THESE TERMS AND CONDITIONS (the “Terms”) govern the terms and conditions applicable to the provision of services by Potloc Inc. (“Potloc”) and the client whose name is referred to in a DOS (as defined below) (“the Client”) (Potloc and the Client each, a “Party” and, collectively, the “Parties”). The entering into of any DOS by the Client shall serve as acceptance of these Terms.

  1. Services
    1. Services. The Client hereby engages Potloc as an independent contractor to provide the services (collectively, the “Services”) described in the applicable description(s) of services (each, a “DOS”) and more generally to perform market research based on data collected through the means of crowdsourcing as described in the applicable DOS.
    2. DOS. Upon execution of any applicable DOS, no alteration, cancellation or refusal of delivery may be made without the express written consent of Potloc. No additional services will be provided by Potloc to the Client other than those Services specifically outlined in the applicable DOS, and any additional services requested by the Client shall be evidenced in a new DOS, except in situations of emergency or necessity, in which cases such additional services will be at Potloc’s rates then in effect.
    3. Methodology. Unless agreed otherwise, once the market research questions are determined, Potloc will upload a questionnaire online in order to gather data (the “Campaign”). In accordance with the options chosen by the Client, Potloc shall create personalized Web, tablet and smartphone functioning pages. A detailed statistical report (the “Report”) shall then be submitted to the Client through the Poltoc online portal, containing, in accordance with the options chosen by the Client, detailed data and anonymous responses provided during the Campaign. Potloc will use its best efforts to respect any deadlines included in the applicable DOS. However, the delivery date is provided therein only for information purposes, is subject to the Client’s cooperation and no penalty or indemnity may be claimed for any delay in the provision of the Services by Potloc.
    4. Relationship of the Parties. Potloc’s employees are not employees of the Client. Potloc is an independent contractor and is not and shall not represent itself to be a joint venturer, partner or employee of the Client or to be related to the Client other than as an independent contractor.
  2. The Client Obligations
    1. General. It is the Client’s responsibility to generally collaborate in good faith with Potloc and without limitation: (i) provide Potloc with any third-party materials which may be required by Potloc; (ii) provide Potloc with all necessary information and assistance reasonably required by Potloc in connection with the Services; (iii) ensure a contact person is available during normal business hours throughout the term of the applicable DOS.
    2. Feedback. Potloc shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback that the Client may (alone or jointly with Potloc) propose or make during the term of any DOS (“Feedback”). The Client irrevocably assigns all its right, title and interest in and to the Feedback to Potloc and the Client shall cause the Client personnel, consultants and subcontractors to irrevocably waive, to the extent permitted by applicable law, any and all claims such as the Client personnel, consultants and subcontractors may now or hereafter have in any jurisdiction to any moral rights with respect to the Feedback.
  3. Fees
    1. Fees. In consideration for the Services performed, the Client shall pay the fees set out in the DOS ("Fees"). The Client acknowledges and agrees that Potloc may charge additional fees if the scope of work changed or the work scheduled is postponed or delayed for reasons that are attributable to the Client.
    2. Expenses. In addition to any Fees, the Client shall reimburse Potloc for all reasonable travel, lodging and other expenses actually and properly incurred by Potloc in the performance of the Services hereunder, provided that such expenses have been pre-approved by the Client (collectively, the “Expenses”) and corresponding receipts are provided by Potloc.
    3. Payment terms. The Fees shall be paid by cheque or wire transfer in accordance with the terms set out in the DOS. In addition to any other rights or remedies of Potloc, including suspension of work for non-payment of Fees, any amount not paid by the Client when due shall trigger a one-time recovery fee of $60.00 and bear interest at the rate that is the lesser of 10% per year (calculated on a daily basis) or the maximum rate allowable by law.
  4. Intellectual Property
    1. Ownership. Potloc retains all right in and to (i) all personal information provided willingly by participants, all participant databases, all data collected, saved or stored by Potloc, as well as all processes, techniques, tools, know-how and documents required for the analysis in connection with the Services; (ii) any and all intellectual property (including, without limitation, all source code and object code, all software, documents and reports) that is owned by Potloc or that Potloc may acquire, obtain, develop, create, reduce to practice or discover, alone or jointly with others, before, during, independent of or in connection with the Services and the DOSs ((i) and (ii) together, “Potloc IP”); (iii) all patents, copyrights, trade secrets and other proprietary rights related to any of the foregoing; and (iv) Potloc’s trademarks. Potloc shall be entitled to use the ideas, concepts and techniques relevant to any Services that are retained in the memories of Potloc’s personnel in other projects and products of Potloc. In addition, Client​ shall not directly or indirectly, partially or completely, reproduce, copy, disassemble or reverse engineer any of the Potloc IP.
    2. Report. The contents of the Report are to be used by the Client and whomever it so chooses to share them with, in its entire discretion. Any partial or complete, direct or indirect reproduction or disclosure of the contents of the Report, with or without consideration, by Potloc must be approved in writing by the Client. For greater certainty, Potloc shall not make public any information contained in the report without the Client’s written consent, which may be withheld at its entire discretion. Subject to the performance of the Client’s obligations hereunder (including payment obligations), Potloc hereby grants to the Client a fully paid-up, personal, worldwide, non-exclusive license to use the Report and the Potloc IP that is included in the Report or any deliverable or work products provided by Potloc to the Client.
  5. Data protection clause
    1. In the course of the Services, the Parties acknowledge that they are required to collect and process personal data, each on their own behalf, as independent data controllers - without any joint responsibility or subcontracting relationship. In this respect, each Party undertakes to comply with the regulations on personal data and, in particular, with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and Act No 78-17 of January 6, 1978 on data processing, data files and civil liberties, as amended (together, the "Applicable Regulation"). Each Party nevertheless agrees to reasonably cooperate with the other Party and assist the latter in complying with its obligations under the Applicable Regulation as an independent data controller with regard to the Services. The Parties undertake in particular to forward to the other Party any request for the exercise of rights received from a data subject if such request does not concern its own data processing operations.
  6. Term; Termination
    1. Term. These Terms will commence on the date the first DOS is signed between the Client and Potloc (the “Effective Date”) and will remain in effect for a period until the termination of all in force DOSs unless otherwise terminated in accordance with this Section 5.
    2. Termination. Potloc may terminate the Terms and any DOS, at its entire discretion upon 30 days written notice to the Client. Each Party may terminate the Terms at any time (i) if the other Party fails to perform any of its obligations under these Terms or any DOS, and such failure is not remedied within 15 days from written notice thereof having been given to such defaulting Party; or (ii) upon written notice to the other Party, if such other Party is subject to bankruptcy or similar proceedings, or the winding-up, liquidation or dissolution of its business. Sections 7 to 9 shall survive termination or expiration of these Terms.
  7. Confidentiality
    1. Use. Each Party (“Recipient”) shall hold in strictest confidence any and all non-public, confidential or proprietary information (“Confidential Information”) of the other Party (“Discloser”) received from Discloser or otherwise obtained and use such Confidential Information only for the purposes of performing its obligations hereunder. Discloser’s Confidential Information shall remain the exclusive property of Discloser (or its licensors).
    2. Disclosure. Recipient shall not, without Discloser’s prior written consent, disclose Discloser’s Confidential Information to any third party, except to those of its employees, consultants and subcontractors who have a need to know the Confidential Information for the purpose of these Terms.
    3. Exceptions. The restrictions imposed by this Section 6 shall not apply to Confidential Information which (i) is or becomes generally known or available to the public without breach of these Terms; (ii) is known to Recipient at the time of disclosure of such Confidential Information provided that such knowledge was not gained from third parties through breach of secrecy; or (iii) is hereafter furnished to Recipient in good faith by a third party without breach of secrecy to Discloser. Notwithstanding the foregoing, the Client expressly authorizes Potloc to disclose its collaboration with the Client, in particular, by citing the Client’s designation, name, acronym and/or logo in Potloc’s internal and/or external communications, whatever the medium, and to incorporate the work developed on behalf of the Client as part of any DOS in Potloc’s presentation tools for internal and/or external communication, both during the term of the Terms and after their expiration for any reason whatsoever.
    4. Injunctive Relief. Upon any breach of confidentiality or any threat thereof, Discloser shall, in addition to whatever remedies it might have, be entitled to obtain injunctive relief against the threatened breach of these Terms or the continuation of any such breach, without the necessity of proving actual damages.
    5. Survival. The obligations of the Parties under this Section 7 will commence on the Effective Date, and shall survive for 2 years after the termination of these Terms.
  8. Disclaimer; Limitation of Liability
    1. Claims. Any claim by the Client concerning the Services must be made by written submission to Potloc within 48 hours of transmittal of the Report by Potloc to the Client. Any dispute concerning the Fees must be made by written submission by the Client to Potloc within 7 days of receipt of the applicable invoice by the Client. Following the aforementioned delays, no claims relating to the subject matter here above may be made by the Client. Subject to Section 6 hereof, all claims which may be made hereunder (other than claims by Potloc for the collection of unpaid Fees which shall survive indefinitely) shall survive for a period of 1 year from the date on which the claimant was made aware of the cause of action of such claim.
    2. Warranty Disclaimer. POTLOC EXPRESSLY DISCLAIMS ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS AND LICENSORS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS EXPRESS, LEGAL OR IMPLIED NOT CONTAINED HEREIN, INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. ANY AND ALL COMMERCIAL OPERATION EXECUTED BY CLIENT AS A RESULT OF THE SERVICES SHALL BE ENTIRELY AND SOLELY OF ITS RESPONSIBILITY.
    3. Exclusion of Indirect Damages. IN NO EVENT WILL EITHER PARTY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS AND LICENSORS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR RELATING TO THESE TERMS, OR CAUSED BY OR RESULTING FROM THE RELIANCE ON THE REPORT, ANY OF THE SERVICES, OR POTLOC IP, OR THEIR USE, MISUSE OR INABILITY TO USE, EVEN THOUGH SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION.
      Amount Limitation. THE TOTAL LIABILITY OF POTLOC FOR CLAIMS BY THE CLIENT OR ANY OTHER PERSON ARISING UNDER THESE TERMS SHALL BE LIMITED TO THE AMOUNT OF FEES UNDER THE APPLICABLE DOS WHICH GAVE RISE TO THE LIABILITY.
  9. General Provisions
    1. Governing Law; Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable in Quebec, without reference to its principles of conflicts of laws. Each of the Parties irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of Quebec (district of Montreal).
    2. General. These Terms (including the Consumer Research Proposition and any DOS) constitute the entire agreement between the Parties with respect to the subject matter hereof.
      Language. The Parties acknowledge that they have required that these Terms, as well as all documents, notices and legal proceedings executed, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention, ainsi que de tous documents, avis et procédures judiciaires exécutés, donnés ou intentés, directement ou indirectement, à la suite de ou relativement à la présente convention.