“UPPERBEE.COM” WEBSITE LICENSE AGREEMENT
The “upperbee.com” website (hereinafter referred to as the “Website”) provides licensed users (rental property owners, condominium association, owners association, tenants, owners and co-owners who are registered on the Website) with online access to a variety of specialized software tools for the management of multi-residential buildings.
- IMPORTANT NOTICE
This Agreement, which governs Your use of the Website, is a binding contract between UPPERBEE.COM INC., a legally incorporated entity and owner of the Website (hereinafter “upperbee.com”), and yourself, the licensed user (hereinafter the “Licensed User”). Please read this Agreement carefully and make sure You understand it, as it contains the terms and conditions that You must agree to BEFORE accessing the Website. upperbee.com agrees to provide You with access to the Website only if You are of legal capacity and agree to all the terms and conditions of this Agreement, including any subsequent modifications posted on the Website in the future.
By accessing the Website, You agree to be bound by the terms and conditions of this Agreement. This Agreement is IMPORTANT and contains several stipulations that affect Your rights and obligations. THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE MODIFIED FROM TIME TO TIME. In such a case, You will be notified by a posting on the Website. By checking the “I Agree” box at the end of this document, You consent to be personally bound by all terms and conditions, including any subsequent modifications that may be periodically made at upperbee.com’s discretion and posted on the Website in the future. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AS THEY MAY BE AMENDED FROM TIME TO TIME IN ACCORDANCE HEREWITH, DO NOT ACCESS THE SITE.
This Agreement may be printed or downloaded to Your computer.
- OPERATION OF THE WEBSITE
upperbee.com allows all Licensed Users who have accepted the terms and conditions of this Agreement to access their online account, as well as a variety of specialized software tools for the management of multi-residential buildings held in co-ownership or for rental purposes. upperbee.com may modify the Website and its software tools from time to time. Unless expressly stated otherwise, all new features added to the Website are subject to this Agreement. Your eligibility to use the Website is subject to various factors, including Your acceptance of the terms and conditions contained herein, Your right to access the Internet (World Wide Web), Your registration on the Website, and upperbee.com’s final approval of Your Licensed User account. To open a Licensed User account, You must complete the registration form as a property owner, condominium association, owners association, tenant, or co-owner. Registration and license fees are payable by the property owner or association (e.g., condominium association) at the time of registration (as a collective “Licensed User”). Tenants and co-owners do not have to pay upperbee.com access fees to access the Licensed User account of their respective buildings. Please be advised that upperbee.com makes no warranties or representations and assumes no liability with respect to the accessibility of the Data entered by You or by any Licensed User, nor to the timeliness, performance, and availability of the Website, nor to any deletion, backup defect, password, or access code loss, nor to any other computer-related difficulty arising as a result of force majeure, error, fault, or negligence on the part of the Licensed User.
When used in this Agreement or in any documentation subject hereto, the following words and expressions have the subsequent meanings and interpretations ascribed to them:
3.1 “Agreement” refers to this Agreement, including the preamble, any documentation subject hereto, and any modifications that may be made to it in the future.
3.2 “Data” refers to all information, including personal information, belonging to—and entered into the Website by—the Licensed User.
3.3 “Building” refers to the multi-residential building listed against the Licensed User.
3.4 “Module(s)” refers to each of the Website’s function-specific programs, made available for Your use under this Agreement.
3.5 “Parties” refers to You and upperbee.com for the purposes of this Agreement.
3.6 “Intellectual Property” refers to, without limitation, any intellectual property right, title, or interest, including any derivative, moral, or personal right, in any work, invention, trademark, industrial design, topography of integrated circuits, confidential information, or trade secret, as well as to any certificate or application for registration, attribution, or recognition of ownership or interest in any of the intellectual property rights involved herein.
3.7 “Website” and “Platform” refer to the “upperbee.com” website, designed and developed by upperbee.com and consisting of all hyperlinked web pages including programs, files, source codes, scripts, tables, spreadsheets, software tools, Modules, documentation, information, and forms constituting the Website, as well as the Website’s graphic design, visual aspect, intellectual and structural organization, and user-friendly elements (i.e., its “look and feel”).
3.8 “You” refers to yourself as the Licensed User, either as a property owner, association co-owner, tenant, or joint owner of a Building registered on the Website.
- PURPOSE OF THE AGREEMENT
4.1.1 Subject to the terms, conditions, and additional provisions of this Agreement, upperbee.com hereby grants You a personal, revocable license, including a limited, non-transferable, and non-exclusive right to access Your Licensed User account and to use the Website via the Internet for a period of time specified by upperbee.com. This includes the non-commercial right to use the various Modules made available to You, the right to download Data, save it, and/or save it to a disk or other media, and the right to make a single digital copy of the pages containing the Data. This latter right is granted, provided: (1) that the documentation contains a reference to its source, e.g., “document produced through the ‘upperbee.com’ site,” (2) that the copyright notice appears at all times on each and every copy in use, e.g., “© 2008 upperbee.com” and finally (3) that no modifications are made to the visual presentation of the Data.
4.1.2 No other use is permitted. Without limiting the generality of the foregoing, You may not—nor may You permit anyone else to—do any of the following:
18.104.22.168 include, copy, or integrate all or part of the Website into another site or derivative product;
22.214.171.124 reproduce, copy, sell, rent, or sublicense all or part of the Website or Your right of access;
126.96.36.199 create a hyperlink to the Website, or to any Website page, without upperbee.com’s written consent;
188.8.131.52 use the Website to engage in illegal activities, including defaming, harassing, threatening, or otherwise violating the rights of any person;
184.108.40.206 transmit any material that contains software viruses or other programs that may limit, alter, destroy, or interrupt the operation of the Website or any of its software programs.
upperbee.com is committed to providing You with maintenance services, Website updates, and technical support (available Monday through Friday, from 8:00 a.m. to 6:00 p.m. ET) in the event that You encounter technical difficulties accessing the Website or the Services included in this Agreement (hereinafter the “Services”).
This Agreement is valid for the term selected by the Licensed User at the time of registration or renewal, after licensing fees have been duly paid (hereinafter the “Term”).
6.1 LICENSING FEES. The cost of this license also includes the Service fee and is payable on an annual basis according to the number of residential or commercial units in the Building. upperbee.com shall post and maintain current rates on the Website. These rates are subject to change at any time and without prior notice. The applicable rate is the rate posted on the Website at the time of Your registration.
6.2 PAYMENT METHOD. The cost of the license set forth in Article 6.1 must be paid to upperbee.com by the Licensee, by credit card, at the time of Website registration. This payment must be made for the full subscription Term.
- OBLIGATIONS OF UPPERBEE.COM
7.1 ACCESS. upperbee.com is committed to making the Website accessible seven days a week, twenty-four hours a day (24/7), with the exception of maintenance periods following malfunctions, site updates, or in the event of force majeure. For more information regarding the definition of “force majeure,” please click on this link.
7.2 LIMITATION. upperbee.com is not responsible for fluctuations in the speed or response time of Your requests due to Your Internet connection.
7.3 SITE MAINTENANCE. upperbee.com reserves the right to notify You of any exceptional interruption to the Website and Services due to maintenance, updates, repairs, or improvements within five (5) days prior to any such interruption.
7.4 INDUSRTY STANDARDS. upperbee.com is committed to rendering the Services in a professional and efficient manner, in accordance with generally accepted industry standards.
7.5 RESPECT FOR INTELLECTUAL PROPERTY RIGHTS. upperbee.com agrees to respect all third-party intellectual property rights, titles, and interests, thus ensuring that the Website does not infringe on any of said third-party rights, titles, and interests.
7.6 CONFIDENTIALITY AND NON-DISCLOSURE. Unless required by law or deemed necessary by upperbee.com to comply with a legal proceeding or pursue a claim that Licensed User content violates the rights of a third party, upperbee.com agrees to keep and preserve the confidentiality of Your Data and refrain from disclosing the Licensed User Data compiled in its database without first obtaining Your consent.
- REPRESENTATIONS AND WARRANTIES
8.1 OWNERSHIP. upperbee.com represents and warrants that (1) it is the sole owner of all rights, titles, and interests in and to all intellectual property related to the Website; (2) there are no legal, judicial, or contractual impediments to the granting of licenses hereunder; (3) it is responsible for the Website’s operation; and (4) the Website is functional, subject to any minor corrections or adjustments that may be required from time to time.
8.2 ORIGINALITY. upperbee.com represents and warrants that the Website is an original work and does not infringe on any third-party copyrights or other intellectual property rights.
8.4 BACKUP. upperbee.com represents and warrants that a Data backup will be made once a week. You remain fully responsible for the timely backup of Your Data each time it is entered on the Website.
8.5 ACCOUNTING REQUIREMENTS. upperbee.com represents and warrants that the Modules for various calculations meet the requirements generally accepted in Canada. Nevertheless, the results of these calculations depend solely on the Data that You enter.
8.6 LIMITATION OF WARRANTY. Except as otherwise stipulated in this Agreement, upperbee.com makes no express or implied warranty as to:
8.6.1 the purposes for which this license is granted;
8.6.2 the benefits, financial or otherwise, real or perceived, positive or negative, resulting—or likely to result from—the Website’s use;
8.6.3 the Data entered into the account of a Licensed User or information contained in the links, hyperlinks, and references included on the Website. These links, hyperlinks, and references are provided for convenience only. upperbee.com does not endorse any advice or content from these sites.
8.7 LIMITATION OF LIABILITY. Except in cases of gross negligence, upperbee.com may not be held liable for any direct or indirect damages arising from the Website’s use, and You hold upperbee.com harmless from and against any claims, including warranty claims, regarding:
8.7.1 the quality, truthfulness, or accuracy of the Data that You enter on this Website or that is entered into a Licensed User’s account;
8.7.2 any changes made to the Website by anyone other than upperbee.com (or under upperbee.com’s control);
8.7.3 any changes or additions You make to Your hardware, software, or computer equipment that affect the Website’s operation or Your connection to the Website;
8.7.4 the introduction of a computer virus into Your computer equipment;
8.7.5 the loss of business opportunities or revenue related to the Website’s operation or lack of operation, use or lack of use;
8.7.6 any loss of Data that is not saved to the Website.
8.8 LOSS OR DAMAGE. Except as otherwise stipulated in this Agreement, upperbee.com (including, where applicable, its subsidiaries, directors, shareholders, officers, executives, employees, collaborators, and subcontractors) may not be held liable to You, or to any third party, for any consequential, incidental, special, punitive, or exemplary damages including, but not limited to, lost profits or other economic losses (resulting from any breach of contract, delictual fault, or negligence), even if upperbee.com has been advised of the possibility of said damages. In the event that upperbee.com is nevertheless found liable for damages, upperbee.com’s total liability may not exceed the value of the licensing fees paid by You in the current year. You hereby expressly release upperbee.com from any liability beyond this limit.
8.9 SUSPENSION OF SERVICES FOR NON-PAYMENT. Should You refuse or neglect to pay the amounts payable under this Agreement, upperbee.com may deny You access to the Website and/or suspend the performance of relevant Services without further notice or delay, subject to any other rights that upperbee.com may hold under this Agreement.
- REPRESENTATIONS AND WARRANTIES OF THE LICENSED USER
9.1 READ AND UNDERSTOOD. You represent and warrant that, prior to Website registration, You have carefully read and understood this Agreement, and You declare that there are no legal, judicial, or conventional impediments to the acceptance and execution thereof.
9.2 BASIC UNDERSTANDING. You declare and acknowledge that You have a basic understanding of the functionalities of the Internet, as well as its performance, limitations, and possibilities.
9.3 REGISTRATION. You represent and warrant that You have provided upperbee.com with accurate, current, and complete information during Website registration. You are solely responsible for the information thus provided. upperbee.com reserves the right to deny Website access or suspend/terminate this Agreement if You have provided false, inaccurate, or incomplete information or information that upperbee.com may reasonably believe to be false, inaccurate, or incomplete.
9.4 EQUIPMENT. You represent and warrant that You are in possession of all necessary equipment to access the Internet.
9.5 DISCLOSURE. You represent and warrant that You have disclosed all material facts and information concerning Your legal and/or financial situation and affecting Your ability to honor the obligations hereunder or to render payment to upperbee.com.
- OBLIGATIONS OF THE USER
10.1 INTENDED USE. You agree to use the Website as a prudent and diligent person, complying with the stipulations described herein. You agree to refrain from using the Website in any manner that could damage, disable, overburden, or impair the Website, upperbee.com’s server, or any network connection. Likewise, You agree that You will not interfere with any other user’s enjoyment of the Website.
10.2 PURPOSE. You agree to abide by the terms and conditions of this license and to refrain from using the Website for any unlawful pursuit or for any purpose that is prohibited by the terms and conditions of this Agreement.
10.3 PIRACY. You agree that You will not attempt—through hacking, reverse engineering or any other means—to gain unauthorized access to the Website’s program or source code, to any Module or portion of the Website for which You do not hold a license, to any other user account, or to the upperbee.com system or database.
10.4 INTELLECTUAL PROPERTY. You acknowledge that all Website-related intellectual property belongs to upperbee.com. You thus agree to refrain from challenging upperbee.com’s Website-related intellectual property rights. Except as expressly provided in this Agreement, the rights granted in Article 4.1 do not include the right to copy, use, modify, distribute, transmit, reproduce, publish, create derivative works from, sell, make available to others, or transfer all or any part of the Website, without the written permission of upperbee.com.
10.5 NON-COMPETE. For a period of thirty-six (36) months following the entry into force of this Agreement—and for the entire territory of Canada—You agree not to directly or indirectly design or develop any site, software, or derivative product that is identical, similar, or performs the same operations as the Website that is the subject of this Agreement.
10.6 SECURITY. You agree to choose a secure password (“Access Code”). You agree to keep Your Access Code secure and confidential. You declare that You are entirely responsible for any use made of Your account or Your Access Code. For this reason, You agree to properly log out of Your account after each use of the Website. You agree to notify upperbee.com of any breach of security of which You may become aware.
10.7 LIMITATION ON USE. The software may not be used on behalf of a third-party by a person or company involved in the management of one or more co-owned buildings (e.g., a condominium association) or multi-residential rental properties, unless said person or company owns a condo unit within the managed Building or owns, either directly or indirectly, the multi-residential rental property in question. In other words, any person or company offering management services for buildings owned by third parties may not make commercial use of upperbee.com’s web software to manage their real estate portfolio. The software must be used exclusively by owners who wish to manage their buildings autonomously. This does not exclude the possibility of these owners being remunerated for the work they perform.
- SPECIAL PROVISIONS
11.1 RELATIONSHIP BETWEEN THE PARTIES. The Parties hereby acknowledge that they are acting as independent contractors and that nothing in this Agreement may be construed as altering their status or creating a partnership, corporation, or agency of any kind between the Parties.
11.2 FORCE MAJEURE. Neither Party will be considered in default in the performance of its obligations hereunder if such performance is delayed, withheld, or prevented as a result of force majeure. Force majeure is any cause beyond the control of the Parties hereto, that they could not reasonably have foreseen and against which they could not have protected themselves. Force majeure includes, but is not limited to, any fortuitous event, strike, partial or complete stoppage of work, lockout, fire, riot, network failure, computer hack, or other computing issue beyond the control of the Parties, intervention by civil or military authorities, compliance with the regulations or orders of governmental authorities, and acts of war (whether declared or not).
11.3 NON-TRANSFERABILITY. You may not assign or transfer any of Your rights, duties, or obligations hereunder without upperbee.com’s prior written consent. Any assignment or other transfer of the rights, duties, and obligations hereunder, in contravention of the foregoing, is void and unenforceable against upperbee.com.
12.1 WITH THIRTY (30) DAYS PRIOR NOTICE. Either Party may terminate this Agreement, at any time, by giving the other Party at least thirty (30) days prior written notice. Should upperbee.com receive Your written termination notice, upperbee.com will end your subscription at the renewal date, no refund will be issue for the unused period.
12.2 INACTIVE LICENSED USER ACCOUNTS. In the event that Your Licensed User account remains inactive for a consecutive period of six (6) months and is not linked to any building or condominium, this Agreement will terminate upon thirty (30) days notice to You by upperbee.com. In this case, upperbee.com will not issue any fee refunds.
12.3 NO NOTICE. Subject to any other rights that upperbee.com may hold, this Agreement will terminate immediately, without any fee refund, should any of the events listed below occur during its Term:
12.3.1 Should You breach or fail to perform, respect, or comply with any of the commitments, terms, or conditions of this Agreement and do not remedy said breach or failure within fifteen (15) days of sending written notice, specifying the nature of the breach or failure, to upperbee.com;
12.3.2 Should You attempt to transfer Your rights and obligations under this Agreement without upperbee.com’s prior consent.
12.4 CONSEQUENCES OF TERMINATION
12.4.1 Upon termination of this Agreement:
220.127.116.11 You must immediately stop using the Website. You may keep a digital copy, a PDF copy, or a hard copy (printable report) of the Data entered on the Website;
18.104.22.168 any outstanding amounts owed to upperbee.com become immediately payable;
22.214.171.124 upperbee.com may terminate Your access to the Website.
12.4.2 Upon termination of this Agreement, upperbee.com agrees to destroy all Licensed User account Data compiled in its database once a reasonable period of time has elapsed.
12.4.3 In the event of termination, the confidentiality and intellectual property provisions of this Agreement, as well those covering upperbee.com’s limitation of warranty and liability, will survive.
- GENERAL PROVISIONS
Except as otherwise expressly set out in this Agreement, the following provisions shall apply:
13.1 ILLEGALITY. The possible illegality or invalidity of any article, paragraph, or provision (or part of an article, paragraph, or provision) will not affect the legality of the other articles, paragraphs, or provisions of this Agreement in any way, nor will it affect the remainder of said article, paragraph, or provision, unless there is an obvious contrary intention in the text.
13.2 NOTICES. Any and all notices to a Party will be deemed to have been duly given if the notice is in writing and delivered by registered mail, certified mail, or courier service to the Party at the address provided on the Website, to the address included in Your contact information at the time of registration, or to another address provided by one Party to the other. Should a notice be sent by email, a copy of said notice must also be sent by one of the aforementioned delivery methods.
13.3 HEADINGS. The headings used in this Agreement are for reference and convenience only. They in no way affect the meaning or scope of the provisions they designate.
13.4 NO WAIVER. No failure, omission, or delay on the part of any Party hereto in exercising any right or remedy under this Agreement will be construed as a waiver of said right or remedy.
13.5 CUMULATIVE AND NON-ALTERNATIVE RIGHTS. All rights mentioned in this Agreement are cumulative and not alternative. The waiver of the exercise of a right will not be interpreted as a waiver of any other right.
13.6 INTEGRALITY AND TOTAL AGREEMENT. This Agreement constitutes the full and entire agreement between the Parties. Any statements, representations, commitments, or conditions that remain absent from this Agreement cannot and will not contradict, modify, or in any way affect the terms and conditions hereof.
13.7 MODIFICATION OF THE AGREEMENT. This Agreement may be periodically modified by upperbee.com. Should this Agreement be modified, upperbee.com will email You a notice of change and will post said notice on the login page of Your Licensed User account on the Website. You will be required to accept all modifications by clicking on the "I Agree" button in order to access the Website.
13.8 GENDER AND NUMBER. All words and terms used in this Agreement will be construed as including the masculine and the feminine, as well as the singular and the plural, according to the context or meaning hereof.
13.9 GOVERNING LAW. This Agreement is subject to the laws in force in the province of Quebec and to the federal laws of Canada applicable in that province. The Parties agree to elect domicile in the judicial district of Montreal, Province of Quebec, Canada, and choose it as the appropriate district to hear any issues or claims arising from Website access or use or disputes related to this Agreement.
13.10 SUCESSORS AND ASSIGNS. This Agreement will be binding upon the Parties and their respective successors and assigns.
13.11 PASSAGE OF TIME. If a Party must fulfill an obligation under this Agreement within a specified time period, the mere lapse of time for performing it will have the effect of constituting that Party in default.
13.12 CONTACT. If You have any questions involving this Agreement, the Website, or the Services offered through the Website, please contact upperbee.com at [email protected] or by telephone at 1 (877) 881-1233.
- ENTRY INTO FORCE AND UPDATES