1. Introduction, Definitions, Modifications and Acceptance
“Device” refers to the handheld or tablet device through which you may be accessing and using the Services through a mobile version of a Website.
“Project” refers to the installation of solar panels on a Property by a Solar Installer (a “Solar Project“) or installation, repair or maintenance of roofing materials or gutters by a Roofer (a “Roofing Project“). Project also includes the plans for the Project, as created through the Services by a Solar Installer or Roofer.
“Property” refers to a residential or commercial property where solar panels may be installed, or roofing materials or gutters may be installed, repaired or maintained as part of a Project.
“Quote” refers to an estimate for completion of a Project created by a Solar Installer or Roofer and potentially delivered to a Property Owner.
“Services” are the proprietary software services that Sofdesk has developed that allow you to participate in certain activities related to the solar and roofing industries. The Services may vary depending on which Website is being accessed; these TOU cover any and all of the Services listed below. The definition of “Services” however includes other services owned and operated by Sofdesk. The Services covered by these TOU may be divided into the following:
- “Roofgraf Services” refers to the software services created by Sofdesk that allows Roofers to purchase Leads and create Quotes for Roofing Projects, and related functions.
- “Solargraf Services” refers to the software services created by Sofdesk that allows Solar Installers to purchase Leads and create Quotes for Solar Projects, and related functions.
“Sofdesk” refers Sofdesk Inc., a duly incorporated company in the Province of Quebec, Canada. Where the present TOU refer to “Sofdesk”, they may refer to Sofdesk and / or its affiliates, subsidiaries, employees, officers, directors, subcontractors, agents, partners or representatives, depending on the context. Any reference to “we“, “our“, or “us” in this Policy shall also refer to Sofdesk Inc.
“Subscription” refers to the purchase of access to the use of certain of the Services for a pre-determined period of time, as more fully described further in these TOU.
“Users” refers to anyone using any of the Services. In these TOU, a Website visitor or Services User may also be referred to as “you“. When a Services User has created an account and is logged in, they may be referred to as a “Logged-in User“. Where a Subscription to Services allows for multiple Users, additional Users may be referred to as “Authorised Users” (and in such case the User who created the account may be referred to as the “Primary User“). The present TOU includes the following types of Users and other individuals involved in the roofing and solar industries:
- “Property Owner” refers to the owner of a Property who may be using certain of the Services to receive Quotes for Projects.
- “Roofers” refers to local contractors who are using the Services in various capacities relating to Roofing Projects.
- “Solar Ambassadors” refers to Users who have signed up to participate in the Draw My Roof Refer a Friend program.
- “Solar Installers” refers to local contractors who are using the Services in various capacities relating to Solar Projects.
“Websites” refers to both of the Websites listed below and any other Websites which are owned and operated by Sofdesk, and includes all their respective subdomains, present and future. Websites refers equally to desktop or mobile versions. The Websites covered by these TOU are currently limited to the following:
- “Roofgraf” located at the URL https://www.roofgraf.com/
- “Solargraf” located at the URL http://www.solargraf.com/
By visiting either of the Websites and / or using either of the Services, by clicking or tapping the acceptance button upon signing up for an account, or by registering for an account, you hereby accept to be bound by these TOU without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the TOU that apply to the Services you are using, you are not authorized to use the Services. The TOU are a legal and binding agreement between you and us. If you are an individual using the Services on behalf of a corporation or other registered organization (Legal Entity), you represent and warrant that you have the capacity and authority to enter into the TOU on behalf of the Legal Entity, and hereby agree to be bound by the terms of the TOU on behalf of that Legal Entity.
Sofdesk reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Services following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect your relationship with us, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account, or by posting a prominent notice when you log in to your account for the first time following those changes.
If you have any questions about the TOU, please contact:
642 De Courcelle St., PH4
2. General Code of Conduct for Use of the Websites and Services
By visiting any of the Websites and / or using any of the Services, you agree to:
- Not use the Websites or Services in any manner that in any way violates these TOU or any other applicable policy posted on any of the Websites by Sofdesk;
- Not use the Websites or Services in any manner that violates any intellectual property rights of Sofdesk or any third party;
- Not use the Websites or Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
- Not use the Websites or Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Sofdesk or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether Personal Information or not) of Sofdesk, other Services Users, or any other third party;
- Not: (1) take any action that imposes or may impose (as determined by Sofdesk in its sole discretion) an unreasonable or disproportionately large load on Sofdesk’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Websites or Services or any activities conducted through the Services; (3) bypass any measures Sofdesk may use to prevent or restrict access to the Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Websites or Services; or (5) harvest or scrape any content from the Websites or Services in an unreasonable manner;
- Not take any action or use any process that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising or other promotions in connection with the Websites or Services;
- Not use the Websites or Services to advertise or promote products or services that are not expressly approved in advance in writing by Sofdesk, or as permitted by these TOU or the functionalities of the Services;
- Not interfere with any third party’s use or enjoyment of the Websites or Services;
- Not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party;
- Not attempt to do any of the foregoing prohibitions;
- Use the Websites and Services in good faith, and in compliance with all applicable local, provincial or state, national, and international laws.
3. Accounts, Passwords and Logged-in Usersge RequirementAccounts, Passwords and Logged-in Users
a. Accounts and Passwords
In order to use certain aspects and functions of the Services, you may be required to create an account. Accounts are available to anyone who provides the requisite information, subject to the restrictions and conditions as outlined elsewhere in these TOU, and for certain of the Services, at the sole discretion of Sofdesk.
As part of the account registration, you may be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. You may also be assigned a password. You are responsible for maintaining the confidentiality of your password, and are responsible for all activities that occur under your account whether by you or any third party. You agree to immediately notify us of any unauthorized use of your account or any other breach of security regarding your account.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. Sofdesk, its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives“), will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your Account Information and accessing your account through any means, and disclaims any responsibility in this regard.
Sofdesk reserves the right to suspend or terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU, as more fully described hereinbelow.
b. Age Requirements
You must be 18 years of age or the age of majority in your province, state, territory or country, to use the Services. Individuals under the age of 18, or applicable age of majority, may utilize the Services only with the involvement of a parent or legal guardian, under such person’s account and otherwise subject to these TOU.
c. Account Information
By submitting Account Information, you represent and warrant that the Account Information is true and accurate to the best of your knowledge. Where you are submitting Account Information on behalf of a Legal Entity, you represent and warrant that you have the authority to submit Account Information on behalf of the Legal Entity. Submitting false or misleading Account Information may result in you being banned from using the Services, at our sole discretion.
4. Use of the Solargraf and Roofgraf Services, and Payments
As a Solar Installer or Roofer, in exchange for the payment of Fees for your Subscription (as outlined further in this section) and subject to your compliance with these TOU, Sofdesk grants you a non-exclusive, non-transferable, revocable, non-sublicensable limited license to remotely access and use, solely for your internal business purposes, the Solargraf or Roofgraf Services (as applicable) through the relevant Website as permitted for the Subscription purchased by you, solely as an end User, and on behalf of any Authorised Users. This granted license is limited by the Intellectual Property Provisions found further in these TOU.
b. Free Trial
Any free trial or other promotion that provides a User access to the Services must be used within the specified time of the trial, or subject to any other limitations as described during the sign-up process. At the end of the trial period, your use of those Services will expire and any further use of the Services are prohibited unless you pay the applicable Subscription Fee as described in the next sub-section. You will be notified of the pending expiry or expiry of your free trial when logging in to the Services and / or via email.
c. Fees for Subscriptions; Auto-renewal and Cancellation; Other Fees
There are several Subscription plans with a range of Services for purchase, as further described in the registration page for Solargraf and Roofgraf respectively, for the amounts listed on those pages (the “Fees“, which shall also refer to payments made for other optional products or activities displayed through the Services). If you have purchased a Services Subscription we will provide the Services under the Service Subscription that you have selected upon activation of the Subscription, for the duration of the Subscription specified at the time of Subscription activation. Selecting the Subscription for a period of time (which may be monthly, or other time lengths, hereinafter a “Term“) will charge you a Subscription Fee every Term which will renew itself automatically. Subscriptions will renew at the end of the Term automatically, prepaying for the same length of the previous Term.
You may prevent the automatic renewal of your Subscription by canceling your account no less than 5 days prior to the end of the Term. To cancel your Subscription, you must call 1-888-997-1101 and explain the reason for cancellation. Cancellation requests are only processed once you have received written confirmation via email. Only a user with Account Owner permissions may submit a cancellation request for their account; Authorized Users are not permitted to request account cancellation. Cancellations will be processed within 5 business days of request. Your account and these TOU are not considered terminated/cancelled until you receive a reply with a written confirmation via email, or a verbal confirmation on the phone. Cancellation requests sent through Agents via Live Chat, in person, or through other email addresses will not be processed. Sofdesk reserves the right to terminate any and all written agreements, including these TOU at any time, as more fully described hereinbelow.
In addition to the Fees payable for Subscriptions, you may also purchase additional credits for use with your account. There are certain products and services that are available to you as a Logged-in User which shall result in debits of your purchased credits; the amount of credits for a particular product or service shall be displayed to you when you are a Logged-in User. In addition, you may purchase contacts of Property Owners and other individuals who have requested Quotes for Projects (hereinafter “Leads“). The amounts payable for any Leads will be displayed to you upon your request to purchase Leads when you are a Logged-in User, and as further described hereinbelow. There may also be additional options that require payment of additional Fees, such as being a featured Solar Installer or Roofer.
When you purchase a Subscription to Services or additional credits, Leads, or other options, you acknowledge and agree that:
- You shall pay the Fees set forth for the Services purchased by you in accordance with the Subscription you have selected, or any other option selected. Unless otherwise stated, all Fees are quoted in U.S. Dollars.
- Sofdesk may change its plans and the Fees for any of the Services or any portion thereof at any time. Notwithstanding the foregoing, if you have purchased a Subscription for a Term, there will be no adjustment of the Fees during the Term.
- Solargraf will bill your credit card on file and you agree to pay the non-refundable Fees associated with the package or Leads selected, as applicable, in advance for the amount of credits purchased by you. The amounts necessary to purchase any credits will be debited directly from the credit card account designated by you in your account. Using the auto-renewal option will use the same payment information used as the previous transaction performed in your account. If you exceed your credits available, you can choose to purchase more. If you have the auto-renew credit option activated, you authorize us to charge your credit card listed in your account based on the rules set for your credit auto-renew at the end of the Term. Selecting one of the packages will charge your credit card according to the package selected and will renew your account with the same package selected once your renewal date is reached (the same calendar day you activated your current Subscription); additional purchased credits do not expire. Free credits gifted to you will expire on the day chosen by us. At the end of the Subscription Term, the Subscription will be renewed automatically and the card on your account will be billed for the new Term. You are required to keep your contact information and Billing Information up to date, even if not currently using the Services. All payment obligations for Subscriptions are non-disputable and all amounts paid are non-refundable, although for Leads we will issue a lead discount to an account when a requested lead credit is accepted under our Return Policy.
d. Payment Processing
e. Additional Terms for the Purchase of Leads
When you use the Services to purchase Leads, you acknowledge and agree that:
- You shall contact Property Owners once their requested names and addresses have been received from Sofdesk. Excessive delays in contact may result in reduced business for you. Sofdesk and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise resulting from your delay in contacting the Property Owner.
- Prices for Leads may be variable depending on your location, the location of the Lead, the type of Property, and other factors. Sofdesk reserves the right to change the prices of Leads at any time and without notice. Prices for Leads shall be displayed to you when you are a Logged-in User.
- You hereby authorize Sofdesk to debit the credit card listed in your account for the amount you have determined to be the authorized amount for the purchase of Leads when you are a Logged-in User. Upon reaching this authorized amount, the amount is automatically debited again until you indicate you wish to stop receiving Leads. You may also set a monthly budget for the purchase of Leads, which will also have the effect of stopping automatic debits pf your credit card (for that month) when the monthly budget is reached.
- Your sole remedy for claims or disputes is to submit any claims or disputes that you may have with respect to any transaction in writing to Sofdesk by email to [email protected] within five (5) days after the amount has been captured on the card listed in your account; otherwise such claim or dispute will be waived and such charge will be final and not subject to dispute. Disputing a legitimate charge to an account will result in a $125 charge to your account. If you need more information about a charge from Sofdesk, please contact us at [email protected] prior to disputing the charge as we will not reverse the charges incurred to you for a wrongful dispute.
- Return Policy. Returns for Leads purchased shall be granted by Sofdesk at our sole discretion. However, we understand that not all leads are perfect, and we want to ensure that you don’t pay for Leads under certain circumstances, such as a Lead that contains inaccurate or out of service contact information or a Lead you already received from Sofdesk. If you want to return a Lead, please click on the option to return a Lead inside the Lead page itself when you are a Logged-in User and follow the instructions and fill out the requisite information (the “Return Procedure“). You must complete the Return Procedure within three (3) days of receiving the Lead you wish to return or it will automatically be refused.
5. Disclaimer Regarding Energy Savings in Quotes
Sofdesk uses government data, weather data and general financial rules, formulas and processes to create the most accurate Quotes, savings forecasts, and production forecasts that re available through the Services. However, Sofdesk makes no representations or warranties regarding this data, formulas and processes, and conditions and assumptions may change, and Sofdesk and / or its Representatives shall in no way be held responsible for any difference between potential outlined in a Quote for a Soar Project and actual savings achieved by having a completed Solar Project on a Property Owner’s Property. By using the Services, you expressly acknowledge and agree to this limitation.
6. Quotes, Projects and Drawing Measurements
The Services allow Property Owners to receive Quotes from Solar Installers and Roofers, and to conclude contracts for the completion of Projects on a Property. When using the Services to complete these functions, all Services Users, in addition to the rights, responsibilities and limitations outlined elsewhere in these TOU, acknowledge and agree that:
- Sofdesk and / or any of its Representatives is not a party to any Quote or contract, and shall have no rights or responsibilities thereunder, including but not limited to the enforcement thereof.
- The Solar Installer or Roofer has complete control over the content of any Quote, measurements or contract, and Sofdesk has no control over any document produced by the Solar Installer or Roofer by using the Services, and disclaims any responsibility thereto.
- Sofdesk has no control whatsoever, and disclaims any responsibility to, any User’s performance of their duties in completing or participating in a Project. Without limiting the generality of the foregoing, Sofdesk has no control over, and shall in no way be responsible for, the obtaining of the necessary permits, licenses, or any other similar government or regulatory permissions that may be required to complete a Project.
- If a there is a dispute between a Property Owner and a Solar Installer or Roofer arising out of a Quote and drawing measurements, a Project (whether completed or not), or any other matter or issue, the parties shall settle such dispute with each other directly. Sofdesk is not a party and shall not be a party to any dispute between Users. Without limiting the generality of the Disclaimer of Warranties and Limitation of Liability sections further in these TOU, Users hereby agree to release Sofdesk and its Representatives from any damages or claims of any kind, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes and dealings with other Users.
7. Permit Sets and Shading Reports
As a Solar Installer or Roofer, you may order a Permit Set and/or Shading Report as part of a Quote. When using the Services to complete these functions, all Services Users, in addition to the rights, responsibilities and limitations outlined elsewhere in these TOU, acknowledge and agree that:
- Sofdesk and / or any of its Representatives is not a party in the generation of a Permit Set or Shading Report, and shall have no rights or responsibilities thereunder, including but not limited to the enforcement thereof.
- The Solar Installer or Roofer has complete control over the content of any Permit Set request or Shading Report request, and Sofdesk has no control over any document produced by the Solar Installer or Roofer by using the Services, and disclaims any responsibility thereto.
- Sofdesk has no control whatsoever, and disclaims any responsibility to, any delay or rejection of a Permit Set request or Shading Report request caused by missing, imprecise or erroneous information provided by the Solar Installer or Roofer as part of a request. If a there is a dispute between a Property Owner and a Solar Installer or Roofer arising out of a Permit Set or Shading Report, or any other matter or issue, the parties shall settle such dispute with each other directly. Sofdesk is not a party and shall not be a party to any dispute between Users. Without limiting the generality of the Disclaimer of Warranties and Limitation of Liability sections further in these TOU, Users hereby agree to release Sofdesk and its Representatives from any damages or claims of any kind, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes and dealings with other Users.
- If a there is a dispute between a Property Owner and a Solar Installer or Roofer arising out of a Permit Set or Shading Report, or any other matter or issue, the parties shall settle such dispute with each other directly. Sofdesk is not a party and shall not be a party to any dispute between Users. Without limiting the generality of the Disclaimer of Warranties and Limitation of Liability sections further in these TOU, Users hereby agree to release Sofdesk and its Representatives from any damages or claims of any kind, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes and dealings with other Users.
- If there is a dispute between a Government or Regulatory Body and a Solar Installer or Roofer arising out of a Permit Set or Shading Report, or any other matter or issue, the parties shall settle such dispute with each other directly. Sofdesk is not a party and shall not be a party to any dispute between Users. Without limiting the generality of the Disclaimer of Warranties and Limitation of Liability sections further in these TOU, Users hereby agree to release Sofdesk and its Representatives from any damages or claims of any kind, suspected and unsuspected, known and unknown, and disclosed or undisclosed, arising out of or in any way connected with such disputes and dealings with other Users.
- Without limiting the generality of the foregoing, Sofdesk has no control over, and shall in no way be responsible for, the obtaining of the necessary permits, licenses, or any other similar government or regulatory permissions that may be required to complete a Project.
- During peak periods, Permits Set request or Shading Report may take longer to process than the target time, which is provided for indicative purposes only. If an EXPRESS request is not processed within the advertised period of time, extra fee for EXPRESS request will not be charged.
8. Proprietary Rights and User Content Rights
a. Intellectual Property Rights
You acknowledge that: (a) the Services and Websites contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) Sofdesk and/or third parties (via license) own all right, title and interest in and to the Services and Websites and content that may be presented or accessed through the Services and Websites, including without limitation all Intellectual Property Rights therein and thereto. All rights not specifically granted under these TOU are reserved to Sofdesk and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Websites or Services, or content that may be presented or accessed through the Websites or Services for any purpose, unless otherwise permitted by these TOU or the functionalities of the Services; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Websites or Services; or (iii) remove, obscure, or alter Sofdesk’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Websites or Services.
The content, arrangement and layout of the Websites and Services, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to Sofdesk, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Sofdesk, or as permitted by the functionality of the Services or these TOU. Any unauthorized use of the content, arrangement or layout of the Websites or Services, Computer Code, images, logos, videos, audio or trademarks found in the Websites or Services or any portion of or derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Sofdesk may take action accordingly.
You acknowledge and agree that any licenses granted to you elsewhere in these TOU are limited to the limited use of the Computer Code as manifested in the Services. Any license grated to you in no way includes the underlying Computer Code.
b. Submitted Information
If you choose to communicate to Sofdesk (via any means) suggestions for improvements to any of the Websites or Services (collectively, “Feedback“), Sofdesk shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Sofdesk and waive in favor of Sofdesk, its successors and assigns all your moral rights in the Feedback, and agree to provide Sofdesk such assistance as Sofdesk may require to document, perfect, and maintain Sofdesk’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Sofdesk, you are not entitled to any compensation or reimbursement of any kind from Sofdesk under any circumstances.
c. User Content
As a Logged-in User, you may use the Services to create and submit text which may be visible to other Users or third parties in various ways. You may also upload certain file types including but not necessarily limited to text, photographs, graphics, video, audio or any other type of media or content, and other interactive features generated, provided, or otherwise made accessible on or through the Services. All of the foregoing shall be deemed User Content. By creating, submitting and / or uploading User Content, you agree to be bound by the Sofdesk policy for User Content as described in this section (the User Content Policy).
When you submit User Content, you acknowledge and agree to the following:
- (i) User Content submitted by you does not violate any intellectual property right or other proprietary right of a third party. Without limiting the generality of the foregoing, you acknowledge that any User Content submitted is your own original works, or works for which you have been granted a valid license to reproduce or display. You affirm, represent and warrant that: (1) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Sofdesk to use all intellectual property rights and other proprietary rights in and to the User Content (or the individual constituent elements thereof) as set out herein; and (2) have all necessary consents to collect, use and disclose any personally identifiable information and images (of yourself or third parties) contained or displayed in the User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and these TOU;
- (ii) You retain all of your ownership rights in the User Content you submit. However, by submitting User Content to Sofdesk, you hereby grant Sofdesk a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, translate, reproduce, distribute, display, and / or perform and otherwise fully exploit the User Content in connection with the Website and Services and / or Sofdesk ‘s (and its successors’ and affiliates’) business or activities, including without limitation for promoting and redistributing part or all of the Websites or Services (and derivative works thereof) in any media formats and through any media channels without any compensation to you. You understand and agree that Sofdesk may retain, but not display or distribute, server copies of User Content that have been removed or deleted;
- (iii) You also hereby waive any moral rights you may have in your User Content and grant other Users of the Websites or Services a non-exclusive license to access your User Content, and to use, reproduce, distribute, display and / or perform such User Content as permitted through the functionality of the Services and under these TOU;
- (iv) The licenses granted by you in the previous two paragraphs in regards the User Content are perpetual and irrevocable, and apply throughout the world and in any and all media as applicable;
- (v) You will not upload any User Content that is unlawful, such as User Content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortuous. Furthermore, you will not upload any User Content that is racist, sexist, homophobic, or otherwise offensive to any minority or group; contains any adult content or political militancy; or upload any User Content that contains any viruses, commercial solicitations (except as contemplated by the Services), mass mailing, chain mailing or any other form of spam;
- (vi) You will not include in User Content links to any third-party website that is a spam or phishing website, to any website that sells goods or services not related to the activities or themes of the Website and Services, or to any website that may violate any applicable law.
Where you are accessing or downloading User Content of a Logged-in User, you acknowledge that any use of User Content accessed or downloaded by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any third party arising therefrom, and Sofdesk disclaims any responsibility in this regard.
If you as a Website visitor or Services user believe that a Logged-in User has posted User Content that violates these TOU, please contact us at [email protected] so that we may conduct an inquiry. Sofdesk retains absolute discretion whether to remove or modify any User Content or take any other action pursuant to your report.
User Content is not edited, curated or otherwise modified or checked by Sofdesk prior to posting. However, Sofdesk reserves the right, in its sole discretion, to remove or modify immediately and without notice any User Content that violates the User Content Policy.
Sofdesk and its Representatives will not be held liable for any damages, pecuniary or otherwise, to you or any third party arising from your submission or use of User Content, whether it violates the User Content Policy or not, or our removal or modification thereof, and disclaims any responsibility in this regard.
9. Interruption of Service
From time to time, the Websites or Services may be unavailable for brief periods of time for maintenance and / or modifications to the Websites or Services. While we will endeavour to make this unavailability as brief as possible, Sofdesk and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Websites or Services, and disclaims any responsibility thereto.
10. Suspension or Termination of your Account; Termination of the Services and the TOU
Sofdesk may also, in their sole discretion and at any time, discontinue providing the Websites and / or Services, or any portion thereof, with or without notice. You agree that Sofdesk shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Websites or Services, or from Sofdesk’s termination of the Websites and / or Services or any part thereof.
Termination of the Websites and / or Services or your access to the Websites and / or Services shall terminate the present TOU as between you and Sofdesk. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
11. External Links
In no way will Sofdesk or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Websites or Services or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service, even if such operators are other Services Users.
12. Disclaimer of Warranties
You expressly understand and agree that your use of the Websites or Services, the information or material thereon (whether provided by Sofdesk or third parties, including but not limited to other Services Users) or any activity arising from your use of the Services or the information thereon (including but not limited to the completion of, or participation in, a Project) or the materials streamed or downloaded therefrom is at your sole risk. The Websites and Services, any materials downloaded therefrom, or any third party materials, are provided on an “as is” and “as available” basis, and you will be solely responsible for any damage to your computer or Device or loss of data that results from the download or access of any material obtained through the use of the Services or any other functionalities of the Services, or losses or damages (pecuniary or otherwise) resulting from (i) your use of the Websites or Services, the information thereon, any materials downloaded therefrom, or (ii) any activity arising from the use of the Services or the information thereon (including but not limited to the completion of, or participation in, a Project) or any materials downloaded therefrom.
The information or resources provided on the Websites or through the Services, written or produced by Sofdesk staff, freelance writers or other subcontractors are known to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Sofdesk and / or its Representatives shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Websites or through the Services.
Sofdesk expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Websites or Services, the information thereon or any materials downloaded therefrom, and any third-party materials (including but not limited to other Services users and User Content) will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Sofdesk and its Representatives do not warrant that: (i) the Websites and Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Websites or Services is free of viruses or other harmful components; (iv) functionalities of the Services will work equally in desktop and Device environments; or (v) the results of using the Services, or any activity arising therefrom (including but not limited to using the completion of, or participation in, a Project), or any content downloaded therefrom will meet your requirements.
13. Limitation of Liability
Sofdesk shall not be liable and assumes no responsibility for any loss or damages arising from or relating to the information available through the Websites or Services or downloaded therefrom, the use of the Websites or Services, activities arising from your use of the Services (including but not limited to the completion of, or participation in, a Project), or any third-party materials on the Websites or available through the Services, even if such third parties are other Services Users.
To the maximum extent permitted by law, in no event will Sofdesk or it Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Websites or Services or your use, misuse or inability to use the Websites or Services, even if Sofdesk has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
15. Governing Laws and Jurisdiction
These TOU, and your use of the Websites or Services shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada and the Federal laws of Canada applicable therein in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and Sofdesk shall be brought exclusively in the courts located in the Judicial District of Montreal, Canada. Notwithstanding the foregoing, Sofdesk shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montreal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montreal court.
16. Miscellaneous Provisions
- Sofdesk shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Sofdesk’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
- The failure of Sofdesk to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Sofdesk.