Users’ Terms of Use

1.1 As used in these Terms of Use, the following capitalized terms will have the meanings set forth below.

(a) Access Credentials means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an Authorized User’s identity and authorization to access and use the Hosted Services.

(b) Affiliate of a Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first Person.

(c) Aggregate Data means Client Data in anonymized and aggregate form.

(d) Authorized Person means collectively the directors, officers, employees, agents, contractors, mandataries and beneficiaries of a Party.

(e) Authorized User means each of the individuals authorized by the Client to use the Hosted Services under Section 3.1 and the other terms and conditions of these Terms of Use.

(f) Client Data means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User by or through the Hosted Services or that incorporates or is derived from the processing of such information, data or content by or through the Hosted Services, including, without limiting the generality of the foregoing, any Personal Information concerning an Employee of the Client and the account of each Authorized User.  For the avoidance of doubt, Client Data includes information reflecting the access or use of the Hosted Services by or on behalf of Client or any authorized User, as well as information regarding an Employee uploaded or otherwise made available on the Service Software, including any Personal Information, other than information, data and other content that is derived by or through the Hosted Services from processing Client Data but that is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.

(g) Employee means an employee or external consultant of the Client whose human relations file is managed, in whole or in part, through the Services.

(h) Folks Data means any information and data of Folks provided to the Client pursuant to the Agreement, including, without limitation, derivative data generated through the use of the Service Software.

(i) Folks Materials means the Service Software, specifications, documentation and Folks systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions that are provided or used by Folks or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Folks systems. For the avoidance of doubt, Folks Materials do not include Client Data.

(j) Hosted Services has the meaning set forth in Section 2.1.

(k) Intellectual Property Rights means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(l) Law means any statute, ordinance, regulation, rule, code, constitution, treaty, concept of common law governmental order or other requirement or rule of law of any governmental authority.

(m) Losses means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

(n) Party (and the term Parties) means each of Folks, the Client and the Authorized User, or them collectively.

(o) Person means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association or any other entity.

(p) Personal Information means any information that, individually or in combination, does or can, directly or indirectly, identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located, including but not limited to the name, surname, age, address and health information of a specific individual. Personal Information includes information identified as such by relevant Canadian Laws, including the Personal Information Protection and Electronic Documents Act.

(q) Privacy Policy has the meaning set forth in Section 4.1.

(r) Services has the meaning set forth in Section 2.1.

(s) Service Software means Folks’ software and any third-party or other software that Folks provides remote access to in respect thereof, and use of, as part of the Hosted Services, as detailed in the Agreement, and all new versions, updates, revisions, improvements and modifications of the foregoing. For greater certainty, Service Software does not include any functionality that is not described in the Agreement, which, if offered by Folks may be the subject of a separate agreement or an amendment to the Terms of Use.

(t) Subcontractor has the meaning set forth in Section 2.3.

(u) Systems means information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly or through the use of third-party services.

2.1 Software Services

(a) Grant of Access and Use: Subject to and conditional on compliance with the terms and conditions of these Terms of Use by the Client and its Authorized Users, during the term of the Agreement, as applicable, Folks shall use commercially reasonable efforts to provide the Client and its Authorized Users the Services described in the Agreement (Services) in accordance with the terms and conditions of these Terms of Use, including to host, manage, operate and maintain the Service Software for remote electronic access and use by the Client and its Authorized Users (collectively, the Hosted Services).

(b) Updates to Service Software: Folks reserves the right to make, in accordance with the Agreement, updates and changes to the Service Software (including maintenance releases, bug fixes, corrections, and minor modifications) that Folks makes generally available to its other customers and their Authorized Users (Updates); provided that Folks will not make any changes or Updates that materially decrease the core functionality of the Service Software that impact the Client during the Term of the Agreement.

2.2 Service and System Control

Except as otherwise expressly provided in these Terms of Use:

(a) Folks has and will retain sole control over the hosting, operation, provision, management and maintenance of the Services and Folks Materials.

(b) The Client has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Clients’ Systems, and sole responsibility for all access to, and use of, the Hosted Services and Folks Materials by any Person by or through the Clients’ Systems or any other means controlled by the Client.

2.3 Subcontractors

Folks may, from time to time, at its discretion, engage third parties to perform the Services (each, a Subcontractor).

2.4 Suspension or Termination of Services 

If Folks can demonstrate that :

(i) The Client has failed to comply with, any material term of these Terms of Use or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms of Use;

(ii) The Client is, has been or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Services; or

(iii) The Client has not paid the fees due in accordance with the terms and conditions of the Agreement.

then Folks, may, directly or indirectly, by use of any lawful means and in a temporary or permanent manner as applicable, suspend or deny access to or use of all or any part of the Service or Folks Materials by any Authorized User of the Client or any other Person, without incurring any resulting obligation or liability and in addition to its right to terminate the Agreement as provided for therein. This Section 2.4 does not limit any of Folks’ other rights or remedies, whether at Law or as applicable in equity or under these Terms of Use.

3.1 Authorization

Subject to and conditional on the Clients’ payment of the fees provided in the Agreement and compliance with all other terms and conditions of these Terms of Use, each Authorized User of the Client may access and use, subject to the terms and conditions of the Agreement, during the term of the Agreement, the Hosted Services and such Folks Materials that Folks may supply or make available to the Client through its Authorized Users in accordance with the terms and conditions of these Terms of Use and the Agreement. This authorization to use the Hosted Services and Folks Material is non-exclusive and non-transferrable, it being understood that access to the accounts of Client’s Authorized Users is exclusive to such Authorized Users, subject to the access rights that the Client may configure for each of its Authorized Users

3.2 Authorization Limitations and Restrictions

Each Authorized User shall not, and shall not permit any other Person to, access or use the Services or Folks Materials, except as specified in these Terms of Use. For the purposes of clarity and without limiting the generality of the foregoing, no Authorized User shall, except as otherwise expressly provided herein:

(a) copy, modify or create derivative works or improvements of the Services or Folks Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Folks Materials to any Person, including on or in connection with any time-sharing, service bureau, software as a service, cloud or other technology or service;

(c) disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Folks Materials, or any part thereof;

(d) bypass or breach any security device or protection used by the Services or Folks Materials or access or use the Services or Folks Materials other than by an Authorized User through the use of their own then-valid Access Credentials;

(e) input, download, upload, transmit or otherwise provide to or through the Hosted Services or Folks’ Systems any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Folks’ Systems or Folks provision of services to any third party, in whole or in part;

(g) provide, disclose, sublicense or otherwise permit any Person to access, use, read, disseminate, transmit, download or reproduce the Service Software;

(h) adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Service Software in any manner or to any extent whatsoever, whether in whole or in part;

(i) other than for internal benchmarking purposes and to assess within the Client’s organization, the competitive advantages of the Services, access or use the Services or Folks Materials for the development, provision or use of a competing software service or product, and shall in no cases disclose any Folks Materials to a Person other than an Authorized User without Folks’ prior written consent;

(j) access or use the Services or Folks Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP rights or other right or any third party or that violates any applicable Law; or

(k) otherwise access or use the Services or Folks Materials beyond the scope of the authorization granted under Section 3.1.

4.1 Folks Obligation

Folks shall implement and maintain at all times commercially reasonable physical, electronic, technological, organizational, contractual and other security measures as aligned with common market practice application to similar services as the Services, and as required to preserve the security and privacy of Client Data collected, processed and stored on the Hosted Services by the Client, including, without limitation, Employees’ Personal Information, which shall be at all times compliant with all applicable Laws. Folks has put in place or currently implements various measures, including those summarized in its privacy policy, as amended from time to time (Privacy Policy), which is available at https://folksrh.com/en/privacy-policy/.

4.2 Data Breach Procedure

Folks will implement and maintain at all times a data breach plan in accordance with applicable Laws and shall implement the procedures required under such data breach plan on the occurrence of a data breach.

4.3 Client Control and Responsibility

Subject to Folks’ compliance with the obligations set out in Sections 4.1 and 4.2, and to the extent any breach does not primarily relate to Folks’ violation thereof, the Client has and will retain responsibility for:

(a) all the Clients’ Data and its content and use;

(b) all information, instructions and materials provided by or on behalf of the Client or any Authorized User in connection with the Services;

(c) Client Systems;

(d) the security and use of Access Credentials of the Client and its Authorized Users; and

(e) all access to and use of the Hosted Services and Folks Materials directly or indirectly by or through the Client Systems or its Authorized Users’ Access Credentials, with or without Clients’ knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

4.4 Client’s Obligations

The Client shall :

(a) inform its Employees as to the scope of Personal Information regarding them that will be accessible through the Services Software and to which the Client, as well as its Authorized Persons, including Authorized Users, may have access, and obtain their consent, in accordance with applicable Laws, to the Client’s collection, access, use and processing of their Personal Information through the Services Software;

(b) ensure that only its Authorized Persons with a genuine need to access an Employee’s Personal Information are able to do so, and that they ensure the confidentiality and security of the Personal Information to which they may have access. For greater clarity, the Client acknowledges that in no event will Folks be liable for access to Employee Personal Information by an Authorized User resulting from any situation other than Folks’ negligence or gross negligence.

4.5 Access and Security

The Client shall employ all electronic, technological, organizational, contractual, physical, administrative, technical and other measures, controls, screening and security procedures and other safeguards necessary to:

(a) securely administer the distribution and use of any and all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and

(b) control the content and use of Client Data, including the uploading or other provision of Client Data for processing by the Hosted Services.

5.1 Folks Intellectual Property

All right, title and interest in the Services and Folks Materials, including all Intellectual Property Rights embodied therein, belong solely and exclusively to Folks or its licensors. Modifications to the Services and Folks Materials, including all Intellectual Property Rights embodied therein, created and provided by Folks pursuant to these Terms of Use, whether alone or with any contribution from the Client or its Authorized Persons, will be owned exclusively by Folks. The Client will maintain and enforce agreements and policies with its Authorized Persons in order to give effect to the provisions of this Section 5.1.

Without limiting the generality of the foregoing, and subject to the payment of the fees provided in the Agreement, the Client and its Authorized Users are permitted to access and use the Service Software in accordance with the terms of the Agreement, but this Agreement is not otherwise an agreement for the sale or license of any software. No rights or licenses are granted except as expressly set forth in these Terms of Use. As between Folks and the Client, Folks owns and retains all right, title and interest in and to: (i) the Service Software; (ii) any and all improvements, derivatives, and modifications to the Service Software; and (ii) any and all feedback regarding the Service Software provided by the Client or its Users to Folks, including all Intellectual Property Rights therein. All rights not expressly granted by Folks in these Terms of Use are reserved.

5.2 Client Intellectual Property

All right, title and interest in the Client Data, including all Intellectual Property Rights embodied therein, shall belong solely and exclusively to Client or its licensors. The Client hereby grants to Folks a non-exclusive license to use and reproduce the Client Data as needed for the purposes of providing the Services to the Client.

6.1 Ownership

As between the Parties, the Client shall own all rights, title, and interest in and to all of the Client Data, with the exception of Personal Information, which remains the property of the Employee to whom it refers. Should Folks determine that any Client Data (a) is in breach of this Agreement, (b) violates Applicable Law or (c) the access to or use of which in connection with this Agreement would reasonably be expected to constitute grounds for Folks’ exposure to civil or criminal liability, then Folks has the right, but not the obligation, to remove (or request that the Client remove) such Client Data from the Services. The Client hereby grants Folks a non-exclusive, non-sublicensable, non-transferable, limited, revocable and royalty-free right to use, host, copy, store, transmit, modify, and display the Client Data solely for the purposes of providing the Services hereunder.

6.2 Aggregate Data

(a) The Client hereby grants to Folks in perpetuity a royalty-free, world-wide right and license in and to the Aggregate Data for all purposes in connection with Folks’ business, subject to the terms and conditions of this Agreement. For clarity, Folks shall have the right to process, reformat, manipulate, adopt, create derivate works, copy, display, import, export, store and otherwise use, in whole or in part, the Aggregate Data, in any way Folks desires, subject to applicable laws and the terms and conditions set forth herein, it being understood, however, that Aggregate Data will remain anonymized at all times in accordance with legal requirements and best practices in force at the time.

(b) For greater certainty, Folks agrees that it shall not be entitled to any data, and the Client shall not be obligated to provide to Folks any data relating to or arising from any of its own internal activities conducted by the Client without the use or involvement of the Service Software and the Hosted Services.

6.3 Retention of Client Data

(a) Client Data shall be retained by Folks for the term of the Agreement, and for a period of thirty (30) days following termination thereof, during which period the Client shall be responsible for taking steps to recover the Client Data in accordance with the terms and conditions of the Agreement.

(b) In order to provide the Services to the Client and to enable the Client to use the Services Software, Folks shall have access to the Client Data. Unless compelled by applicable Laws to do so, Folks shall only access Client Data in order to provide the Services to Client, or otherwise at Client’s request.

(c) Any Employee who wishes to access Client Data regarding them, including their Personal Information, shall contact the Client.

6.4 Folks Data

Subject to the limitations in Section 8.1, Folks hereby grants to the Client and its Affiliates, during the term of the Agreement, as applicable, a non-exclusive, fully paid-up, worldwide right and license, under Folks’ rights and interests in and to Folks Data, including without limitation, all Intellectual Property Rights Folks may have in Folks Data, to process, reformat, manipulate, adopt, create derivate works, copy, display, import, export, store and otherwise use Folks Data for (A) its own internal business purposes, and (B) its own non-commercial maintenance purposes. FOR GREATER CERTAINTY, FOLKS DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY FOLKS DATA AS PROCESSED, REFORMATTED, MANIPULATED, ADOPTED, DERIVED, COPIED, DISPLAYED, IMPORTED, EXPORTED OR STORED BY THE CLIENT. ANY RELIANCE PLACED BY THE CLIENT ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. FOLKS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY THE CLIENT OR ANY OTHER USER THEREOF, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.

7.1 Initial Term

The term of an Authorized User’s access to the Services is directly related to the term of the relationship between Folks and the Client. When the business relationship between Folks and the Client terminates, in accordance with the Agreement, any Authorized User of the Client will automatically lose access to the Services.

7.2 Suspension

In addition to the termination rights expressly set forth between Folks and the Client in the Agreement, Folks reserves the right to suspend access to the Service Software of any Authorized User who fails to comply with any of its obligations set forth in Section 3.2 or elsewhere in these Terms of Use.

8.1 Disclaimer of Conditions and Warranties

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES AND FOLKS MATERIALS ARE PROVIDED “AS IS” AND FOLKS HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THESE TERMS OF USE, AND FOLKS SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, FOLKS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES OR FOLKS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (i) MEET THE CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS BEYOND THE COMMERCIALLY REASONABLY CONFORMITY WITH THE SPECIFICATIONS SET OUT HEREIN AND WHICH CANNOT BE REASONABLY BE INFERRED THEREFROM; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS; OR (v) ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN THE CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.

9.1 Indemnity from Folks

Folks shall indemnify, defend and hold harmless the Client in accordance with the terms and conditions of the Agreement.

9.2 Exclusion of Damages

SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL FOLKS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY DIRECT OR INDIRECT LOSS SUFFERED BY AN AUTHORIZED USER IN CONNECTION WITH HIS OR HER ACCESS TO FOLKS’ SERVICES. FURTHERMORE AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND ANYTHING TO THE CONTRARY IN THESE TERMS OF USE, FOLKS SHALL NOT BE LIABLE TO THE AUTHORIZED USER FOR ANY LOSS WITH RESPECT TO ANY CLAIM PERTAINING TO THE USE TO FOLKS DATA BEYOND THE SCOPE OF ALLOWABLE USES UNDER THESE TERMS OF USE.

9.3 Cap on Monetary Liability

SUBJECT TO SECTION 9.2, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN ANY CONNECTION WITH THESE TERMS OF USE, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY SUCH PARTY AND SHALL NOT EXCEED THE FEES PAID BY THE CLIENT HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. ALL PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS ARTICLE 9 ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND EACH PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED HEREIN.

10.1 Independent Contractor

Nothing in these Terms of Use will be construed as creating the relationship of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent between Folks and any Authorized User. Each Authorized User acknowledges that the contractual relationship in connection with the Services is created between Folks and the Client, and that any questions in connection with the Services provided by Folks should be addressed to the Client.

10.2 Assignment

No Authorized User may assign his rights provided in these Terms of Use without obtaining the Client’s and Folks’ consent.

10.3 Governing Law

These Terms of Use will be governed and construed in accordance with the Laws of the Province of Quebec excluding choice of law provisions and all claims arising hereunder shall be brought exclusively in the courts located in the City of Quebec, Province of Quebec.

10.4 Headings

All headings to Articles and Sections are provided for convenience only, and shall not be used for purposes of construction of these Terms of Use.

10.5 Waivers

Waiver by a Party of any breach by the other Party shall not be deemed a waiver of any other of subsequent breach.

10.6 Severability

If any term or provision of these Term of Use is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction.

10.7 Language

The Parties have expressly agreed that this Agreement, all ancillary documents and all notices hereunder, when applicable, be drafted in English only after consideration of the Charter of the French Language. Les Parties aux présentes ont expressément convenu que ce contrat, tous documents accessoires y afférant ainsi que tout avis, le cas échéant, soient rédigés en anglais seulement après avoir pris en compte la Charte de la langue française.