PLEASE READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN PROVISION SOFTWARE CORPORATION AND ITS REPRESENTATIVES AND AFFILIATES (“PROVISION”, “WE”, “US” OR “OUR”) AND YOU AND/OR THE ENTITY YOU REPRESENT, AS APPLICABLE (“YOU” OR “YOUR”). BY ACKNOWLEDGING THIS AGREEMENT AND/OR USING THE PROVISION SERVICE (AS DEFINED BELOW), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE WITHOUT LIMITATION OR QUALIFICATION TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
1. This Agreement
1.1 Acceptance of this Agreement
By accessing the website located at https://www.getprovision.co/ or
https://www.useprovision.com (the “Site”), installing or using any other software supplied by Provision, accessing any information, function, feature, application, product or service made available by Provision, or registering an account with Provision (collectively, the “Service”), you are a “User” and you hereby represent and warrant that:
(b) if you are an individual, you are of legal age in the jurisdiction in which you reside to form a binding contract with Provision (the “Minimum Age”) and you have the authority to enter into the Agreement personally; and
(c) if you are representing, an entity, organization, company or other group (each an “Entity”), you are an authorized representative of such Entity and you have the authority to enter into the Agreement on behalf of such Entity and to bind such Entity to the Agreement.
Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, personally or on behalf of the Entity, as applicable, you may not access or use (or continue to access or use) the Service.
Provision reserves the right, at our sole discretion, to change or modify the terms of this Agreement at any time, effective upon posting an updated version of this Agreement through the Service. If changes are made to material terms, we will use commercially reasonable efforts to notify you via email or other reasonable means. You should regularly review this Agreement, as any continued use of the Service after the date that an updated version of this Agreement become effective constitutes your agreement. In the event that you do not accept an updated version of this Agreement, your sole and exclusive remedy is to cease your access and use of the Service.
1.3 Pilot Program
If you are using the Service during a free trial period (the “Trial Period”), your access to and use of the Service during the Trial Period is governed by this Agreement. Unless you provide us with written notice of cancellation prior to the conclusion of the Trial Period in accordance with the terms set out in your quotation, upon expiry of the Trial Period, you will be automatically converted to a paid annual subscription plan. Any continued access to and use of the Service will be governed by this Agreement.
2. The Service
2.1 Description of the Service
The Service is a technology platform (the “Provision Platform”) that provides document management services to Users in the construction industry. The Provision Platform allows Users to upload copies of project documents, including but not limited to agreements, specifications, drawings and any amendments thereto (collectively, “Project Documents”), in order to electronically store, organize, access, categorize, label, comment on, generate reports (“Reports”) about and otherwise manage such Project Documents and related workflows in collaboration with team members.
Provision is not a party to any Project Document by virtue of providing the Service. Provision has no control over and does not guarantee (a) the existence, legality or enforceability of any Project Document or any part of a Project Document, (b) the truth or accuracy of any representation provided for in any Project Document, or (c) the ability of any party to fulfil its obligations under any Project Document.
Each User is solely liable for the representations, covenants and obligations under, and for any misrepresentations it makes within, its Project Documents. Provision does not guarantee the representations, covenants or obligations made by any User within any Project Document, and Provision will not be liable or responsible for any Project Document, including the representations and covenants made thereunder, or any losses, damages, liability or injury arising therefrom.
Each User is solely responsible for complying with all applicable local, provincial, state, national or international laws, rules, regulations and standards (“Applicable Law”).
2.2 Modifications to the Service
Provision reserves the right, but not the obligation, to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Provision shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any loss or damage arising therefrom.
2.3 Account Registration and Security
You are responsible for maintaining the confidentiality of your password and account and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Provision of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you securely log off from your account at the end of each session when accessing the Service. Provision will not be liable for any loss or damage arising from your failure to comply with this Section.
2.5 Closing Your Account
You may close your account at any time and without cost, but you will remain liable for any outstanding purchases, fees or other charges incurred with respect to the Service. Once an account is closed, Provision will not issue refunds for any amounts previously incurred with respect to the Service.
In connection to closing an account, you agree that Provision has no liability or responsibility for the deletion or failure to store any data or other content maintained or transmitted by the Service and that you are solely responsible for downloading and storing records and copies of all Project Documents, Reports and other User Content that you wish to maintain for your own records.
2.6 Prohibited Access and Use of the Service
You may not access, use or register an account with the Service if you are temporarily or permanently suspended from the Service, if you are our direct competitor and for any other reason as determined in Provision’s sole discretion from time to time, including for breach of this Agreement. Provision may temporarily or permanently suspend or terminate any account, at any time, in its sole discretion.
3. Conditions of Use
3.1 User Conduct
You are solely responsible for all descriptions, pictures, listings, information, data, text, music, sounds, graphics, videos, messages or other materials, including any Project Documents and Reports, that you upload, post, publish, send or display (hereinafter, “upload”) or otherwise use or generate through the Service (“User Content”). Provided below are examples of the kind of User Content and/or use of the Service that is illegal or prohibited by Provision. Provision reserves the right to investigate and take appropriate action, including but not limited to legal action, against anyone who, in Provision’s sole discretion, violates this Section, including but not limited to, removing the offending User Content from the Service, suspending or terminating the offending account and reporting you to law enforcement authorities.
You agree to not use the Service to:
(a) sell, upload or otherwise transmit any User Content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful or otherwise considered objectionable in Provision’s sole discretion; (ii) you do not have a right to use, sell or transmit under any law or under any contractual or fiduciary relationship; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications tools or equipment; or (vi) in Provision’s sole discretion, is considered objectionable or which restricts or inhibits any other User or prospective user from using or enjoying the Service, or which may expose Provision or its Users to any harm or liability of any type;
(b) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(d) violate any Applicable Law or any rule, regulation or standard having the force of law;
(e) further or promote any criminal activity or enterprise, or provide instructional information about illegal activities;
(f) obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Service; or
(g) monitor the Service’s functionality, performance, availability of any other competitive benchmarking-related purpose.
3.2 User Representations, Warranties and Agreements
You represent and warrant that:
(a) you will access and use the Service solely for your internal business operations;
(b) you will use your real name or business name with respect to your account and general use of the Service;
(c) when using or accessing the Service, you will act in accordance with all Applicable Law and in good faith; and
(d) you do not have any motivation, status or interest that Provision may reasonably wish to know about in connection with the Service, including without limitation, if you are using or will or intend to use the Service for any competitive, journalistic, academic, investigative, unlawful or otherwise bad faith purpose.
3.3 International Use; Export Control
Canada and the United States control the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any part of the Service to countries or persons prohibited under export control laws. By accessing or using the Service, you expressly agree that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export and re-export of the Service.
You agree to pay us fees in accordance with the agreed upon pricing plan between Provision and you. The fees are non-cancellable and non-refundable, except as expressly stated otherwise. We reserve the right to change our fees or payment plans at any time and to withhold provision of the Service until any fees due and payable have been received in full.
4.2 Payment Method
You hereby authorize our third party payment processor to bill your Payment Method for the applicable fee in advance of, on or shortly after the applicable purchase date or subscription date, which, depending on the terms of your purchase, may automatically occur each month or anniversary thereafter until terminated by you or us.
5. Intellectual Property Rights and License
5.1 Provision IP
Provision alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and the Provision Platform, all content contained therein (excluding User Content) and all technology and software underlying the Service or distributed in connection therewith (the “Provision Technology”) as well as the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the Service hereunder, including any derivative works, improvements, enhancements and/or extensions made to the Service and any information reflecting the access or use of the Service by or on behalf of any User, including but not limited to visit-, session-, impression-, click through- or click stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing (the “Usage Data”).
The Provision name and logos are trademarks and service marks of Provision (collectively, the “Provision Trademarks”). Nothing in this Agreement or the Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Provision Trademarks without our prior written consent in each instance, which may be withheld in our sole discretion. All goodwill generated from the use of Provision Trademarks will inure to our exclusive benefit. Other names and logos used and displayed through the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Provision.
“Provision IP” means the Provision Technology, Usage Data and Provision Trademarks (but does not include User Content).
Except as expressly authorized by Provision, you agree not to modify, copy, frame, scrape, rent, lease, loan, distribute, sell, re-sell, create derivative works of, reverse engineer, reverse assemble or otherwise attempt to discover the source code of, transfer any right in or, generally, do any of the foregoing with respect to the Provision IP, in whole or in part. In connection with your use of the Service, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Provision from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking, including by masking your IP address or using a proxy IP address. Any use of the Service or Provision IP other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Provision.
5.2 Provision Grant of License
During the term of this Agreement and in accordance with this Agreement, Provision grants to its Users a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable worldwide license to permit Users to access and use the Service and the Provision Platform solely for the User’s internal business purposes.
5.3 User Content
The User retains all right, title and interest, including all related intellectual property rights, in and to its own Project Documents, Reports, and User Content (unless specified otherwise).
You acknowledge and agree that it is necessary for Provision to collect, use, disclose and store User Content for purposes of providing and improving the Service. You further agree that Provision may preserve and disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, Applicable Law or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; and (d) protect the rights, property or safety of Provision, its Users and the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”) provided by you to Provision are non confidential and non-proprietary, and Provision will be entitled to the unrestricted use and dissemination of such Submissions for any purpose, commercial or otherwise, without notice, acknowledgment or compensation to you.
5.4 User Grant of License
6. Third Party Interactions
6.1 Third Party Content
Under no circumstances will Provision be liable or responsible in any way for any content or materials of any third party (including User Content) (“Third Party Content”), including but not limited to any errors or omissions in any Third Party Content or any loss or damage of any kind incurred as a result of the use of or reliance upon any such Third Party Content. You acknowledge that Provision does not pre-screen Third Party Content, but that Provision and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Third Party Content that is made available through the Service. Without limiting the foregoing, Provision and its designees will have the right to remove any Third Party Content that breaches this Agreement or is deemed by Provision, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Third Party Content, including but not limited to any reliance on the accuracy, completeness or usefulness of such Third Party Content.
6.2 Third Party Sites and Resources
The Service may provide, or third parties may provide, links or other access to third party sites and resources on the internet. Provision has no control over such third party sites and resources and Provision is not responsible for and does not endorse such third party sites and resources. You further acknowledge and agree that Provision will not be liable or responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, events, goods or Service available on or through any such third party site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Provision is not liable for any loss or claim that you may have against any such third party.
7. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROVISION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PROVISION MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS
8. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROVISION WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL PROVISION’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF: (X) THE AMOUNT YOU HAVE PAID PROVISION IN THE LAST SIX (6) MONTHS; AND (Y) ONE HUNDRED CANADIAN DOLLARS ($100 CAD).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET
FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
9. Indemnity and Release
You agree to release, indemnify and hold Provision and each of their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses (including reasonable legal fees), rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service and your violation of this Agreement, Applicable Law or the rights of any other person.
10. Dispute Resolution
10.1 Agreement to Arbitrate
Except where prohibited by Applicable Law, you agree that any and all disputes, controversies or claims that arise from, relate to, or are connected with this Agreement or your access to or use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court. By agreeing to this Agreement, you agree that you and Provision are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The statute(s) respecting arbitrations of the jurisdiction in which you reside governs the interpretation and enforcement of this Section (the “Arbitration Law”). Unless both you and Provision agree otherwise, the arbitrator may not consolidate or join multiple claims or proceedings into an arbitration, and may not preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the party that commenced the arbitration and only to the extent necessary to provide relief necessitated by that party’s individual prayers for relief.
10.2 Arbitration Procedures
Arbitration will be conducted by a single neutral arbitrator in accordance with the ADR Institute of Canada’s (“ADRIC”) rules and procedures (the “ADRIC Rules”), as modified by this Section. If there is any inconsistency between any term of the ADRIC Rules and any term of this Section, the applicable terms of this Section will control. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, jurisdiction, and arbitrability of claims arising from, relating to, or connected with this Agreement or the Seller’s access to or use of the Services. The arbitrator can award the same damages and relief on an individual basis that a court can award to an party under this Agreement and Applicable Law. Unless you and Provision agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location for the arbitration hearings, the determination shall be made by ADRIC or the arbitrator, if one has been appointed. If your claim is for $10,000 or less, Provision agrees that you may choose whether the arbitration will be conducted in writing, through a telephonic hearing or by an in person hearing. If your claim exceeds $10,000, the method of hearing will be determined by the arbitrator. Regardless of the method in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision and arbitral award sufficient to explain the essential findings and conclusions on which the award is based. Arbitral awards rendered by the arbitrator shall not be subject to any appeal, whether on questions of law, fact, or mixed fact and law, unless an appeal from the arbitral award is specifically permitted pursuant to Applicable Law.
10.3 Costs of Arbitration
Each party shall bear their own costs of an arbitration.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Notwithstanding the foregoing in this Section, the parties to this Agreement may:
(a) assert claims that would otherwise be subject to exclusive, final, and binding arbitration under this Section 10 in the Ontario small claims court if the claims fall within the monetary threshold jurisdiction of the Ontario small claims court. In this regard, the parties agree that all claims that might be brought pursuant to this subsection shall be litigated exclusively in the small claims court of Ontario and not the small claims court of any other jurisdiction, and the parties consent to personal jurisdiction in the courts of Ontario; or
(b) commence a court action that is not in the Ontario small claims court, but only if it is for the purpose of obtaining interim or interlocutory injunctive relief in aid of an arbitration under this Section, and provided that any other relief is sought by way of arbitration under this Section.
The parties agree that the law governing this Agreement and any dispute, claims, or controversies arising out of or related to this Agreement, excluding conflict of laws rules, shall be the laws of Ontario and the laws of Canada applicable therein.
If a court or the arbitrator decides that any term or provision of this Section is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section shall be enforceable as so modified.
The term of this Agreement shall begin on the date you first entered into this Agreement and shall continue until terminated by either party in accordance with your particular customer agreement or, if no customer agreement exists, in accordance with this Agreement (the “Term”).
11.2 Termination by Provision
You agree that Provision, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content (including User Content) associated with your account within the Service, for any reason, including but not limited to for lack of use or if Provision believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. Provision may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any section of this Agreement may be affected without prior notice, and you acknowledge and agree that Provision may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Provision will not be liable to you or any third party for any termination of your access to the Service.
The following sections will survive the termination of this Agreement: Sections 2 (The Service), 5 (Intellectual Property Rights), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnity and Release), 10 (Dispute Resolution), 11 (Termination) and 12 (General).
This Agreement constitutes the entire agreement between you and Provision and governs your use of the Service, superseding any prior agreements between you and Provision with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. This Agreement will be governed by the laws of the Province of Ontario. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Provision agree to submit to the personal and exclusive jurisdiction of the provincial and federal courts located within Toronto, Ontario. The failure of Provision to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior written consent of Provision, but Provision may assign or transfer this Agreement, in whole or in part, without restriction. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
13. Contact Us
Please contact us at the following addresses to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.
Last Updated: 2022-08-10