1. USE CONSTITUTES ACCEPTANCE
BY ACCESSING, USING, CONFIGURING OR ACTIVATING (“Use” or “Using”) ANY MIOVISION SERVICES OR CLICKING AN ONLINE BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, THE END USER ACKNOWLEDGES AND AGREES THAT:
I. END USER HAS READ, UNDERSTOOD AND ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND
II. THE INDIVIDUAL WHO ENTERS INTO THIS AGREEMENT ON BEHALF OF END USER’S ORGANIZATION HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND THE END USER’S ORGANIZATION (AND ITS AFFILIATES) TO THIS AGREEMENT.
This Agreement applies where Miovision provides Services to End User. End User may order the Services from, and make payment for the Services to, either: (a) Miovision directly in accordance with the applicable Quotation and the Miovision Terms of Purchase (“TOP”) located at https://www.miovision.com/legal/terms-of-purchase (b) through a Partner under the terms of a separate agreement with said Partner (“Partner Agreement”).
3.1 Provision of Access. End User and Authorized Users shall access the Services by means of a specific End User Account using individual user login names and passwords. End User is solely responsible for the confidentiality and use of user login names and passwords, use of the End User Account, and all charges incurred from Use of the Services accessed via the End User Account.
3.2 Authorized Users. The End User shall have the right to provide access to the Services to its Authorized Users for the purpose of searching, viewing, and requesting End User Data. In no event shall the End User provide anyone, other than Authorized Users, with access to the Services.
3.3 End User Account Access. Miovision shall have the right, in its sole discretion, to access the End User Account from time to time for the purposes of Support, administration, invoicing and to inspect End User’s utilization of Services for the purpose of ensuring End User’s compliance with the provisions of this Agreement.
3.4 Additional Services and Hardware. This Agreement does not cover the purchase of any Hardware or any custom development services and should be read in conjunction with the Miovision TOP or any Miovision agreements that make reference to this Agreement.
4. END USER RESPONSIBILITIES
4.1 Compliance with Policies. End User shall comply with Miovision’s guidelines and policies, located at https://www.miovision.com/legal/policies which are hereby incorporated by reference, when using the Products. Miovision may update Miovision’s guidelines and policies from time to time.
4.2 Data Connections.
a) Configuration. End User shall not install, configure or commission Miovision Products or data connections in a manner that: (i) permits or results in Unacceptable Use; or (ii) results in data use in excess of any limitations outlined in the applicable Quotation or Partner Agreement (the “Usage Limits”).
b) Right to Monitor. Miovision has the right to: (i) monitor the usage of any data connection; and (ii) contact End User if there are any issues or misuse of the data connection or violation of the Usage Limits.
c) Right to Limit Use. Miovision reserves the right to limit, throttle or cap data use to ensure that applicable Usage Limits are not exceeded.
4.3 End User Requirements. End User is responsible for all of its own tools, computer, software, network and internet connection costs related to its Use of the Products.
4.4 Compliance with Laws. End User hereby certifies that it will, at its own cost and expense, fully comply with all laws, ordinances, legislation and regulations applicable to the possession, Use, operation, repair, maintenance, transportation, importation and exportation of Products.
4.5 Prohibited Acts. Miovision provides programmatic access and integration means to the Products via application programing interfaces and other technologies and Miovision encourages the use of these Product features. However, End User shall not (and shall not permit others to) directly or indirectly: (i) use the Products for any purposes beyond the scope of the licensed rights and access granted in this Agreement; (ii) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to derive source code from or create derivative works based on the Products, in whole or in part; (iii) use, modify, enhance, copy or sublicense any software or firmware embedded in any Products; (iv) remove, modify, obscure, deface or otherwise alter or tamper with any copyright, trademark or other proprietary notices, labels, legends or marks on any Products; (v) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the Products, except to the extent as expressly permitted in Section 8 (Intellectual Property and Licenses) or where End User has obtained full title to the Products; or (vi) use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates applicable law.
5.1 End User Representations and Warranties. End User represents and warrants to Miovision that End User has the power and authority to enter into this Agreement, and it is not a party to any agreement with, nor does it have any obligations to, any third-party which would conflict in any way with any of its obligations under this Agreement, and the End User will indemnify and save harmless Miovision for any breach of the foregoing.
5.2 Miovision Limited Warranties.
a) Hardware and Firmware. The Miovision Limited Warranty for Hardware and Firmware as further described at https://www.miovision.com/legal/policies/hardware-warranty is hereby incorporated by reference.
b) Services. Miovision warrants that during the Term, the Services will operate substantially in accordance with, and have the functionality set out in, the then-current written Documentation for the Services under normal uses and conditions.
c) Warranty Limitations. The Services use of, and reliance on, data provided by parties other than Miovision is such as to also require the exercise by the End User of subjective judgments as to accuracy, materiality, relevance and other factors. It is the responsibility of the End User to review, check and confirm results. Miovision uses reasonable efforts to ensure that the Use of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Miovision shall not be responsible at any time for any claims, lost data or damages incurred while transmitting information on the internet with respect to the Services. While Miovision shall take reasonable precautions to ensure security of the Services, and to protect End User Data, the End User acknowledges that: (i) the internet provides the opportunity for unauthorized third parties to gain access to the Services and End User Data; and (ii) Miovision cannot and does not guarantee the privacy or security of any End User Data transferred over or stored in any system connected to the internet, and disclaims any warranty or representation that confidentiality of information transmitted through the provision of the Services can or will be maintained.
d) Warranty Disclaimers. THE PROVISIONS OF SECTION 5.2 (MIOVISION LIMITED WARRANTIES) AND SECTION 7 (LIMITATION OF LIABILITY) STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND END USER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY BREACH OF ANY WARRANTY REGARDING MIOVISION’S PRODUCTS AND ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.2 (MIOVISION LIMITED WARRANTIES), MIOVISION’S PRODUCTS AND OTHER SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY OF ANY KIND. MIOVISION, ON BEHALF OF ITSELF AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND LICENSORS, HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) REGARDING OR RELATING TO MIOVISION’S PRODUCTS AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT. THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.2 (MIOVISION LIMITED WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, FOR ALL OF MIOVISION’S PRODUCTS AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR ANY PURPOSE (PARTICULAR, SPECIFIC OR OTHERWISE), TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6.1 End User Indemnification. End User shall defend, indemnify and hold Miovision and their respective directors, officers and employees, harmless against any and all damages, liability, costs and expenses (including legal fees and expenses) arising out of any third-party (including, without limitation, any End User or Authorized User) claim, suit, action or judgment (commenced or threatened) brought against Miovision resulting from: (i) the infringement or alleged infringement of a third-party’s Intellectual Property Rights resulting from Miovision’s compliance with any designs, specifications or instructions of Partner or End User; (ii) any use of End User Data by Miovision in accordance with the terms hereof; (iii) use of the Products other than as intended by Miovision; (iv) the performance of any illegal, fraudulent or unauthorized services by, or on behalf of, Partner or End User; (v) End User’s or any Authorized User’s failure to comply with, or breach of, any terms of this Agreement or any applicable laws. In relation to any indemnity by End User in this Agreement: (a) Miovision will promptly notify End User of such claims; (b) End User shall have the sole control of the defence of such claims and all negotiations for its settlement or compromise (provided that any settlement does not create obligations for Miovision); (c) Miovision may, at its option and expense, be represented by counsel of its choice in any action or proceeding related to such claims; (d) Miovision shall furnish to End User on request all information reasonably required by End User that is in Miovision’s possession or control for such defence; (e) Miovision will not admit any such claims or make any payments with respect to such claims without the prior written consent of End User, acting reasonably; and (f) Miovision shall, at End User’s expense, cooperate with, and provide such assistance to End User in the defence of such claims as reasonably requested by End User. Nothing in this Section 6.1 (End User Indemnification) shall limit Miovision’s rights or remedies in the event Customer fails to perform its obligations.
7. LIMITATION OF LIABILITY
7.1 Specific Limitations.
a) Product Use. Miovision is not responsible or liable for the Use of Products resulting from access via End User Account or by its Authorized Users, whether such Use is permitted by or in violation of this Agreement.
b) Backups. Miovision maintains backup copies of all End User Data, but Miovision will in no circumstances have any liability for the loss or destruction of, or for corruption or disclosure of, End User Data caused by End User errors, the acts or omissions of third parties, circumstances constituting a Force Majeure Event or circumstances arising from transmission over public telecommunications lines or transportation via commercial carriers.
c) Data Access. Miovision shall not be liable for any access to or usage by third parties of any information used in connection with the Services.
d) Warranties. Miovision’s sole and exclusive liability for a breach of warranty under Section 5.2(b) (Services) shall be for Miovision to correct any reported problem in the Services that is directly attributable to Miovision’s own errors or omissions.
e) End User Responsibilities. Miovision is not liable for any interruption to the Miovision Services resulting from actions taken to ensure End User compliance with this agreement including but not limited to Section 4 (End User Responsibilities).
7.2 Exclusion of Consequential Damages. In no event will Miovision have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if Miovision have been advised of the possibility of such damages or if End User’s remedy otherwise fails its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
7.3 Aggregate Limitation. SUBJECT TO SECTION 7.2 (EXCLUSION OF CONSEQUENTIAL DAMAGES) AND SECTION 7.4 (CERTAIN DAMAGES NOT EXCLUDED OR LIMITED), MIOVISION’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM, LOSS OR DAMAGE ARISING FROM THIS AGREEMENT SHALL AT ALL TIMES BE LIMITED TO ACTUAL DIRECT DAMAGES, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL AMOUNTS PAID BY OR ON BEHALF OF END USER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY.
7.4 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (A) DAMAGES ARISING FROM INFRINGEMENT OF MIOVISION IP OR MIOVISION’S OTHER INTELLECTUAL PROPERTY RIGHTS; (B) ANY CLAIMS FOR NON-PAYMENT; (C) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; (D) WITH RESPECT TO END USER, ANY FAILURE TO COMPLY WITH, OR BREACH OF ANY OF END USER’S OBLIGATIONS AS SET OUT IN THIS AGREEMENT OR (E) DAMAGES WHICH CANNOT BE EXCLUDED, LIMITED, MODIFIED OR RESTRICTED UNDER THE APPLICABLE LAWS AND/OR REGULATIONS.
7.5 Third-Party Products and Services. Certain third-party products and services may be made available to End User for use with the Miovision products and services. Miovision does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such third-party products and services. To use such third-party products and services an amendment to this Agreement may be required and additional third-party terms and conditions may be applicable. Notwithstanding anything to the contrary, Miovision has no liability or responsibility to End User, End User’s Affiliates, Authorized Users, or anyone else for or in relation to any third-party product or service and End User hereby irrevocably waives any claim against Miovision with respect to such third-party products or services.
8. INTELLECTUAL PROPERTY & LICENSES
8.1 Miovision Intellectual Property. The Products are protected by copyright, trademark, patent, trade secret, and other laws and for the purpose of this Agreement do not constitute “works for hire” under any applicable copyright or similar laws. Miovision owns and retains, solely and exclusively, all rights, title, and interest to the Intellectual Property in Miovision’s Products whether the Products are separate or combined with any other products or services. This includes all Intellectual Property in and associated with Miovision’s products and services (including, without limitation, the Hardware, Firmware, Services, Developments, Documentation, Support or other products or services) and all modifications, changes, enhancements, or additions made thereto (whether initiated by the Customer or otherwise), and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other Intellectual Property in connection with any of the foregoing (collectively “Miovision IP”).
8.2 Non-Exclusivity. Miovision provides similar services and products to other end users, customers, resellers, distributors, partners and other entities, and nothing in this Agreement shall be construed to prevent Miovision from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it similar services, products or materials or performing the same or similar functions as the Products contemplated by this Agreement or any applicable Quotation. For greater certainty, Miovision is free to use without restriction its general knowledge, skills and experience and any ideas, concepts, know-how and techniques learned in the course of providing Miovision’s Products to End User under this Agreement.
8.3 End User Licenses and Right to Use.
a) Perpetual Firmware License. Subject to Miovision receiving payment in full for the applicable Firmware, and End User’s compliance at all times with the terms of this Agreement, Miovision grants to End User a limited, non-transferable, non-exclusive, perpetual and non-sub-licensable right and license for Authorized Users to access and Use the applicable purchased version of Miovision’s Firmware on the particular Miovision’s Hardware device described in the applicable Quotation.
b) Use of Services. Subject to Miovision receiving payment in full for the applicable Service(s), and End User’s compliance at all times with the terms of this Agreement, Miovision grants to End User the right to access, Use and display the Service(s) exclusively for End User’s internal use during the Term.
8.4 End User Data.
b) Ownership. End User Data is solely owned by, and is the sole responsibility of, the End User. End User is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of End User Data.
c) License Grant. End User grants Miovision a worldwide, royalty-free, perpetual, irrevocable, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform the End User Data in connection with the delivery and improvement of Services for End User. This license is necessary for Miovision to deliver, test and improve the Services. In particular, Miovision may: (i) collect, compile, store and use End User behavioural data for Miovision’s internal use to help Miovision understand how Miovision’s products and services are being used by end users (“Behavioural Data”); and (ii) use frames or segments from video components of the End User Data for the purposes of training, improving or validating Miovision’s automated processing systems (“Training Frames”).
d) Anonymous Data. End User grants Miovision full rights to anonymize End User Data and any usage information so that it does not identify End User as a user, identify specific transactions carried out by End User, or contain any other confidential information of End User or any other individual or entity (“Anonymous Data“). End User agrees that Miovision: (i) has full ownership over Anonymous Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data with other information and services (“Aggregate Data“); (iv) has the right to use the Aggregate Data in the furtherance of Miovision’s business; and (v) may disclose, sell and publish Aggregate Data to any party through any means. Miovision is prohibited from disclosing End User Data and usage information to any party except in accordance with this Agreement or your express consent.
8.5 Feedback. End Users may (but are not required to) provide feedback, comments and suggestions, including in respect of or concerning any improvements, errors, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to Miovision. Feedback may be provided directly to Miovision by an End User or via a Partner. End User grants to Miovision a worldwide, royalty-free, perpetual, irrevocable, fully paid-up, non-exclusive, sublicensable and transferable license to use, disclose and exploit all such Feedback for any purpose.
8.6 Waiver of Moral Rights. To the extent that the End User acquires rights in any of the Miovision IP, End User hereby does and will: (i) assign such rights to Miovision; and (ii) waive any and all moral rights End User may have in such Miovision IP or other Miovision Intellectual Property to and in favour of Miovision.
8.7 Reservation of Rights. Miovision reserves all rights not expressly granted to End User in this Agreement. Except for the limited rights, licenses and access expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to End User, Partner or any third-party, any Intellectual Property Rights or other right, title or interest in or to the Miovision IP or any other Miovision Intellectual Property.
8.8 Confidentiality of Miovision IP. All Miovision IP shall be deemed to be the Confidential Information of Miovision, and the End User shall be bound to maintain the confidentiality thereof in accordance with the confidentiality provisions of this Agreement.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall take effect on the date End User or its Authorized Users first use or access the Services and unless terminated earlier pursuant to the terms of this Agreement, shall remain in effect during the period of time specified in an applicable initial Quotation or Partner Agreement during which the End User is permitted to Use the Services (the “Initial Term”). The Initial Term may be renewed for subsequent periods as detailed in the applicable renewal Quotation (each a “Renewal Term” and together with the Initial Term the “Term”). Miovision shall use reasonable efforts to provide a renewal notice to End User sixty (60) days prior to the expiry of the Initial Term or any Renewal Term and each Renewal Term will start immediately after any prior Initial Term or Renewal term ends.
9.2 Suspension. Miovision may suspend End User’s access, performance, data limits or Use of the Services at any time for a breach of End User’s obligations under this Agreement including, without limitation, overdue payment, a violation of any licenses or license restrictions, a violation of Section 4 (End User Responsibilities), or any misuse of the Services. Any suspension shall not relieve End User of its obligations under this Agreement. Miovision will not be liable to End User nor to any third-party for any suspensions.
9.3 Miovision Termination. Miovision may terminate this agreement effective immediately:
a) if any of the Services is not in conformity or compliance with applicable laws or requests from government entities and conformity cannot be ensured within a reasonable time;
b) in order to comply with applicable law or requests of governmental entities;
c) Miovision is no longer able to provide Services due to circumstances beyond its’ reasonable control; or
d) in the event that the Miovision TOP governing the purchase of the Services by or on behalf of End User is terminated.
9.4 Effects of Termination. Upon the effective date of termination or expiration of this Agreement for any reason:
a) all rights and obligations under this Agreement shall terminate subject to Section 12.17 (Survival), and Miovision shall cease providing End User with access to the Services and Support;
b) Miovision will retain End User Data for a period of at least 30 days to allow End User to create a backup; and
c) Both Parties shall continue to have all remedies which are available to them at law or in equity including, without limitation, the right to injunctive relief.
10. PROTECTION OF CONFIDENTIAL INFORMATION
10.1 Confidential Information. Each Party acknowledges that it may be exposed to certain confidential or proprietary information and materials regarding the other Party’s business including, but not limited to, this Agreement, information concerning a Party’s business, technology, customers, partners and suppliers (including, without limitation, any information that is embedded in, or related to: (i) the business of Miovision; (ii) any goods, products, software, services, deliverables or documentation that is disclosed, supplied or licensed by or on behalf of Miovision; (iii) the technology, customers, partners, suppliers, products, documentation, software, deliverables or services of Miovision, and all Miovision IP and other Miovision Intellectual Property Rights; or (iv) the development, testing, or commercial exploitation of any of the foregoing; all of which are considered and deemed to be the “Trade Secrets” of Miovision), which: (a) is disclosed by the disclosing Party in any manner and is marked or identified as confidential or proprietary (or a like designation) at the time of disclosure; or (b) given the circumstances of the disclosure, should be understood by the recipient, exercising reasonable business judgment, to be confidential (“Confidential Information”). For clarity, the disclosing Party’s customer lists, partner lists, marketing plans, business plans, product plans and pricing models, and Miovision’s Documentation shall always be treated as Confidential Information regardless of whether they are marked or identified as being confidential or proprietary or provided in writing, orally or otherwise.
10.2 Exclusions. Confidential Information shall not include any information or material which: (i) was lawfully in the possession of the receiving Party prior to receipt from the disclosing Party; (ii) is or becomes publicly available through no wrongful act of the receiving Party; (iii) is obtained by the receiving Party from a third-party without restriction; (iv) is independently developed by the receiving Party; (v) is disclosed by the receiving Party with the disclosing Party’s prior written approval; or (vi) is required to be disclosed by a court of competent jurisdiction or other governmental authority provided that the receiving Party takes reasonable steps to give the other Party sufficient prior written notice so that it can challenge such requirement.
10.3 Restrictions. Except in relation to Trade Secrets of Miovision, each Party shall for a period of five (5) years following the expiry or termination of this Agreement: (i) use a reasonable standard of care to protect Confidential Information which shall be no less protective than the manner in which the receiving Party protects the confidentiality of and unwanted disclosure of its own confidential information; (ii) not use Confidential Information except as permitted by the disclosing Party; (iii) not disclose Confidential Information except to its Affiliates, employees or representatives to whom disclosure is necessary to effect the purposes of this Agreement, and who are similarly bound to hold the Confidential Information in confidence; and (iv) not reproduce Confidential Information without the disclosing Party’s prior written consent. The confidentiality obligations of the End User shall apply indefinitely in relation to Trade Secrets of Miovision.
10.4 Permitted Disclosures. Either Party may disclose this Agreement in confidence, and only to the extent reasonably necessary: (i) to legal counsel of the Party; (ii) to accountants, banks, proposed investors, and financing sources and their advisors; (iii) in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in connection with a merger or acquisition or proposed merger or acquisition, or similar transaction. 10.5 Return of Confidential Information. Each Party shall, upon termination or expiration of this Agreement, return to the disclosing Party all tangible manifestations containing Confidential Information that have been provided under this Agreement, including any copies and reproductions. The provisions of this Section
10.5 Return of Confidential Information. shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving Party according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
11.1 Reasonable Effort. Miovision’s standard support levels are found at https://www.miovision.com/legal/policies/support-policy (“Support”) and are hereby incorporated by reference. Miovision will use reasonable efforts to provide Support and meet any selected turn-around times for Customer and Authorized Users during the applicable Term.
11.2 Down Time. Support will not be available during system maintenance periods, or such times as Miovision may require for purposes of upgrades and maintenance to Services or underlying systems, and Miovision will make reasonable efforts to announce the scheduled downtime via e-mail to End User’s designated e-mail address.
11.3 Exclusions. Support does not include services required as a result of: (a) End User or Authorized User misuse, improper use, alteration, or damage of Miovision’s products or services; (b) any problem caused by modifications to Miovision’s products or services not made or authorized by Miovision; (c) any problem resulting from End User or Authorized User combining or merging Miovision’s products or services with any hardware, software or services not supplied by Miovision, or not identified by Miovision as compatible with Miovision’s products or services; or (d) any custom development services. Circumstances outside the control of Miovision, including Force Majeure Events, and hardware, software or communications systems failures, may impact Miovision’s ability to achieve target service levels. Miovision shall not be liable for any claims resulting therefrom provided Miovision is using reasonable efforts to reinstate normal service levels and system access.
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement, including any URLs, Quotations and schedules or attachments, constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes all prior understandings, agreements, discussions, covenants, and arrangements between the Parties relating thereto.
a) Incorporation. The terms of any Quotation, Purchase Order, or Partner Agreement that are necessary to give effect to this Agreement, including, but not limited to, the Products being purchased and the applicable Term are hereby incorporated by reference.
b) End User Terms. Any terms and conditions provided by or on behalf of End User that are in addition to or inconsistent with the terms and conditions of this Agreement (including, without limitation, End User’s standard purchasing terms or conditions, delivery slips, packing instructions or Purchase Order), shall be deemed null and void. If there is any conflict between the terms contained in a Quotation issued by Miovision to End User and this Agreement, the terms contained in the Quotation issued by Miovision to End User shall take priority to the extent of the conflict for that Quotation only.
c) Negotiated Terms. Any negotiated and fully executed version of this Agreement will take precedence over any standard forms of this Agreement for the Term set out in the negotiated documents.
d) Inconsistent Terms. If there is a conflict between this Agreement and any other Miovision agreements, including any agreements incorporated by reference, the other Miovision agreements shall prevail.
12.2 End of Life. Following the Initial Term, Miovision reserves the right to discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any or all of the Services and Support covered by this Agreement. Miovision will provide any notice required by law, prior to discontinuing any Services or Support covered by this Agreement. Nothing in this Agreement shall preclude Miovision from modifying the content, features, functionality, pricing, or warranty terms of any of Miovision’s Hardware, Services, Documentation, Support or any other products or services in any way at any time at Miovision’s sole discretion.
12.3 Publicity. End User grants Miovision the right to: (i) develop public communications (including, without limitation, press releases, advertisements and customer success stories) which include references to the End User and concern this Agreement or any related matter; and (ii) use the End User’s trademarks, service marks, logos and trade names in any such public communications and to identify End User as a customer of Miovision’s on Miovision’s website and as a part of a general list of Miovision’s customers for use and reference in Miovision’s corporate, promotional and marketing literature. No such public communications shall be made by Miovision without the End User’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.
12.4 English Language Statement for End Users in the Province of Quebec. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des Parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglaise seulement.
12.5 Force Majeure. Neither Party shall be deemed to be in default of this Agreement for any failure in performance (other than payment obligations) resulting from acts or events beyond its reasonable control including, without limitation, acts of God, civil or military authorities; fire; flood; earthquake; strikes, labour shortage, or other labor difficulties; health pandemic; epidemic, quarantine restrictions; governmental action; border closures; change in laws; terrorism; riot; insurgence; war; cellular carrier or network outage, downtime or delays; cloud service provider outage, downtime or delays; or delays in transportation (each a “Force Majeure Event”). Each Party will use its best efforts to anticipate such failures and to devise means to eliminate or minimize them; however, if such failure continues for more than sixty (90) days, either Party may terminate the Agreement immediately upon notice and in accordance with Section 9 (Term and Termination).
12.6 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. No Party shall have authority to bind the other Party in any way or represent that it has such authority.
12.7 Non-solicitation. During the Term and for a period of one (1) year thereafter End User will not, in connection with any other person, firm, corporation or other entity, directly or indirectly, in any capacity whatsoever including, without limitation, as an employer, employee, director, agent, shareholder or other equity holder, independent contractor, supplier or otherwise, employ, offer employment to or solicit the employment or engagement of or otherwise entice away from the employment of Miovision an individual who is employed by Miovision or who has resigned from employment by Miovision in the then immediately preceding six (6) month period.
12.8 Assignment. Neither Party shall assign or transfer any rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Miovision may, without the requirement to obtain the consent of the End User, assign or transfer Miovision’s rights under this Agreement: (i) to an Affiliate; (ii) to a lender whose security interests must be perfected; or (iii) to any successor in interest in the event that Miovision merges or consolidates with a third-party, or a third-party purchases all, or substantially all of the shares or assets of Miovision, provided that in each case the assignee or transferee agrees to be bound by this Agreement. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns.
12.9 No Third-Party Beneficiaries. Nothing contained herein, express or implied, is intended to confer upon any person or entity, other than the Parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
12.10 Notices. Any and all notices, demands and other communications under this Agreement shall be in writing, addressed to the other Party hereto at the address for that Party (as may be set out in the applicable Quotation, when applicable, or otherwise in the case of Miovision, to: Attention: Legal Team, Miovision Technologies Incorporated, 137 Glasgow Street, Suite 110, Kitchener, Ontario ON N2G 4X8, Canada). All notices shall be effective and deemed to be delivered: (i) if delivered in person or by courier, at the time of actual delivery; (ii) if sent by email, on the third (3rd) day following the date of dispatch; (iii) if sent by mail (postage prepaid) within the country, the fifth (5th) day after its mailing; (iv) if sent by mail (postage prepaid) outside the country, the tenth (10th) day after its mailing.
12.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts of the Province of Ontario, Canada (and all courts competent to hear appeals therefrom) and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds, and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. In addition, the Parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
12.12 Dispute Resolution. The Parties will submit all disputes arising under this Agreement to arbitration. Notwithstanding the foregoing, a Party shall retain the right to immediately seek injunctive or equitable relief in a court of competent jurisdiction. Arbitration shall take place in Toronto, Ontario, Canada and be conducted in the English language. The arbitration shall be held in accordance with the Rules of Arbitration of the International Chamber of Commerce (“Arbitration Centre”) then in force. Each Party shall bear one half of the costs associated with the arbitration proceedings. The decision of any arbitration shall be final and binding on the Parties with no right to appeal.
12.13 Export and Control Restrictions. This Agreement is made subject to any restrictions concerning the export of products or technical information that may be imposed on the Parties from time to time. Each Party agrees that it will not export directly, or indirectly, any Services, Documentation, Deliverables, Support or other Miovision products or services to a location or in a manner that at the time of export requires an export license or other governmental approval without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable laws.
12.14 Severability. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or unenforceable, such provision shall either be modified to the extent necessary to render it enforceable or shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
12.15 Amendments. MIOVISION MAY UPDATE THESE TERMS FROM TIME TO TIME AND WILL PROVIDE THE END USER WITH NOTICE OF SUCH CHANGES.
12.16 No Waiver. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Party’s rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
12.17 Survival. The provisions of Sections 3 (Services), 4 (End User Responsibilities), 5 (Warranties), 7 (Limitation of Liability), 8 (Intellectual Property and Licenses), 9 (Term and Termination), 10 (Protection of Confidential Information), and 12 (General Provisions) shall survive the expiration or termination of this Agreement.
As used in the Agreement the following terms are defined as indicated below:
“Affiliates” means, with respect to a Party to this Agreement, any other person or entity that now or in the future, directly or indirectly, controls, is controlled by, or is under common control with that Party.
“Authorized User(s)” means employees, consultants, contractors, and agents of End User, End User’s Affiliates and End User’s suppliers or service providers (as applicable) who are authorized by End User to Use the Services under the rights granted to End User pursuant to this Agreement.
“Deliverable(s)” means any and all reports, studies or other outputs to be provided by Miovision to End User in relation to the applicable Services as may be further described in the applicable Quotation or Partner Agreement.
“Documentation” means all marketing, sales, instructions, manuals, handbooks, guides, technical literature and other written materials, including revisions thereto, for the Use of the Services as provided by Miovision from time to time, either electronically or in hard copy form under this Agreement or otherwise generally provided by Miovision to end customers in connection with the Services.
“End User Account” means either: (i) End User’s Subscription Services account accessible at www.miovision.com; or (ii) such other URL(s) as Miovision may designate from time to time.
“End User Data” means: (i) any information, data, forms, files, reports or other materials or content, in any form or medium, that is recorded, provided, submitted, posted, uploaded or otherwise transmitted by or on behalf of End User or an Authorized User through the Hardware or Services, or as collected or generated thereby; and (ii) any and all traffic data, traffic data aggregations and other information collected by the Hardware which is generated by the End User or its Authorized Users, and is captured by or on behalf of Miovision for the End User and others through the provision of the Hardware or Services. End User Data excludes Miovision Data.
“Firmware” means the firmware and software products developed by Miovision and/or designed for installation on a specific Miovision Hardware unit as described in the applicable Miovision Quotation or Partner Agreement.
“Hardware” means the Miovision TrafficLink™ Hardware, Miovision Scout™ Hardware, and any other components specifically described as hardware in the applicable Miovision Quotation or Partner Agreement.
“Intellectual Property” and “Intellectual Property Rights” include any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing: (a) rights associated with works of authorship throughout the universe including, but not limited to, copyrights, moral rights, and mask works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise; and (f) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force globally.
“Miovision” means either Miovision Technologies Incorporated or an Affiliate of Miovision Technologies Incorporated and is based on the country in which the End User is located or as named in any applicable Quotation.
“Miovision Data” means all data associated with the Hardware, Services, Documentation, Deliverables, Support or any other products or services, or generated by or through the use of any of the foregoing, other than End User Data. For clarity, Miovision Data includes, without limitation, the Anonymous Data, Behavioural Data, the Training Frames, and all Miovision IP in the Deliverables.
“Miovision Scout™ Data Processing Services” means Miovision’s data processing services for data generated by End Users using Miovision Scout™ Hardware and related Documentation and shall include any and all Deliverables.
“Miovision Scout™ Hardware” means the tangible, physical, Miovision-produced, Miovision Scout™ branded hardware equipment, any firmware incorporated therein, and related Documentation that End User may have purchased under the terms and conditions of a separate agreement.
“Miovision TrafficLink™ Hardware” means the tangible, physical, Miovision-produced, Miovision TrafficLink™ branded hardware equipment, any firmware incorporated therein, and related Documentation that End User may have purchased under the terms and conditions of a separate agreement.
“Partner” means a Miovision-approved entity that purchases Miovision’s products or services from Miovision and markets and resells Miovision’s products or services to end customers, in accordance with an agreement between Miovision and the Partner.
“Party” means Miovision or End User; “Parties” means Miovision and End User.
“Products” means all Miovision products including but not limited to the Hardware, Firmware, Services, Miovision Data, Documentation, and Deliverables.
“Purchase Order” means a written order for the subscription or license to the Services provided under this Agreement.
“Quotation” means Miovision’s written quotation for the Services being purchased under the Miovision TOP and licensed or Used in accordance with this Agreement.
“Service(s)” means any or all of the following: (i) Subscription Services; (ii) Miovision Scout™ Data Processing Services; or (iii) any other services made available by Miovision from time to time and described in the applicable Quotation or Partner Agreement.
“Subscription Service(s)” means Miovision’s software-as-a-service subscription offering for End Users specific to: (i) Miovision TrafficLink™ Hardware; or, (ii) any other services made available by Miovision from time to time and described in the applicable Quotation or Partner Agreement. The term “Subscription Service(s)” shall include all related Documentation, as well as the deliverables to be provided to the End User by Miovision in relation to the Subscription Services pursuant to the applicable Quotation
“Unacceptable Use” means (i) use of Miovision’s data connection for a purpose other than what is intended by Miovision; (ii) excessive or inappropriate use of Miovision’s data connection including use for non-traffic-related purposes; (iii) technical issues with Customer equipment; (iv) the configuration of Miovision’s data connection is tampered with; (v) any resale, transfer, distribution or sharing of Miovision’s data connection (or any of its functionality) with or to any other person or party; (vi) any alteration, copying, reproduction of or tampering with electronic serial numbers or other identification, signaling or transmission functions or components of the Product; (vii) third-party products or services that are connected to the Product, Subscription Services, or Miovision’s data connection; (vii) use Miovision’s data connection for the transmission of video or audio without a corresponding audio or video subscription or (viii) as further described in Miovision’s Acceptable Use Policy at https://miovision.com/legal/policies/acceptable-use-policy.