Last updated on Nov 11, 2019.
These Mass Equipment Solutions LiftSpec Terms and Conditions (“Terms” or this “Agreement”) govern the use of the Services by you and other Users (“you”, “your”, and terms of similar meaning) of LiftSpec (the “Software”), made available by Mass Equipment Solutions Inc. (“we”, “us”, “Mass EQS” and terms of similar meaning). An updated copy of these Terms will be available on the Services. By submitting an Order Form (as defined below), accessing or using the Services, you agree to be bound by these Terms. If you are submitting an Order Form on behalf of an organization (i.e. the Client), you agree that you have the authority to bind such organization.
The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
1.1 “Administrator” means an individual who uses the Services and has authority to activate additional Users and/or Administrators.
1.2 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.
1.3 “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in the City of Toronto, Ontario.
1.4 “CASL” means any applicable federal, provincial and local laws, regulations and rules governing sending of commercial electronic messages.
1.5 “Client” shall mean the organization who agreed to the Order Form or otherwise initiated the use of the Services and is assumed to have the sole authority to administer the subscription.
1.6 “Client Data” means any data or content inputted into the Software or generated by the Client or any User through the Software that is retained within the Software in accordance with the terms of Mass EQS’s applicable data retention policy.
1.7 “Fees” means the fees to be paid by the Client pursuant to this Agreement or the submitted Order Form.
1.8 “Initial Administrator” means the Administrator who (a) initiates the use of the Services, (b) submits the Order Form and (b) authorizes use of the Services to other Administrators and Users.
1.9 “Automotive Lift Inspections” shall mean professional services, including automotive lift inspections, to be provided by Users or Clients in accordance with these Terms.
1.10 “Order Form” means the order form on the Mass EQS site completed by the Initial Administrator on behalf of the Client.
1.11 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.12 “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection and Electronic Documents Act (Ontario)and any similar legislation enacted by any province or territory of Canada.
1.13 “Schedule” means a schedule or exhibit, which is attached to this Agreement, or which may be added hereafter by written agreement of the parties.
1.14 “Services” means the use of the Trial Software, Software, and related services to be provided by Mass EQS
1.15 “Software” means the LiftSpec web application and LiftSpec mobile application licensed to the Client and authorized Users.
1.16 “Trial Software” means the limited-functionality demonstration version of the Software licensed to the Client and authorized Users.
1.17 “User” means an individual User who has been authorized by an Administrator and permitted to use the Trial Software and Software.
2.1 The Services enable the Client and its Users to create and access pre-created electronic Automotive Lift Inspection forms and other Services in accordance with these terms. Some of the forms provided for on the Services are regulated documents that may be changed by Mass EQS from time to time. None of the forms accessible on the Trial Software are regulated documents. Mass EQS will update forms on a commercially reasonable basis.
4.1 Provisioning and User Accounts. Upon submitting an Order Form, a trial period will commence granting you access and an account to the Trial Software. You may terminate the use of the Trial Software earlier than the two (2) week trial period (“Trial Period”) and upon the commencement of accessing the Software. Mass EQS will create an initial Administrator account for the Initial Administrator and will provide such Initial Administrator its credentials to access the Software. The Initial Administrator may add other Administrators and authorize Users pursuant to the terms of the Order Form. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. Access to specific features of the Services are only be available to specific user types.
4.2 Registration. Upon logging into your assigned Initial Administrator, Administrator or User account for the first time, Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software (“Registration Data”); (b) maintain the security of the your password; (c) maintain and promptly update the Registration Data, and any other information the you provide to the Software, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Mass EQS. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).
5.1 Client Representations and Warranties re Use. The Client represents and warrants that the use of the Services by the Client’s directors, officers, employees, contractors, representatives and other agents will (a) be consistent with these Terms and any licenses provided; (b) comply with Applicable Law, including, but not limited to Privacy Laws and CASL.
5.2 Client Representations and Authorized Uses.
(a) The Client understands and agrees that some of the Services require mobile devices and/or Internet access to operate. The Client agrees that it shall be responsible for providing its Users with such mobile devices and for maintaining its own Internet access with the necessary bandwidth speeds as recommended by Mass EQS and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) necessary for accessing the Services.
(b) The Client agrees to notify the Mass EQS of any changes or maintenance to the Client Equipment, including any internet service provider (ISP) changes, system configuration changes or any hardware or software upgrades, which may affect the Services provided hereunder.
(c) The Client agrees that it will remain responsible for backing up and administering the security of the Client Data, including the granting of rights of access to the Client Data.
(d) The Client represents and warrants that it has the right to enter into this Agreement and to allow the Mass EQS to perform the Services.
(e) The Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
(f) The Client agrees that Users may be required to connect with a browser configuration specified by the Mass EQS.
(g) The Client agrees that Automotive Lift Inspections shall be performed in accordance with all Applicable Law, and in accordance with generally accepted industry standards applicable to the provision of the Automotive Lift Inspections.
6.1 License to Trial Software. During the Trial Period, Mass EQS hereby grants to the Client and authorized User(s) a non-exclusive, non-transferable license to use the Trial Software solely to permit the Client and User(s) to use the functionality contained within the Trial Software for demonstrative and informational purposes only. The Trial Software does not store, retain or save information inputted into it after the Trial Period and is not suitable for commercial purposes.
6.2 License to Software. During the Term, Mass EQS hereby grants to the Client and authorized User(s) a non-exclusive, non-transferable license to use the Software solely to permit the Client and User(s) to use the functionality contained within the Software for legitimate business purposes.
6.3 License Restrictions. Except as set forth in these Terms or any Schedule and to the extent contrary by Applicable Law: the Client and Users may not (i) make or distribute copies of the Software; (ii) alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form; (iii) sell, rent, lease, host or sublicense the Software; (iv) modify the Software, or create derivative works based upon the Software; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (v) use the Services in a manner that breaches the rights of any third party, any contract or legal duty or violate any Applicable Law; (vi) copy the Software or Services or any part, feature, function or user interface thereof; (vii) access or use the Software or Services in order to build a competitive product or service; (viii) not use the Software or Services other than for its intended purposes.
7.1 Hosting. Mass EQS will cause the Service to be hosted on a server maintained by a reputable party host (the “Third Party Host”). Mass EQS will be responsible for contracting with the Third Party Host, and for paying all fees and charges of the Third Party Host.
7.2 Support, Maintenance and Training. Support, maintenance and training Services are provided to the Client and its Users in accordance with the terms of Exhibit A – Support.
7.3 Backups. Mass EQS will create a backup or cause its Third Party Host to create a backup of the Software (including all Client Data) in accordance with its backup policy. Client Data will be retained in accordance with the terms of Mass EQS’s applicable retention policies.
8.1 Fees. In consideration for the licenses described herein and Mass EQS’s performance of the Services, the Client shall pay to Mass EQS the Fees more particularly described in the Order Form upon the expiry of any trial period offered.
8.2 Invoices and Payments. Mass EQS shall invoice the Client, in advance, for the Services in accordance with the terms of the Order Form. The Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Order Form). In addition, Mass EQS shall charge the entire monthly fee for additional Users added within the first fifteen (15) days of the month. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month on overdue amounts and interest thereon.
8.3 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay to Mass EQS such taxes, levies and charges which the Mass EQS is registered to charge and collect.
9.1 Ownership of the Software. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, Mass EQS shall retain all intellectual property rights in the Software. Nothing in this Agreement, or any Schedules shall be deemed to convey to the Client or to any other party, any ownership right, in or to Software.
9.3 License from Client to Mass EQS. Client hereby grants to Mass EQS a non-exclusive, royalty-free, non-transferable, limited right to use during the Term the Client Data provided to Mass EQS solely to perform Services pursuant to this Agreement.
9.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or a Schedule, all intellectual property rights are expressly reserved by the parties. The Client or Mass EQS, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by Mass EQS or Client, as applicable, from time to time in order to give effect to the provisions of this Section.
9.6 Third Party and Open Source Software. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). These Third Party Licenses are made a part of and incorporated into these Terms. By accepting these Terms, the Client and its Users are also accepting the Third Party Licenses, if any, set forth therein. To view the Third Party Licenses, please contact firstname.lastname@example.org.
10.1 Disclaimer. Except as set out in these Terms, the Services are provided to Clients and Users on an “as is” basis, without warranties from Mass EQS of any kind, either express or implied. Mass EQS expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Mass EQS does not warrant that the Services or Software (including the Trial Software) will be error-free or will operate without interruption. Except as expressly provided in these Terms, the Services are provided with no warranties regarding security, reliability, protection from attacks, data integrity or data availability.
10.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or any Services, even if advised of the possibility thereof.
10.3 Limitation of Liability. Except as otherwise specifically provided under this Agreement, the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by you to us under this Agreement in the three (3) months preceding the Loss.
10.4 Reasonableness of Limitations. Mass EQS, Administrators and Users agree that the limitations contained in this Article 10 are reasonable in scope and form an integral part of this Agreement.
11.1 Indemnity by Client. The Client agrees to defend, indemnify and hold Mass EQS, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that Mass EQS may incur as a result of or in connection with any third-party claim relating to or resulting (a) the use of the Services by the Client or the Users (including former employees who maintained access to the Services); or (b) any breach by the Client or Users, or of the Client or User’s obligations under this Agreement, including the obligation to comply with all Applicable Law.
11.2 Indemnity by Mass EQS. Mass EQS agrees to defend, indemnify and hold the Client, its directors, officers, employees, agents, contractors (including Users) and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client or Users may incur as a result of or in connection with any of the following:
(a) any valid claim that the Software or any portion of it infringes the intellectual property rights of any third party (for which Mass EQS agrees that it will use commercially reasonable efforts to replace any such portion of the Software with other original intellectual property that has similar functionality);
(b) any claim or suit made by any subscriber of the Client as a result of the Client’s use of the Services; or
(c) any breach by Mass EQS of Mass EQS’s obligations under this Agreement.
12.1 Term. The term of this Agreement (“Term”) shall commence on the date the Order Form is submitted or after the expiry of the Trial Term (as described on the Order Form) and continue for the length of time described in the Order Form as the Initial Term (“Initial Term”). Thereafter, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with this Agreement.
(a) Prior to Renewal. Except in the case of a month-to-month term, either party may terminate this Agreement by providing written notice to the other party at least (60) days prior to the end of the then current term. For month-to-month terms, the Client may provide thirty (30) days prior written notice to terminate this Agreement. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
(b) Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
12.3 Termination and Suspension of Users. Notwithstanding any provision of these Terms, Mass EQS reserves the right, in its sole discretion, without any notice or liability to Administrator or any User, to (a) terminate a User or Client’s license to use the Software, or any portion thereof; (b) block or prevent a User or Client’s future access to and use of all or any portion of the Software; (c) change, suspend, or discontinue any aspect of the Software; and (d) impose limits on the Software.
12.4 Effect of Termination. If this Agreement is terminated in accordance with Section 12.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information (as described below) in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by the Client within thirty (30) days of termination, Mass EQS will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third party software (e.g. .csv or .xlsx);
(d) the licenses granted to Administrators in Section 1 shall terminate and the Client and Users shall cease using the Software.
13.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) 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. Client’s Confidential Information includes Client Data; Mass EQS’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) is independently developed by the Receiving Party.
13.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
13.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
13.4 Indemnity. Each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 13.
14.1 Non-Solicitation. During the term of this Agreement, and for a period of two (2) years following its termination for any reason, the Client agrees that it will not, directly or indirectly, in any manner whatsoever, whether as principal, agent, employee or otherwise, individually or in conjunction with any person (a) hire, attempt to hire, induce or attempt to induce any employee or independent contractor of Mass EQS to leave his or her employ or contract with such other party or (b) interfere in any adverse material way with the business relationship between Mass EQS and any of its customers, potential customers, employees, contractors, suppliers or others with whom such other party has a business relationship.
15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
15.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Sections 9 (Intellectual Property) (but not Section 9.2 (License from Administrator to User)), Section 9.4 (Warranty, Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 8.2 (Effect of Termination), Section 13 (Confidentiality) and applicable provisions of Section 14 (General).
15.3 Dispute Resolution.
(a) This Section 3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non- lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(e) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
15.4 Relationship. Nothing herein shall be construed as implying an employment, partnership, or joint venture relationship between any Client and Mass EQS. Mass EQS is not an employee of any Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
15.5 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which Mass EQS is required to perform under this Agreement, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or Mass EQS, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonable foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
15.6 Currency. Unless otherwise specified, all references to amounts of money in this Agreement refer to Canada (CDN) currency.
15.7 Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email you at the contact information you provide in the Order Form or any registration data. Second, we may post a notice on the Software. It is your responsibility to periodically review the Service for notices.
15.8 Assignment. The Client may not assign this Agreement or any of its rights, benefits, warranties or obligations hereunder, in whole or in part, without the prior written consent of Mass EQS, which consent will not be unreasonably withheld, and any attempt to assign this Agreement, in whole or in part, without such prior written consent is void. Mass EQS may assign this Agreement in its sole discretion.
15.9 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
15.10 Entire Agreement. This Agreement and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
15.11 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
15.12 Fully Negotiated Agreement. Clients and Mass EQS acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
15.13 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
15.14 Modification of Terms. Mass EQS may modify this Agreement at any time by (a) posting a notice on Mass EQS’s website (b) posting a notice on the Trial Software or Software; or (c) e-mailing the Administrator(s). Mass EQS will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
15.15 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
Mass Equipment Solutions Inc.
EXHIBIT A – SUPPORT
1.1 Support Obligations. Mass EQS will provide support relating to the Services to the Client and Users in accordance with this Schedule (each request for support, a “Request”).
1.2 Support Tickets. The Client and Users may submit support requests by email to email@example.com or by calling the Mass EQS telephone number 1-866-250-6277.
1.3 Support Hours. Support will be available between the hours of 9am to 8pm Eastern Standard Time on each Business Day (each such hour is hereafter referred to as a “Business Hour”).
1.4 Initial Setup and Training. Mass EQS will provide initial setup, training and professional services in accordance with the terms of the Order Form.