These Terms of Use describe the rules that apply to your use of the Arkipel platform. They form a legal contract between you and Toucan Solutions Inc., the company that publishes the platform. Please read them carefully before accessing Arkipel.

IMPORTANT — ACCESS TO OUR PLATFORM IS SUBJECT TO THE TERMS SET OUT BELOW (THE “AGREEMENT”). THEREFORE, PLEASE READ THEM BEFORE ACCESSING OR USING THE PLATFORM.

This agreement, established and entered into at the time and date of the click or activation of the button, constitutes a legal agreement entered into between you (the “User” or “You”) and Toucan Solutions Inc. (“Toucan Solutions”) and governs the access to and use of the Arkipel platform offered by Toucan Solutions.

1. DEFINITIONS

In addition to the other terms defined in the Agreement, for the purposes of this Agreement:

“User Data” means all electronic data or other information that is (i) uploaded or entered by the User onto the Platform; or (ii) stored by the User through the Platform, including any personal data governed by applicable privacy laws and regulations;
“Intellectual Property Rights” means all patents, copyrights, trademarks, trade names and other property rights, as well as any filings or applications for filing relating to the foregoing;
“Updates and upgrades” means (i) modifications made to the Platform to fix Platform issues or to slightly change its functions, including updates, upgrades, tweaks, bug fixes and other temporary modifications to the Platform made by Toucan Solutions from time to time at its discretion; and (ii) new modules or new versions of the Platform that add significant functional capabilities or new features to the Platform;
“Platform” means the Arkipel digital platform offered by Toucan Solutions, accessible at the following addresses (without limitation): arkipel.co and its associated subdomains (including app.arkipel.co and any subdomain hosting an Arkipel community), as well as the legacy addresses go-toucan.com, gotoucan.app, app.toucanhq.com, pocket.toucanhq.com and colinor.toucanhq.com;
“Intellectual Property” means all ideas, concepts, inventions, methods, processes, know-how, trade secrets, works, software, computer programs and other software (including source code and object code, algorithms, architectures, structures, user interfaces, including screens, layouts and development tools), databases, designs, plans, drawings, leaflets, Platform content, advertising and sales materials, as well as any other marketing materials, along with improvements to the foregoing, or applications or derivative works of the foregoing, as well as other forms of intellectual property, whether or not filed, or whether or not capable of being filed.
“Network(s)” means the organizational structures between Users and any other relevant entity;

2. PLATFORM

2.1 Access

Subject to the terms of this Agreement, Toucan Solutions makes the Platform available to the User. Toucan Solutions makes commercially reasonable efforts to keep the Platform accessible 24 hours a day, 7 days a week. For any support request, contact us at aide@toucansolutions.ca. Response times apply during regular business hours (Monday to Friday, 9:00 AM to 5:00 PM, Montreal time, excluding holidays) and vary by ticket severity: Urgent (Level 1 — production completely interrupted): 4 business hours; High (Level 2 — production affected but system functional): 1 business day; Normal (Level 3 — normal operation, general inquiry): 4 business days. Specific service level agreements (SLAs) may provide different timelines.

2.2 Access suspension

Toucan Solutions may suspend the User’s account, or their right to access or use the Platform, in the following situations: (i) the User is in a non-payment situation or breaches the terms of the Agreement and such breach is not corrected within 10 days following the User’s receipt of written notice from Toucan Solutions; (ii) immediately, if Toucan Solutions detects fraud, a security breach or any other similar threat that causes or could cause, in Toucan Solutions’ reasonable opinion, harm to the Platform or to the User Data; or (iii) Toucan Solutions undertakes scheduled maintenance. Toucan Solutions makes commercially reasonable efforts (i) to inform Users of scheduled maintenance and (ii) to restore access to the Platform or its use as soon as possible after suspension.

2.3 Modifications, updates and upgrades

The User acknowledges and agrees that Toucan Solutions may, from time to time and at its sole discretion, modify the Platform and make Updates and upgrades to it.

3. USER OBLIGATIONS AND RESPONSIBILITIES

3.1 User responsibilities

The User is responsible (i) for using the Platform in good faith and in a manner that complies with all applicable laws at the local, provincial or state, national and international levels; (ii) for all uses and misuses of the Platform and for any violation of the terms of the Agreement, including by their employees, contractors or representatives; (iii) for using appropriate means to acquire User Data and for ensuring the accuracy, quality, legality and use of User Data; and (iv) for creating their own password to access the Platform and for maintaining the confidentiality of that password. The User shall maintain security measures in accordance with industry best practices and shall promptly inform Toucan Solutions upon becoming aware of any unauthorized access to the Platform or any abusive or unauthorized disclosure of personal data. If the User determines that their password is or may be compromised, the User shall immediately notify Toucan Solutions. The User shall be liable for any damage incurred by Toucan Solutions resulting from disclosure or misuse of the User’s password.

3.2 Acceptable use

The User agrees to use the Platform in the manner and for the purposes expressly set out in this Agreement. The User (i) shall not use the Platform in a manner that infringes the intellectual property rights of Toucan Solutions or any third party; (ii) shall not decompile, disassemble, analyze or otherwise examine the Platform for reverse engineering purposes; (iii) shall not copy, reproduce, republish, upload, post, transmit, sell, rent or otherwise distribute the Platform, any information published thereon, or any part of the Platform, or cause or permit a third party to do so; and (iv) shall not use any device or software or take any action to disrupt or attempt to disrupt the proper functioning of the Platform or the experience of other users on the Platform.

4. PRIVACY

4.1 Consents

The User represents and warrants that they will comply with all applicable privacy laws and regulations, including those relating to the collection, use, processing, disclosure and handling of personal data that forms part of the User Data or is otherwise provided to Toucan Solutions for the purposes of this Agreement. Without limiting the foregoing, the User represents, warrants and undertakes that: (i) they have (and will have) provided all notices and obtained all consents and rights required by any applicable law to permit Toucan Solutions to lawfully process User Data as enabled by the Platform and this Agreement; (ii) they have the full right and authority to upload User Data to the Platform and to make User Data available to Toucan Solutions under this Agreement; and (iii) Toucan Solutions’ processing of User Data in accordance with this Agreement will not infringe or violate any applicable law or any third party’s rights.

4.2 Use of User Data on the Platform

The User acknowledges and agrees that (i) the User is solely responsible for their User Data and how it is used and shared on the Platform; and (ii) the Platform is a collaborative network and involves the sharing of data and information between different users, including the sharing of data between the User and (a) other users of the Platform, or (b) the Network(s) to which the User belongs. Toucan Solutions shall not be liable for any damages or losses, pecuniary or non-pecuniary, arising from the sharing of User Data by other users in the manner that the Platform enables and is intended to function, and disclaims all liability in this regard.

4.3 Protection of User Data

Toucan Solutions has implemented administrative, physical and technical measures designed to protect the security, confidentiality and integrity of User Data in accordance with industry standards. Production data is hosted in Canada in accordance with industry standards, with regular backups at least every 24 hours, guaranteeing a Recovery Point Objective (RPO) of less than 24 hours of data loss. Security patches for critical vulnerabilities are applied within a maximum of 72 hours. In the event of a data breach involving personal information, Toucan Solutions shall notify the User and the relevant regulatory authorities (including the Commission d’accès à l’information du Québec) within a maximum of 72 hours. Toucan Solutions undertakes to rectify any inaccurate data at the User’s request within a maximum of 15 days, and to respond to data access, deletion and portability requests within a maximum of 30 days. Toucan Solutions does not access User Data, except (i) in the course of performing its obligations under this Agreement; (ii) to prevent or resolve technical issues; or (iii) at the User’s request. Subject to the use cases described in section 4.2, under no circumstances shall Toucan Solutions share or facilitate the sharing of User Data with any third party, other than its subcontractors who require access to perform Toucan Solutions’ obligations under this Agreement, or where required by applicable law or a governmental authority. In the latter case, Toucan Solutions shall notify the User of any request for access to stored information from a governmental authority or in connection with applicable law.

5. INTELLECTUAL PROPERTY

5.1 Ownership by Toucan Solutions

Toucan Solutions (or its licensors) owns and retains all rights, title and interest in (i) the Platform and all content and materials thereon (other than User Data); (ii) all Data (other than User Data) generated by the Platform, including all metadata generated by the Platform; (iii) all improvements, Updates and upgrades or other modifications to the foregoing; (iv) all trademarks relating to the Platform and Toucan Solutions; and (v) all Intellectual Property and Intellectual Property Rights related to the foregoing. The User acquires no rights or licenses in Toucan Solutions’ property, except as expressly provided otherwise in the Agreement.

5.2 User ownership and licenses

The User owns all rights, title and interest in the User Data, including all their Intellectual Property Rights. The User grants to Toucan Solutions (i) a free, worldwide, non-exclusive license to host, use, copy, reproduce, display, store, process and transmit User Data for the purposes of, and to the extent necessary for, the operation of the Platform.

5.3 Feedback

Toucan Solutions owns all rights, title and interest in any suggestions, requests or recommendations for improvement or enhancement of the Platform or any part of the Platform that the User may, alone or with Toucan Solutions, make or propose during the term of the Agreement (collectively, “Feedback”). By this Agreement, the User irrevocably (i) assigns to Toucan Solutions all rights, title and interest in the Feedback, and (ii) waives, in favor of Toucan Solutions and its successors and assigns, all moral rights that the User holds or may hold in the Feedback, worldwide, to the fullest extent permitted in each relevant jurisdiction.

6. REMOVAL OF THE PLATFORM OR YOUR ACCESS TO THE PLATFORM; TERMINATION OF THIS AGREEMENT

6.1 Toucan Solutions’ right to terminate

You agree that Toucan Solutions, at its sole discretion, for any valid reason or no reason, has the right (but not the obligation) to block your IP address or otherwise terminate your access or use of the Platform (in whole or in part), immediately and without notice, for any reason, including if Toucan Solutions believes you have violated the spirit or letter of this Agreement. Toucan Solutions may also, at its sole discretion and at any time, cease providing the Platform, in whole or in part, with or without notice. You agree that Toucan Solutions shall not be liable to you or to any third party for any losses or damages, pecuniary or non-pecuniary, arising from the termination of access to the Platform or the removal of the Platform, in whole or in part, by Toucan Solutions.

6.2 User’s right to terminate

You have the right to terminate your account and your access to the Platform at any time. Please contact info@toucansolutions.ca to request such termination. Upon termination of this Agreement, the User’s access to the Platform shall cease. It is the User’s responsibility to proactively retrieve their User Data before the termination of this Agreement. Toucan Solutions will make reasonable efforts to assist in the retrieval of User Data, but the User acknowledges that failure to retrieve User Data before termination of the Agreement may result in permanent data loss.

6.3 Effects of termination

The removal of the Platform or the termination of your access to the Platform results in the termination of this Agreement. All provisions of the Agreement that, by their nature, are intended to survive termination shall remain in effect upon termination of this Agreement, including, without limitation, provisions relating to intellectual property, warranty disclaimers, indemnification and limitation of liability. The User acknowledges that as of the date of termination, the User will lose all access to their User Data, and, unless otherwise agreed in writing between the parties, Toucan Solutions, without incurring any liability to the User, the Network(s), or any third party, may delete all User Data. In the event of involuntary termination, Toucan Solutions will make the User’s data available to the User for 60 days for extraction.

7. EXCLUSION OF WARRANTIES

You understand and expressly agree that your use of the Platform and the information it contains (whether provided by Toucan Solutions or a third party) or any activity arising from the use of the Platform or the information it contains or materials downloaded from it is at your own risk. The Platform, materials downloaded from it, or any third-party materials, are provided “as is” and “as available,” and you are solely responsible for any damage to your computer system or any data loss arising from downloading, transmitting or accessing any material obtained through the use of the Platform or any feature of the Platform, or for any damage or loss (pecuniary or otherwise) arising from the use of the Platform, the information it contains, materials downloaded from the Platform, or any activity arising from the use of the Platform, the information it contains or materials downloaded from it.

8. LIMITATION OF LIABILITY

In no event shall Toucan Solutions or its shareholders, directors, officers, employees, subcontractors, suppliers, licensors and agents be liable for indirect, special, intangible, exemplary, punitive or other damages, or for any losses, damages, liabilities, costs and expenses arising directly or indirectly from the following: (i) your access or inability to access the Platform, or your use or misuse of the Platform; (ii) the interruption, suspension or removal of the Platform, in whole or in part, regardless of the cause of action (whether based in contract, warranty, tort, quasi-tort, civil delict, negligence, strict liability or any other theory of liability), even if we have been informed of the possibility of such damages. Notwithstanding any provision to the contrary in this Agreement, our total liability for all claims related to your use of the Platform shall not exceed CAD $100.

9. MISCELLANEOUS

9.1 Standard forms

Nothing in any document submitted by the User in the course of their use of the Platform shall have the effect of modifying, correcting or supplementing the terms of the Agreement.

9.2 Force majeure

Toucan Solutions shall in no event be liable for any failure or delay in performing its obligations under this Agreement arising, directly or indirectly, from a force majeure event.

9.3 Entire agreement

This Agreement constitutes the entire agreement between the User and Toucan Solutions regarding the use of the Platform and supersedes all prior or contemporaneous agreements, representations or warranties, oral or written, between the parties regarding the subject matter of the Agreement.

9.4 Successors and assigns

All obligations set forth in the Agreement are binding upon and inure to the benefit of the respective successors and assigns of the parties.

9.5 Waiver

The failure of a party to enforce any provision of the Agreement shall not constitute a waiver of that provision, nor of that party’s right to enforce that provision or any other provision.

9.6 Severability

If a competent court finds any provision of the Agreement to be void, illegal or unenforceable, the validity, legality or enforceability of the other provisions of the Agreement shall not be affected or diminished thereby.

9.7 Governing law and jurisdiction

This Agreement is governed by the laws of Quebec (Canada) and shall be interpreted in accordance with those laws, excluding any rules of private international law or conflict of laws that would result in the application of other laws. Regardless of the territory from which you access or use the Platform, you agree that any action at law or in equity arising out of or relating to this Agreement shall be filed in a federal or provincial court sitting in Quebec (district of Montréal), Canada, and shall be resolved by such court. You hereby consent and agree to submit, irrevocably and unconditionally, to the exclusive jurisdiction and venue of such courts for any lawsuit, action or proceeding arising from this Agreement. Notwithstanding the foregoing, we shall have the right to bring an action against you in the competent courts of the territory where you reside, or where you are located: (i) to obtain injunctive relief against you; (ii) to obtain a judgment against you, if a Quebec court’s judgment cannot be enforced by the authorities of the territory where you reside or are located; or (iii) to enforce a judgment rendered against you by a Quebec court.