Beta Testing Terms and Conditions

Miovision Technologies Incorporated (“Miovision”) and Tester, whose details are set out on the applicable quotation (“Tester”) wish to conduct certain tests (“Tests”) relating to a beta or pre-release version of Miovision’s products as further set out in the applicable quotation which have been developed by or on behalf of Miovision (“Beta Solution”).

The Beta Solution is provided for use by Tester solely and exclusively for the purpose of the Tests during the Test Period subject to the following terms and conditions:

1. Term.

The Test Period will commence on the date on which the Beta Solution ships to Tester and continue for the Tests Period as provided on the applicable Miovision Quotation. For clarity, Miovision may extend the Test Period, however Miovision is not obligated to do so.

2. Shipment and Installation.

2.1 Miovision will deliver the Beta Solution to the Tester and the Beta Solution will be installed by the Tester at the Test Locations as further described on the applicable Miovision Quotation
2.2 All risk of loss or damage to the Beta Solution shall pass to the Tester on delivery of the Beta Solution to the Tester. The Tester shall be responsible for any physical damage to the Beta Solution caused by the Tester, or its employees, contractors or affiliates.
2.3 Unless otherwise agreed to by Miovision in this document, the Tester shall be solely responsible for the installation and operation of the Beta Solution.
2.4 The Tester shall retain control and possession of the Beta Solution until it is returned to Miovision by the Tester.

3. Compliance with Laws; Export Compliance.

3.1 Miovision and the Tester will comply with all applicable laws and regulations applicable to the Beta Solution and Tests.
3.2 The Tester acknowledges that shipments or export of the Beta Solution may be subject to export control laws and regulations.
3.3 The Tester will arrange for importation/exportation/customs clearances and pay any import/export/customs duties, tariffs, taxes and/or any government permits or license fees and/or inspection fees attributable to the shipment of the Beta Solution. If this is not stated above, then the Tester is responsible for shipments to the Tester and Miovision is responsible for shipments to Miovision.

4. Ownership.

4.1 The Beta Solution, and all documentation and materials associated therewith, are the property of Miovision or its licensors and Miovision or its licensors shall retain title and ownership of the Beta Solution throughout the duration of the Tests and thereafter.
4.2 The Tester agrees that Miovision owns all rights, title, and interest to the intellectual property in the Beta Solution, and all documentation and materials associated therewith, and in all of Miovision’s patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets including, without limitation: (i) relating to the design, manufacture, operation and service of the Beta Solution; and (ii) any other Miovision hardware, software, service, and related user documentation.
4.3 The Tester acknowledges that the Beta Solution contains trade secrets of Miovision and its licensors, and, in order to protect such trade secrets and other interests the Tester agrees that it may not itself, or permit others to: (a) modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from or create derivative works based on the Beta Solution; (b) distribute any Miovision hardware, software or related user documentation, or give access to any Miovision service; or (c) remove, obscure, deface or otherwise alter any copyright, trademark or other proprietary notices, labels or marks on or in any of the Beta Solution, or any user documentation.
4.4 Under no circumstances shall the Tester alter or modify the Beta Solution without Miovision’s prior written consent. The Tester will share test reports, results and data (including any found errors or defects) relating to the Beta Solution.
4.5 The Tester is granted a non-exclusive, non-transferable, non-sublicensable, limited right to use the Beta Solution solely for the purposes of the Tests and during the Test Period.
4.6 The Tester grants Miovision (and its affiliates) a security interest in the Beta Solution and any other Miovision property that is provided to the Tester and Tester acknowledges that the security interest granted herein constitutes a “security interest” as defined under the Personal Property Security Act (PPSA) or other similar or equivalent legislation and that this agreement may be registered with the appropriate authorities to perfect the security interest. The Tester agrees to do all acts and execute all documents necessary to perfect and maintain the security interest granted herein, including but not limited to the filing of financing statements. The Tester authorizes Miovision (and its affiliates) to file financing statements or other similar notices describing the Beta Solution and any other Miovision property and the proceeds thereof wherever Miovision deems appropriate to notify third parties that such items are not the property of the Tester. If this Agreement or transactions hereunder are deemed for any reason to pass title of Miovision property to the Tester, Miovision shall be deemed to hold, and the Tester hereby grants to Miovision, a purchase money security interest in the Miovision property and the proceeds thereof, to secure all its obligations to Miovision, including its obligations under this agreement. The Tester recognizes that Miovision may notify the Tester’s existing secured creditors thereof.

5. Technical Support.

The Tester acknowledges and agrees that, during the Test Period Miovision is under no obligation to provide any services or professional services (such as technical and support services). Such services or professional services may be subject to charges payable by the Tester as provided by Miovision in a separate quote.

6. Warranty.

THE BETA SOLUTION, AND ANY ASSOCIATED PRODUCTS, SOFTWARE AND SERVICES, ARE SUPPLIED ON AN “AS IS” AND “WHERE IS” BASIS SOLELY FOR TEST PURPOSES, AND WITHOUT WARRANTY OF ANY KIND. MIOVISION EXPRESSLY EXCLUDES ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE AND NON-INFRINGEMENT. MIOVISION DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE BETA SOLUTION, AND ANY ASSOCIATED PRODUCTS, SOFTWARE AND SERVICES, WILL MEET THE TESTER’S REQUIREMENTS OR THAT THE OPERATION OF THE BETA SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE. MIOVISION MAKES NO REPRESENTATION REGARDING THE ACCURACY OF ANY INFORMATION OR DATA PROVIDED WITH OR CONTAINED IN THE BETA SOLUTION, OR OBTAINED BY USE OF THE BETA SOLUTION. THE TESTER UNDERSTANDS THAT THERE ARE RISKS ASSOCIATED WITH THE USE OF PRODUCTS AND/OR SERVICES THAT ARE BETA OR PRE-RELEASE AND AGREES TO PARTICIPATE IN THE TESTS AT ITS OWN RISK.

7. Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, MIOVISION AND ITS AFFILIATES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGES (WHETHER DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL) INCLUDING, WITHOUT LIMITATION, ARISING FROM OR RELATING TO: (i) THE TESTS OR TESTER’S USE OF THE BETA SOLUTION; (ii) LOSS OF OR CORRUPTION TO DATA, (iii) LOSS OF PROFITS, BUSINESS, OPPORTUNITIES OR REVENUE, GOODWILL, ANTICIPATED SAVINGS, (iv) ANY INCREASE IN OPERATING COSTS, (v) ANY BUSINESS INTERRUPTION, AND/OR (vi) ANY FINANCIAL OR ECONOMIC LOSS. SUCH LIMITATIONS SHALL APPLY TO ALL CLAIMS REGARDLESS OF: (A) WHETHER SUFFERED BY THE TESTER OR ANY THIRD PARTY, (B) HOWEVER CAUSED, (C) WHETHER OR NOT MIOVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND (D) ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM USE OF BETA SOLUTION, FAILURE OF THE BETA SOLUTION TO PERFORM OR ANY OTHER REASON ARISING IN CONNECTION WITH THE TESTS.

8. Termination.

8.1 The Tests Period shall terminate pursuant to Section 1 (Term) unless earlier terminated: (a) by Miovision immediately upon written notice to the Tester of its failure to comply with of these terms and conditions; or (b) by either party with five days prior written notice.
8.2 Upon termination for any reason, the Tester agrees to: (a) cease using the Beta Solution, and return the Beta Solution to Miovision in full working order without damage (reasonable wear and tear excepted) by either (at the election of Miovision): (i) shipping the Beta Solution to such location as Miovision may specify, or (ii) allowing Miovision or its agent to collect the Beta Solution from the Tester; and (b) return to Miovision or destroy all documents and other materials (including all copies) containing information about the Beta Solution or Tests provided to the Tester by Miovision or produced during the Tests. At the request of Miovision, the Tester will provide written confirmation of such destruction. The risk of loss or damage to the Beta Solution will only pass back to Miovision once Miovision has taken possession and control of the Beta Solution. The costs of return shipment by Tester, if applicable, shall be paid by Miovision.
8.3 If: (a) the Tester fails to cease using the Beta Solution, or properly return the Beta Solution to Miovision within 15 days of the termination or expiry of the Tests, or (b) Miovision is denied access to collect the Beta Solution within 15 days of the termination or expiry of the Tests, or (c) the Beta Solution has been damaged by Tester, Miovision shall be entitled to invoice Tester for the Beta Solution at Miovision’s then-current price for the Beta Solution.

9. Non-Disclosure.

The Tester will not at any time disclose to any third party that the Tester is participating in the Tests or that the Tester has the Beta Solution and the Tester will not at any time disclose to any third party or provide any third party with access to: (a) the Beta Solution; (b) any information or details about the Beta Solution or any associated documentation; (c) Miovision’s plans, designs, development tools, know-how, specifications, opportunities, configurations; or (d) any other information that is confidential or proprietary to Miovision (or its affiliate(s)). Any unauthorized disclosure and use of such information will cause irreparable harm to Miovision for which damages may not be an adequate remedy. In the event of a breach of these obligations, Miovision shall, in addition to any other rights or remedies it may have in law or equity, be entitled to seek an injunction preventing the Tester from further misuse or disclosure.

10. Privacy.

Tester acknowledges and agrees that Tester has read the Miovision Privacy Policy located at https://miovision.com/privacy/ (or otherwise provided to Tester by Miovision) and consents to the handling and processing of Tester’s data as described in the Miovision Privacy Policy.

11. Third Party Information.

Portions of the Beta Solution may include third party copyrighted material. Tester’s use of such materials are governed by their respective acknowledgements, licensing terms, and disclaimers. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and Miovision shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.

12. Feedback.

The Tester agrees to provide feedback to Miovision regarding the Beta Solution and the Tests (including, without limitation and by way of example: ideas; analysis; recommendations; concepts or suggestions for improvements; modifications; corrections; enhancements; derivatives; extensions; branding ideas; risks; return on investment data; information about the performance, ease of use, features that may be missing, and any bugs encountered during the use of the Beta Products or the Tests) (“Feedback”). The Tester agrees that Miovision shall exclusively own all of the following: (a) all data, outputs and results from the Tests; (b) all Feedback relating to the Beta Solution, or relating to any other product, software, service or solution of Miovision, provided by the Tester; (c) any changes or improvements to the Beta Solution resulting from the Feedback, or from the Tests; (d) any other product, software, service or solution developed by Miovision resulting from the Feedback, or from the Tests; and (e) any and all intellectual property rights associated or related to any of the foregoing. The Tester hereby assigns to Miovision all of the Tester’s rights, title and interests associated or related to any of the foregoing. The Tester agrees to cooperate fully with Miovision, both during and after the Tests, with respect to signing further documents and doing such other acts as are reasonably requested by Miovision to confirm that Miovision owns all of the foregoing, and to enable Miovision to register or protect any associated intellectual property rights and/or Confidential Information. Except with the prior written consent of an authorized representative of Miovision, and regardless of whether or not such information is considered to be Confidential Information or not, the Tester shall not: (1) make any report about the Beta Solution or the Tests to any third party; or (2) share any details, data, feedback, suggestions, information or results about the Beta Solution or the Tests with any third party. Tester shall not subject the Beta Solution to any benchmark or similar testing. The Tester agrees that Miovision shall have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised, for any purpose, without any remuneration, compensation or credit to the Tester.

13. General.

The testing of the Beta Solution contemplated in this Agreement is a non-exclusive arrangement. These terms and conditions shall be governed by the laws of the Province of Ontario, Canada. If any provision or portion of these terms and conditions is held invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. These terms and conditions set forth the sole and entire agreement between the parties with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No subsequent alteration, amendment or modification of this agreement whatsoever shall be binding upon Miovision unless reduced to writing and signed both by Miovision and Tester. No agent, employee or representative of Miovision has any authority to bind Miovision to any affirmation, representation or warranty covering the Beta Solution or the Tests, and unless an affirmation, representation or warranty made by Miovision’s agent, employee or representative is specifically included within these terms and conditions, it is not enforceable against Miovision.