Last update: January 15, 2018
9261-8644 Quebec Inc. (« BUDGETO ») is a corporation that provides products and services allowing businesses, especially start-ups and SMEs, to prepare budgets and budget forecasts such as balance sheets, income statements, cash budgets and financial ratios. This End-user License and Services Agreement (the "Agreement") is intended to govern the terms and conditions of use of the online version of the BUDGETO software (the "Software") available according to the package chosen by the user (the "User") when registering for a subscription to BUDGETO's services (the "Subscription") by opening an account on the Budgeto.com website (the "Website"). A Users’ guest is also considered a User and is required to sign up to an account on the Website (the "Guest").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING AND ACCESSING THE BUDGETO SOFTWARE, AS IT DESCRIBES ALL APPLICABLE TERMS AND CONDITIONS. BY ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SOFTWARE AND SEEK THE PROVISION OF SERVICES FROM BUDGETO.
It is an essential condition that the User of the Software and person which requires the services of BUDGETO is a person carrying on business (i.e., a “merchant” within the meaning of The Consumer Protection Act). BUDGETO's Software and Services are only for businesses. Therefore, any individual person is invited not to access and use the Software, or to request the BUDGETO services, and shall refrain from entering into this Agreement as it will be considered null and void by BUDGETO.
1.1 "Update": means the version of the Software including minor corrections, bug fixes, and enhancements without significant features addition (for example, enhancement of features of generic database, improvement of software libraries, development and technological evolution of the Software framework).
1.2 "New Version": means a version of the Software that consists of a new version with significant enhancements, with added features or new applications.
1.3 "Intellectual Property": means any right that is or may be granted, or recognized under Canadian or foreign laws concerning intellectual property and its objects, including works, representations, discoveries, inventions, designations, slogans, logos, designs and distinctive signs, whether registered or not, as patents, copyrights, trademarks, industrial designs, integrated circuit topographies, or protectable under any other statutes or principles of common law or civil law.
2. LICENSE And RESTRICTIONS
2.1 Restricted License: In consideration of User’s compliance with its obligations under the Agreement, including the applicable payment, BUDGETO grants the User with a restricted, non-exclusive and non-transferable license to use the Users’ functionalities of the Software described in the Subscription, for online only use through the Website, for the internal needs of its business, the business it manages or represents or the business shared by another registered User, the whole for the term provided in the Subscription. The license granted to the User is not limited to the use of the Software on a single computer machine of the Users’ Company provided. However, the Software use must be limited to the Users’ business purposes and activities, as well as the company that he manages or represents or the shared business.
2.2 Multi-Enterprise License: In the case of a Subscription targeting more than one business, all the businesses to which the User has access will be treated collectively as a single User and under the control of the same User. In the case of a Subscription that targets more than one business, the User represents and warrants that it has obtained all required authorization to act on behalf and represent the businesses to which he has access, and having the capacity to enter into this Agreement. A User which sign up to a Subscription that targets more than one business will be required to act cautiously and with diligence on behalf of the businesses it manages and represent and shall take responsibility for all obligations herein notwithstanding it may act on behalf of third parties.
2.3 Enterprise Data Sharing: The registered User may share data about his business or the business he manages and represents in the Software with a third party Guest. The User sharing a business with a third party Guest is responsible for any access that is made to the business' data files in the accessible Software through the Website. The third party Guest accessing the shared data of a business through the User shall comply with the obligations provided in this Agreement with the necessary modifications, and must sign up on the Website in the provided section.
2.4 Use of the Software: The User hereby represents that it enters into this Agreement with the knowledge that the Software is intended for the preparation of budgets and budget forecasts such as balance sheets, income statements, cash budgets and financial ratios, using generic tools, forms and tables available which can be downloaded in PDF and Excel formats or any other format that may be made available by BUDGETO, as applicable. The Software does not allow the preparation of financial statements, notices to readers, review engagements or audits. It provides a data entry and download platform for the preparation of budgets and the budget forecasts but does not replace the advices and services of professionals in the field of accounting. The User understands that the data entered into the Software for the budgets preparation comes from assumptions and that there is no warranty that these assumptions will be realized in the future. The User is responsible for becoming familiar with the Software features including the tools, forms and generic tables available in the Software. BUDGETO still makes available to the User paid provided services under Section 3 of the Agreement.
2.5 Restrictions: The User may not perform any acts towards the Software (including its components) that have not been expressly authorized under the terms hereof, nor authorize them, in particular, whether in whole or in part, to reproduce it (directly or indirectly), to sell it, to rent it, to license it, to telecommunicate it to the public, to adapt it, to translate it or to create a derivative work therefrom. The User undertakes to refrain from accessing to the Software’s source code and to make any Software modifications.
2.6 Updates and New Versions: BUDGETO commits to offer and make available to the User, free Software Updates that may be provided by BUDGETO during the term of this Agreement. It is understood that the Software Updates are not intended for new applications or features (including new modules) that are not supported by certain packages, and that may be offered by BUDGETO or any New Version of the Software, it being understood that New Versions of the Software will however be available to the User subject to the payment of the fees fixed by BUDGETO, allowing the use under license according to the available packages.
2.7 Trial Period: The free trial of the Software Testing is governed by the terms and conditions of this Agreement for the agreed limited term of use. The User understands that at the end of the term of the trial period, the User must sign up to a Subscription in order to continue using the licensed Software, otherwise the User will no longer be able to use the Software or access the data entered in the Software, or access to the above. The User is entitled to a single trial period, which cannot be extended for free. However, the User cannot accumulate or add trial periods of the Software from different sources or through different programs.
2.8 Access to the Software and the Website: The User acknowledges that BUDGETO may from time to time restrict the Software and the Website temporarily in order to perform maintenance or update work, or to correct any problem in the future, or in case of force majeure. BUDGETO provides no warranty of uninterrupted access to the Software or the Website and shall not be held responsible for the temporary impossibility to access to the Software or the Website during such work on the Software or the Website.
3.1 Basic Technical Support Services: For a User who has subscribed to a paid Subscription for a minimum term of one year directly from BUDGETO, BUDGETO commits to provide basic technical support services for the Software. The basic technical support services are exclusively for: (i) technical Software support by means of remote access, in order to make corrections and technical changes to the Software deemed necessary by BUDGETO, and to integrate the Updates made to the Software, when necessary; (ii) technical Software support and maintenance in the event of a failure or malfunction of the Software according to this Agreement; and (iii) e-mail support regarding the Software use, as well as features activation defects or bugs or problems accessing the User's account.
3.1.1 Schedule: BUDGETO receives and agrees to respond to technical support and maintenance requests within a reasonable period of time, Monday to Friday, from 9:00 am to 5:00 pm (Eastern Standard Time), except during holidays. Exceptionally, it is however possible for BUDGETO to perform, at its discretion, certain specific Software Updates or maintenance work, during evenings or weekends, provided that it notifies the User.
3.1.2 Conditions: The User must, at his own expense, obtain the necessary computer equipment, operating systems, Software or Computer programs in order to use online the Software by accessing through the Website. It must also have, at its expense, an effective and up-to-date blocking viruses program and keep it up-to-date during the term of the Agreement.
3.1.3 Exclusions: The technical support and maintenance services do not cover services that are attributable to: (i) the accessories or computer equipment used by the User; (ii) User’s error, breach or negligence in using the Software functionalities; (iii) the service repetition requests caused by User’s non-compliance with the instructions provided by BUDGETO during previous service requests; (iv) the use of other software than the Software, including operating software system, accounting software, word processing and electronic mail, applications or computer programs or external websites and; (v) the budget items interpretation, calculation or application that has to be considered by the User in the preparation of a budget or forecast.
3.2 Coverage: Are also excluded from the services covered by this Agreement: (i) the supply of computer equipment or accessories, the computer equipment alteration or modification and the required replacement parts for that purpose; (ii) any New Version of the Software or module, feature, application, option or product developed by BUDGETO, which are not covered by the Subscription, and that are provided upon additional license fees and/or separated services payment.
3.3 Additional Services: During the term of this Agreement, provided that such services are available, BUDGETO may provide additional general computer consulting services as well as development or customization services for budgets, financial analysis services, training and relevant services to the Software or the services related to the aspects of budget preparation that are not covered in the Subscription, all according to the agreed terms by the parties, and according to BUDGETO’s applicable schedule of fees (which may include hourly pricing). BUDGETO’s services will be rendered according to BUDGETO’s capacities and availability. In the event of the termination of this Agreement, for any reason whatsoever, no credit or refund will be granted to the User, as the case may be.
4.1 License fees: The applicable Software license fees according to the User’s selected Subscription are payable to BUDGETO upon registration, and thereafter for the Agreement duration, according to the applicable payment frequency (annual, monthly or other). License fees may be increased by BUDGETO upon the Subscription renewal, or at any time after giving a thirty (30) day prior notice of the increase to the User before it becomes effective. The User hereby allows BUDGETO to debit his bank account or credit card automatically according to the payment frequency, applicable until the termination of the Agreement.
4.2 Price of additional services: In the event that the User requires BUDGETO’s services that are not included in the basic services provided in any specific Subscription, or requests specific training or services, the User agrees to pay to BUDGETO such services costs according to the applicable fees.
4.3 Method of Payment: The payment of the Software license fees and any other amount payable by the User for services shall be processed only by credit card or eligible bank debit, on the electronic payment platform used by BUDGETO (either the Stripe platform or similar depending on what BUDGETO makes available).
4.4 Terms and conditions of payment: License fees are payable according to applicable payment frequency according to the Subscription. Any amount due to BUDGETO for services ordered by the User is payable upon receipt of an invoice from BUDGETO. Taxes are payable in addition to any payable amount to BUDGETO by the User. Any amount owed by the User and which is not paid upon its due date for the payment bears interest at the rate of 1.5% per month (18% per year).
5. OBLIGATIONS OF THE CLIENT
5.1 General Obligations: The User undertakes to comply with the following obligations towards BUDGETO: (i) collaborate with BUDGETO, provide information and promptly respond to BUDGETO's reasonable requests regarding installation and use of the Software, and provision of the services; (ii) maintain and properly renew its computer equipment, and maintain Internet access with a third-party provider; (iii) promptly report in writing to BUDGETO about any problem related to the use of the Software, so that such a problem can be corrected in good time, failing which the User will remain the only person responsible for such a problem and; (iv) provide all relevant information regarding the services to be performed by BUDGETO hereunder.
5.2 Account and password: The User which signs up to a Subscription on the Website agrees to take all necessary means, so that anyone cannot access its account as well as its password. The User is required to maintain its account and any password in confidentiality and cannot authorize anyone to use them, except to another business it manages and represents or to a Guest which must also agree to be bound by the terms and conditions of this Agreement. The User remains sole and exclusive responsible for its account and the data of any business to which it has access. The User remains responsible for promptly notifying BUDGETO in writing of any problem or breach, actual or potential, affecting its account, its password or company data in the account. In such a case, the User may in particular contact BUDGETO by email at the following address: email@example.com.
5.3 Updating the User's Information: The User is responsible for constantly updating the information on its account, including its contact details and the required information for the electronic payment of fees under the Agreement (particularly the credit card number and expiry date).
6. COMMUNICATION AND OFFERS PRODUCTS AND SERVICES OF BUDGETO AND ITS PROVIDERS
6.1 Communication of commercial electronic messages: BUDGETO may communicate by e-mail or electronic means with the User (including when it is a Guest). These communications may be considered commercial electronic messages ("CEM") within the meaning of the Canadian Anti-Spam Legislation ("CASL") and its regulations. The User hereby gives its express consent to the sending of MEC by BUDGETO during the term of this Agreement and permanently thereafter until it unsubscribes from by activating the unsubscribe link on the Website or by emailing firstname.lastname@example.org.
6.2 Restricted Authorization of Analysis: The User agrees that BUDGETO, through its employees only and on a confidential basis, may randomly and temporarily observe and analyze the Users’ active sessions in the Software, including through the use of session recording tools, solely for the purpose of enabling BUDGETO to improve the Software and its features. Sessions that are analyzed and recorded are thereafter erased by BUDGETO within a reasonable time.
6.3 Authorization to the Use of Data: The User remains the sole owner of the data it enters or downloads into the Software. The User authorizes BUDGETO and its contractors to collect and use the User's data in the Software for the specific purposes of: (i) aggregating them or compiling them with the data of other users to design statistical tools and improve the functionalities of the Software and; (ii) offer products or services and advertisements and promotions that may be relevant to the User. The User may receive product and service offers from third parties and not from BUDGETO. If the User buys the products or the services third parties, it remains its responsibility to understand the terms and conditions governing the purchase of such products and services before accepting them. BUDGETO is also authorized to use and communicate the User's business information to make the products and services of third parties available to the User. The User acknowledges and agrees that only the third party, and not BUDGETO, is responsible for the supply of products or services made by such third party.
7. WARRANTY AND LIABILITY
7.1 Basic Warranty: For the purposes of this Agreement, BUDGETO grants the following limited warranty:
7.1.1 Software: For the term of this Agreement, BUDGETO warrants that the Software executes the features indicated on the BUDGETO Website and in its documentation, and that it is able to function as to its essential elements insofar as it is used properly by the User. If BUDGETO fails to correct a defect after receipt of a notice from the User within a reasonable time, the User's sole remedy is to seek the terminate this Agreement.
7.1.2 Services: The only warranty provided for the services is to the effect that BUDGETO will perform the said services in a professional manner. Any other warranty for the services is expressly excluded by BUDGETO.
7.2 Exclusion of the Warranty: For the purposes of this Agreement, it is understood that BUDGETO will not be liable towards the User in any of the circumstances mentioned below, which will automatically entail exclusion from the limited warranty for the Software: (i) upon the modifications or the loss of the data entered into the Software by the User or any person under his control, including migration in a different software environment by someone other than BUDGETO; (ii) ) during modifications or additions, hardware or software, to the User's computer equipment, having an effect on the use of the Software; (iii) when introducing a computer virus into the User's computer equipment, affecting the proper operation of the Software or, for any loss of business opportunity or income related to the operation or lack thereof, or the use or the lack of use of the Software, including when access is temporary interrupted.
7.3 Limitation: Notwithstanding the provisions of articles 7.1 and 7.2 hereof, BUDGETO does not give any express or implicit warranty, legal or contractual, and cannot be held responsible, especially with regard to the nature, the quality, the performance, the accuracy or any other characteristic of the Software, its services and/or deliverables that it may provide or that they are designed for a particular purpose or that they meet in every respect the requirements of the User or any third party with whom the User may perform business and that the Software, services or deliverables are free from errors or that their use may be uninterrupted. In addition, BUDGETO cannot be held responsible for any damage, whether indirect, exemplary, incidental, punitive, incidental or special, including for any loss of profits, opportunity or for any loss of data or any other problem that may result from the use of the Software (or the deliverables). In all cases where BUDGETO’s shall be held liable under this Agreement, any amount payable to the User by BUDGETO will be limited to the aggregated amount received by BUDGETO from the User for the license of the Software or for the performance of deliverables and/or services under this Agreement.
8. INTELLECTUAL PROPERTY
8.1 Intellectual Property Rights Relating to the Software: The parties agree that, subject to components that may be licensed by third parties to BUDGETO, all Intellectual Property rights relating to the Software or its components, modules, features or applications are and shall remain the exclusive property of BUDGETO, including in particular with respect to programming and programming sequence, data models, data description, generic databases, architecture and user interface in both object and source code, as well as any documentation relating to the Software. Without limiting the generality of the foregoing, BUDGETO is the sole and sole owner of the Intellectual Property rights regarding all the content of the Website as well as any modification or improvement that may be made to the Software or the Website during the term of this Agreement even when performing services for the User.
8.2 Data provided by the User: All rights belonging to the User with regard to the data entered into the Software or downloaded files into the User's account in the Software will remain its property. The use by BUDGETO of the items whose rights belong to the User or are licensed to the User will be limited to the supply of the Software, the provision of services under this Agreement or to the allowed uses pursuant to Section 6 of this Agreement.
9.1 Confidential Non-disclosure information of use: BUDGETO agrees to keep confidential the budget documents setting forth the User's data that are confidential and such User’s confidential information shall not be used by BUDGETO or its contractors, except for the purpose of fulfilling any of the obligations or exercise the rights provided in this Agreement.
9.2 General Exclusions: The confidentiality obligation herein does not extend to information that BUDGETO may demonstrate: (i) is in the public domain (without being attributable to the breach of this Agreement); (ii) must be disclosed by law or court order operation, provided that before such disclosure occurs, BUDGETO notifies the User and collaborates with it in order to limit, in a lawful manner, the scope of information, which is the subject of this required disclosure and/or obtains the appropriate protective orders in its regard; or (iii) at the time of disclosure, is already known to the person to whom such disclosure is made by legitimate sources.
9.3 Personal Information: BUDGETO does not retain any personal information about the User and it is the User's responsibility not to enter any personal information of anyone in the Software.
10. TERM AND TERMINATION
10.1 Term: This Agreement will come into effect on the date of the Subscription and will be binding on the parties for the term provided for the Subscription. Unless the User has previously notified BUDGETO in writing that it wishes to terminate the Agreement at the end of the term of the Subscription, the Agreement will be renewed automatically for the same term and according to the same package covered by the Subscription or an equivalent package (if modified), it being understood however that the Software license fees will then be subject to the rate in effect at the time of renewal.
10.2 Termination: Either party may terminate this Agreement if the other party is in material breach to fulfill its obligations under any provision hereof upon the expiration of a thirty (30) day notice sent to the party in breach, or if the other party becomes insolvent, or bankrupt or is the subject of proceedings for dissolution or liquidation.
10.3 Obligations upon Termination: Upon the termination of this Agreement for any reason, the User must cease all use of the Software.
10.4 Termination of the Account and Destroying of the User's Data: Upon expiration of a period of sixty (60) days following the termination of this Agreement, including by reason of the termination of the Subscription or a free trial of the Software, BUDGETO will be entitled, without obligation to do so (unless the User requests it by writing), to shut down the User's account and destroy any User's business data, and/or any business it manages or represents.
11. MISCELLANEOUS PROVISIONS
11.1 Governing Laws and Election of Domicile: This Agreement, its interpretation, performance, validity and effects are subject to the Quebec laws and the applicable federal laws, as the case may be. The parties agree that any dispute, controversy or claim, arising out of or resulting from this Agreement shall be brought before the competent court of the judicial district of Quebec, to the exclusion of any other judicial district in the province of Quebec.
11.2 Interpretation: If any provision of this Agreement is held to be invalid or of no effect, the remaining provisions of this Agreement shall remain in effect. In the event of any conflict or inconsistency between the provisions of this Agreement and any other agreement between the parties, the provisions of this Agreement shall prevail.
11.3 Advertising: From the entry into force of the Agreement and for the term of this Agreement, BUDGETO shall have the right to publicly refer to the User's business, the Users’ name and visual identification, in order to inform its current or potential customers that it provides services to the User, it being understood however that the references made to the User by BUDGETO must be worded in general terms only without disclosing privileged or confidential information to the User, its business or this Agreement terms.
11.4 Assignment: The rights and obligations of the User under this Agreement shall not be assigned, in whole or in part, without the User having obtained the prior written authorization of BUDGETO. Subject to the User being prohibited from directly assigning rights to third parties by subcontract or otherwise, the agreed obligations and rights conferred upon the parties hereunder extend to their successors or assigns respectively.