OVERCAST TERMS OF SERVICE

These terms of services (the “General Terms”) govern the use of, and the subscription to, Overcast provided by Groupe GSOFT Inc. (“GSOFT”). By accessing Overcast, you agree to the General Terms on behalf of the organisation that you represent (“Customer”).

1. DEFINITIONS AND INTERPRETATION

The following capitalized terms shall have the meaning ascribed to them below:
“Azure” means Microsoft Azure cloud computing platform.
“Azure REST API” means the API provided by Microsoft that allows to perform HTTP operations on an Azure tenant service resources and account.
“Customer Data” means any data on Customer’s activities, consumption metering resource usage, configuration and spending in Azure that GSOFT has access to on Customer through Azure REST API.
“Overcast” means the tool and platform commercialized by GSOFT as “Overcast”, that gathers cost information about Customer’s Azure resources and issues recommendations to optimize management of resources, and allows Customer to act on those recommendations.
“Parties” means GSOFT and Customer.
“Website” means Overcast’s website at https://overcast.cloud.
The term “including” is not limiting and means “including, without limitation”.
 

2. ACCESS AND USE OF OVERCAST

Services. During the Term, GSOFT grants to Customer the right to access and use Overcast, and any related services, in accordance with the General Terms (the “Services”). The Services are further described on the Website.
Access to Customer’s Azure REST API. Customer understands and agrees that in order for GSOFT to obtain the Customer Data required to perform the Services, GSOFT must be granted access to Customer’s Azure REST API. Customer confirms that it has granted such access to GSOFT.
Services Revisions. GSOFT may revise the content, features and functions of Overcast at any time without notice. GSOFT will provide Customer with prior notice if there is a change to Overcast resulting in overall material decrease in functionality of Overcast.
Temporary Suspension of the Services. GSOFT may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, Overcast.
Unacceptable Use. Customer shall not, nor attempt to, nor permit third parties to: (a) share non-public features or content of Overcast with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of Overcast. For clarity purposes, Customer shall not access Overcast in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of Overcast. In the event that it suspects any breach of this Section, GSOFT may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as GSOFT may have.
Account Security and Access. Customer shall take reasonable steps to prevent unauthorized access to Overcast, including by protecting its passwords to its Azure and other login information. Customer is responsible for any activity occurring in its account (other than activity that GSOFT is directly responsible for and is not performed in accordance with Customer’s instructions), whether or not Customer authorized that activity. Customer shall immediately notify GSOFT if it becomes aware of any unauthorized access to, or use of, its account.
Customer Systems. Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that Customer uses to access and use the Services. Customer acknowledges that the Services may not work properly if its operating systems, Internet browsers and anti-virus software are not up-to-date.
Indemnification by Customer. Customer shall defend, indemnify and hold harmless GSOFT against any claim, suit or proceeding arising out of, or related to Customer use of Overcast or the breach of any warranty, covenant or other obligation contained in these General Terms by Customer.
Compliance with Laws and other contractual requirements. When using the Services, Customer shall comply with all applicable laws as well as any contractual agreements between Customer and Azure.
 

3. SERVICE FEES OF OVERCAST AND BILLING

Applicable Service Fees. Customer shall pay GSOFT all applicable fees for the Services as specified on the Website unless other payment terms have been agreed to in writing between Customer and GSOFT (the “Service Fees”). Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription term as the previous one, unless it cancels its subscription before the Renewal Date in accordance with Section 8.2(i). Customer is responsible for timely canceling its subscription in accordance with Section 8.2(i) regardless of whether it receives any renewal prior notice from GSOFT. For the purpose of the General Terms, a “Renewal Date” is the first day following the expiration of a subscription term.
Revised Service Fees. GSOFT reserves the right to revise the Service Fees applicable to any future subscription term in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next subscription term further to a prior notice from GSOFT to Customer.
No Refunds. Payments are non-refundable and there are no refunds or credits for partially used periods.
Free trial. From time to time, GSOFT may offer trials of the paid subscription for a specified period without payment (a “Trial”). GSOFT reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial and to withdraw or to modify a Trial at any time without prior notice and with no liability.
Third Party Payment Processor. GSOFT reserves the right to use a third-party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.
Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against GSOFT based on its income. GSOFT will invoice Customer for such Taxes if GSOFT believe it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
 

4. DATA

Customer Data

Customer Data. Customer grants GSOFT a perpetual, irrevocable and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Data, only to the extend permitted by law and as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) create de-identified data aggregated for benchmarking and marketing purposes or (d) as otherwise expressly permitted in writing by Customer. This right continues with respect to the de-identified data derived from Customer Data and any residual backup copies of Customer Data made in the ordinary course of business even after Customer stops using the Services. GSOFT retains the right to delete any copies of such Customer Data.
Protection of Customer Data. GSOFT shall store and process the Customer Data in a manner consistent with industry security. GSOFT has implemented technical, organizational and administrative systems, policies, and procedures to help ensure the security, integrity and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data. Nonetheless, Customer acknowledges and agrees that in accessing and using Overcast, the Customer Data is subject to risks of unauthorized disclosure, loss or exposure. To the extend authorized by law, GSOFT offers no representation, warranty or guarantee that Customer Data shall not be subject to unauthorized use or disclosure.
Disclosure of Customer Data. Unless it receives Customer’s prior written consent, GSOFT shall not intentionally grant any third party access to Customer Data, except to GSOFT’s third party services providers in connection with the performance or the improvement of the Services. Before sharing any Customer Data with any of its third party service providers, GSOFT will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Notwithstanding the foregoing, GSOFT may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Unless prohibited by law or any court order, GSOFT shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
 

Utilization Data

Utilization Data. Customer acknowledges and agrees that to the extend permitted by law, the aggregated data derived from telemetric information and data related to how Customer accesses and uses Overcast (including, but not limited to, feature and function of Overcast being used by Customer) (the “Utilization Data”) is owned by GSOFT and does not constitute Customer Data. For clarity purposes, the Utilization Data does not include the aggregated data derived from telemetric information and data related to how Customer accesses and uses Azure.
 

Confidential Information

Confidential Information. “Confidential Information” means any non-public, confidential and sensitive information, including Customer Data, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and excludes any information that is:
subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality.
Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that GSOFT may disclose Confidential Information to its third party services providers in connection with the performance or the improvement of the Services, in which case GSOFT will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
 

5. WARRANTY DISCLAIMERS

Warranty Disclaimers. CUSTOMER ACKNOWLEDGES AND AGREES THAT GSOFT DOES NOT CONTROL THE CUSTOMER DATA AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CUSTOMER DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING ITS OWN DECISIONS BASED ON THE RECOMMENDATIONS MADE BY OVERCAST AND DEALING WITH ANY RELATED CONSEQUENCES. CUSTOMER UNDERSTANDS THAT OVERCAST’S RECOMMENDATIONS ARE BASED ON GSOFT’S OWN DETERMINATION OF WHAT IS IMPORTANT TO TAKE INTO CONSIDERATION WHEN MAKING A DECISION ABOUT THE OPTIMIZATION OF THE MANAGEMENT OF RESOURCES IN ITS AZURE. FURTHER, GSOFT DOES NOT WARRANT ANY MONEY SAVING ARISING OUT OF THE USE OF THE SERVICES AND DOES NOT GUARANTEE THAT CUSTOMER’S AZURE CAN BE FURTHER OPTIMIZED. GSOFT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE AND ERROR FREE. CUSTOMER ACCEPTS THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. GSOFT MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Failure caused by Azure REST API. Overcast relies on Azure REST API to perform the Services. Without limiting Section 5.1 (Warranty Disclaimers), GSOFT is therefore not responsible if a failure to perform the Services is caused by a default of Azure REST API.
 

6. LIMITATION OF LIABILITY

Dollar Cap. IN NO EVENT SHALL GSOFT’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
IN NO EVENT SHALL GSOFT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR FRAUD OR WILLFUL MISCONDUCT OF GSOFT.
 

7. INTELLECTUAL PROPERTY AND FEEDBACK

No Rights granted. GSOFT retains all right, title, and interest in and to Overcast and the content Customer accesses through Overcast, other than Customer Data. These General Terms do not grant Customer any intellectual property rights in or to Overcast or in GSOFT’s logos and other trademarks.
Indemnification. Subject to Section 6 (Limitation of Liability), GSOFT will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, including any interest accrued, but excluding any Third Party Claim Litigation Expenses; provided, however, that GSOFT will have no liability if the Third Party Claim Losses against Customer arises from (a) Customer Data; or (b) any modification, combination or development of Overcast that is not performed by GSOFT. Customer must provide GSOFT with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow GSOFT the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting GSOFT defense and settlement of such matter. For the purpose of this Section, the following definitions apply:
“Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third party claim that the software used in Overcast infringes any intellectual property rights of such third party;
“Third Party Claim Litigation Expenses” means any reasonable out-of-pocket expense incurred in defending a Third Party Claim Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements; and
“Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.
Any feedback or suggestions sent by Customer or shared by Customer with GSOFT to improve Overcast may be implemented by GSOFT. In such case, Customer grants GSOFT an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.
 

8. TERM

These General Terms are effective as of the first date that Customer uses Overcast until they are terminated by any or both Parties in accordance with Section 8.2 (the “Term”).
These General Terms may be terminated:
by Customer at any time if it cancels the Services through its GSOFT account or with an GSOFT customer representative;
by GSOFT at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after GSOFT provides notice of the breach. For clarity purposes, any violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of these General Terms;
by GSOFT if Customer fails to make any payment of the Service Fees; or
by GSOFT for convenience with a ninety (90) days prior notice.
No Refund in the Event of Termination. Section 3.4 (No Refunds) applies, regardless of the cause of termination.
Sections 2.5 (Unacceptable Use), 2.8 (Indemnification by Customer), 4.1 (Customer Data), 4.3 (Disclosure of Customer Data), 4.4 (Utilization Data), 4.5 (Confidential Information), 4.6 (Use or Disclosure of Confidential Information), 5 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (IP & Feedback) and 8 (Term) and 9 (General) shall survive termination of these General Terms.
 

9. GENERAL

Publicity. Customer grants GSOFT the right to use Customer’s company name and logo as a reference for marketing or promotional purposes. If Customer wishes to limit such right, it shall send an email to legal@overcast.cloud.
Choice of Law, Jurisdiction and Venue. These General Terms shall be governed solely by the laws of the Canadian province of Quebec, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties agree that any litigation in any way relating to these General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec and waives any objection that such venue is inconvenient or improper.
Specific Performance. Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
Force Majeure. Except as expressly provided otherwise in these General Terms, GSOFT shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics (a “Force Majeure”), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortgages, riots, fires, act of God, war, terrorism and governmental action.
Time of the Essence. Time is of the essence of these General Terms and of every part thereof.
No Other Agreements. These General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto.
GSOFT may send notices pursuant to these General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to these General Terms to GSOFT at legal@overcast.cloud. Notices shall be deemed received 24 hours after they are sent.
Assignment & Successors. These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these General Terms shall continue in full force and effect.
Technology Export. Customer shall not export any software provided by GSOFT or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use Overcast in or export such software to, a country subject to an embargo by Canada or the United States.
GSOFT reserves the right to amend these General Terms from time to time with reasonable notice prior to the effective date of the amendments by posting an amended version of the General Terms on its Website. Customer’s continued use of the Services following the effective date of any such amendments may be relied upon by GSOFT as Customer’s consent to any such amendments.