General Terms and Conditions for Resale of Miovision Products & Services
1.APPLICATION
1.1.Resale. These General Terms and Conditions For Resale of Miovision Products & Services (the “Agreement”) applies where the Reseller purchases and resells certain Miovision hardware, software, and support (together with any Documentation the “Products”).
2.RESALE IN TERRITORY
2.1.Resale License. Subject to compliance with the terms of this Agreement, Miovision grants Reseller a license in the Territory to promote, market, distribute, resell, sublicense, service and support the Products to End Users in the Territory.
2.2.Limitations. Reseller will not directly or indirectly sell Products to an entity that may result in those Products being delivered or used outside the Territory.
2.3.Territory. Reseller’s rights within a Territory are non-exclusive. Miovision may elect at any time and at its sole discretion to work directly with an End User in the Territory. Miovision retains all rights to promote, market, distribute, resell, service and support Products in the Territory directly itself or via an Affiliate, or indirectly through one or more other distributors, partners, or resellers. Miovision will work with the Reseller to resolve any Territory conflict; however, Miovision reserves the right to resolve such conflicts in its own best interests and at its sole discretion.
2.4.Sub-Distribution. Reseller is not permitted to use sub-distributors to distribute the Products to End Users. Reseller is permitted to subcontract certain (but not all) of its obligations to qualified, experienced and professional subcontractors who are satisfactory to Miovision and the End User, provided, however, that Reseller shall at all times be responsible and liable for its subcontractors to the same degree as if Reseller had performed the obligation itself. In no event shall Miovision have any responsibility or liability whatsoever for any of Reseller’s subcontractors.
2.5.Trademarks. During the Term, Miovision grants the Reseller a non-exclusive, royalty-free, non-assignable License to use Miovision’s trademarks for the Products and its corporate logos, trademarks, and tradenames to achieve the purpose of this Agreement. All interest, title, and goodwill associated with such trademarks is the exclusive property of Miovision.
2.6.Competitive Products. Reseller shall proactively identify to Miovision any current or emerging solution that Reseller intends to promote, market, distribute, sell, or resell, directly or indirectly, to any End User in the Territory during the Term, that competes with, or provides End Users with an alternative solution to the Products.
3.QUOTATIONS AND PAYMENT TERMS
3.1.Quotations and Pricing.
3.1.1.End User Orders. When an End User orders Products through the Reseller, the Reseller and the End User will handle their respective quotation and ordering processes between themselves, and the Reseller will order the Products from Miovision in accordance with the terms of this Agreement.
3.1.2.Retail Price. Reseller is responsible for setting its own resale prices and other sales terms for Products in accordance with Miovision’s retail prices for the Territory.
3.1.3.Delivery of Products. Shipping of Products shall be FCA (Incoterms 2020) Miovision’s dock. The estimated date of shipping for the Products may be set out in the applicable Quotation. Miovision will use commercially reasonable efforts to ship the Products by the requested date but will not be liable for any delay or failure to do so. Miovision also reserves the right to ship equipment in advance of any requested delivery timeline made by the Reseller.
3.1.4.Change Orders. No purchase order changes, delays or cancellations may be made unless approved by Miovision. Cancelled orders may be subject to a restocking or cancellation fee as determined by Miovision.
3.2.Payment Terms.
3.2.1.Invoicing and Payment. Reseller shall pay to Miovision the fees specified in the Quotation (the “Fees”) in accordance with the payment terms set out therein. Unless otherwise specified in the Quotation, all invoiced amounts shall be in United States Dollars (USD) and Reseller shall pay all invoices net thirty (30) days from date of invoice and reference the invoice number with such payment. All payments to Miovision must be made by wire transfer or ACH/EFT in the correct currency and Reseller is responsible for all foreign intermediary banking and transfer fees. Miovision may issue invoices to Reseller either upon the shipment of the Hardware or the commencement date of Services as determined under an applicable Quotation. Reseller shall pay the Fees on or before the due date, and without any set-off, withholding or deduction whatsoever.
4.OWNERSHIP AND ACCESS
4.1.Right to Use Services. Miovision grants access and license rights for its Products directly to End Users under the MSA. Reseller is purchasing Products on behalf of End User and, subject to Reseller’s payment of Fees, the End User will be granted the right to use such Products in accordance with their acceptance of the MSA.
4.2.Ownership of Hardware. Subject to payment of all applicable Fees, Title to all Hardware will pass to Reseller FCA (Incoterms 2020) Miovision’s dock. Title to and risk of loss of Hardware will pass to Reseller upon delivery to the carrier at Miovision’s dock. Reseller is responsible for managing the transfer of title to End User as appropriate to the circumstances.
4.3.Miovision IP. Miovision owns and retains, solely and exclusively, all rights, title, and interest to the Intellectual Property in the Products whether the Products are separate or combined with any other products or services (collectively “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.
5.BUSINESS CONDUCT.
5.1.Reseller’s Obligations. Reseller shall (i) conduct all business in its own name; (ii) responsibly and actively promote, market, and sell the Products in a way that reflects favorably on the reputation of both Miovision and the Products; (iii) engage in truthful, ethical practices in promoting, marketing and selling the Products and shall only make true and accurate representations regarding the function and performance of the Products that are consistent with the most current version of the Documentation; (iv) not make any false, misleading, unethical or disparaging representations or statements regarding Miovision, or the Products, including specifications, features, warranties, guarantees or disclaimers that are not consistent with the Documentation; and (v) comply with all applicable laws and regulations, including without limitation: (a) those governing privacy, commercial or promotional communications and anti-spam laws (including without limitation, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN SPAM”)), (b) money-laundering, competition, fair trading, advertising, copyright, trademark, other intellectual property, any communications related to the Products; and (c) US Foreign Corrupt Practices Act, UK Bribery Act, OECD Convention of Combating Bribery of Foreign Public Officials in International Transactions and any other applicable legislation enacted to enforce or implement any international convention prohibiting bribery and corruption; and (vi) submit all filings and obtain any consents, licenses, permits or other approvals that may be necessary to perform all of its obligations under this Agreement.
6.INSURANCE.
6.1.Required Coverage. Without limiting Reseller’s liability under this Agreement, Reseller shall, at its own expense, procure and maintain in good standing, for the Term and for one (1) year thereafter, such necessary insurance coverage as may be required to fulfill its obligations under this Agreement and as required by all applicable laws and regulations. Upon request by Miovision, Reseller shall furnish Miovision with evidence that the requisite insurance is in place and all related premiums have been paid.
7.SUPPORT
7.1.Direct Support. Miovision will provide support for all Products directly to End Users in accordance with the MSA.
8.WARRANTIES AND DISCLAIMERS
8.1.Reseller Representations and Warranties. Reseller represents and warrants to Miovision that:
8.1.1.Power to Enter. Reseller has the power and authority to enter into this Agreement.
8.1.2.Performance. Reseller shall perform its obligations under this Agreement in accordance with this Agreement and in a professional and competent manner, with the degree of skill and care that is required by current industry standards or practices.
8.1.3.Miovision’s Terms of Use. Prior to reselling the Products to End Users, Reseller shall require such End User to accept the terms of the Miovision Master Sales Agreement (“MSA”) located at: https://miovision.com/legal/msa/.
8.1.4.Indemnity. Reseller agrees to indemnify and defend Miovision from and against any and all claims, demands, actions, suits, liabilities, losses, damages, costs or expenses (including attorneys’ fees) which Miovision may incur as a result of, caused by, or arising out of any act or omission by Reseller, its employees, directors, officers, agents, or representatives, including, but not limited to: i) breach of this Agreement; ii) improper installation, service, repair or demonstration of any Products; or iii) any defect, nonconformity or impairment of the performance of any Products caused or created by any act or omission of Reseller.
8.2.Miovision Representations and Limited Warranties.
8.2.1.Power to Enter. Miovision has the power and authority to enter into this Agreement.
8.2.2.Hardware and Firmware. Miovision’s limited warranty for Hardware and Firmware is further described at http://www.miovision.com/legal/policies/hardware-warranty.
8.2.3.Services. Miovision’s warranty for Services is provided directly to the End User under the MSA.
8.2.4.End User Warranty. In the event that the Reseller or any of its employees, agents or representatives makes any express or implied warranties or remedies to any End User that differ from or are broader than Miovision’s above warranties, Reseller shall bear full responsibility for any such additional warranties and remedies.
8.3.Warranty Disclaimers. THE PROVISIONS OF SECTION 8.2 STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND RESELLER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY BREACH OF ANY WARRANTY REGARDING MIOVISION’S PRODUCT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2, MIOVISION’S PRODUCTS ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY OF ANY KIND. THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, 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.
9.PROTECTION OF CONFIDENTIAL INFORMATION
9.1.Confidential Information. “Confidential Information” is all proprietary data about the disclosing party’s business, technology, customers, partners, and suppliers, including this Agreement. This includes information (a) marked confidential or (b) that a reasonable person would understand to be confidential.
9.2.Exclusions. Confidential Information excludes data that the receiving party: (i) already possessed lawfully; (ii) makes public without the receiving party’s fault; (iii) obtains unrestricted from a third-party; (iv) develops independently; (v) discloses with disclosing party’s written consent; or (vi) is required to disclose by law, provided the receiving party gives prior written notice to allow the disclosing party to challenge the requirement.
9.3.Restrictions. Except for Miovision trade secrets, for five (5) years after this Agreement ends, each Party must: (i) protect Confidential Information with at least the same reasonable care as its own; (ii) use it only as permitted; (iii) disclose it only to necessary, bound Affiliates, employees, or representatives; and (iv) not reproduce it without prior written consent. The confidentiality obligation for Miovision’s trade secrets is indefinite.
9.4.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.
9.5.Return of Confidential Information. Upon termination or expiration, the receiving party must return all tangible Confidential Information (including copies) to the disclosing party. This does not apply to routine IT backups or copies required by mandatory law, provided these are kept subject to the indefinite confidentiality obligations herein.
10.LIMITATION OF LIABILITY
10.1.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 has been advised of the possibility of such damages or if Reseller’s remedy otherwise fails its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
10.2.Aggregate Limitation. SUBJECT TO SECTION 10.1 AND SECTION 10.3, 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 RESELLER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY.
10.3.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 INTELLECTUAL PROPERTY RIGHTS; (B) ANY CLAIMS FOR NON-PAYMENT; (C) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; (D) ANY FAILURE TO COMPLY WITH, OR BREACH OF ANY OF RESELLER’S OBLIGATIONS AS SET OUT IN THIS AGREEMENT OR (E) DAMAGES WHICH CANNOT BE EXCLUDED, LIMITED, MODIFIED OR RESTRICTED UNDER THE APPLICABLE LAWS OR REGULATIONS.
10.4.Third-Party Products and Services. Certain third-party products and services may be made available to Reseller and End Users for use with the 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.
11.TERM AND TERMINATION
11.1.Term. The Agreement shall commence as of the Effective Date and shall continue for one (1) year, unless terminated earlier in accordance with the provisions of this Agreement (“Initial Term”). Thereafter, this Agreement may be renewed in writing by the Parties for additional, successive one (1) year terms (a “Renewal Period”) on the same terms and conditions. The Initial Term and the Renewal Period are hereinafter collectively referred to as the “Term”.
11.2.Termination for Breach. Each of the following occurrences shall be deemed to be a material breach of this Agreement (“Event of Default”):
11.2.1.the Reseller fails to make payment of any amount due to Miovision;
11.2.2.a Party breaches any of the obligations or provisions of this Agreement and fails to remedy such breach within fifteen (15) Business Days of written notice of such default;
11.2.3.the Reseller breaches or threatens to breach any provision of this Agreement related to: (i) Miovision’s Intellectual Property Rights; (ii) Miovision’s Confidential Information; (iii) the privacy rights of any other person or entity; or (iv) the requirement to comply with applicable laws; or
11.2.4.the Reseller becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation, or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute.
11.3.Miovision’s Election. Miovision may terminate this Agreement:
11.3.1.in its sole discretion, on fifteen (15) days written notice to the Reseller;
11.3.2.upon an Event of Default by Reseller, Miovision may, in its sole discretion, either (i) suspend access to the Products until the Event of Default is remedied to Miovision’s reasonable satisfaction; or (ii) terminate this Agreement upon written notice by Miovision to the Reseller.
11.4.Reseller’s Election. Upon an Event of Default by Miovision, Reseller may, in its sole discretion, terminate this Agreement upon written notice by the Reseller to Miovision.
11.5.Effects of Termination. Upon the effective date of termination of this Agreement for any reason:
11.5.1.Reseller shall immediately pay to Miovision any and all amounts owed to Miovision under this Agreement, and all costs incurred by Miovision (including reasonable legal, collection and recovery fees and expenses) in enforcing its rights hereunder;
11.5.2.each Party shall continue to have all remedies which are available to it at law or in equity including, without limitation, the right to injunctive relief.
12.GENERAL PROVISIONS
12.1.End of Life. Miovision reserves the right to discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any or all of the Products. Miovision will provide the notice as required by law, prior to discontinuing any Products in accordance with Miovision’s end-of-life policy. Nothing in this Agreement shall preclude Miovision from modifying the content, features, functionality, pricing, or warranty terms of any of the Products, in any way at any time at Miovision’s sole discretion.
12.2.Publicity. Reseller agrees that, in exchange for the pricing provided by Miovision, Miovision shall have the right to: (i) develop public communications (including, without limitation, press releases, advertisements and Reseller success stories) which include references to the Reseller and concern this Agreement or any related matter; and (ii) use the Reseller’s trademarks, service marks, logos and trade names in any such public communications and to identify Reseller as a reseller of Miovision on Miovision’s website and as a part of a general list of Miovision’s resellers for use and reference in Miovision’s corporate, promotional and marketing literature. Without first obtaining Miovision’s prior written consent, Reseller shall not make any public communications which include references to: (a) Miovision and concern this Agreement or any related matter without Miovision’s prior written consent; or (b) the End User and concern this Agreement or any related matter.
12.3.Entire Agreement; Governing Terms. This Agreement, any URL incorporated by reference, together with the applicable Quotation(s) constitute the entire agreement between Miovision and the Reseller, which shall apply to all purchases of Products by Reseller from Miovision for resale by Reseller to End Users in the Territory.
12.4.End User Terms. Any terms and conditions provided by or on behalf of Reseller or End User that are in addition to or inconsistent with the terms and conditions of this Agreement (including, without limitation, Reseller’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 Reseller and this Agreement, the terms contained in the Quotation issued by Miovision to Reseller shall take priority to the extent of the conflict for that Quotation only.
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 ninety (90) days, either Party may terminate the Agreement immediately upon notice in accordance with Section 11.
12.6.Independent Contractors. Miovision and Reseller are independent contractors. This Agreement does not create a joint venture, partnership, agency, or employment relationship. Neither Party has the authority to incur obligations or bind the other. Neither Party is by virtue of this Agreement authorized as an agent, employee, or agent representative of the other. Nothing in this Agreement shall create in either Party any right or authority to incur any obligations on behalf of or to bind in any respect, the other Party.
12.7.Non-solicitation. During the Term and for a period of one (1) year thereafter Reseller 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 Reseller, 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 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, 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.Records and Reporting. Reseller shall at its own expense: (a) maintain complete and accurate accounting records, in accordance with generally accepted accounting practices, to support and document the purchases by the Reseller from Miovision, the sale and distribution of the Products to End Users for the duration of the Agreement and for a period of five (5) years after its expiry or termination; and (b) keep accurate and up to date records of all active End User opportunities and conduct regular review calls for the Territory with Miovision to ensure that active End User opportunities are up to date.
12.12.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. This Agreement is drafted in the English language. If translated into another language, the English text shall prevail in all respects.
12.13.Export Control Restrictions. Reseller acknowledges that all shipments are subject to applicable export control laws and regulations, which may require special licenses or permits for export or re-export of the Products. Reseller agrees to: (i) comply with all applicable export control laws, (ii) not export or re-export the Products (including software, components, or technical data) requiring a license/approval without first obtaining it. Reseller shall not sell the Products without Miovision’s prior written approval. Prior to reassigning a designated End User shipment to a different End User, Reseller must notify Miovision in writing (including original and proposed End User/items/reasons) and obtain Miovision’s prior written approval.
12.14.Import and Local Compliance Laws: Reseller shall be solely responsible for obtaining all necessary import licenses, customs clearances, paying all taxes, tariffs and duties, and ensuring compliance with local laws, safety standards, and telecommunication/wireless certifications required to market and deliver the Products in the Territory.
12.15.Severability. In the event any provision or any part of a provision of this Agreement is determined to be invalid, illegal, or unenforceable, such provision or part thereof shall be considered separate and severable from this Agreement and the remaining provisions shall continue 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. Except as otherwise provided in this Agreement, a failure or delay by a Party in exercising any right or remedy will not prohibit that Party from exercising that right at a later time or from exercising any other right or remedy.
12.18.Survival. The provisions of Sections 3 (Quotations and Payment Terms), 4 (Ownership and Access), 5 (Business Conduct), 7 (Support), 8 (Warranties and Disclaimers), 9 (Protection of Confidential Information), 10 (Limitation of Liability), 11 (Term and Termination) and 12 (General Provisions) shall survive the expiration or termination of this Agreement.
12.19.Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same document. Signing of this Agreement via a digital signing service (including DocuSign) and transmission by email or other electronic means of transmission will, upon receipt of such transmission, be acceptable and binding upon the Parties hereto.
12.20.Independent Counsel and Drafting. The Parties acknowledge that each has had the opportunity to seek legal counsel to review the contents of this Agreement and that neither Party shall be deemed the drafter. This Agreement shall be interpreted and construed only by its contents and there shall be no presumption of standard of construction in favor of or against either Party.
12.21.Audit Rights. Reseller shall give Miovision and its designated independent auditors reasonable access to Reseller’s books, records, and facilities, and the right to audit them to ensure Reseller’s compliance with all applicable laws and regulations, Miovision’s compliance programs, and this Agreement. Miovision may conduct such an audit no more than once per calendar year upon providing at least thirty (30) days’ prior written notice to Reseller. Audits shall be conducted during Reseller’s normal business hours and in a manner that does not unreasonably interfere with Reseller’s standard business operations. Miovision reserves the right to conduct additional audits within the same calendar year without the standard notice period if it has a reasonable, good faith suspicion of a material breach or regulatory violation.
13.DEFINITIONS
13.1.As used in the Agreement the following terms are defined as indicated below:
13.1.1.“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. For purposes of the foregoing, “control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of management or policies of another person or entity, whether through ownership of voting securities or other ownership interest, by contract or otherwise.
13.1.2.“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 access and use the Products under the rights granted to End User pursuant to the MSA.
13.1.3.“Documentation” means all marketing, sales, instructions, manuals, handbooks, guides, technical literature, and other written materials, including revisions thereto, for the promotion, sale, use and maintenance of the Products 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 users in connection with the Products.
13.1.4.“Effective Date” is the date of the signed Quotation.
13.1.5.“End User” means the ultimate customer of the Products for its own use and without a view to resale thereof.
13.1.6.“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 (including without limitation rights in any of the foregoing).
13.1.7.“Miovision” means Miovision Technologies Incorporated or an Affiliate of Miovision Technologies Incorporated as stated on the applicable Quotation.
13.1.8.“Reseller” means the Reseller entity named on the Quotation.
13.1.9.“Party” means Miovision or Reseller; “Parties” means Miovision and Reseller.
13.1.10.“Quotation” means a written quotation issued by Miovision for the Products being purchased by the Reseller.
13.1.11.“Use” and “Using” means accessing, using, configuring, or activating the Products.
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