance to be maintained by Barracks. During the term of this Agreement, Barracks shall subscribe and maintain in force the following insurance coverage: (i) Errors and Omissions insurance, including cyber-risks for information technology, program for small businesses, with a limit of $5,000,000 per claim and $5,000,000 per policy period; and (ii) Commercial General Liability insurance with a limit of $2,000,000 per occurrence and $2,000,000 per policy period.
11. DISCLAIMER AND LIMITATION OF LIABILITY
11.1 DISCLAIMER. EXCEPT AS PROVIDED BY SECTION 6 ABOVE, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES AND ANY OTHER SERVICES PROVIDED BY BARRACKS ARE PROVIDED ON AN “AS IS” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BARRACKS DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. EXCEPT AS PROVIDED BY SECTION 6 ABOVE, BARRACKS FURTHER DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL BE ACCURATE, COMPLETE, SUITABLE FOR THE PURPOSES INTENDED, UNINTERRUPTED OR WITHOUT ERROR.
11.2 LIMITATION OF LIABILITY. BARRACKS’S TOTAL CUMULATIVE AND AGGREGATE LIABILITY FOR DAMAGES ARISING FROM BREACHES OF THIS AGREEMENT IS AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED: (I) THE PROCEEDS OF THE INSURANCE MAINTAINED BY BARRACKS IN ACCORDANCE WITH SECTION 0 ABOVE AND AVAILABLE TO BE PAID TO CUSTOMER, PARI PASSU WITH ALL OTHER CUSTOMERS OF BARRACKS HAVING CLAIMS ORIGINATING FROM THE SAME EVENT, OR (II) FOR ALL MATTERS NOT COVERED BY THE INSURANCE MAINTAINED BY BARRACKS IN ACCORDANCE WITH SECTION 0 ABOVE, THE AMOUNT OF THE FEES, LESS ANY REBATE, DISCOUNT OR COMMISSION WHICH MAY HAVE BEEN GRANTED BY BARRACKS TO CUSTOMER, PAID TO BARRACKS UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT THAT IS THE SUBJECT MATTER OF THE CLAIM. IN NO EVENT SHALL BARRACKS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOST PROFITS (PAST AND FUTURE), LOST REVENUE, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, ATTEMPT TO REPUTATION OR LOST OPPORTUNITY ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY THEREOF. CUSTOMER ACKNOWLEDGES AND AGREES THAT BARRACKS IS NOT LIABLE FOR THE DISCLOSURE OF PERSONAL INFORMATION AS A RESULT OF CUSTOMER’S USE OF THE SERVICES.
11.3 High-Risk Activities. The Service is not fault-tolerant and neither is designed, manufactured or intended for use in or in conjunction with equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. Barracks and/or its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties or conditions for such uses.
11.4 Indemnification. Each Party shall indemnify, defend and hold harmless the other Party and its respective Personnel, their heirs, executors, personal and legal representatives, administrators, successors and assigns, from and against any and all claims for bodily injury (including death) and/or for damage to or destruction of property caused by the negligence, intentional misconduct, or other tortious act or omission of the other Party or its respective Personnel.
11.5 Export Restrictions; US Government Licenses. Customer acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. By using the Services, Customer represents and warrants that Customer is not located in, under the control of, and is not a national or resident of, any country to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer also represents and warrants that Customer is not an entity to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States and Customer shall comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to use the Service or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. Customer shall not use the Service or Documentation for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if Customer is an agency of the government of the United States of America, then Customer’s rights in respect of the Service and Documentation shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Barracks in a written agreement between Customer and Barracks and signed by a Chief Operating Officer or Chief Executive Officer of Barracks.
11.6 Transfer of Data Abroad. Barracks’ servers are located in various countries, including the United States. Customer acknowledges and consents that communications with Barracks and the use of Services may result in the transfer of information across international boundaries.
11.7 Use of Third Party Services. Should Customer use third party services or content in connection with the Services, Customer shall be solely responsible for using such third party services or content in accordance with the third party terms and conditions applicable to the use of the third party services or content. Barracks assumes no liability for the content, terms and conditions, privacy policies or practices of any third party service or content provider. By accessing and using the Services or Platform, Customer expressly releases Barracks from any and all liability arising from Customer’s use of any third party services or content.
12.1 Publicity. Customer agrees that Barracks may disclose that Customer is a customer of Barracks. Barracks may include the name and logo of Customer in Barracks’ list of customers.
12.2 Force Majeure. Any delay or failure in the performance of any duties or obligations of either Party (except for payment obligations) will not be considered a breach of this Agreement if such delay or failure is caused by an act of God, or other event, omission or condition not reasonably within the Party’s control, including without limitation, any mechanical, electronic, technical, or communications failure, shortage of material, war, riot, terrorist act, embargo, or government act (including any law or regulation).
12.3 Independent Contractors. The relationship between the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to create a joint venture, partnership, master-servant, or agency relationship between the Parties. Neither Party has any right, power or authority to create any obligation or responsibility, express or implied, on behalf of the other.
12.4 Waiver. No act or failure to act or delay in enforcement of any right by either Party constitutes a waiver of any right hereunder, and any such act, failure to act or delay does not constitute approval or acquiescence in any breach or continuing breach under this Agreement except as expressly agreed to in writing and no waiver of any breach of any provision of this Agreement constitutes a waiver of any preceding or succeeding breach of such provision or of any other provision of this Agreement.
12.6 Rights and Remedies Not Exclusive. Rights and remedies available to Barracks under this Agreement are in addition to, not in substitution for or a limitation upon, any duties, obligations, rights, or remedies otherwise imposed, created or available at law, in equity or otherwise.
12.7 Severability. Should any part, term or provision of this Agreement be held by a court of competent jurisdiction to be void, illegal, or otherwise unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision or portion thereof, is hereby declared to be separate, severable and distinct.
12.8 Further Assurances. The Parties will perform all acts and execute, acknowledge and deliver or will cause to be done, executed, acknowledged and delivered, all such further documents, assurances or things, and secure all necessary consents and approvals, as may be reasonably required for the more complete and perfect observance and performance by the Parties of their respective obligations under this Agreement.
12.9 Notices. Unless otherwise provided in this Agreement, any notice required to be given in writing to:
BARRACKS shall be given by personal delivery, by registered mail (postage prepaid), by courier (courier prepaid), by fax, or other means of confirmed electronic communication at 368 Notre-Dame Street West, Suite 303, Montreal, Québec H2Y1T9, Canada, email@example.com or any other address as Barracks may designate from time to time; and
CUSTOMER shall be given by email at the email address associated with the Account.
12.10 Section Headings. The division of this Agreement into sections and paragraph headings is intended for convenience of reference only, and shall not affect the meaning or the interpretation of this Agreement. The terms: “this Agreement”, “hereof”, “herein”, “hereunder” and similar expressions refer to this Agreement and not to any particular section or subsection hereof.
12.11 Other Defined Terms. Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated. Words, phrases and abbreviations used in this Agreement which have a recognized technical or trade meaning shall have such recognized meaning.
12.12 Enurement. The rights and obligations under this Agreement shall be binding upon, and enure to the benefit of the Parties and their respective successors and assigns.
12.13 Survival. The following sections shall survive the expiration or termination of this Agreement in addition to any other provision which by law, by its nature or by reasonable implication should survive: Sections: 5.1, 5.4, 5.7, 8, 9.6, 10, 11, 12.
12.14 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Québec, without regard to its conflict of laws rules, and the laws of Canada applicable therein. With respect to any action or proceeding arising out of this Agreement, the Parties agree and each of them hereby submit to the exclusive jurisdiction of the courts of Québec, judicial district of Montréal, in which the Parties elect domicile. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
12.15 Dispute Resolution. Subject to section 12.14 above, any dispute regarding the interpretation, compliance with or breach of this Agreement will be resolved as follows: (i) the Parties agree to negotiate in good faith commencing upon written notice from one Party to the other containing a summary of the dispute (the “Dispute Notice”), and all such negotiations shall be confidential and inadmissible in any subsequent proceeding without the written consent of the Parties; (ii) if the dispute is not resolved by negotiation as set out above within twenty (20) Business Days following the receipt of the Dispute Notice, the Parties may refer the dispute to a mediator acceptable to both Parties for non-binding mediation, and the costs of such mediation shall be shared equally by the Parties; (iii) if the dispute is not settled pursuant to the foregoing within forty (40) Business Days after receipt of the Dispute Notice, either Party may seek any legal and equitable remedies available to it under applicable laws. Any dispute resolution proceeding (including any arbitration and mediation) shall be carried out in the province of Québec, judicial district of Montreal.
12.16 Entire Agreement; Conflict. This Agreement and any other terms and/or conditions expressly incorporated by reference contain and constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all previous understandings, proposals, commitments or agreements, oral or written, relating to the subject matter hereof. In the event of any conflict or inconsistency between this Agreement and a schedule, this Agreement shall prevail, unless the schedule expressly stipulates that such term or provision shall be overridden. If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favouring or disfavouring either Party by virtue of authorship of any of the provisions of this Agreement.
12.18 Language of Agreement. The Parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les Parties confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.