Master Services Agreement

This Master Services Agreement (this “Agreement”) is entered into by and between Miovision Technologies Incorporated (“Miovision”) with principal offices at 110-137 Glasgow Street, Kitchener Ontario Canada N2G 4X8 and the Customer with address as further described in the Miovision issued quotation. This Agreement is effective on the earlier of: (a) the date that it has been signed by all Parties (b) the date of acceptance of this Agreement by the Customer through issuance of a Customer Purchase Order referencing this Agreement or a Miovision Quotation and (c) the Customer’s written acceptance of a Miovision issued Quotation (the “Effective Date”). Miovision and Customer are individually referred to herein as a “Party” or collectively as the “Parties”.

WHEREAS Miovision is a provider of traffic related hardware, management software and related services.

WHEREAS the Customer wishes to purchase certain Products from Miovision under the terms and conditions of this Agreement.

NOW THEREFORE in consideration of the premises and the mutual covenants herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. DEFINED TERMS.

In addition to the capitalized terms defined elsewhere in the body of this Agreement and any Schedules attached hereto, the following capitalized terms used in this Agreement shall have the following meanings:

1.1. “Activated” means, with respect to Services, that Customer has the ability to create and maintain User Accounts, as further described in Section 3.2 (User Accounts) hereof, within the Services.

1.2. “Affiliate” means any corporation, partnership, limited liability company or other form of legal entity in which a majority of the equity interest thereof is owned or controlled, directly or indirectly, by a Party.

1.3. “Agreement” means this Master Service Agreement and any accepted Order Forms which reference and incorporate this Master Services Agreement.

1.4. “API” means any application programming interface made available by Miovision to Customer in connection with the Agreement.

1.5. “Applicable Laws” means all provisions of federal, provincial, state, and local laws, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, interpretive letters and other official releases of or by any government, or any authority, department or agency thereof, which are applicable to Miovision or Customer, or which are applicable to the Products contemplated by this Agreement.

1.6. “Authorized User” means (a) an individual associated with Customer, or a Customer Affiliate, as a full-time or part-time employee, agent, or independent contractor, (b) a subcontractor of Customer employed by or providing services to Customer, (c) an Affiliate of Customer, or (d) an authorized customer of the Customer.

1.7. “Confidential Information” means any non-public information disclosed by or on behalf of a party hereto which: (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary;” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential; (c) is specifically deemed to be confidential by the terms of this Agreement; or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information includes, without limitation, any trade secrets, inventions, copyrights, works of authorship, disclosures, ideas, protocols, processes, systems, methods, formulae, devices, patents, patent applications, trademarks, service marks, trade names, know-how, improvements, discoveries, intellectual properties, data, blueprints, schematics, developments, Documentation, instruments, materials, products, patterns, compilations, programs, techniques, sequences, designs, research or development activities and plans, specifications, computer programs, source and/or object codes, licenses, mask works, costs of production, prices or other financial data, volume of sales, promotional methods, marketing plans, lists of names or classes of customers, employees or personnel, lists of suppliers, business plans, business methods of operation, business opportunities, assets, liabilities of financial statements of the Discloser (as defined herein). Miovision Confidential Information shall at all times also include, without limitation, the Software, including any software code and all algorithms, methods, techniques and processes revealed or utilized therein. Confidential Information does not include information that: (a) was lawfully in the possession of the Recipient (as defined herein) prior to receipt from the Discloser; (b) is or becomes publicly available through no wrongful act or failure to act on the part of the Recipient; (c) is lawfully known to the Recipient at the time of disclosure by the Discloser, or is obtained by the Recipient from a third party without restrictions on disclosure; (d) is independently developed by the Recipient without use of, reference to, or reliance upon the Discloser’s Information; (e) is disclosed by the Recipient with the Discloser’s prior written approval or (f) aggregated and anonymized Customer Data.

1.8. “Customer” means the legal entity, government agency, or organization to whom an Order Form is issued or issued by.

1.9. “Customer Data” means: (a) 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 Customer or an Authorized User through a Product, or as collected or generated thereby; and (b) any and all traffic data, traffic data aggregations and other information collected by the Products which is generated by the Customer or its Authorized Users, and is captured by or on behalf of Miovision for the Customer and others through the provision of the Products. Customer Data excludes Miovision Data.

1.10. “Customer System Environment” means the specific equipment, software and services to be maintained by Customer for proper operation of the Services, as described in an applicable SOW.

1.11. “Delivery Date” shall mean the date of delivery of Hardware and/or Services outlined in an Order Form to Customer, or as may be otherwise be agreed by the Parties in writing.

1.12. “Deliverables” shall mean those mutually agreed to deliverables to be provided by Miovision as part of the Products as specified in any Order Form.

1.13. “Documentation” means any marketing, sales, policies, user manuals, handbooks, guides, technical literature, operating instructions, requirements, specifications, and other written materials, including revisions thereto, for the Products as published, either electronically or in hardcopy form, from time to time by Miovision.

1.14. “Error” means any failure of the Services to conform to the applicable specifications or Documentation.

1.15. “Fees” means collectively, any and all amounts owing by the Customer with respect to the Products ordered under any applicable document specifying the Products to be provided hereunder that is entered into between the Customer and Miovision, including without limitation any Order Form, addenda, and supplements thereto.

1.16. “Firmware” means the firmware and software developed by Miovision and/or designed for installation on a specific Miovision Hardware unit as described in the applicable Order Form or Documentation.

1.17. “Hardware” means any Miovision supplied hardware or other components described as hardware in any applicable Order Form.

1.18. “Hosted Services” means the services described in this Agreement that enable Customer and Authorized Users to Use the Software and Services, as provided herein.

1.19. “Hosting Provider” means the Third-Party Provider engaged by Miovision to host the Software and Services for Use by Customer hereunder.

1.20. “Intellectual Property” or “IP” means 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 (including without limitation rights in any of the foregoing).

1.21. “Maintenance and Support Services” means maintenance, repair, technical support, training and other services to be performed by Miovision pursuant to this Agreement, including the provision of Updates, as provided in Maintenance & Support Guidelines (https://miovision.com/legal/policies/support-policy) as amended from time to time by the parties in writing.

1.22. “Miovision” means the Miovision entity named on the applicable Miovision Quotation, which will be either Miovision Technologies Incorporated or an Affiliate of Miovision Technologies Incorporated.

1.23. “Miovision Technology” means the Hardware, Software, Services, Miovision Confidential Information, and Deliverables (and including all new releases, versions, Updates, modifications and enhancements thereof), along with graphics files, data files, interfaces, scripting and programming, in both object code and source code form, and related IP, previously or hereafter acquired or developed by Miovision and used to provide the Products hereunder.

1.24. “Order Form” means an ordering document, including but not limited to a Customer Purchase Order or a Miovision Quotation, or Statement of Work (“SOW”) specifying the Products to be provided hereunder that is entered into between the Customer and Miovision, including any addenda and supplements thereto.

1.25. “Partner” means a Miovision-approved entity that purchases Miovision’s Products from Miovision and markets and resells Miovision’s Products to end customers, in accordance with an agreement between Miovision and the Partner.

1.26. “Permitted Use” means in accordance with Miovision’s Acceptable Use Policy (https://miovision.com/legal/policies/acceptable-use-policy).

1.27. “Personal Information” means any information that could reasonably be used to identify, locate or contact you and which is submitted to and/or collected by Miovision and maintained by Miovision in an accessible form, in the course of our activities.

1.28. “Products” means offerings Miovision makes available to the Customer for purchase and further defined in an Order Form, including without limitation, all Hardware, Firmware, Services, Developments, and Professional Services.

1.29. “Professional Services” means contracted time (and potentially materials) in relation to supporting the Customer’s use of the Products as further described in an applicable SOW. For clarity, Professional Services include training, consulting, deployment services, workshops, custom scripts, data migration services and such but does not include the provision of the Software, either through licensing, SaaS, or technical support contracts and other provisions of generic goods or services.

1.30. “Quotation” means Miovision’s written quotation to the Customer for the Products being purchased under this Agreement.

1.31. “Scheduled Maintenance” means all scheduled maintenance provided by Miovision in accordance with Maintenance & Support Guidelines (https://miovision.com/legal/policies/support-policy) hereto.

1.32. “Services” means those Software services provided by Miovision to Customer, and its Authorized Users, pursuant hereto and as further described on an Order Form, including, but not limited to, Software, Hosted Services, Maintenance and Support services, Statement of Work services, training services, the provision of Deliverables and Documentation, and any other services made available by Miovision from time to time and described in an applicable Miovision Quotation.

1.33. “Software” means the collective or individual computer software programs or delivered as Software-as-a-Service and includes any accompanying research and development, documentation and work papers, and all new releases, versions, Updates, Error fixes, modifications and enhancements.

1.34. “Term” means the Initial Term and all Renewal Terms, as applicable.

1.35. “Terms of Use” means the Miovision Terms of Use found at miovision.com/legal/terms-of-use.

1.36. “Third-Party Provider” means a third party that provides services or software to Miovision or Customer hereunder.

1.37. “Updates” means updates, upgrades, additions, Error fixes, patches, enhancements or modifications to the Software that are not separately provided or licensed as new products or modules and generally are made available by Miovision to its similarly-situated Customers for no additional fees other than annual maintenance fees, but expressly excluding (a) new commercial versions, components, modules that add additional material capabilities, features or functions to, or otherwise improve the functionality of, the Software generally made available by Miovision to its licensees for separate fees (in addition to the annual maintenance fees set forth herein), (b) Miovision Software custom modifications, (c) Miovision Software enhancements.

1.38. “User ID” means unique user identification Credentials (as defined in Section 3.2) used by an Authorized User in combination with security requirements, including but not limited to usernames and passwords, to access the Services.

2. MIOVISION PRODUCTS.

2.1. Secondary Agreements. Subject to the terms herein, Miovision agrees to make available Products to the Customer for purchase. A Product may be accompanied with its own terms and conditions of sale (herein referred to as “Secondary Agreements”), which may be an entirely separate agreement to be executed by the Parties. Any purchase of the Products shall be governed by the terms set out in the applicable Secondary Agreement to the extent that an Order Form states that the Secondary Agreements applies.

2.2. Alterations and End of Life. Miovision reserves the right, at any time, to alter or cease the Products offered, including the price, subject to the terms of any applicable Secondary Agreement(s). In the event that Miovision intends to remove a significant component of a Product without any similar or like replacement, then Miovision shall provide the Customer with no less than thirty (30) days’ notice before such removal.

2.3. Issuing Order Forms. The Customer may, at its own discretion and at any time, request an Order Form to place orders for Products, to be completed pursuant to the terms of this Agreement. This Order Form must clearly include:

(a) a reference to this Agreement;
(b) the Products being requested;
(c) any applicable Secondary Agreements;
(d) the Fees related to the Order Form; and
(e) the currency of the Fees on the Order Form.

2.4. Order Forms. Any Order Form shall be signed by an individual authorized by the Customer to make such purchases and be submitted to Miovision in a scanned or electronic copy including any applicable Secondary Agreements. Once an Order Form is submitted to Miovision, the Order Form is final and non-cancellable without the express written permission of Miovision. By entering into an Order Form, the Customer agrees to be bound by this Agreement and the Secondary Agreement of the specific Product being ordered to the exclusion of any supplemental or additional terms and conditions which may be stated on the Customer Order Form.

2.5. Miovision shall provide the Customer, subject to the payment of the Fees in accordance with the Order Form, with the Products described in the Order Form. Miovision may, by way of written notice, reject an Order Form submitted by the Customer in the event (a) the Order Form does not conform to paragraphs 2.3 and 2.4 above, (b) is submitted with a purchase order from the Customer that introduces new or different terms and conditions, (c) where the Order Form and Secondary Agreement have been altered in any way or (d) the Products requested in the Order Form are no longer offered by Miovision.

2.6. Subscriptions. Certain Services that form part of the Products require Fees to be paid continuously, such as any Software-as-a-Service (SaaS), Software Update Subscription Plan, and maintenance and support plans. In the event that these Terms lapse, for any reason, a reinstatement fee may be assessed when placing subsequent Order Forms for similar Services. The reinstatement fee calculation is as follows: 100% of the last annual term purchased, prorated from the date of the lapse to the date of reinstatement. Following the Initial Term, all Services obtained through an Order Form issued pursuant to this Agreement, shall automatically renew annually as of the date of the applicable Order Form for successive one-year terms unless terminated by a party in accordance with Article 5 (Term; Termination) hereof.

2.7. No Customer Conditions. The Customer agrees that the Customer’s purchase of any Products is not (a) contingent on the delivery of any future functionality or features; (b) dependent on any oral or written comments made by Miovision regarding future functionality or features; or (c) assuming the delivery of any future Order Form to be placed or otherwise any deliverable of any kind by Miovision.

2.8. Miovision Documentation License. Subject to Miovision receiving payment in full for the applicable Documentation, Miovision grants to Customer a revocable (as provided herein) limited, non-exclusive, non-transferable, non-sublicensable worldwide license during the Term, to:

(a) Use and reproduce Documentation for the internal business purposes of Customer solely in connection with the Permitted Use of the Products;
(b) distribute Documentation to Authorized Users for use solely in connection with the Permitted Use of the Products by Authorized Users;

2.9. Right to Access Miovision API by Customer’s Technical Associates. During the Term, should Customer use Third Party Providers to develop software or other technology for Customer to enhance Customer’s Use of the Software (“Technical Associates”), and such Technical Associates require access to Miovision APIs for such purposes, Customer shall provide access to Miovision API’s to such Technical Associates at no additional charge, provided the Technical Associates: (a) have entered into a Non-Disclosure Agreement directly with Miovision, (b) have accepted Miovision’s Terms of Use (c) are not a competitor to Miovision, and (d) to the best of Customer’s and the Technical Associates’ knowledge, accessing the Miovision API(s) will not have any negative impact on or cause any disruption of the Products. Customer shall be responsible for the acts and omissions of Technical Associates.

2.10. Maintenance and Technical Support. Following each respective Delivery Date, Miovision shall provide Maintenance and Support Services in accordance with the Support Guidelines reflected in Support Guidelines (https://miovision.com/legal/policies/support-policy).

2.11. Documentation. The Documentation will describe and identify: (a) the Permitted Use of the Services; (b) the Customer System Environment that is required to support the Permitted Use of the Services; (c) the functions of the Services; and (d) the procedures to be followed to use the Services along with relevant user instructions. If the Documentation is modified at any time, then Miovision shall promptly make available to Customer online, at no charge, access to such modified Documentation.

2.12 Other Services. From time to time, Customer and Miovision may agree on certain additional services relating to the Services to be performed hereunder. In such case, Miovision and Customer shall prepare and execute a statement of work (“SOW”), which SOW shall (a) reference and be subject to the terms of this Agreement, (b) describe the Services and Deliverables (if applicable) to be provided, (c) state the amount and timing of Fees, and (d) state any other relevant terms. To the extent of any conflict between the terms of an SOW and this Agreement, the terms and conditions of the Agreement shall control, unless the SOW specifically provides that the provisions of the SOW supersedes this Agreement.

3. CUSTOMER RESPONSIBILITIES.

3.1. Permitted Use. Customer agrees that all Authorized Users will only use the Products in compliance with the Permitted Uses and shall comply with the Miovision Terms of Use (https://miovision.com/legal/terms-of-use) which may be updated from time to time.

3.2. User Accounts. Customer shall be responsible for: (a) authorizing and approving all use of the Services for its Authorized Users and for issuing and maintaining User IDs and related data (collectively, “Credentials”); (b) maintaining, and causing Authorized Users to maintain the confidentiality of such Credentials; (c) all use and activities undertaken by its Authorized Users and User IDs registered on Customer’s account; and (d) ensuring that all Authorized Users are bound by the confidentiality obligations with Customer that would protect Miovision’s Confidential Information, Intellectual Property, and Software to the same extent as protected hereunder.

3.3. Third-Party Materials. Certain third-party products and services may be made available to Customers 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 Customer, Customer’s Affiliates, Authorized Users, or anyone else for or in relation to any third-party product or service and Customer hereby irrevocably waives any claim against Miovision with respect to such third-party products or services.

3.4. Installation of Hardware. Customer shall be solely responsible for the installation of all Products, including, without limitation, for any damage to, loss of, or loss of use of the Products, cabinet, or other street furniture in or on which the Hardware or antenna is installed, or to any Partner, or third-party items.

3.5. Assistance. Should Customer request that Miovision perform the installation, Miovision may, in its sole discretion, agree to provide such installation subject to an applicable SOW which covers the terms and conditions applicable to such installation and which includes such additional fees as may be applicable to such installation as determined by Miovision.

3.6. Compliance with Laws. Both Parties hereby certify that they will, at their own cost and expense, fully comply with all Applicable Laws, ordinances, legislation, and regulations applicable to the possession, use, operation, repair, maintenance, transportation, importation and exportation of Products.

3.7. Compliance with Policies. Customer shall comply with Miovision’s Guidelines and Policies, located at https://www.miovision.com/legal/policies, and hereby incorporated by reference, when using the Products. Miovision may update Miovision’s guidelines and policies from time to time.

3.8. Data Connections. Many of Miovision Hardware products are supplied with a data connection that is sourced and provided by Miovision at Miovision’s expense (except where the Customer provides access to a data network). The Customer agrees that Miovision shall use that data connection to allow Miovision to communicate with the Hardware for: (a) remote Hardware configuration and health; and (b) routine device administration by Miovision, such as Miovision applying security patches/Updates/upgrades to the Hardware.

4. FEES.

4.1. Application. The terms of this Section 4 shall apply despite the provisions of or the applicability of any Secondary Agreement.

4.2. Fees. Miovision shall invoice Customer for, and Customer agrees to pay, the Fees and any other amounts owing under this Agreement according to the terms set forth in, or as stated in, any Order Form as applicable. Payment is due within thirty (30) days following receipt of Miovision’s invoice and shall refer to the invoice number. Unless otherwise agreed to by Miovision in advance: (a) all payments to Miovision must be made by wire transfer or ACH/EFT and in the currency as specified on Miovision’s invoice. Miovision, in its discretion, may accept payment by cheque subject to an additional processing fee charged to the Customer; and (b) all Fees paid are non-refundable.

4.3. Taxes. Taxes. All prices for the Products are exclusive of taxes and Customer will at all times be responsible for, without limitation, the following: (a) sales, value-added, use, excise, withholding and other applicable taxes; (b) import/export/customs duties, tariffs or taxes; (c) government permits, license fees or inspection fees; and (d) any penalties and interest charges relating to the foregoing, or any costs expended by Miovision to collect such amounts from Customer (collectively, “Taxes”). Taxes stated on Order Forms are estimates only. Final tax determination will be made at time of invoicing. Taxes stated on a Customer invoice shall govern the purchase. In relation to the Hardware and Firmware, the foregoing responsibilities are applicable to initial shipments and subsequent shipments (including any returns). If the jurisdiction in which Customer is located requires Customer to withhold any taxes from the payment of any Fees, unless Customer provides Miovision with a valid exemption certificate authorized by the appropriate taxing authority to Miovision’s reasonable satisfaction, the purchase price shall then be automatically deemed to be grossed up by an amount equal to the applicable withholding taxes so that the net amount received by Miovision shall be equal to the agreed upon Fees. If Customer fails to pay any applicable taxes as of their original due date and Miovision receives an assessment or other notice (collectively, the “Assessment”) from any governmental taxing authority stating that such taxes are due from Miovision, then Miovision shall give Customer written notice of the Assessment and Customer shall pay the taxing authority within thirty (30) days of the receipt of such written notice from Miovision. If Miovision pays any applicable taxes to any governmental authority on behalf of Customer, Customer shall, immediately upon Miovision’s demand, reimburse Miovision the full amount of such payment, without any withholding, deduction or set-off whatsoever.

4.4. Binding and Non-Cancellable. Once accepted, an Order Form is binding and non-cancellable on the Customer, subject only to the terms hereof. Each Order Form is subject to Miovision’s assessment of Customer’s credit worthiness and payment history at the time the Order Form is accepted. Miovision expressly reserves the right, in Miovision’s absolute and sole discretion, to cancel an Order Form or refuse to supply under an Order Form.

4.5. Undisputed Fees. For any undisputed payment not received when due, Miovision may, at its absolute and sole discretion: (a) charge interest at the lower of (i) 15% per year or (ii) the highest rate permitted by law. Miovision is also entitled to recover any sums expended in connection with the collection of undisputed sums not paid when due, including collection agency fees and reasonable attorneys’ fees; (b) deny any Order Form submitted to Miovision; and (c) suspend performance of its obligations pursuant to Section 5.2.3 (Suspension for Non-Payment) hereof.

4.6. Security Interest. Customer hereby grants to Miovision, and Miovision shall have the right to retain, a purchase money security interest in any and all Products until all applicable Fees, together with applicable interest and any late payment charges, have been paid to Miovision in full. If requested by Miovision, the Customer shall execute financing statements or other instruments necessary to perfect this security interest. To secure the purchase price of the Products, Customer hereby hypothecates and grants a security interest in the Products in favor of Miovision in the amount of the purchase price and any applicable interest and late payment charges where applicable.

4.7. Fee Disputes. Customer will pay all amounts due as provided herein, provided that if Customer disputes in good faith any charge, Customer shall pay the undisputed portions when due, and will notify Miovision of the details of such dispute on or prior to such due date. Miovision shall, within fifteen (15) days of such notice, provide Customer with supporting documentation relating to the dispute. Customer and Miovision will thereafter use good faith efforts to resolve the dispute within the following forty-five (45) days. If such dispute is not resolved in forty-five (45) days, then any party who has used good faith efforts hereunder may seek resolution of such disputes pursuant to Section 12.12 (Dispute Resolution) below.

4.8. Delivery of Hardware. The delivery of Hardware shall be to Miovision’s dock in accordance with FCA (Incoterms 2020). Subject to Article 6 (Representations, Warranties and Covenants), Customer is deemed to accept the Products upon shipment from Miovision. Customer shall pay all freight handling, delivery, and insurance charges for the shipment of Products. Miovision may, at its sole discretion, make partial shipments of the Products to Customer. Each shipment will constitute a separate sale and the Customer will pay for the Products shipped in accordance with this Article 4 (Compensation).

4.9. Delivery of Software and Services. All Services shall be deemed delivered at the earlier of (a) the Services are Activated and delivered such that Customer has the ability to create a User Account and (b) five (5) days after the date of a Miovision accepted Order Form. For greater clarity, the customer is deemed to be able to create a User Account when Miovision provides access or login details to the Customer (or Authorized User) that allows the Customer (or Authorized User) to create User Accounts and or activate Licenses and firmware.

4.10. No Return. Except as set out in Article 6 (Representations, Warranties, Covenants), there is no right of return for any Product and Service.

5. TERM; TERMINATION.

5.1. Term. The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for a period of two (2) years unless earlier terminated in accordance with Section 5.2. This Agreement shall thereafter renew for successive one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party gives written notice to the other party of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then current Renewal Term,

5.2. Termination.

5.2.1 Termination for Cause. Either Party may terminate this Agreement for cause in the event: (a) of a material breach of a term of this Agreement or an Order Form by the other Party which remains uncured thirty (30) days after receipt of written notice thereof; or (b) the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or other proceeding is not dismissed within sixty (60) days of the filing thereof. To the extent Customer terminates this Agreement pursuant to this Section, Miovision shall promptly refund to Customer the pro-rata portion of any prepaid but unused Fees.
5.2.2. Miovision Termination. Miovision may terminate this agreement for cause effective immediately if: (a) any of the Products are not in conformity or compliance with Applicable Laws or requests from government entities and conformity cannot be ensured within a reasonable time; (b) Miovision is no longer able to provide a Product(s) due to circumstances beyond its reasonable control; (c) the Customer fails to comply with Section 3 (Customer Responsibilities); or (d) the Customer fails to make payment of any amounts due to Miovision.

5.3. Suspension for Non-Payment. Miovision reserves the right to suspend performance of its obligations under this Agreement (including Customer’s access to the Hosted Services and Software) if Customer fails to timely pay any undisputed amounts due to Miovision under this Agreement. Suspension of the Services shall not release the Customer of its payment obligations under this Agreement. Customer agrees that Miovision shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Services resulting from Customer’s non-payment.

5.4. Effects of Termination; Survival. Upon termination or expiration of this Agreement: (a) all SOWs shall terminate, (b) all rights and licenses granted hereunder shall immediately terminate, (c) Customer shall be required to immediately pay to Miovision any and all amounts then owing under this Agreement and in each applicable Order Form, including, without limitation, costs of all Services for the Term, work performed to date on Deliverables, and Hardware delivered in accordance with Section 4.8 (Delivery of Products) (d) Customer shall release Miovision from all obligations under this Agreement, and all rights and obligations of the Customer shall be at an end, subject to this Section 5.2.4 (Effect of Termination: Survival); (e) 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 (f) return any Confidential Information pursuant to Section 7.3. Notwithstanding the foregoing, provisions that by their nature are intended to survive termination or expiration shall so survive any termination or expiration of this Agreement, including, but not limited to, the following sections: Article 3 (Customer Responsibilities); Article 4 (Compensation); Section 5.2.4 (Effects of Termination; Survival); Article 6 (Representations, Warranties and Covenants), Article 7 (Confidentiality); Article 8 (Ownership of Intellectual Property); Article 9 (Indemnification); Article 10 (Limitation of Liability and Damages); and the data privacy and security obligations described in Security Guidelines (https://miovision.com/legal/policies/security-policy).

5.5. Effects of Customer Termination for Cause. Upon the effective date of termination of this Agreement by Customer for cause, termination by either Party for infringement, or termination due to a Force Majeure Event, Miovision will refund any prepaid Fees to the Customer for the remaining portion of the Term within thirty (30) days.

5.6. Reinstatement. If the Customer requests to reinstate its expired or terminated Products and Services or after a period of non-enrollment therein, the Customer shall seek a new Quotation from Miovision, and a reinstatement fee may be applicable as set out in such Quotation and Section 2.6 (Subscriptions) hereof.

6. REPRESENTATIONS, WARRANTIES AND COVENANTS.

6.1. Customer Representations, Warranties, and Covenants.

6.1.1. Customer represents and warrants to Miovision that: (a) Customer has the power and authority to enter into this Agreement and any Order Form, and (b) 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. The Customer will indemnify and save harmless Miovision for any breach of the foregoing.
6.1.2. Customer represents, warrants, and covenants to Miovision that: (a) it will comply with all Applicable Laws in performing its obligations under this Agreement, and (b) the disclosure of Customer Data to Miovision for use by Miovision in accordance with the terms hereof or otherwise at the direction of Customer, is not in breach of any duty or obligation of Customer to any third party, whether under contract, Applicable Laws or otherwise.

6.2. Miovision Limited Warranties.

6.2.1. Hardware and Firmware Warranty. Miovision’s limited warranty for Hardware and Firmware is further described at the Hardware and Firmware Warranty (http://www.miovision.com/legal/policies/hardware-warranty) which is hereby incorporated by reference.
6.2.2. Services Warranty. 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.
6.2.3. Professional Services Warranty. Miovision warrants that all Professional Services rendered in accordance with any SOWs shall be performed in a professional and workmanlike manner, consistent with then-current industry standards. Such remedy shall only be available if Customer notifies Miovision in writing within thirty (30) calendar days of the delivery for each Deliverable or Professional Services as set forth in an applicable SOW. This Professional Services Warranty will apply only if: (a) the Development(s) or Professional Services have been properly installed and used by or on behalf of Customer at all times and in accordance with the instructions in the applicable Documentation; and (b) no modification, alteration or addition has been made to the Software or Professional Services other than with Miovision’s written consent.

6.3. Disclaimer of Other Warranties.

THE PROVISIONS OF SECTION 6.2 (MIOVISION LIMITED WARRANTIES) AND SECTION 10 (LIMITATION OF LIABILITY AND DAMAGES) STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY BREACH OF ANY WARRANTY REGARDING MIOVISION’S PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.2 (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, ORDER FORM. THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.2 (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.

7. CONFIDENTIALITY.

7.1 Non-Disclosure Obligations. In connection with this Agreement, each Party (“Recipient”) may receive or have access to Confidential Information from or on behalf of the other Party (“Discloser”). Each Recipient shall maintain all such Confidential Information in strict confidence and shall not, except as expressly permitted herein: (a) use any of Discloser’s Confidential Information, or (b) disclose Discloser’s Confidential Information to any person or third-party. Each party further agrees to protect the Confidential Information of the other party with the same degree of care as it uses to protect its own Confidential Information of like importance, but in no event using less than a standard of reasonable care. The Recipient may disclose Confidential Information only to its employees, contractors or subcontractors, agents, service providers, attorneys and financial advisors (collectively, “Representatives”) having a “need to know” to carry out Recipient’s obligations under this Agreement. Each Party will: (a) notify and inform its Representatives of such party’s obligations regarding Confidential Information; (b) enter into non-disclosure agreements with its non-employee Representatives requiring them to comply with such obligations prior to disclosing Confidential Information; and (c) be responsible for any breach of the confidentiality obligations in this Agreement by such party’s Representatives. Notwithstanding the foregoing, any disclosure by Recipient pursuant to a subpoena or other validly issued administrative or judicial process requesting Discloser’s Confidential Information shall not be deemed a violation hereof. To the extent legally permissible, Recipient will notify Discloser in writing prior to making any disclosure in response to a subpoena or other validly issued administrative or judicial process and will cooperate with Discloser in seeking a protective order or other appropriate remedy. Recipient further agrees that it will exercise reasonable efforts to obtain assurances that confidential treatment will be accorded any Confidential Information disclosed pursuant to a subpoena or other validly issued administrative or judicial process.

7.2. Discloser’s Retention of Rights. Nothing in this Agreement shall convey to Recipient any right, title, or ownership interest in Discloser’s Confidential Information, or any Personal Information provided to or developed by Recipient during the performance of Services under this Agreement. Recipient shall not claim a lien on any Discloser Confidential Information or Personal Information. In the event of the bankruptcy, insolvency or other business failure or suspension of operations of Recipient, Recipient shall not sell, transfer, or disclose any materials that contain Discloser Confidential Information or Personal Information.

7.3. Return of Confidential Information. At any time after the disclosure or receipt of any Discloser Confidential Information by Recipient, and at the request and option of Discloser, Recipient agrees, subject to any record retention requirements of Recipient, to promptly return to Discloser, or destroy all originals and any copies (including any archival copies) of, such Confidential Information, including extracts or other reproductions in whole or in part of such written material (and to delete all forms of recordation in whatever media stored, whether in existence now or invented in the future). All documents, spreadsheets, memoranda, notes and other writings whatsoever prepared by Recipient based on Confidential Information shall be destroyed, and all computer files shall be permanently deleted or erased. To the extent any portion of the Confidential Information is retained on Recipient’s information systems following Recipient’s good faith effort to delete the Confidential Information, the Recipient agrees to protect the Confidential Information in the same manner and to the same extent that it uses to protect its own confidential and proprietary information for so long as it retains the Confidential Information. Recipient shall also compel its applicable Representatives who receive Confidential Information to comply with this Section 7.3.

7.4. Security Breach. In the event of a security breach involving unauthorized access to a Party’s Confidential Information (“Security Breach”), Recipient shall provide a reasonably detailed notification of the Security Breach to the Discloser within a reasonable period of time given the circumstances following the discovery of such Security Breach (unless such notification is prohibited by law, regulation or order of court or law enforcement agency exercising proper jurisdiction, in which case such notification shall be provided within a reasonable period of time following the lifting of such prohibition), and thereafter, in consultation with Discloser, make all disclosures as required by Applicable Laws.

7.5. Irreparable Harm; Remedy. Both Parties acknowledge and agree that, in the event of a breach of any of the foregoing provisions in this Article 7, the other Party may be irreparably harmed and have no adequate remedy in damages and, accordingly, shall be entitled to seek injunctive relief against such breach; provided, however, that no specification of a particular legal or equitable remedy shall be construed as a waiver, prohibition or limitation of any legal or equitable remedies in the event of a breach hereof.

7.6. Whistleblower Immunity/Defend Trade Secrets Act. NOTICE OF IMMUNITY FROM LIABILITY FOR CONFIDENTIAL DISCLOSURE OF A TRADE SECRET TO THE GOVERNMENT OR IN A COURT FILING: Notwithstanding anything herein to the contrary, under the Federal Defend Trade Secrets Act of 2016, Miovision and Customer acknowledge and agree that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of Applicable Laws may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the immunities created by the Defend Trade Secrets Act of 2016.

7.7 Security Practices and Requirements. Miovision shall use industry standard efforts to secure its Services and the Hosted Services as described in Miovision’s Security Guidelines (https://miovision.com/legal/policies/securityguidelines), and Miovision shall, and shall direct its Representatives to, at all times comply with, the Security Guidelines.

8. OWNERSHIP OF INTELLECTUAL PROPERTY.

8.1. Miovision IP. 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, Professional Services, Developments, Documentation, Support or other products or services as further outlined in an Order Form) 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. Customer Data. Customer shall retain ownership of Customer Data.

8.3. IP Rights Notices. Customer is prohibited from removing or altering any of the Intellectual Property rights notice(s) that Miovision provides with the Miovision IP and must reproduce the unaltered Intellectual Property rights notice(s) in any full or partial copies that Customer makes of the Documentation. Use of the Services does not grant any ownership rights to Customer or any other party in or to the Miovision technology or Miovision IP.

8.4. Non-Exclusivity. Miovision provides similar services and deliverables to other end users, customers, resellers, distributors, partners, and other entities, and nothing in this Agreement, any Order Form, 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 products, services or materials or performing the same or similar functions as the Products contemplated by this Agreement or any applicable Order Form. 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 the Customer under this Agreement.

8.5. Feedback. Customer may (but is 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. Customer agrees that all Feedback will become the property of Miovision once received by Miovision and may be used, disclosed and exploited by Miovision for any purpose.

8.6. Hardware, Licenses and Title.

8.6.1. Title to Hardware. Title to Hardware, any associated licenses and all risks of loss of, loss of use of, or damage to the Hardware shall pass to the Customer upon shipment in accordance with Section 4.8 (Delivery of Hardware) of this Agreement.
8.6.2. License. Subject to Miovision receiving payment in full for the applicable Products, Miovision grants to Customer a limited, non-transferable, non-exclusive, revocable, perpetual, and non-sub-licensable right and license for Permitted Use solely in combination with other Miovision Products as may be further described in an applicable Order Form.
8.6.3. Firmware and Services. License rights are granted pursuant to Permitted Use.

8.7. Waiver of Moral Rights. To the extent that the Customer acquires rights in any of the Miovision IP, Customer hereby does and will: (a) assign such rights to Miovision; and (b) waive any and all moral rights Customer may have in such Miovision IP or other Miovision intellectual property to, and in favor of, Miovision.

8.8. Reservation of Rights. Miovision reserves all rights not expressly granted to Customer 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 Customer 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.

8.9. Confidentiality of Miovision IP and other Miovision Intellectual Property. All Miovision IP and other Miovision Intellectual Property shall be deemed to be the Confidential Information of Miovision, and the Customer shall be bound to maintain the confidentiality thereof in accordance with the confidentiality provisions of this Agreement.

9. INDEMNIFICATION.

9.1. Customer Indemnification. Customer shall defend, indemnify and hold Miovision, its Affiliates, and their respective directors, officers, employees, and contractors 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 Authorized User) claim, suit, action or judgment (commenced or threatened) brought against Miovision resulting from: (a) 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 Customer; (b) use of the Products other than as intended by Miovision; (c) the performance of any illegal, fraudulent or unauthorized services by, or on behalf of, Customer; (d) the installation of the Products including, without limitation, arising from the installation by anyone other than Miovision; (e) Customer’s failure to comply with, or breach of, any terms of this Agreement, Order Form, or any Applicable Laws; and (f) any representation, warranty or condition made by a Customer or Customer’s Affiliates or a third party in respect of the Products beyond that made by Miovision. In relation to any indemnity by Customer in this Agreement: (i) Miovision will promptly notify Customer of such claims; (ii) Customer shall have the sole control of the defense of such claims and all negotiations for its settlement or compromise (provided that any settlement does not create obligations for Miovision); (iii) Miovision may, at its option and expense, be represented by counsel of its choice in any action or proceeding related to such claims; (iv) Miovision shall furnish to Customer on request all information reasonably required by Customer that is in Miovision’s possession or control for such defense; (v) Miovision will not admit any such claims or make any payments with respect to such claims without the prior written consent of Customer, acting reasonably; and (vi) Miovision shall, at Customer’s expense, cooperate with, and provide such assistance to Customer in the defense of such claims as reasonably requested by Customer. Nothing in this Section 9.1 (Customer Indemnification) shall limit Miovision’s rights or remedies in the event Customer fails to perform any of its obligations.

9.2. Miovision Hardware and Firmware Indemnification. Miovision will defend and indemnify Customer for any damages or costs that are awarded against Customer to the extent the claim is based on an allegation that Miovision’s Hardware or Firmware infringes or misappropriates any copyright, trade secret, patent, or trademark right of a third-party. If any such claim is brought or appears to Miovision likely to be brought, Miovision may at its own option: (a) replace or modify the Hardware or Firmware to make it non-infringing; (b) secure rights for the Customer to continue using the Hardware or Firmware; or (c) if Miovision, acting reasonably, determines that (a) and (b) are not commercially reasonable options, Miovision may terminate this Agreement, and Order Form in accordance with Section 5.2.2 (Miovision Termination) and refund to Customer, upon the return of such Hardware or Firmware, , the Fees paid less depreciation of twenty percent (20%) for each year since the Delivery Date.

9.3. Miovision Services and Software Indemnification. Miovision will defend and indemnify Customer for any damages or costs that are awarded against Customer to the extent the claim is based on an allegation that Miovision’s technology used to provide the Services or Software infringes or misappropriates any copyright, trade secret, patent, or trademark right of a third-party. If any such claim is brought or appears to Miovision likely to be brought, Miovision may at its own option: (a) replace or modify the Services or Software to make them non-infringing; (b) secure rights for the Customer to continue using the Services or Software at no additional cost; or (c) terminate the Agreement in accordance with Section 5.2.2 (Miovision Termination). Customer must immediately discontinue all use of the Services or Software giving rise to the original claim.

9.4. Indemnification Requirements. Miovision’s indemnification obligations under Section 9.2 (Miovision Hardware and Firmware Indemnification) and Section 9.3 (Miovision Services and Software Indemnification) are provided only where Customer: (a) gives Miovision prompt notice in writing of the claim and in no event later than seven (7) days after learning thereof; (b) gives Miovision full control over the defense and settlement of the claim, including any investigation related thereto; (c) fully cooperates with Miovision for the investigation, defense and settlement of the claim; (d) executes all documents necessary for the defense or settlement of the claim; and (e) has not prejudiced, compromised, or settled the claim.

9.5. Indemnification Limitations. Miovision shall not be required to indemnify Customer in the event that: (a) the Products have been modified or repaired by anyone other than Miovision without prior written approval from Miovision; (b) the Products have been combined with other products, equipment, software, services, apparatus, devices, items or things not supplied by Miovision provided that the Products, prior to being so combined, would not have caused the infringement claim; (c) the Products are used for an application not recommended by Miovision; (d) using the current, unaltered version or model of the Products could have avoided the infringement claim; (e) any settlements have been entered into without prior written approval from Miovision; (f) Customer was aware of the infringement claim as of the date of the Order Form for the Products; or (g) the Products have been used in a manner inconsistent with the Documentation, any prohibited activities set forth in this Agreement or in a manner not otherwise contemplated by this Agreement. In no event will Miovision have any obligations or liability under this Article 9 (Indemnification) arising in whole or in part from any content, information or data provided by Customer, Authorized Users, or other third parties or in cases where such finding of liability would not have existed but for the provision of the same.

10. LIMITATIONS OF LIABILITY AND DAMAGES.

10.1 Specific Limitations.

10.1.1. Partial Shipments. Miovision will have no liability for partial shipments or failure to deliver products by any specific date.
10.1.2 Installation. Miovision shall have no liability to Customer or any third-party in relation to the installation of Products or where the installation causes or contributes damage or loss to the Hardware, cabinet, or other street furniture in or on which the Hardware or antenna is installed.
10.1.3. Product Use. Miovision is not responsible or liable for uses of any Product resulting from access provided, directly or indirectly, by Customer to others, including, without limitation, Authorized Users, whether such access or use is permitted by or in violation of this Agreement.
10.1.4. Service Warranty. Miovision’s sole and exclusive liability for a breach of Section 6.2.2. (Services Warranty) shall be for Miovision to correct any reported problem with the Services that is directly attributable to Miovision’s own errors or omissions.
10.1.5. Professional Services Warranty. Customer’s sole and exclusive remedy for a breach of Section 6.2.3. (Professional Services Warranty) shall be, at Miovision’s option, either to (a) re-perform such Professional Services; or (b) provide Customer with a pro rata refund for the allegedly defective Professional Services.

10.2. 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 Customer’s remedy otherwise fails its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

10.3. Aggregate Limitation. SUBJECT TO SECTION 10.2 (EXCLUSION OF CONSEQUENTIAL DAMAGES) AND SECTION 10.4 (CERTAIN DAMAGES NOT EXCLUDED OR LIMITED), MIOVISION’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM, LOSS OR DAMAGE ARISING FROM THIS AGREEMENT, AND ANY ORDER FORM, SHALL AT ALL TIMES BE LIMITED TO ACTUAL DIRECT DAMAGES, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PARTICULAR PRODUCT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY.

10.4. Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT, AND ANY ORDER FORM, SHALL APPLY TO: (A) DAMAGES ARISING FROM INFRINGEMENT OF MIOVISION IP (AS DEFINED IN SECTION 8.1) OR MIOVISION’S OTHER INTELLECTUAL PROPERTY RIGHTS; (B) ANY CLAIMS FOR NON-PAYMENT; (C) DAMAGES ARISING FROM GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT BY A PARTY; (D) WITH RESPECT TO CUSTOMER, DAMAGES ARISING FROM ANY FAILURE TO COMPLY WITH, OR BREACH OF ANY OF CUSTOMER’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.

10.5. Third-Party Products and Services. Certain third-party products and services may be made available to Customer for use with the Miovision Products. 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 Customer, Authorized Users, Customer Affiliates, or anyone else for or in relation to any third-party product or service. Customer, Authorized Users, Customer’s Affiliates, hereby irrevocably waive any claim against Miovision with respect to such third-party products or services.

11. INSURANCE.

11.1 General Liability. Miovision shall maintain commercial general liability insurance during the Term of this Agreement in the amount of at least Two Million Dollars ($2,000,000) per occurrence and at least Five Million Dollars ($5,000,000) in the aggregate.

11.2. Workers Compensation. Miovision shall maintain workers’ compensation insurance as required by applicable laws and regulations, unless otherwise exempted.

11.3. Professional Liability. Miovision shall maintain professional liability insurance, including technology errors and omissions, insurance during the Term of this Agreement in the amount of at least Two Million Dollars ($2,000,000) per occurrence and at least Five Million Dollars ($5,000,000) in the aggregate.

11.4. Security and Privacy. Security and Privacy. Miovision shall comply with the cyber/privacy insurance coverage requirements set forth in Security Guidelines (https://miovision.com/legal/policies/security-policy).

11.5. Certificates. The policy limits required in this Article 11 (Insurance) may be made up of any combination of Primary, Umbrella or Excess insurance layers. Upon request by Customer, Miovision will furnish Customer with a certificate (or certificates) of insurance confirming the requisite insurance is in place and all related premiums have been paid.

11.6. Currency of Insurance Coverage. Unless otherwise stated in an applicable certificate of insurance, insurance coverage values are stated in the currency of the United States of America.

12. GENERAL PROVISIONS.

12.1. End of Life. At any time following the Effective Date, Miovision reserves the right to discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any or all of the Products covered by this Agreement. Miovision will provide the notice as required by law, prior to discontinuing any Product covered by this Agreement in accordance with Miovision’s end-of-life processes. Nothing in this Agreement shall preclude Miovision from modifying the content, features, functionality, pricing, or warranty terms of any of Miovision’s Product, in any way at any time at Miovision’s sole discretion.

12.2. Publicity. Customer agrees that, in exchange for the pricing provided by Miovision, Customer grants Miovision the right to: (a) develop public communications (including, without limitation, press releases, advertisements and customer success stories) which include references to the Customer and concern this Agreement or any related matter; and (b) use the Customer’s trademarks, service marks, logos and trade names in any such public communications and to identify Customer 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 Customer’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.

12.3. Entire Agreement. This Agreement, including any URLs, Order Forms, and schedules, attachments, or validly executed amendments, 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.

12.3.1. Incorporation. The terms of any Order Form, or documents as otherwise stated herein, that are necessary to give effect to this Agreement are hereby incorporated by reference.
12.3.2. Customer Terms. Any terms and conditions provided by or on behalf of Customer that are in addition to or inconsistent with the terms and conditions of this Agreement (including, without limitation, Customer’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 an Order Form issued by Miovision to Customer and this Agreement, the terms contained in the Order Form issued by Miovision to Customer shall take priority to the extent of the conflict for that Order Form only.
12.3.3. Negotiated Terms. Any negotiated and fully executed version of this Agreement, any executed Secondary Agreement, and any Miovision accepted Order Form will take precedence over any conflicting provision of this standard form Agreement.
12.3.4. Inconsistent Terms. If there is a conflict between this Agreement and any other Miovision agreements, including any agreements incorporated by reference, this Agreement shall prevail.

12.4. English Language Statement for Customers 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 (60) days, either Party may terminate the Agreement immediately upon notice in accordance with Article 5 (Term; Termination).

12.6. Independent Contractor. 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 Customer 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. Unless otherwise permitted by this Agreement, 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. Notwithstanding the foregoing, Miovision may, without the requirement to obtain the consent of the Customer, assign or transfer Miovision’s rights under this Agreement: (a) to an Affiliate; (b) to a lender whose security interests must be perfected; or (c) 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 set out in the applicable Order Form, 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: (a) if delivered in person or by courier, at the time of actual delivery; (b) if sent by email, on the third (3rd) day following the date of dispatch; (c) if sent by mail (postage prepaid) within the country, the fifth (5th) day after its mailing; (d) if sent by mail (postage prepaid) outside the country, the tenth (10th) day after its mailing.

12.11. Governing Law. If Customer is a non-governmental entity, this Agreement is governed by and construed in accordance with the laws of Ontario, Canada, and the federal laws of Canada, and each Party irrevocably agrees to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts in the Regional Municipality of Waterloo, Ontario, Canada. If Customer is a governmental entity, the applicable laws and courts of the jurisdiction where the government Customer is located shall apply. Regardless of jurisdiction, the Parties agree the UN Convention on Contracts for the International Sale of Goods does not apply to these Terms.

12.12. Government Use. If Customer is part of an agency, department, or other entity of the United States government (“Government“), and the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations, it is Miovision’s position that the Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of the Agreement.

12.13. Dispute Resolution. Unless otherwise prohibited by applicable laws, 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. For non-governmental Customers, arbitration shall take place in Waterloo, Ontario, Canada and be conducted in the English language and for government Customers, dispute resolution shall take place in the jurisdiction of the government Customer. 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.

12.14. 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 Products 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.

12.15. 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.

12.16. Amendments. This Agreement shall not be amended, modified, or waived except in a writing signed by both Parties.

12.17. 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.

12.18. Survival. Survival of terms of this Agreement shall be in accordance with Section 5.2.4 (Effects of Termination; Survival) hereof.

12.19. Counterparts. This Agreement, or any Order Form, which incorporates this Agreement will effectuate this Agreement. This Agreement and any Order Form, which incorporates this Agreement, may be signed in two or more counterparts each of which together will be deemed to be an original notwithstanding the date of execution, and all of which together will constitute one and the same instrument. Signing of this Agreement or any Order Form and transmission by email or other electronic means of transmission will, upon receipt of such transmission, be acceptable and binding upon the Parties hereto. Neither party shall contest the admissibility of copies of this Agreement (or printed versions of same) under either the business records exception to the hearsay rule or the best-evidence rule or otherwise on the basis that the Agreement was originated, signed or maintained in electronic form. Other than an electronic or imaged signature on this Agreement, or on any Order forms that incorporates this Agreement by reference, no other communication between the Parties (such as e-mail, voice mail or facsimile without a signature) shall be construed as a signature to this Agreement (or any amendments hereto or any waiver hereof).

IN WITNESS WHEREOF, the Parties by execution of an Order Form, which incorporates this Agreement, have caused their authorized representatives to execute this Master Services Agreement to be effective as of the Effective Date.