Terms of service
TERMS OF SERVICE
Latest update: October 15th, 2018
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY (and all agreements included in this agreement by referral), since this is a contract entered into by you (hereinafter “you” or “the User”) and Oxilia Inc. (hereinafter “Oxilia”) (each a “Party” and collectively the “Parties”).
Terms capitalized but not specifically defined below have the meaning given to them in section 1 of these Terms.
These Terms of Service (hereinafter the “Terms” or the “Contract”) govern the use of the Oxilia platform that connects Professionals providing Professional Services with Establishments seeking Professional Services, through Postings. These services are accessible on www.oxilia.ca and all www.oxilia.ca subdomains as well as all other websites through which Oxilia offers these services (hereinafter, collectively, the “Site”). For purpose of these Terms, the expression Site is deemed to include all services available on the Site.
IF THE USER DOES NOT ACCEPT THESE TERMS, HE MAY NOT USE THE SITE AND MUST CEASE USE OF AND ACCESS TO THE SITE.
THIS DOCUMENT IS A LEGAL CONTRACT. By acknowledging this Contract or accessing and using the Site, the User accepts these Terms in his own name or on behalf of the entity he represents in connection with the use of the Site. The User ensures and warrants that he holds the right, authority, and capacity to accept these Terms in his own name or on behalf of the entity or person he represents. If the User is a natural person, the User confirms that he is of legal age of majority in the jurisdiction in which he resides, to be able to use or access the Site and execute this Contract. All directives, terms, or rules, as well as Oxilia’s Confidentiality Policy, are incorporated in these Terms by reference and the User covenants to accept and submit to these when accessing or using the Site.
1. Definitions and interpretation
In these Terms, words written in the singular include the plural and vice versa; words written in the masculine include the feminine and vice versa; and the expression “person” includes any natural person, legal person, partnership, labour union, unincorporated organization or association, and government or any agency or political subdivision thereof.
“Establishment” means a Member seeking Professional Services on the Site.
“Member” means a person who creates an Account, as this term is defined in section 3 herein, specifically including Professionals and Establishments.
“Posting” means an offer of Professional Services posted by a Professional or a request for Professional Services posted by an Establishment on the Site.
“Professional” means a Member who offers Professional Services on the Site.
“Professional Services” means staff locum services provided by a Professional to an Establishment and/or casual services provided by a Professional to an Establishment due to a temporary excess workload or for purposes of a specific project.
“Service Contract” means a contract entered into by a Professional and an Establishment for the provision of Professional Services.
“Tax” or “Taxes” means any tax on sales, value-added tax (VAT), tax on goods and services (GST), any other taxes that Members may be legally required to collect and remit to government authorities, any other similar indirect state, federal or provincial tax, or other withholding and tax on income or profits.
The Site constitutes an online platform on which Professionals and Establishments may create Postings for offers or requests for Professional Services and connect with each other to enter into a Service Contract. When a Professional and an Establishment agree on the provision of Professional Services following a Posting, a Service Contract is formed directly between them and specifically includes the terms described in these Terms and any other terms that may be agreed to from time to time by the Professional and the Establishment, without Oxilia’s intervention. Invoices and payments related to the said Service Contract are made online through the Site under the terms stipulated in these Terms.
3. Eligibility conditions
To use the Site, you must register on the Site by creating an account (hereinafter the “Account”). To be able to create an Account, you must be—and you hereby state that you are—a legal person or a natural person at least 18 years of age, legally able to enter into a contract with Oxilia. Any use and any access to the Site by persons less than 18 years of age is strictly prohibited and constitutes a violation of these Terms. You also state that: (i) your use of the Site does not violate any legislation or regulation applicable in Canada or the United States or any other applicable legislation or regulation; (ii) you are not located in a country subject to embargo, or in a geographic area where access to the Site is prohibited by the applicable legislation; and (iii) you are not listed as or related to a prohibited or restricted party pursuant to applicable legislation and regulations governing export controls. By creating an Account and using the Site, you accept and agree to: (i) comply with the legal business registration obligations; (ii) be legally empowered to practise the profession for which the Professional Services are required; (iii) meet the obligations to which you are subject in compliance with any Service Contract to which you are a party; and (iv) comply with these Terms and with all applicable local, state/provincial, national, and international legislation, rules, and regulations.
Oxilia reserves the right to suspend or revoke your Account and your access to the Site if any information you provide is found to be false, inaccurate, incomplete or misleading, if your use of the Site violates these Terms in any way whatsoever, or for any other reason deemed valid, at Oxilia’s full discretion.
4. Registration and Account
When you register, you must provide certain information required on the registration form and produce a copy of a piece of identification valid in the province or territory in which you operate. You may not have more than one active Account and you declare and warrant that all the registration information submitted is true, complete, and accurate, and that you will keep the accuracy, veracity and completeness of the said information up to date. During registration by the User, Oxilia will verify the validity of the professional licence registered for the Account with the appropriate professional associations, but makes no guarantee in respect of subsequent validity of the licence. Without limiting the generality of the foregoing, you must notify Oxilia immediately in writing at email@example.com of any change affecting validity of the professional licence registered for the Account.
5. Identity and Account security
Oxilia reserves at all times the right to verify and validate the information of the Account, specifically through government identification, business registration, professional association, or other third-party databases. Oxilia may ask you, directly or through a third party, to provide an additional form of identification to confirm your identity or your authorization to represent your business, as applicable. Oxilia makes no declaration or guarantee in respect of Members, their identity, or their background, and Oxilia declines all liability in respect of any error or omission in the said information.
You are fully responsible for maintaining the confidentiality of the connection identifiers for your Account as well as the for the activities in which you engage through your Account. You agree to use “complex” passwords (passwords consisting of a combination of upper and lower case letters, numbers and symbols) to connect to your Account, and to keep the said password secret, to prevent other persons from accessing the said Account without your permission. You agree to notify Oxilia immediately of any unauthorized use or any suspicion of unauthorized use of your Account, or of any other security violation. Oxilia declines all liability in respect of any loss or damage resulting from failure by the User to comply with the requirements described in this section.
6. Restrictions on use of the Site
When you use the Site, you declare that you may not:
(i) modify, create derivative works, disassemble, decompile, or perform reverse engineering operations in respect of any portion of the Site;
(ii) access the Site for the purpose of developing a similar or competing service, nor use the Site for any commercial or other purposes not expressly authorized by these Terms;
(iii) upload, transmit, or distribute any virus or computer worm whatsoever, or software intended to damage or alter the operation of a computer or communications network, portable mobile device, the Site, or any other system, device or property of Oxilia;
(iv) obstruct, disrupt, or attempt to obtain unauthorized access to, the servers or networks connected to the Site, nor violate the regulations, policies or procedures linked to the said networks;
(v) access (or attempt to access) the Site by means other than through the interface provided by Oxilia;
(vi) delete, hide, or modify any notice of property rights (including copyright and trademark rights) that may be contained in or linked with the Site;
(vii) decompile, perform reverse engineering, or attempt in any other way to obtain the source code or underlying ideas or information about or related to the Site;
(viii) compromise the security of any computer network, or decipher any password or any security encryption code;
(ix) execute Maillist, Listserv, or any other automatic reply or “spam” software on or in relation to the Site, or any other process that adversely affects in any other way the proper operation of the Site (including placing an unreasonable load on the Site infrastructure);
(x) infringe on the rights of Oxilia or its Members or any other natural or legal person, specifically including its intellectual property, privacy, image, or contract rights;
(xi) invite or solicit in any Member in any other way to use third-party web services or sites that compete with those of Oxilia;
(xii) violate any law, act, order or regulation;
(xiii) act in a detrimental, fraudulent, dishonest, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, calumnious manner or otherwise reprehensible manner;
(xiv) usurp the identity of a natural person or an entity, including but not limited to any Oxilia employee or representative; and
(xv) compromise the security of a Member’s Account (such as allowing someone else to connect to the Site by impersonating that Member) or attempting in any way whatsoever to obtain the password, account, or other connection information of any other user.
You understand and acknowledge that you bear sole responsibility for compliance with legislation, rules, regulations, or fiscal obligations that may arise from your use of the Site. Any version, update, or other subsequent addition to the Site’s functions shall be subject to these Terms.
Members may respond to Postings on the Site based on the criteria and other information mentioned in the Postings. All information published in Postings or sent privately over the Site remains the sole responsibility of the person originating such information, whether it comes directly from the person or from his Account, and Oxilia declines all liability in respect of any error or omission contained in the said content. You acknowledge the fact that all content of the Members to which you have access by using the Site entails risks and that you alone shall be liable for any damage or loss resulting from the said risks. By creating or responding to a Posting, you declare and accept that you are not violating any agreement with a third party, including work exclusivity agreements. Oxilia reserves the right to withdraw or delete any Posting that violates these Terms in any way whatsoever or for any reason deemed valid, at the full discretion of Oxilia.
Oxilia reserves the right to amend, suspend or interrupt access to or use of the Site or any portion thereof with or without prior notice. The User accepts that Oxilia declines any liability toward the User or any third party in respect of any amendment, suspension or interruption of the Site or any portion thereof.
9. Service Contract and relationship between Members and Oxilia
Unless there is a written agreement to the contrary between a Professional and an Establishment, the terms and conditions of the Service Contract shall be governed by section 13 of these Terms, on the understanding that the Professional and the Establishment may at no time agree on terms and conditions of the Service Contract that would limit Oxilia’s rights or increase its obligations under these Terms. Notwithstanding any provision to the contrary in these Terms, the Establishment remains responsible at all times for correctly determining whether the Professional is acting as a self-employed worker or as an employee in respect of provision of the Professional Services.
You understand and accept that Oxilia is not a party to any Service Contract and consequently bears no liability or obligation in respect of the Service Contract nor for acts or omissions by the Professional and the Establishment that are parties to the Service Contract. Oxilia only makes available to Members a platform or online market enabling them to identify and determine by themselves those Members likely to meet their needs for Professional Services. Oxilia makes no representation or warranty in respect of the reliability, qualifications, capacities, and conduct of Members nor of the quality, security, or legality of the Professional Services, and declines all liability in this regard. Oxilia does not act as a placement or recruiting agency and nothing in these Terms shall be interpreted as creating a partnership, joint venture, employer-employee relationship, or agency relationship between you and Oxilia when you use the Site or enter into a Service Contract.
10. Terms of payment
10.1. Professional Fees, Service Charges, and Total Charges
Pursuant to the terms stipulated herein, the Establishment shall pay the Professional the professional fees established by the Professional for the Professional Services rendered to the Establishment pursuant to a Service Contract (the “Professional Fees”).
In consideration of use of the Site, Oxilia levies service charges corresponding to an amount of twenty percent (20 %) of the Professional Fees (the “Service Charges”) for the first 150 hours; of fifteen percent (15%) for the hours 151 to 500; and of ten percent (10%) for the hours 501 and more. These Service Charges are invoiced to the Establishment and paid by it above and beyond the Professional Fees payable to the Professional pursuant to the Service Contract (the Service Charges and Professional Fees are collectively referred to as the “Total Charges”).
The rates posted on the Site for provision of Professional Services by a Professional exclude the Professional Fees and applicable Service Charges. An estimate of the Total Charges payable by the Establishment and calculated using the information provided by the Establishment and the Professional shall be submitted to the Establishment before the Service Contract is entered into.
10.2. Invoicing to the Establishment and payment of the Total Charges
Oxilia shall issue to the Establishment on a weekly basis a consolidated invoice including the details of the Professional Fees to be paid to the Professional pursuant to the Service Contract and the Service Charges applicable to the Professional Fees, to be paid to Oxilia. Each invoice is payable by the Establishment within five (5) working days of the issue date.
You must notify Oxilia in writing immediately at firstname.lastname@example.org of any objection over hours of work declared under a Service Contract or invoiced to an Establishment. In the event of a dispute, the Establishment must deposit with Oxilia the disputed part of the Professional Fees so it can be held in escrow by Oxilia until released pursuant to the Service Contract and these Terms.
Upon payment by the Establishment of the Total Charges indicated on an invoice, Oxilia will deduct the Professional Fees, which will be disbursed by Oxilia to the Professional’s account in compliance with these Terms. The Service Charges indicated on the invoice will be retained by Oxilia. The Total Charges are non-refundable, regardless of whether the Establishment indicates that it is satisfied or dissatisfied with the Professional Services rendered.
10.3. Disbursements to the Professional
Oxilia will disburse the Professional Fees to the Professional within fourteen (14) working days of receipt of payment of the Professional Fees by the Establishment pursuant to the Service Contract. In the event of fraud, violation of legislation or of these Terms, and to the extent permitted by law, Oxilia reserves the right to suspend any disbursement of Professional Fees.
10.4. Terms of payment
The User understands and accepts that all transactions related to payment of Professional Services shall be conducted on the Site. The User also accepts and authorizes Oxilia to turn to the services of a third-party provider to process payments, and consents to disclosure of his banking information to the said third-party provider. The User is responsible for keeping his contact information, invoicing information and information about his credit or debit card up to date, as applicable. The User may change this information in his Account at any time.
Without prejudice to any other remedy that may be available to Oxilia under these Terms or the law, in the event of default or delay by the Establishment in payment of any amount due under these Terms, including any default resulting from inability of Oxilia or its third-party provider to automatically process payment from the Establishment in compliance with these Terms, Oxilia reserves the right to automatically and immediately suspend the Establishment’s access to the Site and Account until payment is made or processed by the Establishment, and Oxilia declines any liability for any damages that may result from such suspension of the Establishment’s access to the Site or Account. Oxilia also reserves the right to pay all Professional Fees due to the Professional in compliance with the Service Contract from amounts deposited by the Establishment pursuant to section 10.6 of these Terms. Notwithstanding the foregoing, you understand and accept that the Establishment bears sole responsibility for payment of Professional Fees under a Service Contract and that Oxilia declines any liability in this regard. Oxilia will not act at any time as a recovery agency in respect of all Professional Fees on behalf of the Professional. Any amount due and payable hereunder shall bear interest at the rate of two percent (2%) a month. Without limiting any other remedy provided by law, the Establishment shall pay all costs incurred by Oxilia to recover the Service Charges, including legal fees.
Upon acceptance of the candidate, the Establishment must pay to Oxilia an amount of $350 (taxes included). This amount will be applied to the last payment due by the Establishment for Total Charges pursuant to these Terms. Oxilia may deduct from this sum any amount due in compliance with the provisions of these Terms. The deposit will allow access to the information of accepted candidates.
10.7. Invoicing and Taxes
Professionals are responsible for issuing appropriate invoices for the Professional Services rendered. You understand and agree that you alone must know the tax reporting requirements applicable to you and the Taxes that must be included and collected, or the obligations linked to the Taxes applicable to Postings. You also bear sole responsibility for payment to the competent authority of all Tax that must be included or collected by you. If Oxilia is audited, you must cooperate with Oxilia and provide copies of any tax statement related to the Professional Services rendered or obtained by the Site and any other document that may reasonably be requested for audit purposes.
11. Cancellation or Termination of the Service Contract before the beginning of the Service Contract
The Professional or the Establishment can terminate the Service Contract without cause and penalty, upon written notice to the other party and Oxilia at least thirty (30) days before the beginning of the Term of the Service Contract. If the written notice is less than thirty (30) days, Oxilia reserves the right to impose a penalty to the defaulting party of this obligation, in particular to cover the Service Charges that would have been due had it not been for the termination, and to compensate any inconvenience that may have been caused to the other party of the Service Contract. It is understood that, at any time after the beginning of the Term of the Service Contract, the Establishment or the Professional may terminate the Service Contract following section 13.6 hereinabove.
12. Non-circumvention of the Site
You understand and accept that a substantial portion of the income received by Oxilia in consideration of operation of the Site originates from payment of Service Charges and that these Service Charges are collected only when Members make or receive a payment on the Site. Thus, you accept that during a period of twelve (12) months from the date on which you identify a Member or are identified as a Member on the Site (the “Non-circumvention period”), you must use the Site as the sole means for requesting, performing or receiving Professional Services or all payments for Professional Services rendered directly or indirectly in respect of this Member or resulting from your relationship with this Member.
For greater certainty and without limiting the scope of the foregoing, you understand and accept that you shall not: (i) encourage, solicit or incite, directly or indirectly, a Member identified through the Site to provide Professional Services or make a partial or full payment for Professional Services in circumvention of the Site; and (ii) invoice amounts or report hours of work less than the amounts stated in the Service Contract and the hours actually worked for the benefit of the Establishment.
In the event of breach of this section during the Non-circumvention Period and without prejudice to any other remedy available to it under these Terms or the law, Oxilia reserves the right to claim from you in respect of each transaction for Professional Services covered by this section the greater of: (i) four thousand dollars ($4,000) or (ii) the amount of the Service Charges that would have been paid for these Professional Services had the payments been made through the Site, plus eighteen percent (18%).
You must notify Oxilia in writing immediately at email@example.com if a person incites you to receive or make payments in circumvention of the Site or if you learn of any other violation of this section.
13. Terms of the Service Contract
In addition to any other terms that may be agreed to from time to time by the Professional and the Establishment, without Oxilia’s intervention, the Service Contract shall contain at least the terms and conditions stipulated in this section. The Professional and an Establishment understand and accept that they may not at any time agree to terms and conditions for the Service Contract that would limit the rights or increase the obligations of Oxilia under these Terms, including but not limited to the Service Charges payable to Oxilia. You understand and accept that Oxilia may at any time adopt a policy in respect of the terms for cancellation of a Service Contract that will then form an integral part of these Terms.
13.1. Professional Services
In consideration of the Professional Fees, the Professional shall provide the Establishment with the Professional Services on a non-exclusive basis and in a professional manner, consistent with accepted practices and in compliance with the applicable legislation. The Professional bears sole responsibility for managing the time, means and methods used to provide the Professional Services.
The Professional covenants to obtain and maintain valid for the Term hereof all permits, licences and other authorizations required for provision of the Professional Services.
This Service Contract shall remain in force for the term indicated in the Posting and may be extended by consent of the Professional and the Establishment on the Site (the “Term”).
13.3. Hours worked
The Professional is responsible for logging the hours worked for the benefit of the Establishment at the end of each work week, and these must be validated by the Establishment.
In the event of a dispute over hours of work declared or any payment of Professional Fees under the terms of this Service Contract, the Establishment shall pay to the Professional the undisputed portion of the Professional Fees. The Professional and the Establishment agree that the disputed portion of the Professional Fees shall be deposited by the Establishment with Oxilia in escrow. Oxilia shall release the sums in escrow following settlement of the dispute upon presentation of a written settlement agreement between the Professional and the Establishment or of a valid and enforceable ruling by a competent court with jurisdiction to settle the dispute.
The Professional and the Establishment agree that in the event of a dispute between them relating directly or indirectly to the Professional Fees or the application or the interpretation of the Service Contract (the “Dispute”), they must notify Oxilia and the other party within five (5) days of the event giving rise to the Dispute and try to attempt to resolve the Dispute amicably. The Professional and the Establishment acknowledge that Oxilia may, in its sole discretion, assist in the amicable settlement process of the Dispute, being understood that the Professional and the Establishment : (i) will remain free at all times to pursue their dispute independently; (ii) acknowledge that Oxilia shall not be obliged to give them any assistance in the settlement of the Disputes; and (iii) acknowledge that Oxilia will have no responsibility regarding any settlement of the Dispute that may be agreed between the Professional and the Establishment;
Notwithstanding the above, the Professional and the Establishment commit to abide to any dispute resolution procedure that may be adopted by Oxilia from time to time and communicated to the Parties prior to the performance of the Services Contract and then forming an integral part of theTerms hereof.
The Professional shall maintain and preserve the confidentiality of any financial information or other document or information of a confidential nature, whether or not in written, visual or electronic form, obtained or made accessible as part of the Service Contract, specifically but not limited to information, procedures, projects, developments, trademarks, copyrights, trade secrets, software, client lists, marketing plans, proposals, contracts, financial information, and any other information provided or disclosed by the Establishment. The Professional shall remain subject to the obligations of confidentiality notwithstanding termination or cancellation of the Service Contract.
The Professional or the Establishment has the right to terminate this contract at any time after the beginning of the Service Contract according to the cancellation policy of Oxilia, upon prior written notice of thirty (30) days. Notwithstanding the above, the Establishment may terminate the Service Contract without penalty and with immediate effect, upon the following events: a) the Professional is in default of any obligation under the Service Contract and does not remedy to this default to the satisfaction of the Establishment and without additional costs, within the five (5) days following the sending of a notice to this effect to the Professional, in cases where it is possible to remedy such default; or b) upon submission of written advance notice to the Professional if the Professional commits a serious act or omission in respect of his ethics or professional or regulatory obligations; or c) upon death of the Professional or if he became unable to perform his duties under the Service due to an invalidity. The Establishment remains liable at all times for payment of all Professional Fees related to Professional Services rendered prior to the date of cancellation of the Service Contract.
13.7. Status of the Professional
The Establishment remains responsible at all times for correctly determining whether the Professional is acting as a self-employed worker or an employee as part of provision of the Professional Services.
13.8. Applicable legislation
This Service Contract is governed by the laws in force in the province where the Professional Services are rendered and by the applicable laws of Canada.
The Professional and the Establishment shall (i) create, maintain and preserve records to document the performance of their obligations under these Terms as well as any Service Contract entered into, including invoicing and payment of the Professional Fees and Taxes related to the Professional Services and compliance with tax and labour legislation; and (ii) provide a copy of these records to Oxilia, in whole or in part, on written request. Nothing in this section requires or shall be interpreted as requiring Oxilia to supervise or validate compliance with the User’s obligations under these Terms or a Service Contract.
15. Property and intellectual property
The User acknowledges that all intellectual property rights, at the global level, including but not limited to all copyrights, patents, trademarks, trade secrets and other intellectual property rights related to the Site are the exclusive property of Oxilia or its subsidiaries. The holding, access and use made by the User of the Site do not vest the User or any third party with any right, property right or interest related to the said intellectual property rights. The User may not use the content of the Site in any other way that is public or for commercial purposes, and also may not copy or incorporate any content of the Site into any other project, including the User’s own website, without the written consent of Oxilia. The User shall not copy, modify or reproduce or damage in any other way the structure or appearance of the Site or its content.
To the extent that the User and another Member exchange or obtain knowledge of confidential information about the other, including information about his identity, the recipient of the confidential information covenants to maintain the confidentiality of the said information and to treat it in the same manner as that which it uses to protect its own confidential information of a similar nature, acting reasonably. The recipient covenants not to (i) communicate, convey, exploit or otherwise use, on its own account or for others, information contained in or concerning this agreement, without the other party’s consent; (ii) use or permit the use of confidential information, except what is necessary for provision of the Professional Services and entering into a Service Contract pursuant to the provisions herein, and to (iii) limit access to confidential information to its staff who require the said information to provide the Professional Services and enter into a Service Contract pursuant to the provisions of these Terms.
17. Limited warranty
THE SITE IS OFFERED “AS IS” AND “AS AVAILABLE.” OXILIA AND ITS SUBSIDIARIES EXPRESSLY DECLINE ANY WARRANTY AND STIPULATION OF ANY NATURE, WHETHER EXPLICIT OR TACIT, INCLUDING WARRANTIES OR STIPULATIONS OF MARKETABLE QUALITY OR COMPLIANCE WITH SPECIFIC NEEDS, ACCURACY, AND LACK OF COUNTERFEIT. OXILIA AND ITS SUBSIDIARIES MAKE NO GUARANTEE WHATSOEVER THAT THE SITE AND THE INFORMATION APPEARING THEREON WILL: (I) MEET MEMBER REQUIREMENTS; (II) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE BASIS FREE OF ALL ERRORS; OR (III) BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, SPOKEN OR WRITTEN, PROVIDED TO MEMBERS BY OXILIA OR THROUGH THE SITE SHALL CONSTITUTE A WARRANTY. OXILIA ALSO MAKES NO WARRANTY IN RESPECT OF THE QUALITY OF ANY POSTING, OF THE PROFESSIONAL SERVICES OR MEMBERS, OR OF THE ACCURACY, TIMELINESS, VERACITY, COMPLETENESS OR RELIABLILTY OF ANY CONTENT OBTAINED ON THE SITE.
18. Limited liability
UNDER NO CIRCUMSTANCES, AND IN THE FULL MEASURE PERMITTED BY THE APPLICABLE LAW, OXILIA, ITS SHAREHOLDERS, AFFILIATES, SUBCONTRACTORS, SUPPLIERS AND AGENTS AS WELL AS THEIR RESPECTIVE ADMINISTRATORS, DIRECTORS, AND EMPLOYEES (COLLECTIVELY THE “OXILIA PARTIES”) SHALL NOT BE HELD LIABLE TO A MEMBER OR THIRD PARTY IN RESPECT OF ANY SPECIFIC, CONSECUTIVE, PUNITIVE, EXEMPLARY, ACCESSORY, OR INDIRECT DAMAGE, OR ANY OTHER COMMERCIAL OR FINANCIAL LOSS OF ANY TYPE OR ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO ANY DAMAGE RESULTING FROM SUSPENSION OR DELETION OF AN ACCOUNT PURSUANT TO THESE TERMS AND IN RESPECT OF LOST PROFITS OR INCOME, COSTS LINKED TO DELAY, LOST TIME, OR COSTS INCURRED BY INCONVENIENCES, OR COSTS LINKED TO PRODUCT SUBSTITUTION), EVEN IF THE SAID DAMAGES ARE FORESEEABLE OR IF THE OXILIA PARTIES WERE WARNED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT OCCUR. THE TOTAL LIABILITY AND OBLIGATIONS OF THE OXILIA PARTIES FOR ALL CLAIMS RESULTING FROM OR LINKED TO THIS CONTRACT IN RESPECT OF ANY EXPENSE, DAMAGE, LOSS, INJURY, OR RESPONSIBILITY OF ANY TYPE, REGARDLESS OF THE CAUSE FOR ACTION, THE FORM OF THE PROCEDURE, OR THE THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, PURSUANT TO THE LAW, OR OTHERWISE) IS LIMITED TO THE DIRECT, REAL DAMAGES SUFFERED AND SHALL NOT EXCEED THE SERVICE CHARGES PAID BY A MEMBER TO OXILIA PURSUANT TO THESE TERMS, OVER THE TWELVE (12) MONTHS PRECEEDING THE EVENT THAT INCURRED THE OXILIA PARTIES’ LIABILITY. All non-liability clauses as well as the limits established herein shall apply regardless of the nature of any grounds or any claim (including but not limited to breach of contract, breach of warranty, negligence, absolute liability, tort, or any other grounds), and shall remain in force in the event of breach(es) or failure to attain the essential objective of these Terms, or of any remedy contained herein.
The User covenants to defend, indemnify and save harmless Oxilia and its affiliates and suppliers in respect of any liability for any damage, obligation, claim, or any request (specifically costs and fees of legal counsel) made or submitted by any third party or any Member due to or resulting from: (i) use made by the User of the Site; (ii) breach of these Terms or of a Service Contract committed by the User, or (iii) any violation of any law or of the rights of any third party committed by the User (including remedies under labour law). Oxilia reserves the right, at the User’s expense, to ensure the exclusive defence and control of any matter for which the User shall be required to indemnify Oxilia, and the User covenants not to enter into an agreement in respect of any claim whatsoever without first obtaining the written consent of Oxilia. Oxilia shall make all reasonable efforts to notify the User in advance of any claim, action or proceeding of this nature that may directly affect the User as soon as it obtains knowledge thereof.
20. Term and cancellation of the Terms
These Terms shall remain in full force and effect as long as the User continues to access and use the Site, or until cancellation of these Terms pursuant to this section.
Each Party may cancel this Contract at any time, for or without cause, by sending written notice to this effect to the other Party (or by deleting or suspending the Account), on the understanding that any cancellation of this Contract shall not affect the validity of any Service Contract performed or in the course of performance prior to cancellation of this Contract and that the Establishment shall pay to Oxilia the Total Charges for the said Service Contracts.
Without limiting the generality of the foregoing, Oxilia may at any time cancel these Terms and suspend or revoke access and use of the Site at its full discretion, including but not limited to, when Oxilia deems that the User has used the Site in a manner that breaches these Terms, including any directive, method or rule incorporated therein.
In the event of expiry or cancellation of these Terms, the clauses that reasonably should survive cancellation of these Terms shall remain in force, specifically sections 10 (Terms of Payment), 12 (Non-circumvention of the Site), 16 (Confidentiality), 17 (Limited warranty), 18 (Limited liability), and 19 (Indemnification).
22. Electronic communications
The User communicates electronically with Oxilia when the User uses or sends emails to Oxilia. The User agrees that all agreements, notices, disclosures, and other communications that Oxilia sends to the User electronically discharge the same legal obligations as if the said communications were in writing. You agree that Oxilia may use the email address for your Account to send the User information about the products and services offered by Oxilia unless the User opts out of Oxilia’s distribution list using the link included in emails sent by Oxilia.
Oxilia may send notifications to the User as required by law or for commercial or other purposes via (at its choice) emails sent to the main email address linked to the User’s Account, or conventional mail sent to the User, or by posting the said notice on the Site. Oxilia shall not be liable for automatic filtering that the User or its network provider may have applied to the User’s email inbox.
24. Amendments made to these Terms
Oxilia reserves the right to amend these Terms. At its sole discretion, Oxilia shall provide notification of these said amendments made to these Terms on its Site or shall email notification to Members. Such notice of amendment shall be deemed to constitute sufficient notice of amendments made to these Terms. The User must ensure that he has read and accepted Oxilia’s most recent Terms when he uses the Site. If a User continues to use the Site after having been notified of the said amendments, this shall be deemed acceptance by the User as well as expression of his consent to be bound by the revised Terms.
25. Entire agreement
This Contract constitutes the entire agreement made by the Parties in respect of the purpose of these Terms and replaces all other agreements, proposals, promises, incentives, statements, warranties, arrangements, purchase or sale orders, negotiations, and discussions, spoken or written, between the Parties. Subject to section 24 hereof, any modification, amendment, addition, or other change made to this Contract must be made in writing and signed by the Parties’ duly authorized representatives. As used herein, the term “Contract” shall include all subsequent modifications, amendments, additions, or other changes hereto. This Contract binds and benefits the Parties’ respective successors, heirs, and assigns.
26. Force majeure
Oxilia declines any liability for any delay or non-performance resulting directly or indirectly from actions or events beyond Oxilia’s control, including but not limited to strikes or labour or industrial disruptions, civil strife, actions, orders, laws, regulations, or directives issued by any government or public authority, acts by public enemies, riots, sabotage, blockades, embargos, shortages of labour, material and suppliers, supplier delays or dereliction of obligations, lightning, earthquakes, fires, storms, hurricanes, floods, disasters, explosions, and natural disasters.
If, for any reason whatsoever, a provision, obligation, or condition of this Contract, or its application to any person or under any circumstance is ruled, to any extent whatsoever, invalid, unenforceable, or illegal, that provision, obligation, or condition shall be deemed independent, disjoint, and divisible from the remainder of the Contract and its invalidity, illegality or unenforceability shall not affect, diminish, or invalidate the remainder of the Contract or any part thereof. This provision, obligation or condition shall continue to apply and be enforceable in respect of any person or circumstance, other than those for which it has been ruled invalid, unenforceable, or illegal. Any such invalidity, unenforceability, or illegality shall not constitute grounds for a lawsuit in favour of either Party hereto against the other Party hereto.
No delay or omission by a Party in the exercise of any right or power vested in it under this Contract or in citing breach of any commitment that the other Party must meet in full and at the agreed time shall compromise the said right or power, nor shall be interpreted as a waiver of citation of a subsequent breach or any other commitment. All waivers must be made in writing and signed by the Party waiving its rights.
Neither this Contract nor any right granted herein may be assigned by the User without the prior written consent of Oxilia. Oxilia may assign this Contract at any time without the User’s consent.
30. Applicable law
This Contract is governed, interpreted, and applied pursuant to the laws of the Province of Québec, Canada, regardless of the principles governing conflicting legislation. Any dispute arising from this Contract, due to its interpretation or execution, or for any other reason, shall be submitted to the exclusive jurisdiction of the courts of the Province of Québec, judicial district of Montréal, and each Party to these Terms hereby irrevocably acknowledges the authority of the courts of the Province of Québec, Canada. The Parties expressly exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Contract.