Membership Agreement

This Membership Agreement (the “Agreement“) applies to the granting of access to and support for the use of the Platform (the “Platform“) of Bia Formations Inc. (“BIA“) by BIA to the Client. The Client agrees to be bound by this Agreement, from the effective date of its registration and the date of opening its Client account giving access to the Platform (the “Effective Date”).

PLEASE READ THIS MEMBERSHIP AGREEMENT CAREFULLY, AS IT CONSTITUTES A BINDING CONTRACT REGARDING THE MEMBERSHIP TO THE PLATFORM. BY ACCESSING OR USING THE PLATFORM, OR BY CLICKING “I AGREE”, YOU EXPRESS THAT YOU HAVE FULL CAPACITY AND AUTHORITY TO LEGALLY BIND ANY ORGANIZATION, CORPORATION OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ACCESS OR USE THE PLATFORM (THE “CLIENT“) AS OF THE DATE YOUR ACCOUNT IS OPENED (AS DEFINED BELOW) (THE “EFFECTIVE DATE“). IF YOU DO NOT HAVE SUCH CAPACITY AND AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU SHALL NOT/MAY NOT ACCESS OR USE THE PLATFORM.

1.       PLATFORM

1.1     Authorized Users. The Client, holder of a company account, must designate one or more “Authorized User(s)“, or an individual who will be authorized to create an Account (“Account“) in order to use the Platform and to have access to its content. When creating an Account, Customer or its Authorized Users must provide BIA true and complete information and ensure that this information always remains accurate. For the avoidance of doubt, the Client is solely responsible for any withdrawal or modification of the Authorised Users’ websites and for linking them so that the access of the Client’s Authorised Users is, if necessary, deactivated, revoked or modified. For the purposes of this document, “Accounts Admin features” means the functionalities to which only the Client, as a company, has access on the Platform and allowing, in particular, the creation of a “Manager” for the management of User Accounts by adding or removing Authorized User Accounts on the Platform and entering personal information therein as defined in Appendix A.

1.2     Membership; License Grant. Subject to Customer’s full compliance with the Agreement, including payment obligations, BIA hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable and non-transferable license (subject to paragraph 8.3 below) during the Term (as defined below) for: (i) access and use of the Platform; and (ii) use and make a reasonable number of copies of the user manuals and the various BIA relating to the Platform (collectively, the «Documentation») and any course materials that may be provided by BIA in connection with the Client’s access to and use of the Platform (the «Course Materials»).

1.3     Reservation of Rights. BIA reserves all rights not expressly granted to Customer herein. Except for the limited rights and licenses expressly granted herein, nothing contained herein grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in and to the Platform, Documentation, or Course Materials.

1.4     Trial period. As part of a membership, BIA may, at its sole and absolute discretion, offer the Client a trial period in order to access the Platform. In this case, the terms and conditions applicable to this trial period, including its duration, will be specified directly via the BIA and/or communicated with the Client. During the trial period, no Fees will be due, unless BIA does not provide otherwise. During the trial period and notwithstanding any express provision to the contrary in the Agreement, the Platform is provided “as is” without any warranty and BIA disclaims any liability in connection with the use of the Platform during a trial period.

1.5     Obligations of the Client. The Client is solely responsible for all uses of the Platform by its Authorised Users resulting from the access provided by BIA, directly or indirectly, whether such access or use is authorized by or in violation of the Agreement. Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission of an Authorized User that would constitute a breach of this Agreement or the Appendix A if committed by the Customer will be considered a breach of this Agreement by the Customer. Customer shall use commercially reasonable efforts to make known to all of its Authorized Users: (i) the provisions of this Agreement, including Appendix A, applicable to the use of the Platform by such Authorized Users; (ii) the Platform Terms of Use available here and (iii) the Privacy Policy for the Platform available here, and shall ensure that its Authorized Users comply with these provisions. The Client agrees to: (a) notify immediately BIA any known or suspected unauthorized use of the Platform and any breach of any security measure that may result in unauthorized use of the Platform; and (b) cooperate with BIA and use commercially reasonable efforts to stop such unauthorized use or violation.

1.6     Restrictions on Use. The Customer will not use the Platform for purposes beyond the scope of the license granted in this Agreement. Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, Customer shall at no time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, Documentation or Course Materials, in whole or in part; (ii) rent, lease, loan, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform Documentation or Course Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive the source code of the Platform or to have access to it, in whole or in part; (iv) remove any proprietary notices from the Platform Documentation or Course Materials; (v) use the Platform or the Documentation as a service bureau, time-sharing or in any other manner allowing unauthorized third parties to use the Platform, the Documentation and the Course Materials, except for Authorized Users, in accordance with the Agreement and Appendix A; (vi) use the Platform contrary to Appendix A, Documentation and Course Materials; (vii) use the Platform and provide unauthorized third parties with passwords or other login information to the Platform; (viii) share information from the Platform with other users; (ix) probe, scan, test the vulnerability of, or circumvent any security mechanisms used by websites, servers, or networks connected to the Platform; (x) take any action that imposes an unreasonable or disproportionately large load on the websites, servers or networks connected to the Platform; (xi) access (and attempt to access) or use other Customers’ data through the Platform; (xii) knowingly diminish or interfere with access to the Platform; (xiii) access the Platform or use it to create a similar or competing platform or service; or (xiv) use the Platform, Documentation, or Course Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law.

1.7       Discriminatory content. At all times, Customer hereby agrees that it is solely responsible for, but not limited to, the legal validity of: (i) the content and format of any feedback or feedback transmitted; and (ii) any information uploaded, created and/or sent (collectively, the “Content“) through the Platform or other method to Authorized Users.

Without limiting the generality of the foregoing, the Customer agrees that it is solely responsible for compliance with the legislation applicable to all Content posted and shared on the Platform, including the requirements arising from the applicable Privacy Laws (as defined in Appendix A). For clarity, when Customer posts or provides any Content on the Platform, Customer acknowledges and agrees not to make any statement that could be considered, in BIA’s sole and absolute discretion, to be: (i) abusive, defamatory, hateful, racist, xenophobic, homophobic or sexist (or any use of discriminatory language); (ii) involving vulgar, obscene or malicious language; (iii) disclosing personal information or confidential information of others in contravention of the provisions of this Agreement and Appendix A; (iv) is illegal or otherwise violates applicable laws, including privacy and data protection laws.

BIA reserves all rights relating to the administration of the Platform, including in particular the right to remove without notice any Content that, in BIA’s sole and absolute discretion, is inappropriate or does not comply with the rules set out in this paragraph 1.7 or for any other reason. The Customer acknowledges and agrees that BIA has no obligation to, but has the right to, review any Content posted on the Platform, or monitor its access to or use of the Platform, in order to ensure compliance with these Terms and Conditions, applicable laws, court orders, governmental directives, or other requirements.

1.8       Suspension of the Platform. BIA will suspend access to the Platform for maintenance purposes at a frequency of approximately one (1) hour per month. Notwithstanding anything to the contrary in the Agreement, BIA may temporarily suspend the Customer’s and any Authorized User’s access to all or part of the Platform if BIA reasonably determines that: (i) there is a threat or attack on any component of the Platform; (ii) the use of the Platform by the Customer or any Authorized User disrupts or poses a security risk to the Platform or to any other Customer of BIA; (iii) the Customer, or any Authorized User, is using the Platform for fraudulent or illegal activities; (iv) the use of the Platform by the Customer or any Authorized User is prohibited by applicable laws; or (v) the use of the Platform by the Customer or any Authorized User is contrary to the provisions of the Agreement, including Appendix A (each, a “Suspension“). BIA endeavours, to the extent possible, to provide written notice to Customer of any Suspension and to provide Customer with updates regarding the resumption of access to the Platform following a Suspension. BIA endeavours, to the extent possible, to resume access to the Platform as soon as the event giving rise to the Suspension is resolved or the maintenance period has ended. BIA is not responsible for any damages, liabilities, losses (including any loss of profits) or other consequences that the Customer or any Authorized User may suffer as a result of a Suspension (except to the extent permitted by law).

1.9     Assistance. BIA undertakes to provide the Client with commercially reasonable support services for the use of and access to the Platform from the Effective Date. At the Customer’s request, or where the support services required for access to and use of the Platform exceed, at BIA’s discretion, the reasonable scope necessary, additional support services may be provided by BIA, subject to the conclusion of a separate agreement and the payment of a corresponding additional fee. Subject to the terms and conditions of this Agreement, BIA will use commercially reasonable efforts to make the Platform available at all times, subject to the terms and conditions set forth in Section 1.8 hereof.

1.10   Use of Customer Data. Except with the Customer’s prior written consent (an email being sufficient), BIA does not access, process, or otherwise use any data that Customer or its Authorized Users may create, upload, migrate, use, or otherwise disclose to BIA or its representatives in connection with the use of the Platform (collectively, the “Customer Data“), except to the extent necessary to provide access to the Platform and to maintain or improve the performance and functionality of the Platform. BIA is not responsible for the inaccuracy, distortion, error, or omission of Customer Data. Unless otherwise agreed to by the parties, BIA may permanently delete Customer Data ninety (90) days after the termination or expiration of the Agreement. Customer acknowledges and agrees that Customer Data cannot be recovered once it has been permanently deleted. To the extent that Customer Data includes personal information, BIA and Customer agree to comply with the provisions set forth in the Appendix A and those set out in the Privacy Policy available here. In the event of any conflict between the provisions of this Agreement and the provisions of the Appendix A and the Privacy Policy with respect to personal information, the provisions of the Appendix A and the Privacy Policy shall prevail.

1.11 Aggregated Data. BIA may monitor Customer’s use of the Platform, collect and compile aggregated and anonymous data sets and decision model structures (the “Aggregated Data“). As between the parties, all right, title and interest in and to the Aggregated Data, and all intellectual property rights therein, are owned and retained solely by BIA. Customer acknowledges and agrees that BIA may: (i) generate the Aggregated Data; (ii) make the Aggregated Data available to the public in accordance with applicable laws; and (iii) use the Aggregated Data to the extent and in the manner permitted by applicable laws.

2.         FEES; PAYMENT

2.1     Fees. In order to access the Platform during the Term of the Agreement, the Client must pay to BIA the fees associated with the membership package selected by the Customer plus any applicable taxes (the “Fees“). The Fees for a period data are calculated according to the selected plan and the number of Authorized Users of the Customer indicated when the Customer registers for the Platform. In the event that Customer wishes to add extensions to their plan, they must pay the difference between the Fees for their current plan and the Fees for the upgraded plan. In the event of the addition of Authorized User(s) to access the Platform during a billing cycle, Customer shall pay the Fees prorated to the billing cycle for the number of additional Authorized Users. In the event of a reduction in the number of Users authorized to access the Platform during a billing cycle, access will be withdrawn only at the next renewal. For the sake of clarity, Customer may, at any time, decrease the number of Users authorized to access its Platform during a specific billing cycle. The Fees then changed will be effective in the next billing cycle of the modified subscription.

2.2     Billing period. Subject to other terms of payment agreed between the parties, BIA invoice the Fees on the Effective Date and then on a monthly basis (or on an annual or other basis, as agreed between the parties) during the Term of the Agreement. Customer shall make all payments of the Fees hereunder by pre-authorized debit to the credit card registered to Customer’s account, and Customer hereby authorizes BIA to charge the Customer’s credit card on a monthly basis during the Term of the Agreement (or on an annual basis or on any other basis, as agreed between the parties) without deduction or withholding and without exercising any right of set-off. No refund will be made in the event of termination of the membership, but the Client will nevertheless have access to the Platform until the end of the billing cycle then in progress (monthly payment or annuity).  

2.3     Payment Terms. Direct debits are made via the online payment solution Stripe, that accepts major credit cards either Visa Mastercard and/or via Affirm. BIA however, reserves the right to modify any of these payment methods at any time. The Customer hereby agrees that the credit card associated with the Customer’s account may be used for the payment of Renewals, additional Authorized User accounts, the purchase of additional courses, one-time or annual fees or unpaid Charges as the case may be.

2.4     Late payment. In the event of late payment of the Fees, BIA may suspend or cancel access to the Platform until full payment of the Fees and related interest. Any amount outstanding when due shall bear interest from the due date until payment at a rate equal to one point five percent (1.5%) per month (i.e., 19.56% per annum). Payment is made without any right of set-off, recovery, counterclaim, deduction, debit, or withholding for any reason. Except as provided in this Agreement, none of the payments made under this Agreement are refundable.

2.5     Increase in Fees. BIA reserves the right to increase the Fees at its discretion, upon sixty (60) days’ written notice to the Customer.

2.6     Taxes.  All Taxes are shown separately on the invoice sent to Customer illustrating the fees and other amounts payable under this Agreement. The expression “Taxes” means, without limitation, sales tax, goods and services tax (GST), value-added tax, use and excise taxes, and all other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local government entity on all amounts payable by Customer hereunder,  with the exception of taxes imposed on the income of BIA.

3.       DURATION; TERMINATION

3.1     Duration. This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with paragraph 3.2 of this Agreement, shall continue for a period of one month or such term of the membership to the Platform by the Customer and Authorized Users selected upon the Customer’s registration with the Platform (the “Initial Term“). Upon expiration of the Initial Term, the Agreement will automatically renew for successive periods of one month or as defined in the package selected by the Customer (each, a “Renewal“). Notwithstanding the foregoing, Customer may, at any time, terminate this Agreement by terminating its membership directly by contacting Customer’s support team. BIA assumes no responsibility and is not liable for any damages, losses (including any loss of profits) or other consequences that the Customer or any Authorized User may suffer as a result of any such unauthorized termination by the Customer or any of its Authorized Users. The Initial Term and any Renewal, if any, are collectively referred to as “Duration”.

3.2     Termination. In addition to any other right of termination expressly set forth in this Agreement, BIA may terminate this Agreement by written notice, effective immediately, if (i) Customer breaches this Agreement, including (an email is enough) Appendix A and that such violation continues more than ten (10) days after the delivery by BIA written notice to that effect; or (ii) the Customer becomes bankrupt, sequestered, dissolved or liquidated. Notwithstanding the foregoing, BIA may terminate this Agreement at any time and without notice in the event of serious misconduct by the Client, including, without limitation, any attempt to steal information, share personal information, fail to comply with the obligations set out in Appendix A, reverse engineering or illegal or unlawful fraudulent use of the components of the Platform. For the sake of clarity, and subject to the terms and conditions set out in Appendix A, the Client irrevocably waives the application of Article 2125 of the Civil Code of Quebec and if the Customer wishes to terminate the Agreement, it must do so in accordance with paragraph 3.1 above. Notwithstanding the foregoing, upon seven (7) days’ notice, BIA may also terminate any ongoing trial period, if any, all in its sole and absolute discretion.

3.3     Effects of Expiration or Termination. Unless this Agreement is terminated earlier by BIA, effective immediately upon written notice to Customer and without prejudice to Customer’s other rights, Customer’s expiration or early termination of this Agreement will be effective at the end of the then-current billing cycle. From the date of expiration or termination of this Agreement by Customer or by BIA, all rights granted to Customer hereunder shall revert to BIA and, without prejudice to the foregoing, the Client will no longer have access to the paid features of the Platform, Documentation and Course Materials (if applicable). For clarity, the expiration or termination of this Agreement does not affect Customer’s obligation to pay any Fees that may be due as of the date of such expiration or termination.

3.4     Survival of the provisions. Section 3.4 and Sections 2, 3, 4, 5, 6, 7 and 8 shall survive any termination or expiration of this Agreement, together with any other provision which by its meaning is intended to survive such expiration or termination.

4.         INTELLECTUAL PROPERTY

4.1       Owned by BIA. Customer acknowledges and agrees that, as between the parties, BIA Confidential Information (as defined below), the Platform (including the data, text, images, drawings, videos, sounds and source code of the Platform), the Documentation, the Aggregated Data and the Course Material that it has BIA may have provided to the Contract (the “Owned by BIA”).

4.2     Customer Data. As between the parties, Customer owns all right, title and interest, including all intellectual property rights, in and to Customer Data and Confidential Information. Customer hereby grants to BIA (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display Customer Data and to do all acts relating to Customer Data that may be necessary to BIA to provide access to the Platform; and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use and anonymize the Customer Data for the purpose of creating the Aggregated Data.

4.3     Feedback. BIA is not obligated to treat as confidential any Feedback (as defined below) that Customer provides to Customer (if any), and nothing in this Agreement restricts the right to use, profit, disclose, publish, keep secret or otherwise exploit any Feedback, without compensation or attribution to the person who provided it. For the purposes of this document, “Feedback” means any suggestions or other ideas to improve or modify the Platform.

4.4       Customer Trademarks. Customer hereby grants to BIA the right (but not the obligation) to use, reproduce, distribute, display and display the Customer’s trademarks, logos and corporate name (collectively, the “Customer Trademarks“) in connection with the Platform, including for promotional purposes, without limitation of time or territory. BIA agrees to comply with all reasonable instructions and requirements that the Customer may submit to it from time to time in connection with the use of the Customer’s Trademarks, provided, however, that failure to comply with such guidelines and requirements shall not constitute a breach of the obligations of the BIA.

4.5       Third-Party Products. BIA may distribute certain third-party products provided or integrated into the Platform (collectively, the “Third-Party Products“). For purposes of this Agreement, such Third-Party Products are subject to their own terms and licenses. If Customer does not agree to abide by the terms applicable to such Third-Party Products, Customer shall not install or use them. Customer acknowledges and agrees that, as between the parties, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Without limiting the generality of the foregoing, the Client acknowledges and accepts that it is its responsibility to comply with the terms of use of the various Third-Party Products whose data may be imported into the Platform.

5.         CONFIDENTIALITY

5.1       Confidential Information. For the purposes of this document, “Confidential Information(s)” means all information: (i) disclosed by a party (the “Disclosing Party“) to the other party (the “Receiving Party“) or with which the Receiving Party may come into contact or become aware in connection herewith (including the Disclosing Party’s technologies and trade secrets); and (ii) that is designated as confidential by the Disclosing Party (orally or in writing) or that should be considered confidential by reason of its nature or the circumstances surrounding its disclosure. Confidential Information, however, excludes information that: (a) is already known to the Receiving Party at the time of disclosure; (b) that have been made public without action by the Receiving Party; (c) that has been disclosed to the Receiving Party by a third party that has a legitimate interest in the information and the right to disclose it; (d) that has been developed by the Receiving Party or by a third party that has a legitimate interest in the information and the right to disclose it; (e) has been independently developed by the Receiving Party and without the use of Confidential Information; (f) have been authorized in writing by the Disclosing Party to be disclosed by the Receiving Party; or (g) has been disclosed to a third party by the Disclosing Party without imposing similar restrictions on such third party’s disclosure.

5.2       Obligation of confidentiality. The parties acknowledge and agree that the Disclosing Party may provide Confidential Information to the Receiving Party in connection with this Agreement. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information from unauthorized disclosure or use with at least the same degree of care as it exercises with respect to its own Confidential Information, but in no event with a degree of care less than is commercially reasonable. The Receiving Party may use the Confidential Information only in accordance with the provisions of this Agreement and only to perform its obligations and exercise its rights under this Agreement.

5.3 Non-Disclosure. The Receiving Party will only disclose the Confidential Information to its directors, officers, employees, and Users (collectively, “Representatives“) who: (i) have a need to know the Confidential Information; (ii) have been informed of the confidentiality obligations set forth herein; and (iii) agree to comply with these confidentiality obligations. The Receiving Party remains fully liable for any violation of this Section 5 by its Representatives.

5.4     Mandatory disclosure. In the event that the Receiving Party is invited or required by any applicable law, rule or regulation to give a deposition, examination, request for documents, subpoena, request for civil investigation or similar legal process, or by any stock exchange, tax, judicial, supervisory, regulatory or other governmental body,  To the extent not prohibited by applicable law, rule, regulation or judicial or administrative order, the Receiving Party shall, to the extent not prohibited by applicable law, rule, regulation or court or administrative order, provide the Disclosing Party with reasonable prior written notice of such requirement in order to enable the Disclosing Party, at its sole expense, to (i) seek an appropriate protective order or other remedy (to which the Receiving Party agrees that it will not object not), or (ii) to the extent permitted by applicable law, rule, regulation, or judicial or administrative order, to consult with the Receiving Party with respect to measures to be taken to resist, limit, or reduce the scope of any such request or legal process. The Receiving Party will only provide that portion of the Confidential Information that, based on legal advice, is the subject of the legal request or requirement.

5.5     Violation. Each party acknowledges and agrees that a breach of this Section 5 would cause irreparable harm to the Disclosing Party for which monetary damages would not be an adequate remedy and that, in addition to any other remedies available to it, the Disclosing Party shall be entitled to injunctive relief against such breach or threatened breach, without the need to prove actual harm or post any bond or other security.

5.6     Personal Information. To the extent that Customer Confidential Information includes personal information, BIA undertakes to comply with the provisions set out in Appendix A and in the Privacy Policy available here. In the event of any conflict between the provisions of this Agreement and the provisions of this Agreement, Appendix A or the Privacy Policy, the provisions of the Privacy Policy shall prevail.

6.       REPRESENTATIONS AND WARRANTIES

6.1     Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) it has the authority and capacity to enter into and execute this Agreement; (ii) this Agreement is a valid and binding legal obligation enforceable against it in accordance with its terms; (iii) the execution, performance, delivery or performance of its obligations under this Agreement shall not violate or result in default under its statutes, regulations, any convention or law to which it is subject, or any judgment, order or decree of any governmental authority to which it is subject,  or any contract to which it is a party or to which it is bound; and (v) it is not involved in any bankruptcy, insolvency, liquidation, dissolution, or reorganization proceeding.

6.2     Additional Representations and Warranties of BIA. BIA represents and warrants to Customer that: (i) to the extent applicable, it will provide access to the Platform using personnel with the required skills, experience and qualifications and in a professional manner, in accordance with generally accepted industry standards for similar platforms, and will devote adequate resources to fulfilling its obligations under this Agreement; (ii) the Platform will be compliant, in all material respects, when using the Documentation; and (iii) it will maintain all commercially reasonable security measures, including physical, organizational, and technical measures, to protect Customer Data from unauthorized alteration, disclosure, or access during the Term of the Agreement. Notwithstanding the foregoing, BIA does not warrant that the Platform is fully protected from hacking or other unauthorized infiltration or disclosure. The foregoing warranties do not apply, and BIA strictly disclaims any warranties, with respect to Third-Party Products. For clarity, BIA makes no representations, conditions, or warranties with respect to Third-Party Products.

6.3          Additional Representations and Warranties of the Customer. The Client represents and warrants to BIA that: (i) at all times, it will comply with applicable laws in accordance with this Agreement and Appendix A; (ii) the Customer Data does not infringe or violate any rights of third parties; (iii) it is not subject to any restriction or obligation that could reasonably be expected to affect the performance of its obligations under this Agreement; and (iv) it has obtained all the rights and consents necessary to grant to BIA the rights granted herein. Without limiting the foregoing, Customer represents and warrants that BIA will not be liable for any third-party claims resulting from Customer’s failure to comply with its obligations under the Third-Party Products’ Terms of Use and applicable Privacy Laws (as defined in Appendix A).

6.4       Trial period. Without limiting paragraph 1.4 of the Agreement, the Customer acknowledges and agrees that paragraphs 6.1 and 6.2 do not apply to any trial period from which it may benefit.

6.5          Exclusions. EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTIONS 6.1 AND 6.2, BIA DOES NOT OFFER ANY CONDITIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT THE PLATFORM, TRIAL PERIOD, DOCUMENTATION, CONFIDENTIAL INFORMATION OF BIA AND THE COURSE MATERIALS, OR ANY PRODUCTS OR RESULTS THEREOF, INCLUDING ANY REPORTS OR ANALYSES BASED ON CUSTOMER DATA, WILL MEET THE REQUIREMENTS OF CUSTOMER OR ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE THE DESIRED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE, OR BE SECURE, ACCURATE,  COMPLETE, FREE OF HARMFUL CODE OR ERROR.

7.       COMPENSATION

7.1     General indemnification. Each party (the “Indemnifying Party“) agrees and agrees to indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, shareholders, employees, agents, and other representatives (the “Indemnified Party“), against any loss due to any claim, demand, suit, action or cause of action of any third party (a “Claim“) related to or arising out of a breach or alleged breach by the Indemnifying Party of any of its representations, warranties or obligations under this Agreement. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any Claim and shall cooperate in the defense of such Claim. Neither party shall agree to an out-of-court settlement of any Claim without the prior written consent of the other party. Notwithstanding the generality of the foregoing, the Client undertakes and agrees to indemnify BIA and its Representatives for any Claim arising out of or arising, directly or indirectly: (i) from the use of the Platform by the Customer or its Authorized Users; (ii) any use of Customer Data permitted by this Agreement; and (iii) any claim by a third party relating to the Customer’s failure to comply with its obligations under Appendix A.

7.2     Attenuation. If any element of the Platform becomes, or in the reasonable opinion of BIA is likely to become the subject of any Claim alleging that the Platform infringes or misappropriates the intellectual property rights of a third party, BIA shall, at its discretion and expense: (i) obtain a license and procure for Customer the right to continue using the Platform, as applicable, as set forth herein; (ii) modify the Platform to make them non-infringing (without any loss of quality or functionality), or (iii) terminate this Agreement for the then-current billing cycle (monthly payment, annuity or other period provided for in the applicable subscription plan).

7.3       Exclusion. BIA shall have no obligation under this Section 7 with respect to any Claim arising out of or related to: (i) any modification of the Platform created by any party other than BIA if not at the express request of BIA, (ii) any combination of the Platform with any third-party hardware, software, or other products not authorized by BIA, where such combination is the subject of the Claim, (iii) the use of any version of the Platform other than the latest version made available to the Client by BIA, or (iv) non-compliance with the Customer’s obligations under Appendix A.

7.4       Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY (NOR THEIR AFFILIATES OR SUBCONTRACTORS) SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS OR REVENUE, REGARDLESS OF THE CAUSE OR FORM OF THE ACTION,  EVEN IF THAT PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE LIABILITY OF AND TO THE FULLEST EXTENT PERMITTED BY LAW BIA WITH RESPECT TO ANY INCIDENTS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY.

8.       GENERAL

8.1     Entire Agreement; Amendment. The parties acknowledge and agree that this Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, understandings, representations and arrangements, whether oral or written, relating to its subject matter. No amendment, modification or waiver to this Agreement shall be valid unless confirmed in a writing signed by both parties.

8.2     Order of Precedence. Except as otherwise provided in this Agreement, in the event of any inconsistency between the statements made in the Agreement (including its appendix) and any other document incorporated herein by reference, the following order of precedence shall apply: (i) first, the Agreement, including its schedule; and (ii) second, any other documents incorporated herein by reference. In the event of any conflict between the provisions of this Agreement and the provisions of this Agreement, Appendix A and Privacy Policy with respect to personal information, the provisions of the Appendix A and the Privacy Policy shall prevail.

8.3     Cession; Binding effect. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which may not be unreasonably delayed or withheld, except that BIA may assign or transfer this Agreement, in whole or in part, without the prior written consent of Customer, in the event of a sale, merger, consolidation or corporate reorganization of the assigning party, or the sale of all or substantially all of the assets of the assigning party, provided that the assignee agrees in writing to be bound by the obligations of the transferor. BIA in connection with this Agreement. This Agreement shall be binding upon the parties and their successors and permitted assigns.

8.4 Relationship of the parties. The Client and BIA are independent contractors and nothing in this Agreement shall be construed as in any way creating an agency, partnership, employment, or joint venture.

8.5 Opinion. Except as otherwise provided herein, any notice or consent provided for or required by the Agreement: (i) shall be submitted in writing and delivered by hand, by registered or certified mail (with delivery receipt) or by email (with return receipt requested) to the contact address specified in the Customer’s Account or to such other address as the party may designate in writing in accordance with this clause; and (ii) shall be deemed to have been received on the day of delivery when delivered personally or on the third (3) business day after it is mailed or received in the case of registered or certified mail or email.

8.6     Force majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performance of its obligations under this Agreement (except for payment obligations), if and to the extent that such failure or delay is caused by circumstances beyond the reasonable control of the party concerned,  including, but not limited to, natural disasters, epidemics, pandemics, floods, fires, earthquakes, explosions, wars, terrorism, invasions, riots or other civil disturbances, strikes, work stoppages or slowdowns or other industrial disruptions, the adoption of a law or any action taken by any governmental or public authority,  including the imposition of an embargo.

8.7     Waiver. No waiver by a party of any provision of this Agreement shall be effective unless expressly stated in writing and signed by the waiving party. Except as otherwise provided in this Agreement: (i) no failure to exercise or delay in exercising any right, remedy, power or privilege arising under this Agreement shall operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power or privilege under this Agreement shall preclude any further exercise thereof or the exercise of any other right, remedy, power or privilege.

8.8     Divisibility. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect and shall not affect any other terms or provisions of this Agreement and shall not invalidate or render unenforceable this Agreement or such term or provision in any other jurisdiction.

8.9     Compensation. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but the whole of which shall be deemed to constitute one and the same Agreement.

8.10     Applicable law and jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Quebec and applicable federal laws, without regard to conflict of law rules. The parties agree that any dispute of any kind relating to, arising out of or in any way connected with this Agreement shall be brought and resolved exclusively in the judicial district of Quebec, in the Province of Quebec, and waive any objection that such venue is not practical or appropriate.

Appendix A
Privacy Addendum

The Customer is subject to the requirements of applicable Privacy Laws with respect to the collection, use, disclosure and security of Personal Information. The purpose of this Addendum is to ensure that Bia Formations Inc. (hereinafter “BIA“) ensures adequate monitoring and security controls of Personal Information and that the Parties comply with the requirements of applicable Privacy Laws.

I. Definitions

Capitalized terms used in this Addendum are defined below and are in addition to the terms defined in the Agreement:

“Commissioner” means any representative of the government supervisory authority competent and authorized to issue recommendations or orders in matters of privacy, including the Privacy Commissioner of Canada and the Commissioners of the Supervisory and Jurisdictional Section of the Commission d’accès à l’information du Québec.

“Applicable Laws” means all current and future laws, regulations, orders, decisions, rulings, guidelines and directives of a federal or provincial court or governmental authority that are applicable in Canada, including applicable Privacy Laws.

“Applicable Privacy Laws” means any privacy legislation applicable in the circumstances, including the Act Respecting the Protection of Personal Information in the Private Sector (CQLR, c. 39.1) and the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

“Commitment to Confidentiality” means a standard agreement entered into between BIA and its Personnel, signed in the course of its day-to-day operations, requiring Personnel to comply with internal company policies and the requirements of Applicable Laws in a manner that is intended to ensure compliance by BIA and its Personnel with the provisions of this Addendum.

“Personnel” means all employees, officers, directors, contractors, subcontractors, partners, representatives or other persons engaged by BIA to perform BIA’s obligations under the Agreement.

“Personal Information” means any information about an identifiable individual or that, on its own or in combination with other data, identifies an individual, whether or not it is publicly available.

The “Privacy Officer” is the person designated to ensure compliance with and implementation of applicable Privacy Laws, as well as to respond to consumer requests and questions regarding the protection of Personal Information.

Any “Major Incident” includes, but is not limited to, (i) BIA’s failure to comply with any provision of this Addendum relating to or resulting from the collection, use, disclosure, storage, or destruction of any Personal Information in violation of applicable Privacy Laws and/or this Addendum; and (ii) BIA’s failure to comply with reasonable measures intended to remedy any violation of the Laws and/or this Addendum to the satisfaction of the Customer within 30 days after written notice of the breach describing the breach in sufficient detail to BIA or within 30 days after BIA becomes aware of the breach.

Capitalized terms not otherwise defined in this section shall have the meanings given to them in the Agreement.

II. Controller and Processor Relationship

1. The Parties agree that with respect to the processing of Personal Information, the Customer acts as a data controller, meaning that it is responsible and accountable for the Personal Information it collects and for which it determines the purposes, BIA is a data processor and that BIA will engage subcontractors in accordance with the requirements of the section XI “Subcontractors” below.

III. BIA subject to applicable Privacy Laws

1. BIA agrees that, with respect to the collection, use, processing, sharing, communication, storage, security, destruction, and management or administration of Personal Information, it is subject to and will comply with the requirements of applicable Privacy Laws and this Addendum, including any applicable order or security requirement prescribed by the Commissioner or by a court. BIA will ensure that it and its staff are familiar with their obligations under applicable Privacy Laws.
2. BIA acknowledges that Personal Information may be disclosed to BIA for the sole purpose of performing the Services. BIA shall take all reasonable precautions to protect Personal Information against loss, theft, unauthorized access, disclosure, copying, use or modification, storage and retention and, in any event, treat any Personal Information in accordance with applicable Privacy Laws.
3. BIA is committed to maintaining policies and practices for the governance of Personal Information, including a privacy policy that complies with applicable Privacy Laws.
4. BIA specifically assumes full responsibility for Personnel and for the violation by one or more of them of any provision of the Applicable Privacy Laws or this Addendum.

IV. Consents

The Parties acknowledge and agree that between the Client and BIA:

1. It is the Customer’s responsibility to directly or indirectly identify and obtain consent, or notify, individuals as required by applicable Privacy Laws, for BIA’s collection, use, processing, sharing, disclosure, storage, security, destruction, management or administration of Personal Information. If the Customer requests that BIA collect Personal Information on its behalf in accordance with this section, it will inform BIA of all the requirements of the applicable Privacy Laws regarding the collection of Personal Information.

V. Collection, Use and Disclosure of Personal Information

1. BIA will only collect, use and disclose Personal Information on Customer’s behalf to the extent necessary for the performance of the Services or as authorized by Customer in writing or as required or permitted by Applicable Laws.
2. BIA will ensure that neither it nor its Personnel collect, create, copy, reproduce, use, store, disclose or provide access to Personal Information, except in accordance with this Addendum and applicable Privacy Laws, for purposes directly related to or necessary for the performance of the Services or as required by Applicable Laws.

VI. Referral of requests for access or correction

If BIA receives a request for access to or correction of Personal Information from an individual other than the Client, pursuant to applicable Privacy Laws, BIA will promptly advise that individual to direct the request to the Client and provide the Client with the name and contact information of the Client’s Privacy Officer. BIA will promptly inform the Client of such a request.

VII. Collaboration in responding to access requests

When the Client notifies BIA that it has received a request for access to Personal Information, BIA will locate and provide the Client with any records or Personal Information in its custody that are within the spectrum of the request. BIA will perform this obligation within a reasonable period of time to enable Customer to comply with its obligations under applicable Privacy Laws.

VIII. Accuracy and Correction of Personal Information

If BIA engages in collecting, maintaining, or updating Personal Information or creating records on behalf of Customer under the Agreement, BIA will make all reasonable efforts to ensure the accuracy and completeness of such Personal Information generally and in accordance with applicable Privacy Laws.

IX. Protection and security of Personal Information

BIA shall protect Personal Information to ensure compliance with applicable Privacy Laws by taking reasonable security measures against risks such as theft, loss, or unauthorized access, collection, use, disclosure or disposal of Personal Information.

X. Access by Personnel

BIA will ensure that its Personnel are only granted access to Personal Information when such access is necessary for the performance of the services, and subject to the following conditions:

1. Prior to access, BIA has entered into its standard Confidentiality Agreement with its Personnel or BIA Personnel has expressly agreed to comply with BIA’s internal documents acknowledging the obligations to protect Personal Information in accordance with this Addendum and applicable Privacy Laws;
2. BIA will revoke the access rights of any individual who collects, uses or discloses Personal Information without authorization or who otherwise violates the Confidentiality Agreement or applicable Privacy Laws;
3. BIA will ensure that Personnel with access to Personal Information are aware of and comply with their obligations under this Addendum and applicable Privacy Laws.

XI. Subcontractors

BIA acknowledges that if it uses subcontractors to provide services to the Client, it will require that the subcontractors be bound by terms equivalent to this Addendum and applicable Privacy Laws.

XII. Overseas Access and Storage

Customer hereby acknowledges and consents that Personal Information may be collected, used, processed, shared, communicated, stored, secured, destroyed, managed or administered from outside of Canada by BIA or one of its subcontractors by means of cloud computing or other information technology infrastructure chosen by BIA and managed by third parties,  and that the Customer has provided all required notices and information and/or obtained all required consents and approvals for the collection, use, processing, sharing, communication, storage, security, destruction, management and administration of such information outside of Canada.

XIII. Aggregated and de-identified data

Notwithstanding the provisions of this Addendum, BIA retains the right to use and disclose aggregated and de-identified data in any manner. “De-Identified Data” means information (or any portion thereof) that has been the subject of reasonable efforts to de-identify, aggregate, and/or anonymize it, such that no particular person, entity, or record can be identified and it is no longer Personal Information as defined in applicable Privacy Laws.

XIV. Privacy Officer

BIA will designate a Privacy Officer and such person will have sufficient authority to make decisions and sign documents on behalf of BIA, as may be required from time to time for the administration of this Addendum. BIA will promptly provide Customer with the name and contact information of its Privacy Officer and notify Customer of any changes in a diligent manner.

XV. Notice of Occurrence and Corrective Action

1. BIA will promptly notify Customer in writing of any actual or anticipated Major Incident, including full details of such incident.
2. BIA will cooperate with Customer to prevent the occurrence or recurrence of any breach of this Addendum or applicable Privacy Laws.

XVI. Inspection, investigation and cooperation

• a. Upon reasonable request by Customer, BIA will provide a Commissioner with information relating to BIA’s processing of Personal Information demonstrating that BIA complies with this Addendum, the Agreement and applicable Privacy Laws, including:
  • I. BIA’s Privacy Policy; and
  • II. information relating to any complaint lodged against BIA with a Commissioner.
• b. BIA will reasonably cooperate with Customer, at Customer’s expense, in the event of any audit, investigation, investigation, complaint, suit, or other legal proceeding regarding any actual or suspected violation of applicable Privacy Laws or this Addendum, for a Major Incident.

Return or destruction of Personal Information upon request

1. Unless otherwise specified in the Agreement, BIA will retain Personal Information until it receives a written instruction from Customer regarding its return or destruction.
2. Upon expiration or early termination of the Agreement or, at any time, upon the written request of the Client, BIA undertakes to: (i) return or deliver to the Client all records, including copies, or (ii) destroy, in accordance with the Client’s instructions, all documents or other records, including copies, in any form or format,  in BIA’s possession, that constitute or are based on Personal Information.
3. Once a request has been made under this section, BIA will not retain any Personal Information for any purpose without the prior written consent of the Customer. If, for any reason, BIA does not return or destroy any Personal Information in accordance with this section, BIA’s obligations under this Addendum will remain in full force and effect.

XVIII. General

1. The Parties acknowledge and agree that either Party may disclose the Agreement or parts thereof in accordance with applicable Privacy Laws.
2. If any provision of this Addendum or the Agreement conflicts with any requirement of the Applicable Privacy Laws, the conflicting provision of the Agreement will be inoperative to the extent of the conflict.
3. Except as otherwise expressly provided in the Agreement, if any provision of this Addendum is inconsistent or in conflict with any provision of the Agreement, the inconsistent or conflicting provision of the Agreement shall be inoperative to the extent of the conflict.
4. BIA’s obligations under this Addendum will continue despite the expiration or early termination of the Agreement until the Personal Information is returned to the Customer or securely destroyed in accordance with this Addendum.
5. Except as otherwise provided in this Addendum, no modification of this Addendum shall be effective unless in writing and agreed to by the Parties.