I. GENERAL PROVISIONS. ACCEPTANCE OF TERMS
- Please read these Terms of Service carefully before accessing or using the Product or any of the Services. By accessing or using any part of the Product or the Services you agree to become bound by these Terms of Service. If you do not agree to these Terms of Service in full and without modification, then you may not access or use the Product or the Services.
- The Product and the Services are owned and operated by LP Carignan Services-conseils inc. - a company duly registered and existing under the laws of Canada, with company number 1174841446 and seat and registered address in Quebec City, 500, 8th Street.
- By using the Product and Services, you acknowledge and agree that the Website and any downloadable software associated with the Product or Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
- When implementing and interpreting the Agreement, the terms used in it shall have the following meanings:
a. "Platform" referred to herein means an online collaboration tool for management and organization of projects onto boards.
b."User Content" or "Content" means information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services.
c."User" refers to any individual who have signed-up for a free trial or a payed subscription plan of the Product with a created PaceMkr Account. In case the Product is used on behalf of an entity by an individual authorized to agree to the Terms of Service and create a PaceMkr Account on behalf of such entity, "User" refers to such entity.
d."PaceMkr Account" or "Account" means an account in the Product, which the User creates when he/she signs up for a free trial version or a paid subscription plan of the Product. By creating a PaceMkr Account, the User authorizes PaceMkr to integrate and sync the Account in the Product with his/her platform data.
e."Platform User" means any person who has been authorized by the User to access boards which are synced with the Product in the User's Account and use available platform features thereon (such as assigning cards, posting comments, etc.).
f."Malicious activities" are actions or inactions that violate the Internet ethics or inflict damages on persons who are connected to the Internet or associated networks; the sending of unwanted messages (unsolicited commercial messages, SPAM, JUNK MAIL); channel overflow (FLOOD); getting access to resources based on other people's rights and passwords; the use of information systems' shortcomings for personal benefit or for the obtaining of information (HACK); identity change; the performance of actions that could be qualified as industrial espionage or sabotage; the damaging or destruction of information systems or information databases (CRACK); the sending of "Trojan horses" or causing the installation of viruses or remote control systems; disturbing the normal work of other Internet and associated networks' users; the performance of any acts that could be qualified by the Canadian or any other legislation as criminal or administrative infringements.
g."Accidental event" is an unforeseeable overwhelming event or action unpredictable at the time of contract's signing, which is not due to the guilty behavior of PaceMkr and which makes the provision of the Services impossible.
III. SUBSCRIPTION FOR AND USE OF THE PRODUCT
- PaceMkr's Product – Kanban metrics for Scrum Teams, integrates with the platforms' API and generates dashboards through the creation of Service Level Expectation (SLE), historical throughput, Monte Carlo simulations and others associated with the platforms' boards by accessing, syncing and displaying information available within the respective platform account as well as information related to the use of the platform features. The setup and use of the Product requires the existence of a valid platform account and platform login credentials and depends on the platform settings of the respective User.
- In order for the User to sign-up and get access to the Product, the User shall create a PaceMkr Account. At the time of the creation of the Account, the User shall accept the present Terms of Service. By signing up for using the Product and accepting these Terms of Service, the User is deemed to enter into a contractual relation with PaceMkr.
- In order to sign up for the Product and set up a PaceMkr Account, the User shall authenticate to the platform using his/her credentials and provide, through the platform, an authorization to PaceMkr to access certain types of data within his/her platform account. The categories of these data are indicated in the authorization page. In case of a successful authentication, the platform sends an authorization token which shall allow PaceMkr to integrate the User's PaceMkr Account with the User's platform account and data through the Product.
- After sign-up and for the whole period of the subscription, PaceMkr could send product-related announcements to the User's email associated with the User's Account. These announcements include on-boarding communications with respect to the sign-up to the Product, as well as email notifications for certain events related to the User's sign-up and use of the Product. PaceMkr may also send the User various communications with tips, tricks, ideas and good practices on how to optimize the use of the Product in case and to the extend the User has not unsubscribed to such communications.
- Subject to these Terms of Service, upon subscription for use of the Product, PaceMkr shall provide the Users with a non-exclusive, non-transferable right to use the Product solely for their internal business operations.
- In case of any unauthorized uses of the Account or any other breaches of security the User must immediately notify PaceMkr. PaceMkr will not be liable for any acts or omissions by the User, including any damages of any kind incurred as a result of such acts or omissions.
- The User can access the Product either through the Website or through a generated URL for direct access to the Product graphs/ visualizations.
- The number of the platform users as well as their activities within the User's platform boards (moving cards, assigning cards, posting comments, etc.) depend on the User's platform board settings.
- While using the Product Users and the platform users shall not access, store, distribute or transmit any viruses, materials or content which:
15.1. are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitate illegal activity;
15.2. depict sexually explicit images;
15.3. promote unlawful violence;
15.4. are discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or
15.5. are otherwise illegal or cause damage or injury to any person or property.
- In case of a breach to the provisions stipulated under item 15 above, PaceMkr reserves the right, without liability or prejudice to its other rights, to disable the respective User's access to the Product.
- PaceMkr cannot and will not be held liable for any loss or damage arising from a failure of the User to comply with the present section and the Agreement as a whole.
IV. PAID SUBSCRIPTION FOR THE PRODUCT. METHOD OF PAYMENT
- Upon signing up, PaceMkr shall provide the User with a 14-days free trial period. During the trial period, the User has the right to discontinue at his/her own discretion the use of the Product without owing any compensation or penalty and without stating the reason for his/her decision.
- Upon expiration of the free trial period, the User shall be notified and provided the opportunity to continue to use the Product for a remuneration. The User may also subscribe for a paid use of the Product before the expiration of the free trial period.
- While subscribing for a paid use of the Product, the User shall select one of the four plans as well as a billing mechanism – annual or monthly. Information regarding the plans has been made available on the Website, at /pricing.
- Irrespective of the selected plan, the total amount due by the User for the use of the Product under the selected plan shall be based on the number of Platform boards that are synced with the Product in the User's Account. Once the number of allowed boards has been reached, PaceMkr will notify the User offering an option to upgrade.
- If a User transfers his/her subscription for a paid use of the Product to another plan, PaceMkr will balance the billing in the following ways. An upgrade in plans will be effective immediately and the User shall be charged based on the remainder of the billing cycle. A downgrade in plans shall take effect at the end of the current billing period and the new amount shall be applied henceforth.
- Payments shall be charged on a pre-pay basis at the moment of the purchase (subscription) and will provide the User with the right to use the Product for the period and amount of selected Platform boards indicated at the time of subscription.
- All payments for the use of the Product will be charged from the bank card/PayPal details provided by the User at the time of the initial subscription. It is the User's responsibility to ensure that all bank card/Paypal details are accurate and kept up to date.
- In case where the receiving due payment is rendered impossible through no fault of PaceMkr, PaceMkr reserves the right to disable the User's access to a portion of or all features of the Product until payment has been received.
- All amounts and fees payable under the present Terms of Service are non-cancellable and non-refundable and shall be payable in US dollars or another currency as PaceMkr shall stipulate.
- The User may unsubscribe and discontinue his/her paid use of the Product by turning off the automatic renewal option within the User Account. In such case PaceMkr will suspend the User Account after the expiration of the respective billing period and will permanently delete all information and data contained in the Account within 3 (three) months. During the 3-month period between the suspension of the Account and the permanent deletion of the Account and its content, the User may subscribe again for a paid use of the Product which will allow him/her to recover the content generated within his/her Account in relation to the use of the Product before the suspension of the Account.
V. USER'S RIGHTS AND OBLIGATIONS
- Each User shall have the right to withdraw, without owing any compensation or penalty and without stating the reason for his/her decision, of the remotely concluded Agreement within a 14-day period as from the date of the sign-up for the free trial period in accordance with item 18 above.
- The User shall have the right to access and use the Product and Services provided that he/she complies with the terms and conditions of the Agreement and provided that he/she conforms with the specific requirements established by PaceMkr for the use of the respective Product or Services.
- The User shall himself/herself secure the technical equipment, software, internet access and access to mobile phone service and mobile data transfer which he/she shall need in order to use the Product and Services.
- When using the Product and Services, the User shall commit himself/herself:
32.1. to observe the Agreement and the applicable legislation;
32.2. not to infringe on other persons' proprietary or non-proprietary rights, including intellectual property rights;
32.3. to promptly inform PaceMkr on any case of committed or established violation in the use of the Product and Services;
32.4. to provide, upon his/her registration and while using the Product and Services, true, accurate and complete information as required by PaceMkr, the Agreement and the applicable legislation;
32.5. to use the Product and Services only for their intended purposes as described in these Terms of Service and within the Website;
32.6. not to perform any malicious actions.
VI. PACEMKR'S RIGHTS and OBLIGATIONS
- PaceMkr shall have the right at its own discretion and without giving any warning, to suspend or temporary restrict User's access to the Product or Services, provided it is in possession of data or has doubts that the User is using the Product or Services in violation of the applicable legislation or the Agreement.
- PaceMkr shall not be obliged, nor shall it have the objective possibility to control the way and/or the purposes for which the User uses the Product and Services. Furthermore, PaceMkr shall not be required to seek facts and circumstances indicating the performance of any illegal activity.
- Should the User fail on any of his/her duties referred to in item 32 hereinabove, PaceMkr shall be entitled to suspend or forthwith cease, without advance notice, the provision of the Product and Services, or shall unilaterally terminate the Agreement with immediate effect and shall, if illegal activities are suspected, notify the competent authorities.
- PaceMkr shall commit itself to provide the User with Product and Services in compliance with the terms and conditions of the Agreement and the applicable legislation.
- The User shall be responsible for the performance of the duties specified in section V hereinabove.
- The User shall be solely responsible for the use of his/her Account, as well as for any use of the said Account by any other third party.
- The User shall indemnify PaceMkr for all the damages and lost profits incurred by it, including all paid fines, lawyer's remunerations, and other expenses resulting from claims raised by third parties or compensations paid to third parties in relation to User's violation of his/her contractual duties and any document that constitutes an integral part of the Agreement. The User shall also cover all the damages caused by his/her infringement on his/her duties under the applicable legislation.
- The User declares and agrees that he/she shall use the Product and Services entirely at his/her own risk and responsibility and further declares and agrees that PaceMkr shall not be held liable for eventual damages inflicted on the User during the said use, except when the said damages have been deliberately caused by PaceMkr or have resulted from gross negligence on its part, unless explicitly specified otherwise by the law.
- PaceMkr shall not be liable to the User for damages occurring as a result of the User providing untrue, incomplete or inaccurate data.
- PaceMkr shall not be held responsible and liable for damages and/or lost profits caused:
42.1. due to the loss of data resulting from materials and resources which have been sought, uploaded or used in any way through the Product or the Services;
42.2. by User's untimely request or failure to send a request for the suspension/ termination of the Product or Services;
42.3. by User's failure to perform on his/her contractual duties and any other document that is an integral part of the Agreement, nor shall PaceMkr be held liable for any damages caused by User's non-performance on his/her duties under the applicable legislation.
- PaceMkr shall not be held responsible for the availability and quality of the services provided to the User by third parties, including Jira, Azure DevOps. Since the actions performed by these third parties are not controlled by PaceMkr, PaceMkr will not bear any responsibility for the unlawful nature of their activity, nor shall PaceMkr be held liable for the emergence, guaranteeing, alteration or termination of any assumed obligations and commitments related to any goods or services offered by the aforementioned third parties, nor shall it be held responsible for any damages and lost profits suffered as a result of these relationships.
- PaceMkr shall not be held responsible for the non-delivery of the Product or Services upon the occurrence of circumstances that are beyond its control, i.e. cases of Force Majeure, accidental events, problems with the Internet global network, the electronic communication systems and the provision of services beyond the control of PaceMkr, nor shall it be held liable in the event of third parties gaining unauthorized access to the User's Account.
VIII. AGREEMENT'S AMENDMENT AND TERMINATION
- PaceMkr shall have the right to unilaterally amend the Agreement's terms and conditions and shall notify the User on each amendment, as required by the law.
- In the event the User does not agree with the amendments, he/she may renounce the Agreement without stating a reason and without owing any compensation or default. In this particular case, the Agreement shall be automatically terminated upon PaceMkr's receipt of the User's notice referred to in item 47 herein below, unless PaceMkr has explicitly indicated a possibility for the continuous use of the Product or Services under the terms and conditions that have been valid prior to the said amendment. This rule shall not be applied in those cases where the amendment to the contractual terms and conditions is the result of an order or instruction issued by a competent authority.
- The User may exercise his/her right under item 46 hereinabove by making a statement to PaceMkr within one month after the date of the notification referred to in item 45 hereinabove. Should the User fail, within the aforementioned period, to give notice of his/her disagreement with the amendments, these shall be considered as binding on him/her.
- The Agreement shall be terminated:
48.1. upon PaceMkr ceasing its activity; or
48.2. upon PaceMkr is being liquidated; or
48.3. at the parties' mutual consent; or
48.4. in any other case as provided for by the law.
IX. INTELLECTUAL PROPERTY RIGHTS
- The intellectual property rights on the software applications and products, databases and other materials and resources related to the offering of the Product or Services are protected under the Copyright and Related Rights Act. These rights belong to PaceMkr or to a designated person who has granted the right to use to PaceMkr, and they cannot be used in violation of the applicable legislation.
X. WRITTEN FORM
- The written form shall be considered as to have been complied with by the sending of an IM message, a short text message (SMS), an e-mail, the click on a virtual button on the Website, or the ticking of a check-box etc., as long as the statement has been technically recorded in a way that enables it to be reproduced.
- The parties hereby declare that in case any of the contractual clauses turn out to be invalid, this shall not result in the Agreement, other clauses or parts thereof becoming invalid. The invalid clause shall be replaced by the mandatory rules of the law or the established practice.
XII. APPLICABLE LAW
- All the issues that are not regulated by the Agreement shall be governed by the provisions of the applicable Canadian legislation.
XIII. LEGAL DISPUTES' PROCEDURE
- All the disputes arising from or related to the present Agreement, including disputes caused by or linked to the interpretation, invalidity, non-fulfilment or termination of the contractual relationships, shall be resolved by mutual agreement between PaceMkr and the User.
- Should the parties fail to reach an agreement, the dispute shall be referred to the competent Canadian court for settlement.
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