MONTREAL PORT AUTHORITY, CARRYING ON BUSINESS AS “PortMtlTrucks”
BY ACCESSING AND USING THE PORTMTLTRUCKS SOFTWARE, YOU (THE “LICENSEE”) AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”) WITH THE MONTREAL PORT AUTHORITY, CARRYING ON BUSINESS AS “PORTMTLTRUCKS” (THE “CORPORATION”). IF YOU DO NOT CONSENT TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT ACCESS AND/OR USE THE SOFTWARE. THE CORPORATION RESERVES THE RIGHT TO AMEND THIS AGREEMENT FROM TIME TO TIME. ANY MATERIAL AMENDMENT WILL BE THE SUBJECT OF A NOTICE TO USERS. YOUR USE OF THE SOFTWARE FOLLOWING RECEIPT OF SUCH A NOTICE WILL CONSTITUTE YOUR CONSENT TO SUCH AMENDMENT.
Unless indicated otherwise, the following terms have the meaning ascribed to them below:
- “Agreement” means this License Agreement, including any instructions relating to the Software provided by the Corporation from time to time;
- “Intellectual Property” means any intellectual property right regarding the Software, including, without limiting the generality of the foregoing, patents, copyright, inventions, know-how, trade secrets, trademarks, trade names, industrial designs and any other such right;
- “Software” means all or part of the computer application known under the trademark PORTMTLTRUCKS, its codes, algorithms, executable files, shared and unshared components and assemblages, configurations, databases, localization files and any other documentation transmitted through or made available on our website in connection with the Software, including, without limiting the generality of the foregoing, any alpha or beta version, pre-version, limited version or final version provided, as well as any documentation and other material related to the Software, including updates, additions, modifications, improvements and new versions which may be made public from time to time. The Software may include third party material made possible through the Corporation for the purpose of limited use by Licensees;
- “Use” or the verb “to Use” means the use of the Software, access to the PORTMTLTRUCKS website, the downloading of information available to the Licensee on the Corporation’s website and on the Software, the posting of data and information produced by the Software, excluding any access to the source codes of the Software.
- Subject to compliance with the terms of this Agreement, the Corporation grants the Licensee a free-of-charge, limited, non-exclusive and non-transferable license (the “License”). The License is granted for a strictly individual Use and may not be used by any person other than the Licensee.
- The Corporation reserves the right, at its discretion and at any time, to modify, adapt, improve or withdraw the Software, in whole or in part. The Software License shall remain valid as amended, adapted or improved throughout the term hereof.
- The Licensee acknowledges and agrees that the use of the Software may require an application and/or minimal operating system meeting the parameters indicated on the Corporation’s website if the Licensee wishes to use the Software which he or she must purchase at his or her expense.
- Real-time Use of the Software also requires a continuous Internet connection. The Corporation shall under no circumstances be liable for any cost related to the applications and required operating system, such Internet connection or its use.
- Your user name and password will be required to connect to our website or the Software. You must not disclose your user name and password or make them available to any person whomsoever or in any manner whatsoever. To keep your data secure, you must ensure that you log out of your session. Your user name and password are deemed to have a legal value equivalent to that of your handwritten signature. The validation buttons such as “I agree” or “OK” confirm your consent and are deemed to have the same legal value as your handwritten signature.
TERM AND RENEWAL
- This Agreement will take effect on the date the Licensee accepts it by clicking on the “I agree” button and will remain in effect for the life cycle of the Software, subject to any cancellation pursuant to section 11 hereof.
- The Licensee may terminate this Agreement immediately by deleting his or her user profile from the website or the Software.
- The Corporation may, at its sole discretion, terminate use of the Software, which will terminate this Agreement with immediate effect.
- The Licensee agrees not to, in whole or in part, directly or indirectly, (i) Use the Software in breach of and over and above the rights granted hereunder, or in breach of any applicable law or regulation, (ii) Use the Software with a view to perpetrating or facilitating the perpetration of any unlawful act or crime or in breach of any law, convention or accord of which Canada or the Province of Quebec is a signatory, (iii) copy, lease, lend, distribute, sub-license, transfer or otherwise give a third party access to the Software, (iv) modify, translate, decompile, decode, decrypt or disassemble the Software, (v) access, attempt to access or allow a third party to access the source codes of the Software or third party applications in the Software, (vi) cause or allow the Software to be amalgamated with or integrated into other software, (vii) create or allow the development of derivative products related to the Software, (viii) cause or allow the removal or modification of any legal notice of patent, copyright, trade-mark or other intellectual property right attached to or incorporated in the Software, (ix) download and systematically compile the Software information with a view to creating a database or for any other purpose.
- The Licensee further agrees (i) to drive his or her vehicle in accordance with applicable laws and regulations, (ii) not to slander, insult, obstruct or impair the rights of the Corporation, its third party suppliers or any other user of the Software, (iii) not to publish, transmit or make accessible inappropriate, libelous, obscene or illegal content, (iv) not to impersonate another person, (v) not to create user accounts automatically or for wrongful or fraudulent purposes, and (vi) not to transmit viruses through the Software.
- The Corporation will not gather any information resulting from the Use of the Software by the Licensee including, without limiting the generality of the foregoing, any information relating to location, driving, itinerary, road conditions or any similar information.
- The Licensee acknowledges and agrees that the Corporation will, however, keep the personal information provided by the Licensee to the Corporation when purchasing the License (“Personal Information”) on secure third party servers. Personal Information includes, without limitation, the Licensee’s name, address, telephone number and e-mail address, payment information and any similar information. Personal Information will only be kept by the Corporation in order to allow it to give the Licensee access to the Software, process payments, allow the Corporation to provide the Licensee with information concerning the Software or any notice required hereunder and for any other purpose which the Corporation may indicate to the Licensee from time to time.
- The Corporation agrees, with no limitation as to time, to keep confidential and not to directly or indirectly use, disclose, give access to, publish, reveal or circulate any Personal Information in any manner whatsoever or to any person whomsoever or otherwise make any Personal Information public without the prior written consent of the Licensee, unless permitted by Law or unless it becomes necessary due to an action or omission by the Licensee.
INFORMATION, DATA AND SOFTWARE RESULTS
- The Licensee acknowledges and agrees that PORTMTLTRUCKS provides specific information about waiting times at the terminals within the territory managed by the Corporation, and that PORTMTLTRUCKS does not provide similar information for other ports in Canada, regions, provinces or countries that the Licensee may visit when travelling.
- The Licensee hereby acknowledges and agrees that the information, data and results provided by the Software are for information purposes only and that they are not intended to replace traffic regulations, including road signs and applicable laws and regulations. The Licensee acknowledges and accepts that PORTMTLTRUCKS uses data, information and maps from third party suppliers and that PORTMTLTRUCKS cannot guarantee that a given route, road or itinerary exists or can be used. The Licensee accepts that such information may not be up-to-date. In the event of inconsistency between the information, data and results provided by the Software and that provided by road signs, the authorities and the applicable laws and regulations, the latter shall prevail. The Licensee agrees that the Corporation has no control over road work which may take place at any time. The actual waiting time may differ from the waiting time displayed in PORTMTLTRUCKS due to incidents of force majeure which are beyond the Corporation’s control.
- The Licensee further acknowledges and agrees that (i) actual itineraries and road conditions may differ from the information, data and results provided by the Software, and (ii) the Software does not show information relating to local delivery zones and any travel by the Licensee in such zones shall be the sole responsibility of the Licensee.
THIRD PARTY LICENSES
- The Software may contain or be accompanied by software, data or other material belonging to third parties, which may be subject to or provided in accordance with terms and conditions which may be added to or different from the terms and conditions set forth herein (“Third Party Licenses”). The Licensee shall be fully responsible for obtaining and complying with Third Party Licenses and agrees that the Corporation may not be held liable and makes no representation or warranty in connection with the software, data or other material belonging to third parties or in connection with the Licensee’s use of such software, data and materials.
- The Licensee agrees, at its expense, to indemnify and hold harmless the Corporation, its partners, shareholders, directors, officers, employees and representatives with respect to any damage, loss, claim, lawsuit and expense (including reasonable lawyers’ fees and other costs related to any lawsuit), whether direct or indirect, resulting from or related to the non-compliant Use by the Licensee of the Software or any breach by the Licensee of any of its obligations hereunder.
WARRANTIES AND EXCLUSION OF LIABILITY
- Unless indicated otherwise, the Corporation expressly declines any warranty, condition, declaration or representation concerning the Software (including, without limitation, any information, data or result provided by Use of the Software), whether express or implied, including, without limitation, any implicit warranty of functionality, quality, non-infringement or fitness for a particular use. Without limiting the generality of the foregoing, the Licensee acknowledges and agrees that the Software is provided “as is”, without any legal warranty, and understands that the Corporation does not warrant the following in particular: (i) that the Software will function at any time, without error, interruption, omission, defect or virus, (ii) the accuracy or completeness of the content, (iii) that any programming or other defect can be detected or corrected, and (iv) that the Software will meet the Licensee’s needs or be adapted to the Licensee’s capacity. Unless the parties agree otherwise, all risks associated with the Use, results and performance of the Software shall be fully borne by the Licensee, to the complete exoneration of the Corporation.
- Unless indicated otherwise, the Corporation shall under no circumstances be liable toward the Licensee for any damage, loss or claim of any nature whatsoever, whether direct, indirect, special, particular, punitive or accessory (including without limitation any loss of income, profits or savings, as well as any loss of data or any damage whatsoever related to a loss of data, resulting from the Use of the Software or the Software), whether founded on contractual or other obligations, and resulting from or related to the Use of the Software, even if the Corporation has been advised of the possibility of such damages. Without limiting the generality of the foregoing, the Corporation shall under no circumstances be liable toward the Licensee for any damage, loss or claim in the event the Licensee uses the Software with a view to perpetrating or facilitating the perpetration of unlawful or criminal acts or in breach of any law, convention or accord of which Canada or the Province of Quebec is a signatory.
- The limitations of warranty and liability set forth herein grant the Licensee certain specific rights. The Licensee may have additional rights by law which may vary from one jurisdiction to another. The Corporation does not hereby intend to limit or exclude the rights of the Licensee beyond the limits allowed by law, including consumer protection laws. The Licensee acknowledges and accepts the risks he or she incurs in using data generated by the Software from municipalities, governments or other third parties who provide data to the Corporation.
- The Licensee acknowledges and agrees that the Corporation’s liability shall under no circumstances exceed the price paid by the Licensee to the Corporation for the License.
- The Licensee acknowledges and agrees that (i) the Corporation and its licensors, as the case may be, hold and retain all right, title and interest in and to the intellectual property rights to the Software and any software, data or other material belonging to third parties which completes or accompanies the Software, (ii) the Software contains information and materials protected by intellectual property laws including, without limiting the generality of the foregoing, copyright and trade-mark laws, and (iii) this Agreement does not constitute a transfer of Intellectual Property rights in favor of the Licensee. The Licensee agrees to take all reasonable steps and to use due diligence to protect the Software from any unauthorized reproduction, publication, disclosure or distribution.
- In the event the Licensee makes changes or improvements to the Software, whether authorized or not, the Licensee hereby irrevocably assigns any Intellectual Property rights he or she holds or may hold in connection with such change or improvement and waives any moral rights related thereto, gratuitously.
SUSPENSION OF LICENSE AND TERMINATION
- In the event the Licensee fails to fulfil any of his or her obligations hereunder and does not remedy such default within five (5) days of receiving notice thereof, the Corporation reserves the right, at its discretion, to (i) block the Licensee’s access to the Software until the default is remedied to its complete satisfaction, or (ii) terminate this Agreement by giving the Licensee notice to such effect.
- The Corporation may end this Agreement forthwith by giving the Licensee written notice if (i) the Licensee fails to fulfil his or her obligations set forth in section 10 hereof, (ii) the Corporation has reason to believe that the Licensee is using the Software to perpetrate or to facilitate the perpetration of unlawful or criminal acts or in breach of any law, convention or accord of which Canada or the Province of Quebec is a signatory, or (iii) the Licensee declares bankruptcy within the meaning of the Bankruptcy and Insolvency Act or any other legislation governing arrangements with creditors, assigns all its property to a trustee or makes an assignment of its property to its creditors.
- Following the termination of this Agreement for any reason whatsoever, (i) the rights of the Licensee hereunder shall cease forthwith, and (ii) the Licensee shall immediately cease using the Software and deactivate any means allowing the Licensee to access the Software. The Licensee shall provide the Corporation with written confirmation that such steps have been taken, upon request.
- No term of this Agreement may or shall be interpreted as obliging the Corporation to continue developing the Software or to provide any update, improvement or new version whatsoever.
- The Agreement is non-transferable in that none of the Licensee’s rights, duties or obligations described herein may be assigned, transferred, sold or otherwise disposed of without the prior written consent of the Corporation. Any assignment or other form of transfer of the rights, duties and undertakings contemplated herein in breach of the afore-mentioned provisions shall be null and void and unenforceable against the Corporation.
- Any notice required hereunder shall be sufficient if it is given in writing and sent by any method providing proof of receipt.
- The illegality or nullity of a section or paragraph hereof shall not affect the legality or validity of the other sections or paragraphs in any manner unless explicitly indicated otherwise.
- A Party’s silence, negligence or delay in exercising a right or recourse which is given or available to it hereunder shall not be interpreted against such Party as a waiver of its rights and recourses. All the rights referred to herein are cumulative, not alternative. The waiver of the right to exercise any right shall not be interpreted as a waiver of any other right.
- No party hereto shall be deemed to have failed to have performed its obligations hereunder if such performance is delayed, suspended or prevented due to force majeure. Force majeure is any cause beyond the will of the parties hereto which they could not reasonably have foreseen and which they could not have prevented.
- Sections 4.1, 8, 9, 10 and 11.3 shall survive the termination of this Agreement.
- The interpretation, performance, taking effect, validity and effects of this Agreement shall be governed by the laws in force in the Province of Quebec. The parties hereto expressly agree that any judicial or quasi-judicial proceeding which may be instituted by one of them in connection with this Agreement shall be brought before the body having jurisdiction in the judicial district of Montreal, Province of Quebec.