TERMS & CONDITIONS

These terms and conditions (“Terms”) are entered into between 11996789 Canada Inc.  operating as CondoVoter, a Canadian Corporation, and you, the party who has acknowledged acceptance of these Terms (“you” or “Customer”).

CondoVoter provides an easy-to-use, robust, online voting software application and virtual meeting platform, and associated services, both through its own application and using third-party software (collectively, the “Application”), as a service. You have selected to purchase access to the Application and other related and agreed services for a specified term (the “Term”) for the initial fees set out in the quote(s) provided to you (“Quote”) and any subsequent additional services and additional charges as you may further request.

The parties agree as follows:

1. Provision 

Subject to these Terms, as specified herein, CondoVoter will provide you with access to the Application, accessible by way of the internet and/or telephone, during the Term, for the sole purpose of conducting online voting and virtual meetings for and within your own organization. CondoVoter shall use reasonable efforts to provide the Application to you in accordance with these Terms, exercising reasonable care and using suitable personnel. CondoVoter shall have no obligation to provide you with other services, beyond the services specified in these Terms.  

2. Limitations

You are not licensed, or permitted to do any of the following: (a) copy, sublicense, lease or otherwise transfer, disclose or publish the Application (or any portions thereof), or resell the Application, or in any manner transfer or assign your rights under these Terms; (b) use the Application for any purpose other than the purposes specified herein; (c) use the Application for the benefit of third parties or as part of your own commercially licensed products or services; (d) remove or obscure the copyright or trademark notices appearing on or within the Application, or displayed as part of the Application; or (e) directly link to any page on the site or sites displaying or providing the Application other than the home page containing your login procedures; or (f) display or use any material from the Application on any other website.

3. Fees

CondoVoter shall provide the Customer with an invoice for fees as set out in the Quote and may render further invoices (referred to individually or collectively as “Invoices”) for additional services (“Additional Services”) as requested by the Customer after the date of these Terms.  Additional charges will apply for services that fall outside of the scope of services set out in the Quote and Additional Services (referred to collectively as “Fees”). All Fees are exclusive of any applicable taxes which are the Customer’s obligation to pay.  The Customer shall pay all Fees owing under such Invoices within ten (10) days of receipt.  All Fees are based on CondoVoter’s current pricing as of the date of these Terms and as modified from time to time as set out in paragraph 35.  All past due balances of Fees shall accrue interest at a rate equal to the lesser of: (i) 1.5 percent per month; or (ii) the highest rate of interest allowed by Canadian law. 

4. Suspension

CondoVoter may temporarily suspend your access to any part or all of the Application and cease providing any of its services set out in the Quote in the event that i) you have not paid, in whole or in part, any Fees and applicable taxes within ten (10) days of receipt of the Invoice(s); ii) there is a suspected breach of any of your obligations under these Terms;  iii) continued use of the Application by you may result in harm to data or to other users; or iv) if you have notified CondoVoter that you no longer plan on using the Application.

5. Term of Services

CondoVoter and the Customer agree that the services provided by CondoVoter to the Customer are limited to the services set out in the Quote and Additional Services that are requested by the Customer. The Terms set out herein, shall become effective upon the date of acceptance of the Terms and will remain in force unless mutually agreed to by both parties in writing.

6. Maintenance, Updates, Hosting Sites

CondoVoter shall have the right, but not the obligation, to prepare and install, automatically and without prior notice, updates, patches or upgrades to the Application at any time, or otherwise modify the Application, and these Terms shall apply to all versions and revisions of the Application. Where CondoVoter uses a third-party service provider to enable virtual meetings, CondoVoter makes no guarantee as to the suitability of the third-party software and is not responsible for any of maintenance or updates of such third-party software, including any downtime or inability to access the third-party software.

7. Ownership, IP Rights

Other than the rights provided herein, you acknowledge that you have no right, title or interest in and to the Application. You acknowledge that the Application and all customized and derivative works based upon it, including all copies thereof and all copyrights and other intellectual property rights embodied therein are owned by CondoVoter or its suppliers. Any unauthorized use of the Application or the website(s) upon which the Application is hosted may subject you to civil and criminal penalties under copyright law and international treaties. Any unauthorized use of CondoVoter’s trademarks may subject you to civil and criminal penalties under common law, and under Canada trademark laws and international treaties. All rights not specifically granted in these Terms are reserved by CondoVoter. No implied rights are granted.

8. Retention of Records

CondoVoter will make the final voting report available to the Customer for electronic retrieval for a period of 90 days following the close of the vote or 180 days following an adjourned meeting if the meeting is not rescheduled by the Customer with CondoVoter prior to the expiry of 180 days from the date of the previous meeting. After such time, CondoVoter may, but is not obligated to, delete stored Customer data and records.

9. Electronic Data

Upon request by the Customer, and before the expiration of the periods set out in paragraph 8 herein, CondoVoter is able to provide to the Customer a copy of the final voting report, a list of who has voted and who has not voted. If a virtual meeting is recorded, which the Customer has the option of recording or not, CondoVoter can also provide a copy of the recording to the Customer. CondoVoter can produce further information such as the date, time IP address and location from which votes were cast for an additional fee of $250 per report (plus applicable taxes). A report is anything outside of CondoVoter’s standard reports.  Standard reports are the owner/shareholder registration report, attendance report and voting summary.

10. Removal of Ballots

CondoVoter will not remove an electronic ballot once a vote has been cast, unless the person who cast the vote provides a copy of their voting receipt and consents to the removal in writing.  The Customer is responsible for obtaining this information and providing it to CondoVoter.  The additional fee for removing an electronic ballot is $75 (plus applicable taxes) per ballot.

11. Privacy and Secrecy of Electronic Ballots for Election of Directors

CondoVoter does not share voting information to anyone, including the Customer, as to how an authorized voter casts their vote by electronic ballot for an election of directors.  All electronic ballots for elections are secret ballots.

12. Proxies

CondoVoter is an electronic voting platform designed for authorized voters to vote directly by electronic ballot.   In the event that the Customer collects paper proxies or paper ballots, CondoVoter will not replace any electronic vote with a paper ballot or proxy unless the authorized voter provides a copy of their voting receipt and written consent to remove their electronic ballot in accordance with paragraph 10.

13. Ranking of Candidates

CondoVoter’s electronic voting platform does not rank candidates.  If you provide a paper proxy or ballot with a ranking system, CondoVoter will only input the votes for the number of candidates needed to fill the number of open positions, in order of ranking.

14. Your Obligation to Protect the Application

You agree to access and use the Application only for the purposes set forth in these Terms and for no other purpose, and you shall use commercially reasonable efforts to protect the Application and the intellectual property rights of CondoVoter from unauthorized use, reproduction, publication or distribution.

15. Lawful Use

You shall at all times use the Application in full compliance with all laws and regulations, and shall not use the Application in any manner that violates the rights of third parties or that CondoVoter would reasonably find inconsistent with its good business reputation.

16. Responsibility for Internet Security

You will be solely responsible for obtaining and using your own anti-virus, anti- Trojan, anti-malware and internet security software when accessing and using the Application. CondoVoter (and its suppliers) do not warrant that the Application or any data viewed from or downloaded from the Application, will be safe or free of viruses, worms, Trojan programs, ransomware or other malware or destructive mechanisms. You are responsible for using appropriate internet security devices and/or software to ensure that no third parties take advantage of the fact that your computer is connected to the internet.

17. User Account and Security

Your access to the Application may require an individual Customer ID and password. Your Customer ID and password will be established by you upon your registration, if applicable. You are solely responsible for maintaining the confidentiality of your Customer ID and password and for logging out of your account at the end of each session. CondoVoter may provide a voter registration mechanism for persons you identify as authorized voters. You are fully responsible for accurately identifying authorized voters and for any activities that occur in or through your account. CondoVoter is not responsible for any losses or damages incurred as a result of an unauthorized use of your account, Customer ID, voter IDs or passwords. You agree to notify CondoVoter immediately of any unauthorized use of your account or breach in security so it may take the appropriate actions, including possibly closing your account and assigning you a new account. 

18. Single Point of Contact

CondoVoter works with a single point of contact (“SPC”) who will provide the material and information required to set up a vote or a meeting and will be responsible for providing all required owner data and importing it into the Application. CondoVoter will enable the set-up of the ballot, addition of candidates and/or issues before going live. During the vote, CondoVoter will send invitation to vote emails to the authorized voters that have email addresses, as provided by the SPC to CondoVoter. CondoVoter will send authorized voters an invitation when voting opens and throughout the vote. Voters who contact CondoVoter requesting information will be directed to the SPC for that information.  If the Customer engages CondoVoter to use telephone voting, the SPC will be provided with voting codes to provide to authorized voters on request.  CondoVoter will not provide telephone voting codes directly to the authorized voter. No vote information is discussed with anyone other than the SPC, including board members or other management personnel. If voters have any issues, CondoVoter may work with the SPC to resolve them. CondoVoter will continue to report to, and liaise with, the SPC and if the SPC is changed, the incoming SPC will be given access to the Application and the outgoing SPC’s access to the Application will be revoked.

19. Authorized Voter Lists

CondoVoter will provide the Customer with a template for uploading authorized voter lists.  If the Customer fails to upload the list in the CondoVoter format, CondoVoter will not be held responsible for errors that occur as a result.

20. Support

CondoVoter will provide you with technical support by telephone or email during regular business hours (Monday to Friday from 9:00 am to 6:00 pm Eastern Standard Time, with the exclusion of statutory holidays).  You may initiate a request for technical support by  calling 647-484-8830 by emailing clientservices@condovoter.com

21. Printing and Mailing Services

CondoVoter may use a third-party service provider in connection with its printing and mailing services. You agree that CondoVoter may provide your mailing lists and information (including, among other things, any applicable owner mailing list and notice of meeting package) to such third-party service provider in connection with the provision of these printing and mailing services. The cost of any printing and mailing services will constitute Additional Services in accordance with clause 3, and you shall be responsible to pay these costs upon receipt of the Invoice.

22. Indemnification

You shall indemnify, defend, and hold harmless CondoVoter, its partners, suppliers, affiliates, officers, directors, employees and agents from all claims, demands, liability, costs and expenses, including, without limitation, legal fees, arising directly or indirectly from or related to the use of the Application or CondoVoter’s services, that may be asserted by you or a third party.

23. Your Information

CondoVoter shall treat your information and voting records as your confidential information and will not use or disclose such information except as required to provide electronic voting and virtual meeting services to you, or as may be required by law. Your information may be provided to CondoVoter’s suppliers and partners for the purposes of providing these services to you and they will be similarly obliged to treat your information and voting records as confidential. Your information and voting records and any other information provided by you, your authorized voters or through the Application may be stored on computing servers located in Canada, and you have obtained suitable permissions from third parties, including your authorized voters and board of directors, if applicable, for the use and storage of personal information.  Any and all data collected by CondoVoter in the context of providing electronic voting and virtual meeting services to you shall not be used for any other purposes during or after the term of these Terms. Data obtained by CondoVoter shall be collected, used and disclosed, as well as processed, handled, stored and destroyed in accordance with applicable privacy laws, including the Personal Information Protection and Electronic Documents Act (2000, c.5), or such provincial legislation as may be applicable from time to time. CondoVoter will take all reasonable precautions to prevent owner data from being accessible by any unauthorized person. 

24. Disclaimer of Professional Advice

CondoVoter does not provide you with any advice, legal or otherwise, regarding quorums, voting rights, voting, or meeting procedures, or the legal effect of any voting activities or virtual meetings. You should always consult with your own lawyer, accountant or other applicable professional for advice before setting up a voting event, virtual meeting, or acting upon its results.   CondoVoter makes no representations as to whether the Application complies with applicable laws and requirements.  The Customer is responsible for ensuring that the Application complies with applicable laws and requirements in their jurisdiction.

25. Limitation of Warranties

OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, CONDOVOTER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. CONDOVOTER SPECIFICALLY DISCLAIMS ON ITS OWN BEHALF, AND ON BEHALF OF ITS SUPPLIERS AND AFFILIATES, TO THE FULLEST EXTENT ALLOWED BY LAW, ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, CONDOVOTER DOES NOT REPRESENT OR WARRANT, AND DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT: A. THE  APPLICATION WILL MEET YOUR REQUIREMENTS; B. PROVISION OF THE APPLICATION WILL BE CONTINUOUS, TIMELY, SECURE OR UNINTERRUPTED; C. DATA (INCLUDING DATA INPUT BY YOU USING THE APPLICATION) WILL NOT BE LOST, DELETED OR ALTERED BY REASON OF DEFECT IN THE APPLICATION AS MADE AVAILABLE BY CONDOVOTER, ITS SUPPLIERS OR DESIGNEES, WHETHER BY REASON OF NEGLIGENCE OR NOT; D. THE APPLICATION WILL BE ERROR FREE; E. ERRORS RESULTING FROM USE OF THE APPLICATION WILL BE CORRECTED; F. THE APPLICATION WILL ACCEPT DATA FROM, PROVIDE DATA TO, OR OTHERWISE OPERATE IN CONJUNCTION WITH ANY OTHER PROGRAM; AND G. THE SECURITY MEASURES USED IN THE PROVISION OF THE APPLICATION WILL MEET YOUR REQUIREMENTS.

26. Limitation of Remedies

IN NO EVENT SHALL CONDOVOTER, OR ITS SUPPLIERS, AFFILIATES, OFFICERS DIRECTORS OR EMPLOYEES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION, EVEN IF CONDOVOTER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN PARTICULAR, CONDOVOTER SHALL NOT BE LIABLE FOR THE LOSS OF INFORMATION ARISING FROM THE USE OF, OR INABILITY TO USE, THE APPLICATION. CONDOVOTER’S LIABILITY TO YOU, IF ANY, WHETHER ARISING UNDER CONTRACT OR BASED UPON A CLAIM OF STRICT LIABILITY, NEGLIGENCE OR SOME OTHER TORT OR STATUTORY CLAIM, SHALL IN NO EVENT EXCEED THE TOTAL OF THE PAYMENTS MADE TO CONDOVOTER IN FEES HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH LIABILITY IS PREDICATED. THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR IMPLIED. YOU ACKNOWLEDGE THAT THE FOREGOING LIMITATION OF REMEDIES IS A MATERIAL CONDITION OF CONDOVOTER’S WILLINGNESS TO ENTER INTO THESE TERMS, AND THAT CONDOVOTER WOULD NOT ENTER INTO THESE TERMS BUT FOR SUCH LIMITATION.

27. Independent Parties

CondoVoter and you agree that you are independent parties and that the relationship created by these Terms is not that of employer and employee, principal and agent, partnership, joint venture, or franchise. Neither party shall have the authority to bind or obligate the other party in any manner.

28. Remedies

In the event that you breach or default upon any covenant, warranty, term or condition of these Terms, CondoVoter may pursue any legal or equitable remedies available to it under the laws of the province of Ontario or the applicable laws of Canada. The parties agree that in the event of a breach of any of the covenants pertaining to CondoVoter’s intellectual property rights, that such a breach will result in irreparable and continuing damage in an amount which is not readily ascertainable and for which there will be no adequate remedy at law. In the event of any breach of such covenants, CondoVoter shall be entitled to injunctive relief and such other and further relief, including damages, as may be provided by law, and you agree that you will not oppose such injunctive relief being granted.

29. Non-Waiver

The failure or delay of either party to require performance of, or to otherwise enforce, any condition or other provision of these Terms shall not waive or otherwise limit that party’s right to enforce, or pursue remedies for the breach of, any such provision or condition. No waiver by either party of any particular condition or provision of these Terms, including this non-waiver provision, shall constitute a waiver or limitation on that party’s right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of these Terms. No waiver shall be effective unless made in writing and executed by the waiving party.

30. Successor Interests

These Terms and the rights granted hereunder are not assignable or transferable by you without the express written consent of CondoVoter, which shall not be unreasonably denied or delayed. Subject to this restriction, these Terms is binding upon, and shall inure to the benefit of, the successors, assigns and bankruptcy estates of each of the parties.

31. Governing Law

These Terms shall be governed by and construed in accordance with the laws of Ontario without regard to, or application of, any conflict of law provisions. The rights and obligations of the parties to these Terms shall not be governed by the provisions of the United Nations Convention for the International Sale of Goods.

32. Jurisdiction, Venue

The parties agree that any suit, action or arbitration proceeding arising out of or relating to these Terms shall be brought exclusively in Ontario, Canada. You irrevocably attorn to the jurisdiction of the courts of Ontario.

33. Severability

If any court of competent jurisdiction finds any term of these Terms or of any other document or instrument referred to or contemplated in these Terms, to be invalid or unenforceable, such determination shall not affect the validity and enforceability of the remainder of the Agreement, and the court shall enforce the Agreement in such a manner as to give substantial effect to the intent of the parties as expressed in the Agreement.

34. Paragraph Headings

All paragraph headings in these Terms appear for convenience of reference and shall not affect the meaning or interpretation of the Agreement.

35. Amendments

You acknowledge that these Terms and the Quote, as amended from time to time, constitute the full and entire understanding between the parties.  You agree that CondoVoter may amend the terms and conditions or services related to these Terms at any time, including its Fees.  CondoVoter will notify you of such changes by mail, email, by posting such changes online or by any other means permitted by law, including a notification directing you to the CondoVoter website to review details of a change.  Any use of the Application after the effective date of any amendment will constitute your acceptance of such amendment.  

36. Cancellation and Termination Fee

If Customer cancels the services within ten (10) days from acceptance of these terms and conditions which date is more than forty (40) days prior to the meeting date, there shall be no cancellation fee. If Customer cancels the services after ten (10) days from acceptance of these terms and conditions or less than forty (40) days prior to the meeting, a cancellation fee of $950 shall be paid by the Customer to CondoVoter within ten days of such termination date as liquidated damages.

37. Entire Agreement

These Terms and the Quote constitute the entire agreement between the parties and supersede all prior discussions, negotiations, understandings, representations, and agreements, whether oral or written. No terms or conditions in any purchase order form, order acknowledgement or similar documentation provided by you shall be effective. All terms in these Terms are contractual and are not mere recitals.