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Swimo

Agreement

Terms and conditions

This agreement (the “Agreement”) is between the Subscriber (as defined in Article 1) and PLANITOU.CA INC., doing business as Planitou, with its place of business at 410-6000 boul. de Rome, Brossard (Québec) Canada, J4Y 0B6, telephone 1 (888) 611-4449 (“Planitou” or “we”), publisher of Swimo. For clarity, this Agreement is not intended for consumers.

Last updated: March 31, 2025.

1. Definitions

For the purposes of this Agreement, the terms defined in this article may be used in all their grammatical forms; nouns and adjectives following their gender and number, verbs following moods and tenses, without losing the meaning attributed to them.

1.1. “Account Administrator”

Member of an Organization to whom the Organization grants the right to administer the account. This right includes the following prerogatives:

  • modifying User Account information;
  • adding Authorized Users and their User Profiles;
  • modifying payment information;
  • carrying out any operation related to the Organization’s business relationship with Swimo (Planitou).

1.2. “Affiliate”

An entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a subscriber; “control” meaning the power to direct the management or activities of an entity, and “ownership” meaning beneficial ownership of 50% or more of the voting equity interests or other equivalent voting rights of the entity.

1.3. “User Account”

Right of access to the Swimo (Planitou) solutions associated with a login and password, granted by Swimo (Planitou) to a Subscriber or Authorized Users. A User Account may be associated with Google or Microsoft accounts, or with an email address provided by the Subscriber or Authorized User.

1.4. “Subscriber”

An Organization named on the subscription form that has received a confirmation email for its subscription to the Swimo (Planitou) solutions. For readability, a Subscriber may be referred to below as “you”.

1.5. “Data”

Computer data, images, content or other materials of any kind that the Subscriber transmits (including through its Authorized Users) via the Platform.

1.6. “Member of a Subscriber”, “Member of an Organization” or “Member of an Affiliate”

Any natural person who has a membership link with, as the case may be, an Organization, a Subscriber or an Affiliate, whether that person is an employee, volunteer, officer, agent, consultant or other third party acting for the benefit of or on behalf of the Subscriber, Organization or Affiliate. An Authorized User may be a member of several Subscribers, Organizations or Affiliates.

1.7. “Organization”

A person that operates a business, limited partnership, limited liability company, partnership, union, employer association, sole proprietorship, corporation or company (with or without share capital), legal person, cooperative, trust, unincorporated association, joint venture, non-profit or not-for-profit organization, governmental authority or any other entity, regardless of its legal form, incorporation status or the jurisdictions in which it operates, carrying on an organized activity of any nature, and which uses the Swimo (Planitou) solutions.

1.8. “Data Subjects”

Natural persons affected by one or more items of Personal Information.

1.9. “Platform”

The Swimo (Planitou) solutions and the website www.planitou.ca.

1.10. “Swimo (Planitou) solutions”

Means:

  • the Swimo (Planitou) solutions, software offered as a remote service (software as a service) for participant and employee attendance and absence management, participant and employee file management, participant and employee note-taking and communication between Authorized Users;
  • the Swimo (Planitou) solutions offered, in whole or in part, as mobile applications for smartphones or tablets;
  • any other solution providing new features that may be added as a module to the solutions listed in (1) and (2);
  • support to Authorized Users and related maintenance provided by Swimo (Planitou).

1.11. “Free Swimo (Planitou) solutions”

Swimo (Planitou) solutions in non-final form (“Beta Swimo (Planitou) solutions”), free accounts and trial periods, offered under the terms of Article 8.

1.12. “User Profile”

The Personal Information about an Authorized User transcribed in an intelligible, structured form accessible via the Platform.

1.13. “GDPR”

EU, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [2016] OJ, L 119.

1.14. “Personal Information”

Any information about a natural person that allows the person to be identified, directly or indirectly. For the purposes of this Agreement, Personal Information is considered equivalent to “personal data” within the meaning of the GDPR.

1.15. “Controller”

The Organization that, alone or jointly with others, determines the purposes and principal means of a Processing. Controller corresponds, as the case may be, to:

  • “Any person operating a business who, out of a legitimate and serious interest, collects personal information about others” within the meaning of section 4 of the Act respecting the protection of personal information in the private sector, CQLR, c. P-39.1, as amended by the Act to modernize legislative provisions as regards the protection of personal information, SQ, 2021, c. 25, and article 1525 of the Civil Code of Québec, CQLR, c. CCQ-1991.
  • A “subscriber” under a service contract within the meaning of article 2098 of the Civil Code of Québec.
  • A “mandator” under a mandate within the meaning of article 2130 of the Civil Code of Québec.

1.16. “Joint Controller”

The Organization that determines jointly with another Organization the purposes and means of the Processing.

1.17. “Processor”

The Organization that carries out a Processing of Personal Information on behalf of the Controller, although it may determine the secondary means of the Processing. Processor corresponds, as the case may be, to:

  • A “service provider” under a service contract within the meaning of article 2098 of the Civil Code of Québec.
  • A “mandatary” under a mandate within the meaning of article 2130 of the Civil Code of Québec.

1.18. “Processing”

Any operation or set of operations performed on Personal Information or sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or modification, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

1.19. “Authorized User”

Member of a Subscriber, Organization or Affiliate whom an Account Administrator authorizes to use the Swimo (Planitou) solutions after the Subscriber has paid the applicable fees. An Authorized User may be a member of several Subscribers, Organizations or Affiliates.

2. Scope of the Agreement

This Agreement binds Swimo (Planitou) only to Subscribers, which can only be Organizations (within the meaning of paragraphs 1.4 and 1.7). FOR CLARITY, THIS AGREEMENT IS NOT INTENDED FOR CONSUMERS.

This Agreement governs any free or paid use by Subscribers of the Swimo (Planitou) solutions (including support, subscription purchases and future purchases referring to this Agreement). Unless otherwise stated, the provisions of this Agreement apply to all Swimo (Planitou) solutions.

This Agreement incorporates by reference the Acceptable Use Policy and the Privacy Policy. In the event of any inconsistency between these policies and this Agreement, the text of the Agreement prevails.

Swimo (Planitou) acts as a Processor. Subscribers using the Swimo (Planitou) solutions and subject to the GDPR may request a Data Processing Addendum. Such requests will be handled on a case-by-case basis, at the discretion of Swimo (Planitou).

In some cases, Swimo (Planitou) and an Organization may establish a partnership for the joint Processing of Personal Information, which will be the subject of a separate written agreement. Swimo (Planitou) will then act as a Joint Controller. Such cases will be handled on a case-by-case basis, at the discretion of Swimo (Planitou).

3. Account opening

An Organization must complete a subscription form to obtain a User Account. All subscription information provided by the Organization must be accurate, current and complete. Upon receipt of a confirmation email, the Organization is considered a Subscriber. Swimo (Planitou) reserves the right, without obligation, to request proof of the information provided.

You must keep the information in all User Profiles associated with your Organization up to date so that we can transmit notifications, declarations and other information by email or via the Swimo (Planitou) solutions. The Account Administrator may authorize Authorized Users to complete and modify this information themselves.

You accept full responsibility for any error, omission or inaccuracy in the User Profiles associated with your Organization and for actions taken through the associated User Accounts, provided that at any time you may correct inaccurate, unclear or incomplete information.

The entire registration procedure, including changes to the information provided, may be performed by one or more Account Administrators; the Subscriber is responsible for designating and revoking such Account Administrators.

At any time, the person with the highest authority at the Subscriber may contact Swimo (Planitou) to make the necessary changes to the list of Account Administrators. We disclaim any responsibility for an Account Administrator making changes without the necessary authority.

4. Pricing

Except for Free Swimo (Planitou) solutions, all Swimo (Planitou) solutions are billed monthly, annually or on a one-time basis. The rates for each Solution are set by fixed package or by the number of children, students or participants, unless a flat rate applies to a specific feature or situation. Rates displayed on the Swimo (Planitou) website at the time of your subscription, or those set out in the Swimo (Planitou) proposal, are the applicable rates but may be adjusted per Article 28. Swimo (Planitou) may correct any pricing error by notifying you.

By validating a subscription, you agree to pay all fees under the chosen terms. Unless otherwise stated, payments are made in Canadian dollars, US dollars or Euros, based on your geographic location or the information provided at subscription. If the authorized number of children, students or participants increases during your subscription, you will be billed accordingly, on a monthly or annual prorated basis at the current rate.

5. Subscriptions and changes

This Agreement applies whether your subscription is taken directly with Swimo (Planitou) or through one of its resellers. You must verify the accuracy of the information provided regarding:

  • the number and type of Authorized Users;
  • the Swimo (Planitou) solutions chosen;
  • any other specific conditions agreed with Swimo (Planitou).

5.1. Resellers and changes

Resellers are not authorized to offer warranties or make commitments on behalf of Swimo (Planitou), and we are not bound by obligations other than those expressly set out in this Agreement.

Subject to Article 19, you may at any time modify your subscription, add options, reduce your services or terminate them. To do so, contact a member of the Swimo (Planitou) team by email or phone.

6. Payment

Payments are accepted by Mastercard, Visa and American Express credit cards, or by bank/Interac transfer and pre-authorized debit. Swimo (Planitou) may change accepted payment methods at any time. Your banking information is processed securely by Stripe under PCI standards. You agree that Swimo (Planitou) may charge your credit card upon renewal, for unpaid fees, or for any additional fees.

7. Taxes

Your payments under this Agreement do not include taxes or duties payable with respect to the Swimo (Planitou) solutions in the country where payment is made or received. To the extent such taxes or duties are payable by Swimo (Planitou), you must pay Swimo (Planitou) the amount of these taxes or duties in addition to all fees due under this Agreement. Swimo (Planitou) may claim payment of such taxes at any time after billing if they are retroactively demanded by a government or tax authority.

If you are tax-exempt, you must provide supporting documentation and Swimo (Planitou) will make reasonable efforts to provide the billing documents that may allow you to obtain a refund or credit from the tax authority, if available.

8. Free Swimo (Planitou) solutions

The use of free or beta Solutions by Swimo (Planitou) is subject to specific conditions, for a limited period. These solutions may not be used to analyze competition or for similar purposes. Swimo (Planitou) may interrupt access at any time at its discretion, without notice.

Beta Solutions are in development, may be unusable or incomplete and are likely to contain more errors and bugs than generally available Swimo (Planitou) solutions. WE THEREFORE OFFER NO WARRANTY ON BETA SOLUTIONS AND YOU ASSUME THE RISK OF ANY USE OF THEM.

9. Management of Authorized Users and User Accounts

Access to the Swimo (Planitou) solutions is reserved exclusively for Authorized Users and Account Administrators.

Features may vary depending on the Swimo (Planitou) Solution and the type of Authorized User; Account Administrators are responsible for setting, validating and maintaining this allocation. You must pay the fees necessary to increase the authorized number of children, students or participants.

You are responsible for each Authorized User’s compliance with this Agreement. Any use of the Swimo (Planitou) solutions by you and your Authorized Users must be within the scope of use and only for your benefit or that of your Affiliates.

You must set information-security policies requiring Authorized Users to adopt safe practices with respect to passwords, notably regarding the number and type of characters used, to keep them strictly confidential and not share them with any other person.

You agree to notify Swimo (Planitou) immediately of any unauthorized use of a User Account, whether it belongs to an Authorized User or an Account Administrator, and of any incident affecting password confidentiality, difficulty accessing a User Account, or any change of account information for which the Authorized User or Account Administrator is not responsible. Swimo (Planitou) reserves the right to require any Authorized User or Account Administrator to change their password.

10. Limited use license

Subject to the terms of this Agreement, Swimo (Planitou) grants you a non-exclusive, non-assignable, non-transferable and revocable license to use the Swimo (Planitou) solutions for the duration of this Agreement only.

11. Hosting services and data

11.1. Service hosting

Your Data is stored securely and your connection to the application is encrypted via SSL/TLS (https). We use Digital Ocean servers, known for hosting high-traffic sites in highly secure facilities. Subject to the terms of this Agreement, Swimo (Planitou) grants you a non-exclusive right to access the hosted Swimo (Planitou) solutions and use them for the duration of this Agreement.

11.2. Your Data

You retain all rights, titles and interests to your Data in the format in which you transmit it to Swimo (Planitou). Subject to this Agreement, you grant Swimo (Planitou), worldwide, a non-exclusive, royalty-free right to (a) collect, use, copy, back up, transmit, modify and create derivative works from that Data, in each case only as necessary to design, use, develop, improve, deploy and maintain the Swimo (Planitou) solutions, and (b) for Swimo (Planitou) solutions that allow Subscribers, Account Administrators or Authorized Users to share Data or interact with other people, to distribute via, and display, the Data on the Swimo (Planitou) solutions.

11.3. Personal Information

Where the Data includes Personal Information, its Processing is subject to our Privacy Policy, but only to the extent provided therein.

With respect to Personal Information about its Authorized Users and Account Administrators, the Subscriber remains fully responsible for its compliance with any obligation of the Controller under the personal-information protection laws applicable to it. By accepting this Agreement, Swimo (Planitou) presumes that you comply with those obligations.

Swimo (Planitou) may notify you when, in its opinion, one of your instructions breaches personal-information protection laws, without obligation to consult a lawyer or attorney. This notice does not constitute legal advice. You may subsequently, at your discretion, obtain such advice from a lawyer whose practice is recognized in your jurisdiction. If a request from legitimate authorities to disclose Personal Information is not legally binding, Swimo (Planitou) will refuse it. If binding, Swimo (Planitou) will notify you.

The Subscriber is responsible, in particular, for establishing its own Privacy Policy, obtaining consent from Authorized Users of its Organization and responding to their requests to exercise rights over their Personal Information. Swimo (Planitou) will use commercially reasonable means to provide tools to help you comply with the personal-information protection laws applicable to you and information to prove that compliance. This obligation is limited to your use of the Swimo (Planitou) solutions.

Before adding photos to participant, parent and/or employee files, Authorized Users may be notified of their rights via a pop-up and can obtain more details as needed. You remain responsible for obtaining the express consent of any parent, guardian or Authorized User for the use of their personal information under the applicable law in the jurisdiction where they are located. By accepting this Agreement, you acknowledge that Swimo (Planitou) may presume that your Organization has obtained the necessary consents in this regard.

By accepting this Agreement, you designate Swimo (Planitou) as your Processor and authorize it to carry out the Processing necessary on the Personal Information of your Authorized Users in order to achieve the purposes identified in this Agreement and in the Privacy Policy. Swimo (Planitou) agrees to carry out such Processing only for those purposes. Swimo (Planitou) maintains all documentation proving its compliance, including a register of Processing operations and a register of confidentiality incidents. For clarity, Swimo (Planitou) does not use the Personal Information of your Authorized Users for commercial prospecting or advertising.

On request, Swimo (Planitou) offers its Subscribers the ability to securely return, transfer or delete the Personal Information they transmit. Deletion requests are immediately forwarded to Swimo (Planitou)’s Subcontractors for processing. However, when an Authorized User becomes a member of several Organizations, certain identification information tied to their registration such as their User Account and contact details may be retained by another Organization.

Swimo (Planitou) will not enter into any contract or commitment contrary to this article. For transparency, Swimo (Planitou) publishes the list of all its third-party service providers and will notify all Subscribers when that list changes. The Privacy Policy also provides information on the countries in which Swimo (Planitou) may disclose Personal Information and the protection measures in place to preserve confidentiality.

11.4. Security

Swimo (Planitou) implements administrative and technological security measures to preserve the confidentiality, availability and integrity of your Data and reduce risks from threats and cyberattacks.

However, you understand that using hosted services necessarily involves transmitting your Data over networks not owned, operated or controlled by us, and we are not responsible for any of your Data lost, altered, intercepted or stored on those networks. We cannot guarantee that Data transmissions will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.

Please note that Swimo (Planitou) maintains cyber-security insurance of at least CAD $1,000,000 for any claim that could arise from a data-security event.

For more information on our measures, see our Security page.

11.5. Storage limitation

Storage limits may be imposed or changed by Swimo (Planitou) without notice, while preserving the essential features of the Solutions.

11.6. Data responsibility

You must ensure that your use of the Swimo (Planitou) solutions and your Data comply at all times with our Acceptable Use Policy and any laws applicable in your jurisdiction. You represent and warrant that your use of the Swimo (Planitou) solutions and that of your Authorized Users do not violate the rights of third parties, including intellectual property and privacy rights. Except as expressly provided herein, Swimo (Planitou) assumes no responsibility for your Data, and you are solely responsible for its transmission, use and back-up copies as needed.

11.7. Service suspension

Swimo (Planitou) has no obligation to monitor content uploaded to the Swimo (Planitou) solutions. However, if we consider it necessary due to a breach of this Agreement or in response to a request received regarding third-party intellectual property rights, or for content violating our policy, we may take any action permitted by the Acceptable Use Policy, including suspending your account. You will continue to be billed for the hosted service during the suspension. We assume no liability to you for the deletion of your Data or for suspending your access to hosted services in order to comply with that policy or this Agreement.

12. Support and maintenance

Swimo (Planitou) will provide support and maintenance services for the Swimo (Planitou) solutions during the term of this Agreement. Support includes the following: all Authorized Users will have access to technical support by chat or email. As the Swimo (Planitou) solutions are software-as-a-service, access to new versions will be provided when they are put into service by Swimo (Planitou), at its sole discretion.

Swimo (Planitou) agrees to use reasonable means to respond to support and maintenance requests within a reasonable time, it being understood that we will only respond during business hours, Monday to Friday from 8:30 a.m. to 4:30 p.m., and Saturday and Sunday from 8:00 a.m. to 3:00 p.m., in the Montréal time zone. Swimo (Planitou) reserves the right to refuse to respond to excessive or repetitive user requests.

For more information on support and maintenance and how to reach Swimo (Planitou), please see the Technical Support section.

13. Training and additional support

When subscribing to a Swimo (Planitou) Solution, an initial training session included in the activation fee is offered by our experts to the Subscriber and Authorized Users of its Organization. This session may be delivered in person or by telecommunication, at the sole discretion of Swimo (Planitou). In addition, all Authorized Users have access to the Training Academy, which contains video capsules covering all features and configurations of the Swimo (Planitou) solutions. Additional training or technical support services may be ordered by the Subscriber at prices to be determined case by case with Swimo (Planitou). Where applicable, you will reimburse Swimo (Planitou) for reasonable travel and accommodation expenses incurred. Swimo (Planitou) retains all intellectual property rights in works or developments related to the training services we offer (such as training material). Any training material provided to you may only be used in connection with your use of the Swimo (Planitou) solutions under this Agreement.

14. Restrictions

Except as expressly provided otherwise in this Agreement, you may not: (a) rent, reproduce, modify, adapt, create derivative works of, sublicense, transfer or allow access to the Swimo (Planitou) solutions to a third party that is not an Authorized User; (b) use the Swimo (Planitou) solutions for the benefit of a third party; (c) interfere with any licensing or rights control mechanism in the Swimo (Planitou) solutions or otherwise circumvent any legitimate mechanism intended to limit your use; (d) reverse-engineer, disassemble, decompile, translate or otherwise attempt to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs of any Swimo (Planitou) solutions; (e) remove or obscure any proprietary or other notice contained in any Swimo (Planitou) Solution; (f) publicly disclose performance information about the Swimo (Planitou) solutions; or (g) record on or communicate via the Swimo (Planitou) solutions Personal Information of Authorized Users without having obtained the consents required by law.

15. Certification and audits

At our request, you agree to provide a signed certification that you use all Swimo (Planitou) solutions in accordance with the terms of this Agreement. You agree to allow us (or our authorized mandatary) to audit your use of the Swimo (Planitou) solutions, without notice. We will bear all costs we incur for the audit, unless it reveals that you exceeded the scope of use or otherwise breached your obligations. You must provide reasonable assistance, cooperation and access to relevant information as part of an audit at your own cost. We may bill you for any past or ongoing excessive use, and you must pay the invoice immediately upon receipt. This remedy is without prejudice to any other remedy available to Swimo (Planitou) under this Agreement or by law. To the extent we are required to do so, we may share the audit results with certain of our Subcontractors or assign to them the audit rights mentioned in this article.

16. Ownership and feedback

The Swimo (Planitou) solutions are made available and limited by a restricted license or basic access; no ownership right is transferred to you, regardless of the use of terms such as “purchase” or “sale”. Swimo (Planitou) and its subcontractors have and retain all rights, titles and interests, including all intellectual property rights, in and to the Swimo (Planitou) solutions (including the Free Swimo (Planitou) solutions), their overall appearance, any related application or underlying technology, and any modification or derivative work created by or for Swimo (Planitou).

From time to time, you may choose to submit observations, information, questions, data, ideas, process descriptions or other information to Swimo (Planitou), including as part of support (the “Feedback”). Swimo (Planitou) may, as part of any of its Swimo (Planitou) solutions, freely use, copy, disclose and exploit any Feedback in any manner, without obligation, royalty or restriction based on intellectual property or other rights. Improvements to the Swimo (Planitou) solutions incorporating or implementing Feedback remain the exclusive property of Swimo (Planitou).

17. Assignment, transfer and Commercial Transaction

Active subscriptions, customer accounts and all rights, obligations and receivables arising from them constitute business assets of Swimo (Planitou). Swimo (Planitou) may, without prior Subscriber consent, assign, transfer, dispose of or otherwise deal with, in whole or in part, subscriptions, customer accounts and these terms, as part of a Commercial Transaction.

For the purposes hereof, a “Commercial Transaction” includes, without limitation: (i) the sale, assignment, lease or transfer of all or part of the business or its assets; (ii) a merger, reorganization, consolidation or any other change in the legal structure of Swimo (Planitou); (iii) a change of control, direct or indirect; (iv) obtaining financing, granting security, or any other operation intended to guarantee an obligation of Swimo (Planitou).

As part of a Commercial Transaction, any acquirer, assignee or successor may be substituted by operation of law for Swimo (Planitou) as a party to these terms and will assume the rights and obligations relating to the transferred subscriptions, without material interruption of services. Swimo (Planitou) may also disclose and transmit, to the extent necessary, information relating to subscriptions and customers to third parties involved in a Commercial Transaction (including potential buyers, investors, lenders and their advisors), for due-diligence purposes, subject to applicable laws, including personal-information protection laws.

18. Confidentiality

The source code of the Swimo (Planitou) solutions, performance or operation reports of the Swimo (Planitou) solutions, and the documents and know-how associated with the Swimo (Planitou) solutions constitute confidential information of Swimo (Planitou). Data entered by the Subscriber and its Authorized Users is confidential information of the Subscriber. The parties agree that they may exchange this confidential information, the receiving party being the “recipient” for the following purposes.

Except as expressly authorized herein, a party shall keep confidential and shall not use or disclose the other party’s confidential information. The non-disclosure obligation does not apply to information that the recipient can document: (a) was lawfully in its possession or known to it before receiving the confidential information; (b) is or has become publicly known through no fault of the recipient; (c) is rightfully obtained by the recipient from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the recipient who did not have access to such information.

The recipient may also disclose confidential information if necessary pursuant to a regulation, law or court order (but only to the extent required to comply with the regulation or order and with prior notice to the disclosing party). The recipient acknowledges that disclosure of confidential information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore the disclosing party is entitled to seek an injunction in addition to any other legal remedy.

For clarity, Swimo (Planitou) may need to provide confidential information to a public authority to comply with an applicable law. If a public authority requires Swimo (Planitou) to provide confidential information or other information relating to a Subscriber, Swimo (Planitou) may presume that binding requests from public authorities are well founded and will have no obligation to verify whether they are authorized by applicable laws or regulations.

19. Term and termination

19.1. Methods of termination

The Subscriber may terminate this Agreement, at its discretion, on 30 days’ notice to Swimo (Planitou). To do so, contact a member of the Swimo (Planitou) team by email or phone. If you terminate the Agreement and pay the service monthly, you will be billed for the current month but will no longer be billed thereafter. If you have a prepaid annual plan with a pricing discount, or you prepay your service (depending on the Swimo (Planitou) Solution), no refund will be issued. At best, a credit may be applied to the account at the sole discretion of Swimo (Planitou).

Swimo (Planitou) may terminate this Agreement without cause, at its discretion, on 30 days’ written notice to the Subscriber, which may be sent by email.

Swimo (Planitou) may also terminate this Agreement on 5 days’ written notice to the Subscriber if the Subscriber is bankrupt or seeks protection under an arrangement with creditors, or if the Subscriber defaults on any of its obligations under this Agreement and does not cure the default before expiry of the 5-day notice.

19.2. Effects of termination

Except in the case of termination without cause by Swimo (Planitou), you will not be entitled to credits or refunds for terminating your subscription, or to the refund of any prepaid amount.

Any termination will be without prejudice to any other remedy available under this Agreement, by law or otherwise. Once the Agreement is terminated or expired, you (and your Authorized Users) will no longer have the right to use or access the Swimo (Planitou) solutions or any other information or material we make available to you under this Agreement or to your Data. We delete Data within 90 days after termination of your subscription. Prior to deletion of Data and upon receipt of a Subscriber request to that effect, we will provide a copy of your database and access to your account files. The provisions of Articles 20, 21, 23, 25, 26, 27 and 30, in addition to those which by their nature must survive, will survive any termination or expiry of this Agreement.

20. Warranty and liability

20.1. Authority of the signatory

Each party represents and warrants that it has the legal authority to enter into this Agreement and that, if you are an Organization, this Agreement and each subscription are entered into by an employee or agent of that party with all necessary authority to bind that party to the terms of this Agreement.

20.2. Warranty disclaimer

ALL SWIMO (PLANITOU) SOLUTIONS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. YOU ACKNOWLEDGE HAVING RECEIVED THE NECESSARY EXPLANATIONS AND THE OPPORTUNITY TO REVIEW THE FEATURES OF THE SWIMO (PLANITOU) SOLUTIONS AND CONFIRM THAT THEY ARE TO YOUR ENTIRE SATISFACTION. SWIMO (PLANITOU) AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS, IMPLIED OR STATUTORY.

IN ADDITION, SWIMO (PLANITOU) WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS BEYOND ITS REASONABLE CONTROL. SWIMO (PLANITOU) MAKES NO REPRESENTATION AND OFFERS NO WARRANTY THAT: (A) USE OF THE SWIMO (PLANITOU) SOLUTIONS WILL BE SAFE, FAST, UNINTERRUPTED OR ERROR-FREE; (B) THE SWIMO (PLANITOU) SOLUTIONS OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA; (C) THE SWIMO (PLANITOU) SOLUTIONS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (D) ALL RECORDED DATA WILL BE ACCURATE AND RELIABLE; (E) RECORDED DATA WILL NOT BE LOST OR CORRUPTED; (F) ERRORS OR DEFECTS WILL BE CORRECTED (EXCEPT TO THE EXTENT SWIMO (PLANITOU) IS NOTIFIED OF THE ERROR OR DEFECT); OR (G) THE SWIMO (PLANITOU) SOLUTIONS AND THEIR OPERATION WILL HAVE NO ADVERSE EFFECT ON YOUR SYSTEMS.

21. Limitation of liability

EXCEPT IN THE CASE OF GROSS FAULT, IN NO EVENT SHALL SWIMO (PLANITOU) OR ITS PROVIDERS BE LIABLE FOR ANY LOSS OF USE, LOSS OF OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, SERVICE INTERRUPTION, DELAY IN THE SERVICES RENDERED, OR ANY INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SWIMO (PLANITOU) OR THE PROVIDER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SWIMO (PLANITOU)’S AGGREGATE LIABILITY TO YOU IS CAD $20 IF YOU USE ONLY THE FREE SWIMO (PLANITOU) SOLUTIONS, AND IS LIMITED TO THE AMOUNT PAID TO SWIMO (PLANITOU) FOR ITS SOLUTIONS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM IN ALL OTHER CASES.

22. Insurance

Swimo (Planitou) maintains, throughout the term of this Agreement, a general liability insurance policy on the most recent BAC 2100 form or a similar or broader form providing the following coverage: (i) bodily, moral and property damage up to CAD $1,000,000 per occurrence on an event basis; (ii) personal and advertising injury up to CAD $5,000,000.

On request, the Subscriber may be designated as additional insured and a certificate of insurance may be delivered to the Subscriber within 15 days following signing of the Agreement. The policy is underwritten by an insurer licensed by the Autorité des marchés financiers and provides for 30 days’ notice from the insurer to the Subscriber for a change in coverage, cancellation or non-renewal. The Subscriber is entitled to require a certified copy of the policy at any time. Failure to meet insurance requirements allows the Subscriber to suspend or terminate the Agreement without delay.

23. Third-party relations

You accept full responsibility and agree to indemnify and hold Swimo (Planitou) harmless from any liability and claim (including reasonable legal fees and expert costs) related to your use of the Swimo (Planitou) solutions with respect to: (i) your contractual obligations to Authorized Users; (ii) respect for the confidentiality and privacy of Authorized Users; (iii) the application of any law or regulation governing the employment relations of your employees and those of your Affiliates. In all cases, you agree to cooperate fully and provide any information required for the defense of Swimo (Planitou).

24. Third-party vendor products

Swimo (Planitou) or third parties may from time to time make third-party products or services available to you, including complementary products and implementation, customization, training and other consulting services. If you obtain any such third-party product or service, you do so under a separate agreement solely between you and the third-party provider. Swimo (Planitou) does not warrant the support of third-party products or services, whether recommended by us or not, and disclaims any responsibility for their products or services.

If you install or activate third-party products or services for complementary use with Swimo (Planitou) solutions, you acknowledge that Swimo (Planitou) may allow the providers of these products and services to access your Data as needed for interoperability and support. Swimo (Planitou) will not be responsible for the disclosure, alteration or deletion of your Data resulting from any access by third-party complementary products.

Without limiting the foregoing, you may configure some of our Swimo (Planitou) solutions to transmit messages or notifications by email, phone calls or SMS. Swimo (Planitou) assumes no responsibility for the compatibility of such external means of communication with its Swimo (Planitou) solutions, and offers no warranty that the messages or notifications so transmitted will be error- and delay-free.

25. Public rights

We may identify you as a Subscriber in our promotional materials and on our commercial website; in this regard, you allow us to display your company name or one of your trademarks identifying you (including a graphic mark) at our discretion. You may ask us to stop by emailing info@planitou.ca at any time. Please note that it may take up to 30 days to process your request.

26. Improvement of the Swimo (Planitou) solutions

We always strive to improve the Swimo (Planitou) solutions. To do so, we need to measure, analyze and aggregate how users interact with the Swimo (Planitou) solutions, such as usage patterns and characteristics of our user base. We collect and use data captured about the use of the Swimo (Planitou) solutions.

When such data allows a person to be identified directly or indirectly, it is considered Personal Information and is subject to the applicable articles of this Agreement.

27. Dispute resolution

27.1. Dispute resolution

In the event of any dispute or claim arising out of or related to this Agreement, the parties shall consult and negotiate with each other, recognizing their mutual interests, to attempt to reach a solution satisfactory to both parties.

If the parties do not reach a settlement within 60 days, any unresolved dispute and any claim arising out of or related to this Agreement will be submitted exclusively to arbitration under the rules of the Code of Civil Procedure of Québec then in force. The arbitration will be decided by a single arbitrator. The parties will endeavor to appoint a mutually acceptable arbitrator. If they cannot agree on the choice of arbitrator, the arbitrator will be appointed by the Superior Court of the district of Longueuil, province of Québec, upon request of either party. The arbitration will take place in Longueuil, Québec, Canada. The language of arbitration will be French.

27.2. Governing law

This Agreement is governed by and construed in accordance with the laws of the province of Québec and the federal laws of Canada applicable therein, without reference to private international law rules on conflict of laws.

27.3. Injunctions

Nothing in this Agreement prevents Swimo (Planitou) from seeking an injunction with respect to the violation of its intellectual property rights, or the enforcement or recognition of a decision or order in any appropriate jurisdiction.

28. Changes to the Agreement

We may update or modify this Agreement from time to time, including the referenced policies and other ancillary documents.

With respect to billed Swimo (Planitou) solutions, we will notify you at least 15 days in advance by written notice through your account or by email. The amended version will be effective on the 16th day after such notice is sent. If you object to the updated Agreement, you may choose to terminate the Agreement on written notice under Article 19.

29. Relationship between the parties

The parties are independent contractors; this Agreement may not be construed as making one party a partner of the other or creating any other form of legal association giving a party the explicit or implicit right, power or authority to create any obligation of the other party.

30. General provisions

All notices under this Agreement must be given in writing. We may notify you by email or through your account. Notices we send will be deemed received on the first business day in the province of Québec, Canada, after we send them. You must send your notices to Swimo (Planitou) by mail to: “Planitou (attn. Legal Department), 410-6000 boul. de Rome, Brossard, Québec, Canada, J4Y 0B6”. Your notices will be deemed received upon our receipt.

You may not assign this Agreement without our prior written consent. We will not unreasonably withhold consent if the assignee agrees to be bound by the terms of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent.

This Agreement constitutes the entire agreement between you and Swimo (Planitou) regarding the Swimo (Planitou) solutions and supersedes all prior or contemporaneous oral or written communications, proposals and representations regarding the Swimo (Planitou) solutions or any other subject matter covered by this Agreement. If any provision of this Agreement is held void, invalid, unenforceable or illegal, the remaining provisions will remain in full force and effect. This Agreement cannot be modified or amended without our written consent (which may be withheld at our sole discretion, without any obligation to provide reasons). No failure or delay by the aggrieved party in exercising any right, power or privilege hereunder will be construed as a waiver thereof, nor deprive it of any other right or remedy under this Agreement.