Terms of Services

In connection with the use of the Heyquip Platform (as defined below) you and/or your organization or corporation (“Supplier”, as further defined below or “you”, “your”) and Heyquip Inc. (“Heyquip”, “we”, “us”), hereby agree to the terms and conditions contained herein (collectively, the "Terms of Service").

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BY ACCEPTING THESE TERMS OF SERVICE BY SIGNING THE APPLICABLE HEYQUIP PLATFORM ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES AND INCORPORATES THESE TERMS OF SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAVE THE AUTHORITY TO AGREE TO, AND ARE CONFIRMING THAT YOU ARE  AGREEING TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY HEYQUIP PLATFORM ORDER FORM AND INCLUDING HEYQUIP’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE TERMS OF SERVICE ENTERED INTO BETWEEN HEYQUIP AND SUPPLIER. IF, AFTER READING THE TERMS OF SERVICE, YOU DO NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU SHALL NOT USE, OR ACCESS THE HEYQUIP PLATFORM.

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IF YOU ARE AN AGENT OR EMPLOYEE OF THE SUPPLIER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON SUPPLIER'S BEHALF AND TO BIND THE SUPPLIER, AND (II) THE SUPPLIER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THE THESE TERMS OF SERVICE AND PERFORM ITS OBLIGATIONS HEREUNDER.

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1. DEFINITIONS

Unless the context otherwise specifies or requires, the following terms shall have the following meanings as used in these Terms of Service:

1. “Account(s)” means one or more Supplier accounts for the Heyquip Platform (defined below) to perform various functions (the “Admin Account(s)”) created by one or more Users on behalf of Supplier pursuant to Section 4.1 hereof for the purposes of using the Heyquip Platform, configuring the Supplier Storefront (defined below), and/or performing administrative tasks as required.
2. “Agreement” means these Terms of Service and any policy incorporated by reference herein.
3. “Customer” means a direct customer of Supplier that has read and agreed to the terms and conditions of a Customer Agreement for use of the Supplier Storefront.  
4. “Customer Agreement” means the agreement or terms and conditions between Supplier and Customer for use of the Supplier Storefront.
5. “Customer Data” means Customer data and Personal Information, as applicable, submitted by Customer in Customer’s use of the Supplier Storefront.
6. “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and the United States (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation (CASL), applicable to the Processing of Personal Information under this Agreement.
7. “Heyquip Platform” means Heyquip’s proprietary hosted software-as-a-service offering comprised of all Heyquip applications or derivatives software created by Heyquip (collectively, the “Heyquip Storefront Applications”) which reside on a server operated by or on behalf of Heyquip and which will be remotely accessible over the Internet by Supplier and its Users, together with any ancillary services available in connection therewith, as may be updated from time to time by Heyquip in its sole discretion.
8. “Heyquip Platform Order Form” means Heyquip’s ordering document specifying Supplier’s subscription to the Heyquip Platform and provisioning of the Supplier Storefront that is entered into between Heyquip and Supplier pursuant to this Agreement and other mutually agreed upon terms and conditions, as applicable.
9. “Heyquip Privacy Policy” means Heyquip’s Privacy Policy located at https://heyquip.com/privacypolicy.
10. “Heyquip Referral Program” means Heyquip’s referral program, the details of which are located at https://docs.heyquip.com/referralprogram.
11. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing). 
12. “Party” or “Parties” shall mean Heyquip and Supplier, individually or collectively.
13. “Payment Service Provider” means the third-party payment processing service provider that will process orders, securely store payment card information, and provide related services.
14. “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
15. “Pricing Page” means the Fees as listed on Heyquip’s website and located at https://www.heyquip.com/#pricing. 
16. “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
17. “Products” means any equipment, tools, or otherwise products offered by Supplier to Customer for rent through use of the Supplier Storefront.
18. “Rental Agreement” means the terms and conditions that govern a Customer’s rental of the Products as offered by Supplier on the Storefront.
19. “Specifications” means the specifications for the Supplier Storefront as set forth in the applicable Heyquip Platform Order Form, as such may be amended from time to time upon the mutual agreement of Heyquip and Supplier.
20. “Software” means Heyquip’s proprietary software program in machine-readable object code format and other related software for such program(s).
21. “Storefront” or “Supplier Storefront” means the Customer-facing, Supplier-branded e-commerce marketplace (provided that the branding of the Storefront shall include “Powered by Heyquip™”) generated to showcase and display Products for rent directly to Customers.
22. “Subscription Fees” means the fees payable by Supplier as indicated in the Heyquip Platform Order Form or Pricing Page for use of the Heyquip Platform and development of the Supplier Storefront.
23. “Supplier Data” means Product information provided by Supplier to Heyquip as required for the Supplier Storefront.
24. “Support Services” means the support and maintenance terms on which Heyquip provides technical support for the Heyquip Platform to Supplier.
25. “Term” means the period of time that Supplier is authorized by Heyquip to access and use the Heyquip Platform as described in the applicable Heyquip Platform Order Form.
26. “User” means an authorized representative of Supplier that has been provided a username and password in order to use the Heyquip Platform.
27. “Website” means the Heyquip website located at https://www.heyquip.com/. 

2. OF RIGHTS AND LICENSES

2.1. Grant of Rights by Heyquip

Subject to these terms and conditions, including, without limitation, payment of the applicable Fees (as herein defined), Heyquip hereby grants to Supplier, and Supplier accepts, a non-exclusive, worldwide, non-transferable, non-sublicensable, right and license during the Term to:

1. access and use, and to permit Users to access and use, the Heyquip Platform; 
2. market the Supplier Storefront to prospective Customers;
3. supply the Products to Customers as ordered by Customer through use of the Supplier Storefront; and
4. exercise the rights granted to Supplier in this Section 2.1 with respect to the Heyquip Platform under Supplier’s own branding, trademark(s), logos, or Product names, in accordance with the terms and conditions set out in Section 2.3 below.

2.2. Grant of Rights by Supplier

Subject to these terms and conditions, Supplier hereby grants to Heyquip, and Heyquip accepts, a non-exclusive, worldwide, non-transferable, non-sublicensable, right and license during the Term and solely for the purposes of accessing, interacting with and/or querying Supplier’s enterprise resource planning (ERP) system to read online and offline transactional data as it relates to the Supplier Storefront for any other purpose as mutually agreed upon by the Parties. For greater clarity, any API keys provided to Supplier by Heyquip must be input by Supplier in accordance with instructions provided by Heyquip.

2.3. White Label and Co-Branding Rights

1. The Supplier Storefront will be provided to Supplier by Heyquip as a Supplier-branded version and shall be branded with Supplier’s own brand, trademarks and logos, as specified in the Specifications, at all times when offered to prospective Customers. Supplier may attach to or display in association with its own private label branding, including its trademarks, logos and trade names (“Supplier Marks”) to the Supplier Storefront, packaging and all manuals, marketing and technical materials relating thereto.
2. Notwithstanding Section (a) above, the Supplier Storefront may be co-branded as “Powered by Heyquip™” in such locations within the user interface as the Parties may agree upon from time to time.

2.4. Restrictions

Supplier shall not (and shall not allow Users or any third party to, including Customers): (a) possess, download or copy the Storefront, including but not limited to any component which comprises the Storefront; (b) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Storefront, except to the extent that enforcement is prohibited by applicable law; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the Storefront in any form to any person without the written consent of Heyquip; (d) create any “links” to or “frame” or “mirror” of the Storefront or any portion thereof; or (e) use the Storefront in violation of applicable laws.

3. PROPRIETARY RIGHTS

3.1. To send you messages

The rights and licenses granted under this Agreement are as expressly set forth in this Agreement. Heyquip and its licensors own and shall retain all right, title and interest (including without limitation all Intellectual Property Rights), in and to the Software, Heyquip Platform, and Supplier Storefront. Supplier acknowledges and agrees that, except for the limited rights and licenses granted herein, Supplier does not own any Intellectual Property Rights in and to the Heyquip Platform. This Agreement does not involve or contemplate any transfer or assignment of any of Heyquip Intellectual Property Rights in and to the Heyquip Platform or Supplier Storefront to Supplier. Supplier shall have only the limited rights specifically granted to it by Heyquip under this Agreement. 

3.2. Usage Data

Notwithstanding anything to the contrary in this Agreement, Supplier acknowledges that the Supplier Storefront may provide Usage Data (as hereinafter defined) to Heyquip and Heyquip may monitor Customer’s use of the Supplier Storefront and collect and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and Customers’ use, of the Storefront (“Usage Data”). Heyquip may use Usage Data to support (including to improve) the Supplier Storefront, develop new products and services, and for any other business purpose, without compensation to or the approval or consent of Supplier, provided that the Usage Data does not contain any Personal Information or Supplier Data.

3.3. Feedback

Supplier may provide reasonable feedback to Heyquip including, but not limited to, suitability, problem reports, bug-fixed, suggestions and other information with respect to the of the Supplier Storefront (“Feedback”). Supplier hereby grants to Heyquip a fully paid-up, royalty-free, worldwide, assignable, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into any other Heyquip products or services, or for any other purposes, any Feedback provided by Supplier.

3.4. Trademark Use

During the Term and subject to each Party’s written approval, each Party may (a) display the Marks of the other Party on its website; (b) describe the other Party’s business relationship on its website; and (c) include a link from its website to the other Party’s website.

4. ACCOUNT ACTIVATION

4.1. Accounts

Heyquip is responsible for the creation and provisioning of a User account (“Account”) to Supplier for use of the Heyquip Platform. Supplier is responsible for all activity that occurs in an Account. Supplier must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where the Supplier’s principal place of business is and from which you use the Heyquip Platform to open an Account.

4.2. Passwords

Supplier understands that Heyquip will use the email address it provides on opening an Account or as updated from time to time as the primary method for communication with it (“Primary Email Address”). Supplier must monitor the Primary Email Address it provides to Heyquip and its Primary Email Address must be capable of sending and receiving messages. Supplier email communications with Heyquip can only be authenticated if it comes from its Primary Email Address. Supplier is responsible for keeping its password secure. Heyquip cannot and will not be liable for any loss or damage from your failure to maintain the security of Supplier’s Account and password.

5. SUPPORT AND SERVICE LEVELS

5.1. Support Services

Heyquip shall provide the Support Services to Supplier in accordance with the following: helpdesk support and via email by contacting support@heyquip.com, as well as a resource guide for issues related to the use and functionality of the Heyquip Platform, including answering questions and troubleshooting errors. Heyquip will use commercially reasonable efforts to respond to all support inquiries within one (1) business day. Heyquip shall not be required to provide Support Services if Supplier is in default of any of Supplier’s obligations under this Agreement.

5.2. Service Levels; Availability

Heyquip will use commercially reasonable efforts to ensure that the Heyquip Platform will achieve Service Availability (as defined below) of at least 99.5% during each calendar month.  “Service Availability” means the number of minutes in a month that the key components of the Service are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) a Force Majeure Event (as defined in Section 16.1), (c) malicious attacks on the Heyquip Platform, (d) issues associated with the Supplier’s network or equipment, or (e) inability to deliver the Heyquip Platform because of acts or omissions of Supplier. Heyquip reserves the right to take the Heyquip Platform offline for scheduled maintenance for which Supplier has been provided reasonable notice and Heyquip reserves the right to change its maintenance window upon prior notice to Supplier.

6. PAYMENT OF FEES

6.1. Fees

Supplier will pay the Fees (as defined herein) indicated in the Heyquip Platform Order Form, including but not limited to fees relating to Supplier’s purchase or use of any additional services (“Additional Fees”), or the Fees as listed on the Pricing Page. Together, the Subscription Fees, and the Additional Fees are referred to as the “Fees”, as mutually agreed upon by the parties.

6.2. Invoicing and Payment

Fees will be invoiced at the end of each calendar month and payments will be automatically charged to the valid payment method that Supplier authorizes (such as a credit card) on the Heyquip Platform. Supplier is responsible for maintaining complete and accurate billing and contact information with Heyquip.

6.3. Taxes

Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Supplier is responsible for paying all Taxes associated with its purchases hereunder. If Heyquip has the legal obligation to pay or collect Taxes for which Supplier is responsible under this Section 6.3, Heyquip will invoice Supplier and Supplier will pay that amount unless Supplier provides Heyquip with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Heyquip is solely responsible for taxes assessable against it based on its income, property and employees.

6.4. Overdue Charges

Any payment not received from Supplier by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Heyquip’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

6.5. Payment Disputes

Company will not exercise its rights under Sections 6.4 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

6.6. Modification of Fees

Heyquip reserves the right to change its Fees at any time unless otherwise specified in the Heyquip Platform Order Form. Where Heyquip does so, it will provide Supplier with at least thirty (30) days’ notice in advance of such change taking effect.

6.7. Third Party Payment Service Provider

Supplier shall be responsible for engaging the services of a Payment Service Provider who shall be liable for the processing, proper handling, management, and use of Customer’s financial information as required hereunder. For greater clarity, Heyquip has no access to or control of any payments to be made to Supplier and all payments shall flow directly to Supplier via the Payment Service Provider.

7. SUPPLIER DATA AND PRIVACY

7.1. Ownership

As between Heyquip and Supplier, Supplier exclusively owns all right, title and interest in and to all Supplier Data. Heyquip does not acquire any rights, title or ownership interest of any kind whatsoever, expressed or implied, in any of the Supplier Data. Supplier shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Supplier Data and the means by which Supplier acquired Supplier Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Supplier Storefront, and notify Heyquip promptly of any such unauthorized access or use; and (c) use the Heyquip Platform only in accordance with applicable laws and government regulations.

7.2. Supplier Data

Supplier is responsible for properly using the Heyquip Platform in a manner that provides security and redundancy of its Supplier Data to prevent unauthorized access to the Supplier Storefront and to prevent unauthorized access to Supplier Data, and ensuring the appropriate level of backup to prevent any loss of such data.

7.3. Personal Information

Heyquip shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Heyquip shall only Process Personal Information on behalf of and in accordance with Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Supplier’s Users or Customers in their use of the Heyquip Platform or Supplier Storefront, as applicable; and (iii) Processing to comply with other documented reasonable instructions provided by Supplier where such instructions are consistent with the terms of the Agreement. Heyquip shall, in connection with the provision of the Heyquip Platform, comply with Data Protection Laws, as well as Heyquip’s Privacy Policy.

7.4. Supplier Data and Customer Data Portability and Deletion

Upon request by Supplier made during the Term hereof or within thirty (30) days after the effective date of termination of the Agreement, Heyquip will make the Supplier Data and Customer Data available to Supplier for export or download. After such a one hundred and twenty day (30) day period, Heyquip will have no obligation to maintain or provide any Supplier Data and Customer Data, and will thereafter delete or destroy all copies of Supplier Data and Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

8. SUPPLIER RESPONSIBILITIES

8.1. Customer Agreement

Supplier shall ensure that Customer acknowledges the Customer Agreement for use of the Supplier Storefront. Supplier shall use reasonable commercial practices to enforce the Customer Agreement with Customers to protect Heyquip’s Intellectual Property Rights in the Storefront in the same manner and to the same extent as Supplier enforces its own Intellectual Property Rights. Supplier, and not Heyquip, is responsible for Customers’ use of the Supplier Storefront. Supplier will ensure that all Customers comply with any applicable obligations of Supplier under this Agreement and that any terms of any Customer Agreement are not inconsistent with this Agreement.

8.2. Rental Agreement

Heyquip may provide Supplier with terms and conditions that govern a Customer’s rental of the Products from Supplier via the Supplier Storefront. Supplier may choose to modify or replace such Rental Agreement with their own form of terms and conditions to govern any such rental of the Products. Heyquip is not responsible for a Customer’s rental and use of the Products, and Supplier will ensure that all Customers comply with any and all applicable obligations.

8.3. Supplier Storefront

1. Supplier acknowledges and agrees that any rental made through the use of the Supplier Storefront is between Supplier and the relevant Customer. Supplier, for the purposes of this Agreement, shall be considered the lessor, merchant or storefront owner of record for all Products on the Supplier Storefront, and Heyquip is solely responsible for the creation, maintenance, hosting, operation, management, and accuracy of the Supplier Storefront. 
2. Supplier is solely responsible for Products available for rent on the Supplier Storefront, including Product description, pricing, fees, taxes, defects, required legal disclosures, regulatory compliance, offers, or promotional content related to the Products.

8.4. Use Guidelines

Supplier shall use the Heyquip Platform solely for its business purposes as contemplated by the Agreement and shall not interfere with or disrupt the integrity or performance of the Heyquip Platform or the data contained therein. Supplier may not use the Heyquip Platform for any illegal or unauthorized purpose nor may Supplier, in the use of the Heyquip Platform, violate any laws in its jurisdiction (including but not limited to copyright laws), the laws applicable to Supplier, or the laws of Canada and the Province of Quebec.

8.5. Product Listing

Supplier is responsible for all Product listings (pricing, quantity, availability, etc.) as listed on the Supplier Storefront. Heyquip is not responsible for the configuration or listing of any Product and is not liable to Customer or Supplier for any failure of Supplier to adequately list the Products. If Heyquip has an implementation mandate to set up the Supplier Storefront, Supplier will have to approve such listing and will be solely responsible for the accuracy of the listing information provided to Heyquip.

8.6. Assistance

Supplier acknowledges that Heyquip’s ability to deliver the Heyquip Platform and Storefront, as applicable, is dependent on the accuracy and timeliness of Supplier’s information and assistance.

8.7. Referral Program

If Supplier is in good standing, Supplier may be eligible to participate in Heyquip’s Referral Program and receive, at Heyquip’s sole discretion, credits for successful participation.

9. CONFIDENTIALITY OBLIGATIONS

9.1. Definition of Confidential Information

As used herein, “Confidential Information” means all confidential and proprietary information of either Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Heyquip Platform, Supplier Data (which is the Confidential Information of the Supplier), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

9.2. Confidentiality

Subject to Section 9.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under the Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under the Agreement. Supplier shall not disclose any performance, benchmarking, or feature-related information about the Heyquip Platform.

9.3. Protection

Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

9.4. Compelled Disclosure

If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

9.5. Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.

9.6. Return of Confidential Information

Upon Disclosing Party’s written request upon expiration or termination of the Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 9.6.

10. WARRANTIES AND DISCLAIMERS

10.1. Supplier Warranties

Supplier hereby represents and warrants to Heyquip that:

1. Supplier has full power, corporate or otherwise, to enter into this Agreement, supply the Products, and perform its obligations hereunder;
2. Supplier is accessing and using the Heyquip Platform solely for Supplier’s own use; and
3. Supplier is responsible for complying with all rules, regulations and procedures of local, provincial, federal and foreign authorities applicable to Supplier and its business.

10.2. Heyquip Warranties

Heyquip hereby represents and warrants to Supplier that:

1. Heyquip has the necessary rights, title and interest to grant the rights and licenses in the Heyquip Platform, and the Supplier Storefront to the Supplier hereunder;
2. The Supplier Storefront will function and perform substantially in accordance with the Specifications during the Term; and
3. At the time of delivery, the Supplier Storefront will be free from any virus, disabling mechanism or protection feature designed to prevent its use including any clock, timer, counter, computer virus, worm, software lock, drop dead device, trojan horse routine, trap door, time bomb or any other codes and/or instructions that are designed to access, modify, replicate, distort, delete, damage or disable any such computer systems or any other software or hardware; and
4. Heyquip shall not breach or violate any applicable laws, including but not limited to any applicable privacy or Data Protection Laws.

10.3. Warranty Disclaimers

THE WARRANTIES IN SECTION 10.1 AND 10.2 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, THE HEYQUIP PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” HEYQUIP DOES NOT REPRESENT OR WARRANT THAT THE HEYQUIP PLATFORM AND SUPPLIER STOREFRONT WILL MEET ANY OR ALL OF SUPPLIER OR CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SUPPLIER STOREFRONT AND HEYQUIP PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED.

11. INDEMNIFICATION

11.1. Indemnification by Supplier

Supplier shall defend or settle at its own expense any and all third party claims or allegations (each a “Claim”) brought against Heyquip and its licensors and each of their respective shareholders, directors, officers, employees, contractors, consultants, agents and representatives (each a “Heyquip Indemnified Party”), to the extent that such Claim is based on (1) representations or warranties not consistent with this Agreement, (2) any additional unauthorized terms agreed to by Supplier in the Customer Agreement or Rental Agreement, as the case may be, (3) violation of any law, regulation, or order, including Supplier’s breach or violation of any applicable export or import laws or regulation, (4) any infringement or misappropriation of any patent, trademark, trade secret, copyright or any other Intellectual Property Right or proprietary right of any third party resulting from Supplier’s use of the Heyquip Platform in breach of this Agreement, (5) a breach of Supplier’s obligations hereof, or (6) any fraudulent act, neglect or willful misconduct of Supplier’s agents or employees, in each case except and to the extent that Heyquip is liable as expressly provided in this Agreement and will indemnify Heyquip for (a) any costs or expenses (including legal fees) incurred in connection with a Claim, (b) damages and costs finally awarded against Heyquip in respect of a Claim, or (c) any amounts paid by Heyquip under a court-approved settlement of a Claim.

11.2. By Heyquip

1. Intellectual Property Infringement Indemnity. Heyquip agrees to defend, indemnify and hold Supplier harmless against any and all damages, costs, liabilities, expenses and settlement amounts that may arise as against Supplier in connection with any and all third party claims, liabilities, losses, damages, expenses, or causes of action, including, without limitation reasonable legal fees and expenses or action by any third party, arising with respect of any claim that use by Heyquip or a Customer of the Supplier Storefront infringes such third party’s Intellectual Property Rights (an “IP Claim”). Heyquip shall have sole control of the settlement or defense of all IP Claims.‍
2. Other Remedies. If (a) Heyquip becomes aware of an actual or potential IP Claim, or (b) Supplier provides Heyquip with notice of an actual or potential IP Claim, Heyquip may (or in the case of an injunction against Supplier, shall), at Heyquip’s sole option and determination: (i) procure for Supplier the right to continue to use the Heyquip Platform; or (ii) replace or modify the Heyquip Platform with an equivalent or better service so that Supplier’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially available to Heyquip, Heyquip shall be require Supplier to stop using the Heyquip Platform and will immediately make the Supplier Data and Customer Data available to Supplier for export or download as set forth in Section 9.6 of this Agreement.

12. LIMITATION OF LIABILITY

12.1. Limitation on Certain Damages

SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM LOSS OF USE OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE HEYQUIP PLATFORM OR THE SUPPLIER STOREFRONT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.

12.2. Limitation on Direct Damages

SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM SUPPLIER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

12.3. Exclusions

NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THE AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) A SECURITY INCIDENT OR DATA BREACH; (VI) FRAUD OR WILLFUL MISCONDUCT, OR (VII) BODILY INJURY OR DEATH.

13. TERM AND TERMINATION

13.1. Term

This Agreement shall commence on the Effective Date and continue in effect until the date indicated on the Heyquip Platform Order Form or until termination in accordance with the provisions of this Agreement.

13.2. Termination

1. For Cause. Either party may terminate this Agreement on for cause (i) upon thirty days (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or (ii) if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within one hundred and fifty (150) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
2. For Convenience. Supplier may terminate this Agreement, in whole or in part, at the end of a calendar month and without liability, except for any outstanding payment obligations, by providing at least thirty (30) days’ written notice to Heyquip.

13.3. Effect of Expiration or Termination

Upon expiration or earlier termination of this Agreement for any reason, Heyquip shall provide reasonable cooperation and assistance to facilitate the orderly transition of services under the terms of this Agreement. No expiration or termination will affect Supplier’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Supplier to any refund.

14. ASSIGNMENT

Neither Party may assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of the other party, which such consent shall not be unreasonably withheld; provided that either party may assign this Agreement without the other party’s written consent in the event of and in connection with: (i) a change of control; (ii) corporate reorganization; (iii) merger; (iv) the sale of all or substantially all of the outstanding shares of that Party; or, (v) divestiture of all of substantially all of that Party’s assets. Any attempt by a party to assign its rights or obligations under the Agreement in breach of this Section 15 shall be void and of no effect.

15. GENERAL

15.1. Order of Precedence

In the event of any conflict or inconsistency between the terms and conditions hereof and any terms or conditions set forth in the Heyquip Platform Order Form, the terms and conditions set forth in the Heyquip Platform Order Form shall prevail.

15.2. Bankruptcy

Hequip acknowledges and agrees that, if Heyquip or its estate shall become subject to any bankruptcy, files for bankruptcy, is insolvent, seeks protection from its creditors pursuant to any law relating to bankruptcy or insolvency, or has a proceeding instituted against it pursuant to such laws or has a receiver or trustee appointed for the benefit of its creditors, all rights and licenses granted to Supplier under this Agreement will continue subject to the respective terms and conditions hereof and thereof, and will not be affected by Heyquip’s rejection of this Agreement, or if disclaimed by a trustee in bankruptcy, receiver or by Heqyuip.

15.3. Force Majeure

Neither Heyquip nor Supplier shall be deemed to be in default of any provision of this Agreement (other than Supplier’s obligation to pay amounts due to Heyquip hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of god, acts of civil or military authority, civil disturbance, strikes, fires, epidemics or pandemics, or other catastrophes.

15.4. Survival

Sections 1, 3, 7, 9, 10, 11, 12, 13, and 15 shall survive any termination or expiration of the Agreement. No other provisions of the Agreement survive the expiration or earlier termination of the Agreement.

15.5. Waiver

The failure of a Party to claim a breach of any term or condition of the Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term or condition. No failure or delay by either Party in exercising any right under the Agreement shall constitute a waiver of that right.

15.6. Independent Contractors

The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

15.7. Governing Law

All matters arising out of or relating to this Agreement shall be governed by the laws of the Province of Quebec and the laws of Canada applicable therein, without regard to any conflict of law provisions, and the Parties hereby attorn to the exclusive jurisdiction of the courts of such Province. The parties expressly disclaim all applicable choice of law or conflict of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to the Agreement.

15.8. Notices

Notices and other communications provided for herein will be in writing and will be delivered by hand or will be sent by electronic means (and if sent by electronic means, will be confirmed by registered mail, return receipt requested, or by overnight mail or courier, postage and delivery charges prepaid), to the Parties current business address.

15.9. Remedies

Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

15.10. Amendments

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE HEYQUIP PLATFORM ORDER FORM, HEYQUIP MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”, BY: (I) GIVING SUPPLIER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE HEYQUIP PLATFORM OR WEBSITE. UNLESS OTHERWISE INDICATED BY HEYQUIP, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO SUPPLIER OR IS POSTED ON THE HEYQUIP PLATFORM OR WEBSITE (WHICHEVER IS THE EARLIER).

15.11. Language of Agreement

The Parties hereto confirm that they have requested that the Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the Parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.

15.12. Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term, condition or provision of the Agreement or invalidate or render unenforceable such term, condition or provision in any other jurisdiction.

Last Updated: January 28th 2025