Terms of Service

These terms of service (the “Terms of Service”, “Terms”) govern the use of, and the subscription to, the hosted software service and tools (the “Primalogik Service” or “Service”), as owned and operated by Primalogik Software Solutions Inc. (“Primalogik”), a corporation having its registered address at 2001 Boul. Robert-Bourassa, Suite 1700 Montreal, Quebec, Canada, H3A 2A6 (referred to in these Terms as “we”, “us” or the “Company”). If you do not agree to all terms of this agreement, you may not use the Service.

By accessing or using the Primalogik Service, You represent, warrant and signify that (a) You have read, understood and agree to be bound by these Terms as they may be amended from time to time; and (b) You have read and understand our Privacy Policy, which can be accessed at https://primalogik.com/privacy (the «Privacy Policy»), the terms of which are incorporated herein by reference, and agree to abide by the Privacy Policy.

By signing up for the Service on behalf of a company, organization or entity (“Customer”), you confirm that (a) you are duly authorized to represent such entity, (b) you accept the terms of this agreement on behalf of such entity, and (c) any references to “you” in these Terms of Service refer to such company, organization or entity and all of its users, employees, consultants and agents.

1. DEFINITIONS

1. The following capitalized terms shall have the meaning ascribed to them below:
1. “Parties” means (i) Primalogik and Customer; or (ii) Primalogik and a User, as the case may be;
2. “User” means, as the case may be, any user of the Service or any individual to whom Customer provides access to the Service, including any account administrators, managers, employees, consultants and survey participants;
3. “Customer Data” means any content that Customer submits or transfers to Primalogik in conjunction with the Services, including customized questions, answers to surveys, assessments, comments, notes, images and files uploaded;
4. “Website” means the public website available at primalogik.com and related websites provided by Primalogik (for example, help.primalogik.com).

2. USE OF THE PRIMALOGIK SERVICE

1. Services. During the Term (as defined in Section 7.1 (Term)), Primalogik grants to Customer and its users a limited, worldwide, non-exclusive, non-sublicensable, non-transferable right to access and use the Primalogik Service, and any related services, in accordance with the Terms of Service.
2. Service Modifications. Primalogik shall offer the Services materially in accordance with the description on its Website and related documentation. Primalogik may revise the content, features and functions of the Primalogik Service at any time without notice. Primalogik will provide Customer with prior notice if there is a change to the Primalogik Service resulting in overall material decrease in the purpose of the Service. If such material decrease occurs, and Customer is materially impacted in its use of the Service, Customer may terminate its subscription in accordance with Section 7.2.2.
3. Temporary Suspension. Primalogik may temporarily limit or suspend the Services from time to time, including to perform upgrades and/or maintenance of the Service.
4. Unacceptable Use. You agree to use our Website, Service, and products only for lawful purposes. You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
1. use the Service in any manner that breaches any applicable local, national or international law or regulation;
2. use the Service to threaten, defame, bully, harass, or harm another person or entity; 
3. use the Service for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used (as determined by Primalogik in its sole discretion);
4. in any way damage, disable, overburden, and/or impair the Service server, or any network connected to the Service, and/or interfere with any other party’s use or enjoyment of the Service; 
5. use the Service to upload, transmit or otherwise distribute any content that may be abusive, defamatory, misleading, fraudulent, pornographic, otherwise explicit in nature, contains viruses, or is otherwise objectionable as reasonably determined by Primalogik;
6. reproduce, duplicate, copy, sell, resell or exploit any portion of the Service; or
7. rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
5. Account Access. Customer shall take all reasonable steps to prevent unauthorized access to the Service, including by protecting their passwords and other user authentication information. Customer is responsible for any activity occurring in its account (other than activity that Primalogik 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 Primalogik if it becomes aware of any unauthorized access to, or use of, its account.
6. Compliance with Laws. You agree to use the Service only in compliance with all applicable laws, rules and regulations, including Privacy Laws.

3. SERVICE FEES OF THE PRIMALOGIK SERVICE

1. Service Fees. In consideration for the Services, Customer shall pay Primalogik, at the beginning of the subscription term, the fees specified on the “subscription” section of the Service, 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 Primalogik (the “Service Fees”). Customer’s 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 7.2.1. Only for an annual subscription term, Primalogik will send to Customer a notice of renewal approximately 30 days before the Renewal Date, and thus if Customer no longer wishes to renew the Services, Customer is responsible for timely cancelling its subscription in accordance with Section 7.2.1. Unless otherwise agreed in writing by the Parties, the Service Fees applicable to any such renewal shall be Primalogik’s then current standard Service Fees.
2. Change in the Subscription. The Service Fees are determined in accordance with the maximum number of Users authorized to access and use the Service. If Customer wishes to increase the number of such authorized Users, Customer may do so in the following manner:
1. Customer may at any time increase the number of authorized Users through the “subscription” section of the Service or with a Primalogik customer representative. 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.
3. 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.
4. Free trial. If Customer registers for a free trial for the Services, Primalogik will make such Services available to Customer on a trial basis, until the earlier of (i) the end of the free trial period applicable to Customer (generally 30 days after the start of the free trial); (ii) the start date of any subscription purchased by Customer for such Services; or (iii) termination of the trial at any time by Primalogik or Customer in its sole discretion.
5. Taxes. All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which Primalogik may be required to collect from you and remit to the appropriate taxing authorities, you are solely responsible for payment of all such taxes or duties.

4. DATA

1. Customer Data. Customer represents and warrants that it owns or has obtained all necessary rights, title and interest, and obtained all necessary consents to transfer Customer Data in relation with the Terms of Service, and that Customer Data doesn’t infringe any third party intellectual property rights. Customer grants Primalogik a worldwide, non-exclusive, perpetual and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Data, only to the extent permitted by law and as reasonably necessary (i) to provide, maintain and improve the Services; (ii) to prevent or address service, security, support or technical issues; or (iii) to create anonymized data non-related to a specific Customer, which does not constitute Customer Data and is owned by Primalogik, including for use as benchmarking and marketing purposes in accordance with the Privacy Policy or as otherwise expressly permitted in writing by Customer or as required by law.
2. Protection of Customer Data. Primalogik shall store and process Customer Data in accordance with the Privacy Policy. Primalogik has implemented technical, organizational and administrative systems, policies and procedures as well as other measures detailed in the Privacy Policy to help ensure the security, integrity, availability and confidentiality of Customer Data, and to mitigate the risk of unauthorized access to or use of Customer Data. Nonetheless, hosting data online involves risks of unauthorized disclosure, loss or exposure and, in accessing and using the Service, Customer assumes such risks, except for gross negligence or unlawful conduct of Primalogik.
3. 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:
1. subject to applicable Privacy Laws, publicly available or later becomes publicly available other than through a breach of the Terms of Service;
2. 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
3. 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. 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 Terms of Service. 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 Primalogik may disclose Confidential Information to its third party service providers in connection with the performance or the improvement of the Services, in which case Primalogik 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.
5. 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, which is hereby incorporated by reference and make part of the Terms of Service, to the extent applicable.

5. PRIMALOGIK’s WARRANTIES AND DISCLAIMERS

1. Service Warranty. Primalogik represents, warrants, and covenants as follows: (a) the Service will perform substantially in accordance with the specifications generally provided by Primalogik in connection with the Service (“Documentation”); (b) the provision of the Service will comply with all privacy and data protection laws applicable to its business; (c) it will not sell Personal Information provided by you, and it will retain, disclose, or use Personal Information provided by you only for purposes of providing the Service; and (d) any professional services performed for you by Primalogik will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
2. Warranty Disclaimers. To the maximum extent permitted by applicable law, except for the limited warranties provided above, Primalogik disclaims all other warranties, either express or implied, including implied warranties of merchantability or fitness for a particular purpose with respect to the Service, software, documentation, deliverables and other materials and/or services. Primalogik does not warrant that operation of the Service will be error-free or uninterrupted.
3. Liability Cap. Except for intentional or gross fault of Primalogik or for the indemnification for intellectual property, infringement referred to in section 8.2 (indemnification), in no event shall Primalogik’s aggregate, cumulative liability of proven direct damages arising out of or related to the Terms of Service, exceed the total amount paid and payable, if any, by Customer hereunder in the 12 months preceding the last event giving rise to liability. 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 Primalogik were to assume any further liability other than as set forth herein. Primalogik has relied on these limitations in determining whether to provide the rights to access and use the Website or Services.

6. INTELLECTUAL PROPERTY

1. No Rights granted. Primalogik retains all right, title, and interest in and to the Website and the Service and the content Customer accesses through the Website and the Service, other than Customer Data. The Terms of Service do not grant Customer any intellectual property rights in or to the Website or the Service or in Primalogik’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 Service.
2. Feedback. You have no obligation to give Primalogik any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to Primalogik, Primalogik may use and implement any such Feedback in any manner,  including but not limited to future enhancements and modifications to the Website or the Service. Accordingly, if you provide Feedback, you agree that Primalogik shall own all such Feedback and Primalogik and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign all rights in such Feedback to Primalogik. In addition, Primalogik 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.

7. TERM AND TERMINATION

1. Term. The Terms are effective on the date that You access the Primalogik Service and until all subscriptions terms to the Service have expired or until they are terminated by any or both Parties in accordance with Section 7.2 (Termination);
2. Termination. The Terms of Service may be terminated:
1. by Customer at any time (for monthly subscription you can do so after 3 months of continuous subscription without penalty) by sending an email to support@primalogik.com and completing the cancellation confirmation steps with a Primalogik customer representative.
2. by the Parties at any time if the other Party materially breaches any of its obligations under the Terms of Service. If the material breach is curable, the Terms of Service 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.
3. by Primalogik if Customer fails to make any payment of the Service Fees within 30 days after Primalogik provides notice that such amounts are overdue to Customer;
4. You do not log in to or otherwise use the Service for a period of 365 days or more if you have a free account; or
5. by Primalogik for convenience, with at least a 30 days prior written notice for a monthly subscription, or with at least a 90 days prior written notice for an annual subscription.
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 Terms of Service pursuant to Section 7.2.2, Primalogik shall refund all prepaid fees for the remainder of the unused Term.

8. INDEMNIFICATION

1. Indemnification by Customer. You agree to indemnify, defend and hold harmless Primalogik, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any and all damages, judgments, liability, costs and expenses (including without limitation any reasonable legal fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”), arising from or in connection with (a) your use of the Service in violation of this Agreement, (b) any employment decision or action you take due to information available through your use of the Service.
2. Indemnification by Primalogik. Primalogik agrees to indemnify, defend and hold harmless you, and your affiliates, officers, directors, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or in connection with an allegation that your use of the Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Primalogik have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Primalogik, and (b) any content, information or Data provided by you, your end users, or other third parties.

9. GENERAL

1. Publicity. Primalogik may use Customer’s company name and logo in Primalogik’s marketing materials and on Primalogiks’s public website, in each case in accordance with any branding guidelines you may provide to Primalogik. If you wish to limit such right at any time, you shall notify Primalogik at the following email: support@primalogik.com.
2. Governing Law. The Terms of Service shall be governed, construed and enforced solely in accordance with the laws applicable in the Canadian province of Quebec, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. Any litigation in any way relating to the Services or the Terms of Service 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.
3. Force Majeure. Except as expressly provided otherwise in the Terms of Service, Primalogik shall not be liable by reason of any failure or delay in the performance of its obligations on account of unforeseen events beyond our reasonable control, 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.
4. Entire Agreement. The Agreement will constitute the entire agreement between us and You with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.  In the event of a conflict between these Terms and the Privacy Policy, the terms and conditions found herein shall prevail.
5. Assignment of Agreement. You may not, without our prior written consent, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. We may assign this Agreement to a third party at any time in our sole discretion. The Agreement will be binding upon and will inure to the benefit of the respective Parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
6. No Waiver. You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms or which we have the benefit of under any applicable law, this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us. Waivers must be in written form and signed by an authorized representative of the Company.
7. Severability. If any portion of these Terms of Service is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, these Terms as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of these Terms that is unlawful, void or unenforceable shall be stricken from these Terms.
8. Survival. The provisions of these Terms that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
9. Relationship of the Parties. The Parties are independent contractors. The Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10. Amendments. Primalogik may modify or update the Terms of Service at any time. In the event we determine it is necessary to make a material modification to this Agreement, we will provide the administrators of the Customer account with thirty (30) days’ notice of such changes in the Terms, via e-mail to the e-mail address supplied to us by you. We will assume that you have accepted the change to the Terms, unless you notify us to the contrary, no later than thirty (30) days after the amendment comes into force, that you desire to cancel your subscription to the Service. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes. We will post the most current Agreement on our website and you may review it at: https://primalogik.com/terms-of-service/.