These terms of services (the General Terms) govern the use of, and the subscription to, SnoozIt provided by Technology Innovation Lab GSoft Inc. (Laboratoire d'Innovation Technologique GSoft Inc.) (GLab). By accessing SnoozIt, you agree to the General Terms on behalf of the organisation that you represent (Customer). If you are accessing SnoozIt 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 SnoozIt.
1. DEFINITIONS AND INTERPRETATION
1.1 The following capitalized terms shall have the meaning ascribed to them below:
- (i) Azure means Microsoft Azure cloud computing platform.
- (ii) "Azure APIs" means any publicly accessible API provided by Microsoft that allow HTTP operations on Azure tenant resources, Azure Active Directory or any other Microsoft service.
- (iii) Azure Virtual Machine means any on-demand, scalable virtualized infrastructure deployed on Azure.
- (iv) Customer Azure Data means any data on Customer's activities, consumption metering resource usage and configuration in Azure that GLab has access to on Customer through Azure APIs.
- (v) Parties means GLab and Customer.
- (vi) SnoozIt means the tool and platform commercialized by GLab as SnoozIt that optimizes the uptime of certain Azure Virtual Machines selected by Customer.
- (vii) Website means SnoozIt's website at www.snooz.it/.
1.2 The term including is not limiting and means including, without limitation.
2. ACCESS AND USE OF SNOOZIT
2.1. Services. During the Term (as defined in Section 8), GLab grants to Customer the right to access and use SnoozIt, and any related services, in accordance with the General Terms (the Services). The Services are further described on the Website.
2.2. Access to Customer's Azure APIs. Customer understands and agrees that in order for GLab to obtain the Customer Azure Data required to perform the Services, GLab must be granted access to Customer's Azure APIs. Customer confirms that it has granted such access to GLab.
2.3. Services Revisions. GLab shall offer the Services materially in accordance with the description on its Website and/or related documentation. GLab may revise the content, features and functions of SnoozIt at any time without notice. GLab will provide Customer with prior notice if there is a change to SnoozIt resulting in overall material decrease in functionality of SnoozIt.
2.4. Temporary Suspension of the Services. GLab may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, SnoozIt.
2.5. Unacceptable Use. Customer shall not, nor attempt to, nor permit third parties to: (a) share non-public features or content of SnoozIt with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of SnoozIt. For clarity purposes, Customer shall not access SnoozIt in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of SnoozIt. In the event that it suspects any breach of this Section, GLab may suspend Customer's access to the Services without advanced notice, in addition to such other remedies as GLab may have.
2.6. Account Security and Access. Customer shall take reasonable steps to prevent unauthorized access to SnoozIt, including by protecting its passwords to its Azure and other login information. Customer is responsible for any activity occurring in its account (other than activity that GLab is directly responsible for and is not performed in accordance with Customer's instructions), whether or not Customer authorized that activity. Customer shall immediately notify GLab if it becomes aware of any unauthorized access to, or use of, its account.
2.7. Customer Systems. Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that Customer uses to access and use the Services. Customer acknowledges that the Services may not work properly if its operating systems, Internet browsers and anti-virus software are not up-to-date.
2.8. Indemnification by Customer. Customer shall defend, indemnify and hold harmless GLab and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any third party claim, suit or proceeding, including any interest accrued and any reasonable, and pre-approved by Customer, litigation expenses, arising out of, or related to (i) the breach of any warranty, covenant or other obligation contained in these General Terms by Customer; or (ii) Customer's alleged or actual use, misuse, inappropriate use or failure to use the Services, including in violation of Sections 2.5 (Unacceptable Use). GLab must provide Customer with prompt written notice of any such claim, suit or proceeding, allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer defense and settlement of such matter. Customer shall not settle or compromise any such claim, suit or proceeding without GLab's prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by GLab; (b) the third party asserting the claim is a government agency; (c) the settlement does not include a full release of liability for the indemnified parties; or (d) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
2.9. Compliance with Laws and other contractual requirements. When using the Services, Customer shall comply with all applicable laws as well as any contractual agreements between Customer and Azure.
3. SERVICE FEES OF SNOOZIT AND BILLING
3.1. Applicable Service Fees. Customer shall pay GLab all applicable fees for the Services as specified on the Website unless other payment terms have been agreed to in writing between Customer and GLab (the Service Fees). Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription term as the previous one, unless it cancels its subscription before the Renewal Date in accordance with Section 8.2(i). Customer is responsible for timely canceling its subscription in accordance with Section 8.2(i) regardless of whether it receives any renewal prior notice from GLab. For the purpose of the General Terms, a Renewal Date is the first day following the expiration of a subscription term.
3.2. Revised Service Fees. GLab reserves the right to revise the Service Fees applicable to any future subscription term in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next subscription term further to a prior notice from GLab to Customer.
3.3. No Refunds. Payments are non-refundable and there are no refunds or credits for partially used periods.
3.4. Free trial. From time to time, GLab may offer trials of the paid subscription for a specified period without payment (a Trial). GLab reserves the right, in its absolute discretion, to determine Customer's eligibility for a Trial and to withdraw or to modify a Trial at any time without prior notice and with no liability.
3.5. Third Party Payment Processor. GLab reserves the right to use a third-party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.
3.6. 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 GLab based on its income. GLab will invoice Customer for such Taxes if GLab has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
4.1. Customer Azure Data. Customer grants GLab a worldwide, non-exclusive, perpetual and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Azure Data, only to the extend permitted by law and as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) to create anonymized data non-related to a specific Customer, which does not constitute Customer Azure Data and is owned by GLab or (d) as otherwise expressly permitted in writing by Customer; or as required by law. This right continues with respect to anonymized data and any residual backup copies of Customer Azure Data made in the ordinary course of business even after termination of the General Terms.
4.2. Protection of Customer Azure Data. GLab shall store and process the Customer Azure Data in a manner consistent with industry security. GLab has implemented technical, organizational and administrative systems, policies, and procedures to help ensure the security, integrity and confidentiality of Customer Azure Data and to mitigate the risk of unauthorized access to or use of Customer Azure Data. Nonetheless, Customer acknowledges and agrees that in accessing and using SnoozIt, the Customer Azure Data is subject to risks of unauthorized disclosure, loss or exposure. To the extend authorized by law, GLab offers no representation, warranty or guarantee that Customer Azure Data shall not be subject to unauthorized use or disclosure.
4.3. Disclosure of Customer Azure Data. Unless it receives Customer's prior written consent, GLab shall not intentionally grant any third party access to Customer Azure Data, except to GLab's third party services providers in connection with the performance or the improvement of the Services. Before sharing any Customer Azure Data with any of its third party service providers, GLab will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of Customer Azure Data and preventing unauthorized access. Notwithstanding the foregoing, GLab may disclose Customer Azure Data as required by applicable law or by proper legal or governmental authority. Unless prohibited by law or any court order, GLab shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
4.5. Telemetric Data. Customer acknowledges and agrees that to the extent permitted by law, the telemetric data related to how Customer accesses and uses SnoozIt and the Website (including feature and function of SnoozIt and the Website being used by Customer, stack trace data and reports related thereto) does not constitute Customer Azure Data, and that the anonymized or aggregated data derived from such telemetric data is owned by GLab.
4.6. Confidential Information. Confidential Information means any non-public, confidential and sensitive information, including Customer Azure Data, disclosed by a party (the Disclosing Party) to the other party (the Receiving Party) and excludes any information that is:
- (i) subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
- (ii) 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
- (iii) 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.
4.7. 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 GLab may disclose Confidential Information to its third party services providers in connection with the performance or the improvement of the Services, in which case GLab 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 4.7 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect.
5. GLAB'S WARRANTIES AND DISCLAIMERS
5.1. Warranty. GLab represents and warrants that: (i) SnoozIt does not infringe on any third party intellectual property rights or constitute a misuse or misappropriation of a trade secret; (ii) contingent upon Customer's proper use, Customer's use of SnoozIt does not infringe on any third party intellectual property rights; and (iii) it has the right to license the access and use of SnoozIt to Customer.
5.2. Warranty Disclaimer. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS, AND GLAB MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING SUCH INTENDED RESULTS. CUSTOMER'S USE OF AND RELIANCE UPON THE SERVICE IS AT CUSTOMER'S SOLE DISCRETION AND RISK.
WITHOUT LIMITING THE FOREGOING, CUSTOMER ACCEPTS THAT THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE and that GLAB DOES NOT WARRANT, AND DISCLAIMS ALL LIABILITY FOR (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES; (B) ANY HARM TO customer COMPUTER SYSTEM, LOSS OF DATA, CORRUPTION, REDUCED AVAILABILITY, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION OR OTHER HARM THAT RESULTS FROM customer ACCESS TO OR USE OF THE SERVICES; (C) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY data THAT RESULTS FROM customer ACCESS TO OR USE OF THE SERVICES; AND (D) WHETHER THE SERVICES WILL MEET customer's REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. REGARDLESS OF ANY RECOMMENDATIONS MADE BY THE SERVICES, CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING ITS OWN DECISION AS TO WHICH OF ITS AZURE VIRTUAL MACHINES SHOULD BE OPTIMIZED BY THE SERVICES. CUSTOMER MUST TAKE INTO CONSIDERATION THE WARRANTIES (OR LACK OF WARRANTIES) DESCRIBED ABOVE WHEN MAKING SUCH DECISION AND IS SOLELY RESPONSIBLE FOR DEALING WITH ANY RELATED CONSEQUENCES. SNOOZIT RELIES ON AZURE APIS TO PERFORM THE SERVICES. WITHOUT LIMITING THE FOREGOING, GLAB IS THEREFORE NOT RESPONSIBLE IF A FAILURE TO PERFORM THE SERVICES IS CAUSED BY A DEFAULT OF AZURE APIS. ALSO, CUSTOMER ACKNOWLEDGES AND AGREES THAT WHILE GLAB DOES NOT CONTROL THE CUSTOMER AZURE DATA BECAUSE IT IS PROVIDED THROUGH THE AZURE APIS, GLAB RELIES ON THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CUSTOMER AZURE DATA TO PERFORM ITS SERVICES. FURTHER, GLAB DOES NOT WARRANT ANY MONEY SAVING ARISING OUT OF THE USE OF THE SERVICES AND DOES NOT GUARANTEE THAT CUSTOMER'S AZURE VIRTUAL MACHINES UPTIME CAN OR CANNOT BE FURTHER OPTIMIZED. The limitations set forth in this section will not limit or exclude liability due to gross negligence, fraud or intentional misconduct or for any other matters in which liability cannot be excluded or limited under applicable law.
6. LIMITATION OF LIABILITY
6.1. Dollar Cap. EXCEPT FOR INTENTIONAL OR GROSS FAULT OF GLAB, IN NO EVENT SHALL GLAB'S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
6.2. Exclusion. IN NO EVENT SHALL GLAB BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE 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 GLAB. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. INTELLECTUAL PROPERTY AND FEEDBACK
7.1. No Rights granted. GLAB retains all right, title, and interest in and to SnoozIt and the content Customer accesses through SnoozIt. These General Terms do not grant Customer any intellectual property rights in or to SnoozIt or in GLab's logos and other trademarks.
7.2. Indemnification. GLAB will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, including any interest accrued and any Third Party Claim Litigation Expenses; provided, however, that GLAB will have no liability to the extent the Third Party Claim Losses against Customer arises from any modification, combination or development of SnoozIt that is not performed by GLAB. Customer must provide GLAB with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow GLAB the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting GLAB defense and settlement of such matter. GLAB 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. GLAB 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 third party asserting the claim is a government agency; (c) the settlement does not include a full release of liability for the indemnified parties; or (d) 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:
- (i) 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 SnoozIt infringes any intellectual property rights of such third party;
- (ii) Third Party Claim Litigation Expenses means any reasonable, and pre-approved by GLab, out-of-pocket expense incurred in defending a Third Party Claim Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys' and other professionals' fees and disbursements; and
- (iii) Third Party Claim Losses means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.
7.3. Feedback. Any feedback or suggestions shared by Customer with GLab to improve SnoozIt may be implemented by GLab. In such case, Customer grants GLab an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.
8.1. Term. These General Terms are effective as of the first date that Customer uses SnoozIt until they are terminated by any or both Parties in accordance with Section 8.2 (the Term).
8.2. Termination. These General Terms may be terminated:
- (i) by Customer at any time if it cancels the Services through its GLab account or with an GLab customer representative;
- (ii) by GLab at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after GLab provides notice of the breach. 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 these General Terms;
- (iii) by GLab if Customer fails to make any payment of the Service Fees, within fifteen (15) days of GLab's written notification that such amounts are overdue; or
- (iv) by GLab for convenience with a ninety (90) days prior notice.
8.3. 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 (ii), GLab shall refund all prepaid fees for the remainder of the unused Term.
8.4. Survival. Sections 2.5 (Unacceptable Use), 2.8 (Indemnification by Customer), 4.1 (Customer Azure Data), 4.3 (Disclosure of Customer Azure Data), 4.4 (Personal Information), 4.5 (Utilization Data), 4.6 (Confidential Information), 4.9 (Use or Disclosure of Confidential Information), 5 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (IP & Feedback) and 8 (Term) and 9 (General) shall survive termination of these General Terms.
9.1. Publicity. Customer grants GLab the right to use Customer's company name and logo as a reference for marketing or promotional purposes on its Website and in other public or private communications with GLab's existing or potential customers. If Customer wishes to limit such right, it shall send an email to legal@SnoozIt.cloud.
9.2. Governing Law and Venue. These General Terms shall be governed solely by the laws of the Canadian province of Quebec, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties agree that any litigation in any way relating to the General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec and waives 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.
9.3. Specific Performance. Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
9.4. Force Majeure. Except as expressly provided otherwise in these General Terms, GLab 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 (a Force Majeure), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortgages, riots, fires, act of God, war, terrorism and governmental action.
9.5. Time of the Essence. Time is of the essence of these General Terms and of every part thereof.
9.6. No Other Agreements. These General Terms are the complete and exclusive statement of the Parties' agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto.
9.7. Notices. GLab may send notices pursuant to these General Terms to Customer's email contact points provided by Customer. Customer may send notices pursuant to these General Terms to GLab at legal@SnoozIt.cloud. Notices shall be deemed received 24 hours after they are sent.
9.8. Assignment & Successors. These General Terms shall be binding upon and inure to the benefit of the Parties' respective successors and assigns.
9.9. 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.
9.10. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these 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 these General Terms shall continue in full force and effect.
9.11. Technology Export. Customer shall not export any software provided by GLab 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 SnoozIt in or export such software to, a country subject to an embargo by Canada or the United States.
9.12. Amendments. Unless Customer has a superseding written agreement with GLab, GLab 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 GLab 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://www.snooz.it/terms-of-service. If Customer 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.