2.1 AII grants Customer the right to access the Service for the purpose of conducting searches and obtaining printed copies of search results and, for the fee, term and subject to other terms set forth in the “Services” page, and pursuant to the provisions of this Agreement. Any access to the Databases may be controlled or otherwise subject to limitations on the type of activity that may be conducted by Customer.
2.2. All proprietary rights, including copyrights, in the software, databases and related material pertaining to the Service shall remain with AII and/or its third party suppliers and licensors, as the case may be.
3. Access to Service
3.1. The Service will be provided through the Internet.
3.2. Following reasonable notice to Customer, the Service may be interrupted in order to maintain, modify or enhance equipment, software and/or databases. Although AII shall use reasonable efforts to assure that the Service is uninterrupted, no responsibility is assumed for interruptions of or delays in delivery of it.
3.3. Any new or modified Service may be subject to different conditions and charges but the Customer’s use of any such new or modified Service shall be at the option of the Customer.
4. General Restrictions on Use
Customer agrees to the following restrictions on the use of the Service:
a) The Service is provided solely and exclusively for the internal use of Customer. Customer shall not provide access to the Software, the Service or the Databases to any other person or entity including any affiliate.
b) Customer acknowledges that the databases comprising the Service were compiled, revised, selected and arranged by AII through the application of methods and judgment developed and applied through the expenditure of substantial time, money and effort, and constitutes valuable copyright, including protected compilations and trade secrets of AII.
c) Customer agrees to not sell, transfer, assign, publish, distribute, disseminate, allow any third party access to, or convey any part of the Service. Customer agrees not to save, or permit any third party to save, any database accessed through the Service or any portion thereof, for use with any information retrieval or storage program operated on equipment forming part of the Customer’s computer facility or on any computer facility. Customer shall, however, have the right to reproduce for its own internal purposes search results performed, or reports obtained, using the Service and utilize them in the normal course of its business. In no event shall Customer be authorized to distribute search results performed, or reports obtained, using the Service outside of its organization without AII’s prior written consent.
d) Customer agrees that it shall not attempt to copy, modify, reverse engineer, disassemble, decompile or decrypt the software and database pertaining to the Service and that it shall not attempt to reconstruct, copy or prepare derivative works based on the Service or any portion thereof (nor permit others to perform such actions).
e) Customer agrees that at any subsequent date, AII has the right to notify Customer in writing, or by electronic means, of any additional conditions, requirements or restrictions, from those set forth in this Agreement, or of any changes in any of the foregoing. AII shall notify the Customer of any such suggested addition or change at least thirty (30) days prior to such addition or change coming into force. Continued use by Customer of the Service following receipt of such notice shall be deemed acceptance by Customer of such additions or changes.
f) Customer shall not remove, alter or obscure any proprietary notices affixed by AII on any document or material concerning the Service or generated through usage of the Service.
5.1. Customer agrees to pay the set up charge, periodic subscription charges and transaction based charges set out on the “Services” page, as amended by AII from time to time. Customer shall be liable for all transaction-based charges incurred from use of the UIC and confidential password, whether or not authorized by Customer.
5.2. Customer shall pay the charges using the method indicated on the “Services” and "Subscribe" pages. Customer authorizes AII to process a credit card transaction for any applicable charges incurred by Customer against any such accounts provided to AII. If a Schedule indicates that charges are to be invoiced to Customer, or if charges applied using another billing method are rejected for any reason, AII shall issue an invoice to Customer for the applicable charges. Any such invoice shall be due and payable when issued by AII and Customer agrees to pay AII interest at the rate of 12% per annum on any outstanding balance not received by AII within thirty (30) days of any invoice date. Any such applicable interest shall accrue on the outstanding balance from the date such invoice was issued.
5.3. Unless otherwise indicated, any charges or fees quoted by AII include applicable taxes.
5.4. Customer shall pay any costs incurred by AII in collecting any amount owed by Customer including banking charges, collection charges and legal fees.
5.5. Customer shall notify AII within thirty (30) business days of the receipt of any notification thereof of any dispute relating to the amount of transaction-based charges incurred, and in the absence of such notice, the charges so specified shall be deemed correct and accepted by Customer.
6. Customer Responsibilities
6.1. Access to the Service is through the Internet. Customer shall be responsible for arranging its own access to the Internet.
6.2. Customer shall be responsible for acquiring, installing, operating and maintaining, at its own risk and expense, any equipment and operating software required by Customer to access the Service.
6.3. Customer shall be responsible for protecting the user identification code and associated confidential password from unauthorized disclosure or use.
7.1. Depending on the option selected by the Customer, this Agreement shall either have a one (1)-year term or, in the case of "Custom Access" subscription, an undefinite term. In the latter case, each of the parties shall have the right to terminate this Agreement and the Service at any time by giving the other party a notice of its intention to terminate this Agreement.
7.2. AII shall have the right to discontinue the Service or any portion thereof as a result of a general discontinuation by AII of the Service or any portion thereof. In such case, AII will issue Customer a pro rata refund of any prepayments made by Customer.
8.2. Personal information collected in connection with the provision of the Services may be stored and processed in or outside Canada and may be subject to the laws of other jurisdictions. Your personal information may be shared with third parties who provide services to AII (i.e. credit card companies). In order to most efficiently serve you, reputable third party banking and distribution institutions handle credit card transactions and order fulfillment on behalf of AII. They receive directly from you when registering payment and not from AII the information needed to verify and authorize your credit card and to process your order.
9.1. AII may terminate this Agreement by written notice to Customer, effective immediately:
- if Customer commits any default or breach under Section 2 or Section 4.
- if Customer fails to pay any amount due on the due date or neglects or fails to perform or observe any other provision of this Agreement, which is not cured within thirty (30) days following written notice from AII; or
- if Customer becomes insolvent or voluntarily bankrupt; if an involuntary petition in bankruptcy against Customer is not dismissed within ninety (90) calendar days of filing; if a receiver, assignee or other liquidating officer is appointed for all or substantially all of Customer's business; if Customer makes an assignment for the benefit of creditors; or, if Customer ceases to carry on business in the normal course.
10. Disclaimer of Warranties; Limitation of Liability
10.1. Except as expressly provided in this section, there are no understandings, representations, warranties, covenants, conditions, promises, guarantees or agreements, express or implied, statutory or otherwise, or arising from a course of dealing or usage of trade, relating to the Service, including but not limited to any implied warranty of merchantability or fitness or adequacy for any particular purpose or use, or of quality, productiveness, capacity or accuracy. In no event shall AII be liable for any indirect, incidental, special, consequential or punitive damages occurring out of or in connection with the delivery, use or performance, or failure thereof, of the Service or arising from the negligence of AII, its employees, contractors, officers, directors or consultants, or from a fundamental breach, even if AII has been advised of the possibility of such damages. Without limiting the generality of the foregoing, AII does not warrant that the Service will perform uninterrupted or error free, that any deficiency can or will be corrected, or that the functions or performance of the Service will meet Customer's requirements. Customer is solely responsible for its usage of the Service and the results obtained.
10.2. The information provided through the Service is obtained from sources considered by the AII to be reliable, but the accuracy, currency and completeness thereof are not guaranteed and AII shall have no liability for inaccuracies, errors or omissions with respect to the information provided through the Service regardless of the source or cause of any such error or omission.
10.3. If the Service provided or operated by AII malfunctions or fails to perform properly or at all, or if any employee or agent of AII is negligent and the malfunction, failure or negligence is a cause of inadequate results obtained by the Customer, then Customer’s exclusive remedy and the total liability of AII for any interruption or delay in the Service, where such Service is subject to a periodic subscription fee, of more than twenty-four (24) hours, shall be receipt of an additional day of service for each such twenty-four (24) hour period, at the termination of this Agreement.
10.4. In no event will AII's cumulative liability for any claim arising out of or in connection with this Agreement, including any claim in negligence, exceed the amounts paid by Customer to AII pursuant to this Agreement in the previous six (6) month period.
10.5. Customer agrees to indemnify and save harmless AII from and against all claims, demands, losses, costs, damages, actions, suits or other proceeding by any person made, sustained, brought or prosecuted in any manner based on or attributable to anything done or omitted to be done by Customer, or its officers, employees, agents and contractors, in connection with Customer's obligations under this Agreement.
11.1. Changes. AII may from time to time, and in its sole discretion, change the content or format of the Service in accordance with general changes made to its standard service offering.
11.2. Assignment. This Agreement and any rights arising out of this Agreement may not be assigned in whole or in part by Customer without the written consent of AII.
11.3. Entire agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, representations, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein. No waiver, alteration or amendment of this Agreement or any Schedule shall be effective unless authorized by an authorized representative of AII. The terms and conditions in this Agreement shall prevail notwithstanding any variance with the terms and conditions of any order submitted by the Customer.
11.4. Force majeure. AII shall not be liable for any default or delay resulting from circumstances beyond its reasonable control.
11.5. Notifications. Customer requests and authorizes AII to inform Customer from time to time of other services available from AII or its affiliates.
11.6. Jurisdiction. The terms of this Agreement shall be construed according to the laws of the Province of Québec and the laws of Canada applicable therein. The parties attorn to and submit to the exclusive jurisdiction of the courts in the judicial district of Montréal (Québec, Canada) with respect to any matter arising under this Agreement.
11.7. Survival. Any terms which by their nature are intended to survive the termination of this Agreement shall continue in full force and effect after termination, which terms shall include, but not be limited to Section 10.
11.8. Severability. The invalidity or unenforceability of any provision or covenant in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained, and this Agreement shall be construed as if such invalid or unenforceable provision or covenant were omitted.
11.9. French language. The parties confirm their express wish that this Agreement and all documents relating thereto be drawn up in English only. Les parties aux présentes confirment leur volonté que le présent contrat de même que tous autres documents s'y rapportant soient rédigés en anglais seulement.
11.10. Notices. All legal notices must be forwarded to:
Antiviral Intelistrat Inc.
3077, rue Édouard-Montpetit, Suite 406