Dernière mise à jour : October 12, 2023
Parties Involved
BETWEEN:
Etienne Beaudry Auger or Zbranch or eba.expert, an individual enterprise organized and existing under the laws of the province of Quebec and Canada, with its head office at 1949 rue de Villiers, H4E 1L2 Quebec Montreal, hereinafter referred to as "the Provider,"
AND:
The user of the service, a natural or legal person, who registers, subscribes, or uses the service provided via https://zbranch.io/ or https://eba.expert or any other associated media form, channel, mobile website, or mobile application, hereinafter referred to as "the Client."
Warranty and Liability
- Limitation of Liability: The Provider strives to offer a quality service and meet the Client's expectations in terms of software development and consulting. However, the Provider does not guarantee that the services provided will be uninterrupted, timely, secure, or error-free.
- Exclusion of Indirect Damages: In no event shall the Provider be liable to the Client or any third party for any indirect, consequential, exemplary, punitive, or incidental damages, including loss of profits or data, even if the Provider or the Client has been advised of the possibility of such damages.
- Monetary Limitation: In all cases, the Provider's total liability to the Client for all damages, losses, and causes of action, whether in contract, tort (including, but not limited to, negligence), or otherwise, shall not exceed the total amount paid by the Client to the Provider for the services received during the three (3) months preceding the event giving rise to the claim.
- No Warranties: The services are provided "as is" and "as available." The Provider expressly disclaims all warranties of any kind, express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
- Indemnification: The Client agrees to indemnify and hold harmless the Provider, its officers, employees, agents, and partners from any claims or demands, including reasonable attorneys' fees, made by any third party due to or arising out of the Client's use of the Provider's services, or the Client's violation of this disclaimer.
Terms of Use: "Starter" Service
- Commitment: By choosing the "Starter" service, the Client agrees to comply with these terms and the specified conditions.
- Unlimited Requests: The Client may submit an unlimited number of requests during the subscription period. However, these requests will be processed in the order received or prioritized by the Client, subject to the Provider's availability, and one at a time according to the tool determined by the Provider throughout the selected subscription.
- Delivery Times: The Provider will endeavor to deliver the Client's requests within reasonable timeframes, but no firm commitments are made regarding deadlines. The Provider will provide a case-by-case estimate of the deadlines upon the Client's request. The estimate provided is not a factual element that the Client can rely on to make factual decisions for project planning.
- Payment: The Client will be billed according to the option chosen at registration. All payments will be made by credit card and pre-authorized to renew the subscription. To stop payments, the Client must cancel the subscription via the Portal.
- Suspension: The Client has the right to suspend the subscription at any time. This means that if the Client decides not to use the service for any reason, they can pause it.
- Retention of Unused Business Days: When the Client suspends the subscription, they do not lose the business days for which they have already paid and have not used. These unused business days are, in a way, "set aside" so that the Client can use them later when the subscription is no longer suspended.
- Subscription Period: If, during the Client's subscription period, the Provider is unavailable for a certain number of business days (as indicated in a separate clause "Provider Availability"), these days of unavailability are not credited to the Client or "set aside" for later use. In other words, any period of Provider unavailability reduces the effective duration of the subscription for which the Client has paid, without compensation for these days.
- Cancellation: The Client has the option to cancel the "Starter" service subscription at any time. This indicates to the Provider that the Client is terminating the subscription before the renewal date of the subscription period.
- Quality of Service: The Provider is committed to providing high-quality services in accordance with the highest industry standards.
- Communications: The Provider will communicate with the Client asynchronously, allowing for smooth interaction regardless of the Client's time zone. An asynchronous communication is considered a request.
- Modifications to Terms: The Provider reserves the right to modify these terms of use at any time. The Client will be notified of any major changes.
Terms of Use: "Premium" Service
- Commitment: By choosing the "Premium" service, the Client agrees to comply with these terms and the specified conditions.
- General: The "Premium" service includes all the terms of use of the "Starter" service between the Provider and the Client.
- Requests: The Provider may create scheduled requests by the Client and prioritize them.
- Communication: The Client is entitled to synchronous communication with the Provider according to the latter's availability. The consultation of these availabilities will be done via the tool designated by the Provider.
- Meetings: Meetings can be organized by phone or video call for technology consulting and guidance services. The Provider will provide a tool for booking time slots according to their availability.
- Client Responsibilities: The Client must book time slots in advance and adhere to the agreed schedules. Late cancellations or no-shows may incur fees.
Terms of Use: Custom Offer
- The terms of use of a custom offer invalidate those of the "Starter" and "Premium" services only.
- Any specific provision will be detailed in the offer to the Client.
- The Provider's availability may vary depending on the offer's framework.
Terms of the Work Method Between the Provider and the Client
- Regular Communication: The Client agrees to maintain regular and transparent communication with the Provider. Both parties will agree on the means of communication (e.g., email, video conferencing, instant messaging) and establish an update frequency (e.g., weekly, bi-weekly).
- Delay Notification: If the Client anticipates a delay in providing information, decisions, or any other element necessary for the project's progress, they agree to inform the Provider immediately.
- Client Availability: In remote work mode, it is crucial that the Client is available at the agreed times for meetings, collaborative work sessions, or project reviews. Any change in availability must be communicated to the Provider in advance.
- Provider Availability: The Provider is not available and cannot provide services during business hours and holidays and leave, except by special agreement.
- Unforeseen Unavailability: If the Provider becomes unavailable for unforeseen reasons beyond their control, the unused subscription days during this period will be retained for the Client and can be used later.
- Remote Work Tools: The Client must ensure access to the agreed tools and platforms for remote work (e.g., Notion, Linear, Zoom, Microsoft Teams, Slack, Google Meet, etc.) and be comfortable using them.
- Deadline Compliance: The Client is required to meet the agreed deadlines for providing elements, validating phases, or any other contribution.
- Suitable Work Environment: The Client must ensure a suitable work environment for remote work interactions, including a quiet space, good internet connection, and functional equipment.
- Constructive Feedback: The Client agrees to provide timely and constructive feedback to the Provider, facilitating effective collaboration and quick adjustments if necessary.
- Confidentiality: The Client agrees to respect all agreed confidentiality measures, including avoiding sharing sensitive information in unsecured environments or with unauthorized third parties.
- Responsibility for Delays: If the Client's delay in their obligations results in a delay in project delivery or completion, the Provider cannot be held responsible. Additional fees may be charged to the Client if the Provider needs to adjust resources or schedules due to Client delays.
- Special Terms and Conditions: These may be communicated in the form of a quote, invoice, email, or any other written communication method explicitly accepted by the service user or by paying the invoice.
Payment Terms
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Final Payment: The final payment is considered when the Provider's bank reconciliation confirms that the monetary funds transfer has been successfully received in the account.
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Third-Party Provider: The Provider is Stripe for managing subscriptions, billing, and payment collection.
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Subscription: The services are in the form of a subscription at a fixed price for a given period calculated in business days.
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Payment Management: The Client is responsible for pausing or canceling the subscription. The subscription is automatically renewed.
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Subscription and Billing Management: The Client or the Provider can pause the subscription. The Client can access invoices on the portal. The tool for management, designated as "the portal," is chosen by the Provider.
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Payment Methods: Payments can be made by credit card or bank transfer via Stripe.
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Suspension or Cancellation of Subscription: Suspension or cancellation of the subscription by the Client will result in the suspension of work related to requests until the subscription is resumed.
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Refunds: The Provider reserves the right to refuse refunds, at its sole discretion and without notice or liability to the Client. Refund requests are evaluated on a case-by-case basis. If the Client requests a refund within the first month of use, all materials produced by the Provider are the property of the company, and the Client is prohibited from using them in any way.
If a refund is deemed appropriate, a 25% fee will be applied to the remaining billable period.
The Provider reserves the right to take appropriate legal action against the Client in case of a breach of this paragraph.
Transfer of Intellectual Property
- Transfer Conditions: Ownership of the intellectual property of the work produced will be transferred to the Client as soon as the subscription begins.
- Intellectual Property: The intellectual property produced for the Client includes artifacts: documents, source code, images, videos, and all forms of digital or physical data belonging. The services or tools provided by the Provider allow the Client to make the transfers themselves to their own services or tools, at the Client's expense.
- Copyright: Upon receipt of the final payment, all copyright, titles, interests, and intellectual property rights of the developed software or product will be transferred to the Client.
- Ownership Warranty: The Provider warrants that the developed software or product is original, does not infringe any third-party intellectual property rights, and that no other party has rights to the produced work.
Confidentiality
- Confidentiality Commitment: The Provider agrees to keep confidential any information or data provided by the Client during the project and after its completion.
- Extension to Stakeholders: All employees, subcontractors, or other stakeholders associated with the Provider will also be subject to this confidentiality clause. The Provider will ensure that these individuals or entities are bound by confidentiality agreements that reflect the terms of this agreement with the Client.
- Information Protection: The Provider will take all necessary measures to protect the confidentiality of the Client's information and prevent any unauthorized disclosure to third parties.
Dispute
- Resolution Efforts: In case of a dispute or disagreement between the Provider and the Client, both parties agree to make their best efforts to resolve the issue amicably before resorting to legal action.
- Chosen Jurisdiction: If the parties cannot resolve a dispute amicably, the dispute will be submitted to the jurisdiction of the Montreal Judicial District. All disputes arising from or related to this contract will be exclusively resolved before this court, and the parties accept the jurisdiction and venue of this court.
- Legal Fees: In case of a dispute requiring legal action, the losing party will be responsible for paying all reasonable legal fees and attorney costs incurred by the winning party.
- Good Faith Obligation: The Client and the Provider agree to act in good faith at all times during the contract period and in all interactions between them, including during the resolution of any dispute or disagreement.