(Hereafter the “Agreement’’) V. 1.4.1
Please read the entirety of this agreement to ensure you fully comprehend Applauz’s SaaS requirements, obligations, stipulations, and indemnities.
WHEREAS this Agreement governs the creation of an Account and the use of the Applauz Plateform provided by the Provider. By accessing the Applauz Platform or by creating an Account on the Platform, you, the Client, agree to the Agreement Terms. If you are accessing the Plateform as a Client you represent and warrant that you are eighteen (18) years of age or more and you have the authority to agree to the terms of the Agreement on its behalf. If you do not agree with the terms of the Agreement, do not use or access the Applauz Platform;
WHEREAS the Client is desirous of offering a reward and recognition program to its employees or clients;
WHEREAS the Provider offers a software as a service known as “Applauz”, allowing for the customization, management and delivery of a complete and integrated reward and recognition program (“Applauz”);
WHEREAS the Client wishes to subscribe to Applauz, in accordance with the terms and conditions set forth herein.
Name and Coordinates of “Client”: Will be considered to be the Billing Name and Address entered within the software.
Client contact details: Will be considered to be the Company Contact Information entered within the software.
“Effective Date”: The date at which the Agreement was agreed to by submitting the ‘’Create My Account’’ form on the Register page, by the Client.
This Agreement shall take effect on the Effective Date, and continue until terminated by either Party.
The Supplier agrees to provide the Client with the following services, for the duration of the Term:
Maintenance Services and Support Services;
The Hosted Services shall enable Clients to create, personalise, maintain and administrate a fully functioning Reward and Recognition Program. As part of the Hosted Services, the Provider shall enable the Client to create an Account and login as of the Effective Date.
The Provider hereby grants to the Client non-exclusive licence to use the Hosted Services by means of a Supported Web Browser or mobile application for the internal business purposes of the Client in accordance with the Documentation during the Term.
The licence granted by the Provider to the Client under this provision is subject to the following limitations and prohibitions:
the Hosted Services may only be used by the officers, employees, agents, subcontractors, or clients of the Client.
the Client must not republish or redistribute any content or material from the Hosted Services; and
the Client must not make any alteration to the Platform, except as permitted by the Documentation.
The Client shall use reasonable efforts, including reasonable security measures relating to administrator account access details, to ensure that no unauthorised person can gain access to the Hosted Services using an administrator account.
The Provider shall use all reasonable efforts to maintain the availability of the Hosted Services to the Client.
For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
a Force Majeure Event;
a fault or failure of the Internet or any hosting network;
a fault or failure of the Client's computer systems or networks;
any breach by the Client of this Agreement; or
maintenance carried out in accordance with this Agreement.
The Client must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
The Client must not use the Hosted Services:
in any way that is unlawful, illegal, fraudulent or harmful; or
in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
For the avoidance of doubt, the Client has no right to access the software code, including object code, intermediate code and source code of the Platform, either during or after the Term.
The Provider shall provide the Maintenance Services and Support Services to the Client during the Term.
The Provider must reply within reasonable delay to all Support enquiries made by Client using a valid contact method.
The Provider shall, where practicable, give to the Client prior notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Agreement.
Provider may develop and provide Updates in its sole discretion, and Client agrees that Provider has no obligation to develop any Updates at all or for particular issues. Client agrees that all Updates will be subject to all terms and conditions of this Agreement.
Provider may develop and provide Updates in its sole discretion, and Client agrees that Provider has no obligation to develop any Updates at all or for particular issues. Client agrees that all Updates will be subject to all terms and conditions of this Agreement.
The Provider shall provide the Fulfilment Services to the Client during the Term in accordance with the terms and conditions stated in Appendix 1.
The Provider shall provide the Fulfilment Services with reasonable skill and care.
If a Third Party Reward Provider is introduced into the Marketplace by the Client, the Provider will not be held responsible for the products, warranties, descriptions and other Fulfilent Services offered by the Third Party Reward Provider.
The Client hereby grants to the Provider the right to contact all Participants in relations with the Hosted Services, Maintenance and Support Service and Fulfilment Service.
The Client confirms having the right to communicate with his Participants using the Hosted Services and accepts to follow all laws in the country of use related to digital communications.
The Client hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, together with the right to sublicense these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.
The Client warrants to the Provider that the Client Data or the Client Data when used by the Provider in accordance with this Agreement, will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
The Provider agrees to respect the Personal Information Protection and Electronic Documents Act, as applicable.
The Clients acknowledges that the Provider may actively monitor Client Data to ensure optimal usage and performance of the Services.
The Provider agrees to store and process Client Data using the highest security protocols, such as Secure Socket Layer ( SSL) encryption, password encryption, physical access monitoring, and PCI DSS transactional compliance when possible.
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Client, or from the Client to the Provider.
In consideration for the Hosted Services, the Client shall pay Provider, at the beginning of the subscription term, the License Fees specified on the Applauz Website for the subscription term (monthly or annual) selected by Client. The Client subscription will be automatically renewed on the Renewal Date following the expiration of a subscription term for the same subscription term as the then expiring subscription term, unless Client cancels his subscription before the Renewal Date. Unless otherwise agreed in writing by the Parties, the License Fees applicable to any such renewal shall be at the standard License Fees at the time of renewal.
The License Fees are determined by the number of Licenses purchased. Licenses are assigned to Participants in order to allow Participants to join the Hosted Services. Clients on both monthly and annual subscription may at any time increase the number of Licenses through the “Program” section of the Client Account. Any incremental fee associated with such increase of Licenses shall be prorated over the remaining period of Clients then current subscription term, charged to Clients Account and due and payable upon implementation of such increase of Licenses. Unless otherwise modified by Client before the Renewal Date in the Client Account, for each renewal of subscription, the number of current Licenses, assigned or not, will be used to calculate the total License Fees charged.
If the Client chooses to offer Points to his Participants, they can be purchased in the ‘’Program’’ section of the Client Account. An administrative fee, clearly identified at checkout, is applied to all Points purchases to cover the following costs: Product shipping, Participant customer service, Account management and transactional processing fees. Upon the purchase of Points completed succesfully, the purchased Points are immediately deposited in the Clients’ Points bank and are available for awarding to Participants with assigned Licenses and used for redemption of Products or Perks.
If the Client chooses to offer Vouchers to his Participants, they can be purchased in the ‘’Program’’ section of the Client Account. An administrative fee, clearly identified at checkout, is applied to all Voucher purchases to cover in part or in full: Product shipping, Participant customer service, Account management and transactional processing fees. Upon the purchase of Vouchers completed succesfully, the purchased Vouchers is immediately available to the Client for awarding to Participants with assigned Licenses and used for redemption of Products in the marketplace.
If the Client chooses to offer Perks to his Participants, they can be added in the ‘’Perks’’ section of the Client Account. Participants with assigned Licenses will be able to redeem the Perks in exchange for the Points value set by Client when creating the Perk. Upon redemption of a Perk by a Participant, Provider will keep 25% of the Points value as an administrative fee and remit 75% of the Points value in the Company Account’s Points bank. Client will be notified of all Perk redemptions by Participants and will be responsible for fulfillment of these redeemed Perks at his cost.
Depending on the Client country and province/state, applicable taxes may be charged on some or all transactions.
All payments are considered final transactions and cannot be refunded in part or in full.
All Points and Vouchers received free of charge as a result of a promotion, referral or marketing campaign, can only be used by Clients paying License Fees.
The Provider must:
Keep personal Client Confidential Information strictly confidential;
Not disclose the Client Confidential Information to any person without the Client's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in this Agreement;
Use the same degree of care to protect the confidentiality of the Client Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
Act in good faith at all times in relation to the Client Confidential Information; and
Not use any of the Client Confidential Information for any purpose other than the Permitted Purpose.
The Provider may disclose the Client Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client’s Confidential Information for the performance of their work with respect to the permitted purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
This provision imposes no obligations upon the Provider with respect to Client Confidential Information that:
is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
is or becomes publicly known through no act or default of the Provider; or
is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentialit.
The restrictions in Section 11 do not apply to the extent that any Client Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange, if applicable.
The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the permitted purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws.
The Client warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
The Client acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
The Client acknowledges that the Provider will not provide any legal, financial, accounting or tax advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Client will not give rise to any legal, financial, accounting or tax liability on the part of the Client or any other person.
Nothing in this Agreement will:
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
exclude any liabilities that may not be excluded under applicable law.
Provider’s total aggregate liability to Client under this Agreement shall not exceed the value of all amounts paid by Client for the Services rendered under this Agreement during the 12 months preceding the breach. The Provider will not be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages.
If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
promptly notify the other; and
inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
The Provider may terminate this Agreement if the Client fails to meet any material obligation and fails to remedy the breach within 10 days after being notified in writing.
The Provider may terminate this Agreement without notification if the Client fails to pay his License Fees or if a Client with Free Licenses shows no Activity on the Hosted Services for a period of 180 consecutive days.
The Client may terminate this Agreement for convenience reasons at any time by making a request to the Applauz customer service.
The Client hereby expressly and irrevocably renounces to the right to unilaterally resiliate this Agreement in accordance with Section 2125 of the Civil Code of Quebec.
Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save for any terms in this Agreement which by their nature extend beyond termination or expiration of this Agreement which shall be in effect until fulfilled, in accordance with their express terms or otherwise indefinitely.
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
Upon the Termination of the Agrereement, all Licences, Points and Vouchers unused or partially-used will be voided and considered to be null in value with no possibility to refund or credit.
"Account" means an access to the Hosted Services requiring personal identification, including both Client Accounts and Participant Accounts (collectively ‘’Company Accounts’’);
"Activity" means the action of awarding Points or a Voucher to a Participant on the Hosted Services.
"Agreement" means this agreement including any Appendix, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in Quebec, Canada;
"Business Hours" means the hours of [09:00 to 17:00 EST] on a Business Day;
"Client Confidential Information" means any information disclosed by or on behalf of the Client to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential".
"Client Data" means all data, works and materials: uploaded to, written on, shared on or stored on the Platform by the Client or his Participants; transmitted by the Platform at the instigation of the Client; supplied by the Client to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Client and its Participants;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available, from time to time, by the Provider to the Client;
"Free License" means a License that is offerewd free of License Fees.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
"Fulfilment Services" means the marketplace redemption fulfillment services provided by the Provider to the Client.
"Hosted Services" means the Applauz application, as specified in the Hosted Services Specification, which will be made available by the Provider to the Client as a service via the Internet in accordance with this Agreement.
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
any act or omission of the Client or any person authorised by the Client to use the Platform or Hosted Services;
any use of the Platform or Hosted Services contrary to the Documentation, whether by the Client or by any person authorised by the Client;
a failure of the Client to perform or observe any of its obligations in this Agreement; and/or
an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and includes provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, "Updates") as the Provider makes generally available free of charge to all licensees of Applauz then entitled to Support Services and Maintenance Services.
"Participant” means any person with an assigned Licens by the Client to acces and utilize the Client’s Applauz Hosted Services.
"Permitted Purpose" means the lawful and permissible use of the Plateform in order to use the Hosted Services;
"Personal Data" means data which relates to an individual who can be identified from those data, or from those data and other information which is in the possession of the Provider;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"License" means the authorization needed in order to allow an Account to use the Hosted Services. A License can only be assigned to a signle Account at a time, but the Account assigned to a License can be changed at any time.
"License Fee" means the fee associated to the total amount of Licenses purchased by Client.
"Product" means any merchandise, gift card, e-reward or any other item available to be redeemed by Participants on the Hosted Services’ marketplace.
"Points" means a currency that Participants may use within the Hosted Services in exchange for Products in the marketplace or Perks.
"Renewal Date" means the date at which the next License Fee is scheduled to be paid by the Client.
"Schedule" means any schedule attached to the main body of this Agreement.
"Services" means any services that the Provider provides to the Client, or has an obligation to provide to the Client, under this Agreement.
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.
"Supported Web Browser" refers to the most current release of Microsoft’s Edge browser, Mozilla Firefox, Google Chrome, Apple Safari, or any other web browser that the Provider agrees in writing shall be supported.
"Voucher" means a predetermined-value currency that Participants may use in a single transaction within the Platform’ marketplace in exchange for Products.
No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted.
This Agreement may not be modified except by a written document signed by or on behalf of each of the parties.
Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein.
The courts of the Province of Quebec, Canada, district of Montreal shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
The parties have required that this Contract and all deeds, documents and notices relating to this Contract be drawn up in the English language.
The Client has indicated his acceptance of this Agreement upon creating an Account on the Applauz Hosted Services.
In this Agreement, a reference to a law or regulation or any provision thereunder includes a reference to:
that law, regulation, provision as modified, consolidated and/or re-enacted from time to time; and
any subordinate legislation made under that law, regulation or provision.
The Article headings do not affect the interpretation of this Agreement.
In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.