Terms Of Service
These terms of service (the “General Terms”) govern the use of, and the subscription to, the Website and/or the Qbikel Platform provided by Qbikel Inc. (“Qbikel”). By accessing the Website and/or the Qbikel Platform or by the Parties signing or accepting the present agreement, you agree to the General Terms on behalf of yourself as a User and/or, as the case may be, on behalf of the organisation that you represent (“Customer”), unless you have a superseding written agreement with Qbikel. If you are accessing the Website or the Qbikel Platform on behalf of the organisation that you represent, you represent and warrant that you have the authority to agree to the General Terms on its behalf. If you do not agree with the terms of the General Terms, do not use or access the Website or the Qbikel Platform. No terms or conditions included in any order documentation provided by Customer to Qbikel, or with Customer’s vendor set-up process will be incorporated into, or form any part of, the General Terms, and all such terms or conditions are null and void even if such terms or conditions are accepted by Qbikel or Qbikel accepts payment from Customer.
- “Sensitive Personal Information” has the meaning set out in Privacy Laws, and may include race, ethnicity, national origin, religious affiliation, sexual orientation or physical or mental disability;
- “Survey Respondents” means any User invited by Customer to submit answers to surveys, answers to polls, comments, feedback and suggestions through the Qbikel Platform, including any employee of Customer;
- “User” means, as the case may be, any user of the Website or any individual to whom Customer provides access to the Qbikel Platform, including any account administrators, company manager, group manager and any Survey Respondents; and
- ”Website” means the public website available at
https://Qbikel.com/and its sister websites provided by Qbikel (including, https://help.Qbikel.com).
The term “including” is not limiting and means “
- Compliance with Laws. When providing or using the Services, the Parties shall comply with all applicable laws, including Privacy Laws. Customer is also responsible to obtain any consent required by applicable laws from its Users or to have a legitimate interest to allow Customer to use the Services and to allow Qbikel to provide the Services in accordance with the General Terms.
- Compliance by Users. Customer must ensure that its Users comply with all applicable laws, including Privacy Laws, when using or accessing the Qbikel Platform, and that such Users are governed by, and comply with, the General Terms.
SERVICE FEES OF THE QBIKEL PLATFORM AND BILLING
- Service Fees. In consideration for the Services, Customer shall pay Qbikel, at the beginning of the subscription term, which corresponds to the date the invoice is sent to Customer, the fees specified on the Website for the subscription term (whether monthly or annual) selected by Customer, unless other payment terms have been agreed to in writing, for instance in a quote, between Customer and Qbikel (the “Service Fees”). Customer’ subscription will be automatically renewed on the first day following the expiration of a subscription term (the “Renewal Date”) for the same subscription term as the then expiring subscription term, unless it cancels its subscription before the Renewal Date in accordance with Section 8.2. Only for annual subscription term, Qbikel shall send to Customer a prior notice of renewal at least 30 days before the Renewal Date, and thus if Customer no longer wishes to renew the Services, Customer is responsible for timely canceling its subscription in accordance with Section 8.2. Unless otherwise agreed in writing by the Parties, the Service Fees applicable to any such renewal shall be Qbikel then current standard Service Fees.
- Change in the Number of Users. The Service Fees are determined in accordance with the number of Users. If Customer wishes to increase the number of Users authorized to access and use the Qbikel Platform, Customer may do so in the following manner:
- Annual subscription. Customer on an annual subscription may at any time increase the number of authorized paid Users through the “billing” section of the Qbikel Platform. Any incremental Service Fees associated with such increase of authorised paid Users shall be prorated over the remaining period of Customer’s then current subscription term, charged to Customer account and due and payable upon implementation of such increase of authorised paid Users. Unless otherwise instructed by Customer before the Renewal Date, for each renewal of an annual subscription, the number of authorized paid Users to the renewed subscription shall be the higher of authorized paid Users in the then current subscription term; and actual number of Users using the Qbikel Platform in the then current subscription term.
- Monthly subscription. Customer on a monthly subscription may at any time increase the number of authorized Users, without having to pay any incremental Service Fees associated with such increase of authorised Users for the remaining period of the then current subscription term. The number of authorized paid Users to the renewed subscription shall be the number of authorized Users in the last day of the then current expiring subscription term.
- No Refunds. Except as expressly otherwise provided herein, payments are non-refundable and there are no refunds or credits for partially used periods or number of Users.
- Free trial or Freemium Subscription. If Customer registers for a free trial or a freemium subscription for the Services, Qbikel will make such Services available to Customer on a trial or freemium basis free of charge until the earlier of the end of the free trial period applicable to Customer; the start date of any paid subscription purchased by Customer for such Services; or termination of the trial or the freemium subscription at any time by Qbikel or Customer, in its sole discretion.
- Third Party Payment Processor. Qbikel reserves the right to use a third party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.
- Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against Qbikel based on its income. Qbikel will invoice Customer for such Taxes if Qbikel has a legal obligation to do so, and Customer shall pay such Taxes if so invoiced.
- Customer Data subject to Anonymity and Confidentiality. The answers to surveys, answers to polls, comments, feedbacks and suggestions provided by a Survey Respondent are anonymous and confidential, unless the Survey Respondent opts within the Qbikel Platform to remove the anonymity and confidentiality with respect to such content. Any Customer Data for which Survey Respondents have not opted to remove the anonymity and confidentiality shall be kept confidential by Qbikel and not shared with Customer. Where Qbikel receives a request from a Survey Respondent to delete his or her comment, which may contain Personal Information, or from a User to receive the Personal Information concerning him or her, which he or she has provided to the Customer and which is being processed by Qbikel, Customer hereby authorises Qbikel to comply with that request.
Telemetric Data from the Website and the Qbikel Platform
- Telemetric Data. To the extent permitted by law, telemetric data related to how Users access and use the Website and the Qbikel Platform (including features and functions of the Website and the Qbikel Platform being used by Users, stack trace data and reports related thereto) and the anonymized or aggregated data derived from such telemetric data does not constitute Customer Data, and is owned by Qbikel.
- Confidential Information. “Confidential Information” means any non-public, confidential or sensitive information, including Customer Data, disclosed by a Party or on its behalf (the “Disclosing Party”) to the other Party (the “Receiving Party”), and excludes any information that is:
- subject to applicable Privacy Laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
- as evidenced by documentary and competent evidence: (a) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or (b) without using the Confidential Information, is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
- as evidenced by documentary and competent evidence, subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality, provided that such source is not, to the knowledge of the Receiving Party, in breach of its obligations of non-disclosure towards the Disclosing Party.
- Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Qbikel may disclose Confidential Information to its third party service providers in connection with the performance or the improvement of the Services, in which case Qbikel will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. The provisions of this Section shall supersede any prior non-disclosure agreement by and between the Parties, and such agreement shall have no further force or effect.
- GDPR. The Parties may be subject to additional terms and conditions under the General Data Protection Regulation (Regulation (EU) 2016/679). Such terms may be found in the Data Processing Addendum available at https://Qbikel.com/, which is hereby incorporated by reference and make part of the General Terms, to the extent applicable. In the event of any conflict or inconsistency between the Data Processing Addendum and the General Terms, the Data Processing Addendum shall prevail.
- QBIKEL’s WARRANTIES AND DISCLAIMERS
- Warranty. Qbikel represents and warrants that: the Qbikel Platform does not infringe on any third party intellectual property rights or constitute a misuse or misappropriation of a trade secret; contingent upon Customer’s proper use, Customer’s use of the Qbikel Platform does not infringe on any third party intellectual property rights; and it has the right to grant the access and use of the Qbikel Platform to Customer.
- Warranty Disclaimers. QBIKEL DOES NOT WARRANT THAT THE WEBSITE OR THE QBIKEL PLATFORM WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE, ERROR FREE, VIRUS FREE OR FREE OF OTHER HARMFUL COMPONENTS OR WILL NOT BE SUBJECT TO UNAUTHORIZED USE OR DISCLOSURE. CUSTOMER ACCEPTS THAT THE WEBSITE AND THE QBIKEL PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. QBIKEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INFORMATION CREATED BY THIRD PARTIES AND THAT MAY BE ACCESSED ON THE WEBSITE OR THE QBIKEL PLATFORM IS NOT ENDORSED BY QBIKEL, AND MAY NOT HAVE BEEN REVIEWED BY QBIKEL, AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY. QBIKEL DOES NOT CONTROL CUSTOMER DATA AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CUSTOMER DATA AND OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE OR THE QBIKEL PLATFORM. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF CUSTOMER DATA AND ANY INFORMATION OBTAINED THROUGH THE USE OF THE WEBSITE OR THE QBIKEL PLATFORM, AND FOR MAKING AND IMPLEMENTING DECISIONS BASED ON SUCH INFORMATION, AND DEALING WITH ANY RELATED CONSEQUENCES. QBIKEL ASSUMES NO LIABILITY FOR ANY OF SUCH INFORMATION HANDLED BY CUSTOMER THROUGH THE WEBSITE OR THE QBIKEL PLATFORM. QBIKEL ASSUMES NO LIABILITY IF CUSTOMER USES THE QBIKEL PLATFORM.
- LIMITATION OF LIABILITY
- Dollar Cap. EXCEPT FOR FRAUD, PHYSICAL INJURY OR DEATH OR INTENTIONAL OR GROSS FAULT, OF QBIKEL OR FOR THE INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGMENT REFERED TO IN SECTION 7.2 (INDEMNIFICATION), IN NO EVENT SHALL QBIKEL’S AGGREGATE, CUMULATIVE LIABILITY OF PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID AND PAYABLE, IF ANY, BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, OR ONE HUNDRED DOLLARS IN CASE OF A USER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT. PARTIES UNDERSTAND THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SERVICE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF QBIKEL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. QBIKEL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE THE RIGHTS TO ACCESS AND USE THE WEBSITE OR SERVICES.
- Exclusion. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL, BUSINESS OR DATA OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INTENTIONAL OR GROSS FAULT OF THE PARTY. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Consultant. Should Customer hire a consultant to perform services relating to the implementation and the use of the Qbikel Platform, Qbikel shall have no responsibility in relation to such services.
- INTELLECTUAL PROPERTY AND FEEDBACK
- No Rights granted. Qbikel retains all right, title, and interest in and to the Website and the Qbikel Platform and the content Customer accesses through the Website and the Qbikel Platform, other than Customer Data. The General Terms do not grant Customer any intellectual property rights in or to the Website or the Qbikel Platform or in Qbikel’s logos and other trademarks. Customer or Users shall not remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Website or the Qbikel Platform.
- Indemnification. Qbikel will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, provided however that Qbikel will have no liability to the extent the Third Party Claim Losses against Customer arises from the content or nature of Customer Data; any non-Qbikel product; or any modification, combination or development of the Qbikel Platform that is not performed by Qbikel. Customer must provide Qbikel with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow Qbikel the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Qbikel defense and settlement of such matter. Qbikel shall not settle or compromise any Third Party Claim Indemnifiable Proceeding that results in liability or admission of any liability by the Customer without Customer’s prior written consent, such consent not to be unreasonably withheld. Qbikel shall not settle or compromise any Third Party Claim Indemnifiable Proceeding without Customer’s prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by Customer; (b) the settlement does not include a full release of liability for the indemnified parties; or (c) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money. For the purpose of this Section, the following definitions apply:
- “Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third party claim that the software used in the Qbikel Platform infringes any intellectual property rights of such third party; and
- “Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.
- Feedback. Any feedback or suggestions sent or shared by Customer or Users with Qbikel or by the Qbikel Platform or the Website to improve the Qbikel Platform or the Website may be implemented by Qbikel in any manner, including future enhancements and modifications to the Website or the Qbikel Platform. In such case, Customer and Users grant Qbikel an unlimited, worldwide, irrevocable, perpetual, sublicensable, transferable, fully paid-up, royalty-free right to use any such feedback or suggestion for any purpose without any obligation or compensation to Customer, Users or any third party. In addition, Qbikel shall be free to reuse all general knowledge, experience, know-how, works and technologies, including ideas, concepts, processes and techniques, related to or acquired during provision of the Services.
- TERM AND TERMINATION
- Term. The General Terms are effective as of the Effective Date, and for Customer, until all subscriptions terms to the Qbikel Platform, including all renewals, have expired or until they are terminated by any or both Parties in accordance with Section 8.2 (Termination); or for a User, as long as he or she is accessing the Website or the Qbikel Platform (the “Term”).
- Termination. The General Terms may be terminated:
- by Customer at any time if it cancels the Services through its Qbikel Platform account or with an Qbikel customer representative;
- by the Parties at any time if the other Party materially breaches any of its obligations under the General Terms. If the material breach is curable, the General Terms may only be terminated if such breach is not cured within 15 days after a Party provides notice of the breach to the other Party. For clarity purposes, any violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of the General Terms;
- by Qbikel if Customer fails to make any payment of the Service Fees within 15 days after Qbikel provides notice that such amounts are overdue to Customer; or
- by Qbikel for convenience, with at least a 30 days prior written notice for a monthly renewal, or with at least a 90 days prior written notice for an annual renewal.
- No Refund in the Event of Termination. Section 3.3 (No Refunds) applies, regardless of the cause of termination. However, if Customer has terminated the General Terms pursuant to Section 8.2 or if Qbikel has terminated the General Terms pursuant to Section 8.2 Qbikel shall refund all prepaid fees for the remainder of the unused Term. CUSTOMER HEREBY EXPRESSLY RENOUNCES TO THE APPLICATION OF ARTICLES 2125 TO 2129 OF THE CIVIL CODE OF QUEBEC.
- Survival. Any rights and obligations of the Parties hereunder that by their nature are reasonably intended to survive termination or expiration of the General Terms, shall survive termination or expiration of the General Terms including Sections 2.5 (Unacceptable Use), 2.8 (Unacceptable Conduct of Users), 2.9 (Indemnification by Customer), 4.7 (Use or Disclosure of Confidential Information), 5.2 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (Intellectual Property and Feedback), 8 (Term and Termination) and 9 (General) shall survive termination of the General Terms.
- Publicity. Customer grants Qbikel the right to use Customer’s company name and logo as a reference for marketing or promotional purposes, including on its Website or blog and in other public or private communications with Qbikel’s existing or potential customers. If Customer wishes to limit such right at any time, it shall notify Qbikel at the following email: support@Qbikel.com. Customer retains all right, title, and interest in and to such company name and logo.
- Governing Law and Venue. The General Terms shall be governed, construed and enforced solely in accordance with the laws applicable in the Canadian province of Quebec, without reference to: any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; the 1980 United Nations Convention on Contracts for the International Sale of Goods; or other international laws. Any litigation in any way relating to the Services or the General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec, and the Parties waive any objection that such venue is inconvenient or improper. Each Party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Services or the General Terms.
- Specific Performance. Notwithstanding any other provision in the General Terms, a non-breaching Party may, upon any breach of the General Terms, immediately seek enforcement of the General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
- Force Majeure. Except as expressly provided otherwise in the General Terms, Qbikel shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, act of God, war, terrorism and governmental action.
- No Other Agreements. The General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all oral or written offers, understandings, representations, conditions, warranties, covenants and other communications between the Parties relating hereto, including any non-disclosure agreements relating to the subject matter hereof.
- Notices. Qbikel may send notices pursuant to the General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to the General Terms to Qbikel at support@Qbikel.com. Notices shall be deemed received 24 hours after they are sent.
- Assignment & Successors. The General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
- Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
- Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the General Terms shall continue in full force and effect.
- Technology Export. Customer shall not export any software provided by Qbikel or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Website or the Qbikel Platform in or export such software to, a country subject to an embargo by Canada or the United States.
- Consumer Protection Law. Qbikel is a workplace tool intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, consumer protection laws do not apply.
- Relationship of the Parties. The Parties are independent contractors. The General Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Amendments. Unless Customer has a superseding written agreement with Qbikel, Qbikel may amend the General Terms from time to time on its Website, as its business evolves. Any revisions to the General Terms will become effective on the date Qbikel publishes the changes. Customer and Users can review the most current version of the General Terms at any time by visiting this page at https://Qbikel.com/terms-and-conditions. If Customer or Users use the Services or access the Website, as the case may be, after the effective date of any changes, that use or access will constitute the acceptance of the revised General Terms.
This Policy was last updated on jan 01, 2020