Terms of Purchase
MIOVISION TERMS OF PURCHASE
BY (A) ACCEPTING A QUOTATION WHICH REFERS TO THIS AGREEMENT OR (B) ENTERING INTO AN AGREEMENT WITH A PARTNER THAT REFERS TO THIS AGREEMENT, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT:
I. CUSTOMER HAS READ, UNDERSTOOD AND ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT;
II. THIS AGREEMENT CONSTITUTES AN AGREED ALLOCATION OF RISK THAT IS REFLECTED IN THE AMOUNT PAYABLE BY CUSTOMER FOR THE MIOVISION PRODUCTS; AND
III. THE INDIVIDUAL WHO ENTERS INTO THIS AGREEMENT ON BEHALF OF CUSTOMER’S ORGANIZATION HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND THE CUSTOMER ORGANIZATION (AND ITS AFFILIATES) TO THIS AGREEMENT.
3. PURCHASE ORDERS AND PAYMENT TERMS
3.1 Quotation and Pricing.
a) Miovision Quotation. Unless otherwise agreed by the Parties, Miovision will issue a Quotation to the Customer for the particular Products that the Customer is interested in purchasing, using or licensing.
b) Statement of Work. All Developments requested by the Customer, the cost for such Developments, and the timeline for delivery of Developments will be outlined in one or more Statements of Work (each an “SOW”) which will be referenced on the applicable Quotation and are hereby incorporated by reference.
c) Customer Acceptance. Customer will initiate purchases or licenses under this Agreement by accepting the Quotation as follows: (i) by signing the Quotation and returning it to Miovision in accordance with Section 3.1(d) below; or (ii) issuing a written, binding, and non-cancellable Purchase Order to Miovision in accordance with Section 3.3 (Purchase Orders) below.
d) Binding and Non-Cancellable. Once accepted by Customer, a Quotation is binding and non-cancellable. Each Quotation is subject to Miovision’s assessment of Customer’s creditworthiness and payment history at the time such Quotation is accepted by Customer. Miovision expressly reserves the right, in Miovision’s absolute and sole discretion, to cancel a Quotation or refuse to supply under a Quotation.
3.2 Credit. Miovision may, in its sole discretion, extend credit to Customer subject to the receipt of financial information as may be requested by Miovision from time to time or as required by this Agreement. If Miovision, in its sole discretion, decides to extend credit to Customer, Customer agrees to comply with Miovision’s credit guidelines in effect at that time.
3.3 Purchase Orders. If Customer issues a Purchase Order to Miovision, Customer shall ensure that the Purchase Order references the applicable Quotation and this Agreement. No Purchase Order shall be binding on Miovision if the Purchase Order fails to reference the applicable Quotation and this Agreement. Miovision may issue a Purchase Order acceptance letter to resolve any errors with the Purchase Order which will be considered binding on the Customer unless Customer provides notice of non-acceptance within five (5) days. No Purchase Order shall be binding on Miovision unless and until Miovision has accepted such Purchase Order.
3.4 Delivery of Products. The Estimated Ship Date for Products may be set out in the applicable Quotation. Miovision will use reasonable efforts to deliver Products by the Estimated Ship Date. Unless otherwise agreed to by Miovision in the applicable Quotation, the delivery of Products shall be to Miovision’s dock in accordance with FCA (Incoterms 2020). Subject to Section 5 (Warranties and Disclaimers), Customer is deemed to accept the Products upon delivery. 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 Section 3.8 (Payment Terms).
3.5 Service Activation. All Services purchased by Customer will be activated on or before the applicable Commencement Date or as otherwise outlined in the applicable Quotation.
3.6 Support. Miovision’s standard support levels are found at https://www.miovision.com/legal/policies/support-policy (“Support”) and are hereby incorporated by reference. Miovision will use reasonable efforts to provide Support and meet any selected turn-around times for Customer and Authorized Users during the applicable Term.
3.7 No Return. Except as set out in Section 5 (Warranties & Disclaimers) or the applicable Quotation, there is no right of return for Products
3.8 Payment Terms.
a) Invoicing and Payment. Subject to Miovision’s credit evaluation and approval of Customer, and unless otherwise agreed to by the Parties in the applicable Quotation, all Fees without any set-off, withholding or deduction are due thirty (30) days after the date on Miovision’s invoice.
b) Currency and Transfer. Unless otherwise agreed to by Miovision in advance: (i) all payments to Miovision must be made by wire transfer or ACH/EFT and in the currency as specified on Miovision’s invoice; and (ii) all Fees paid are non-refundable.
c) Late Payments. Late payments will be assessed a service charge from the date such payment is due until the date it is paid in full, calculated at the lesser of: (i) 1.5% of the outstanding balance per month (18% per annum, compounded monthly); or (ii) the maximum rate allowed by law. Customer shall pay all reasonable costs incurred by Miovision in collecting any overdue amounts.
d) Disputed Invoices. Amounts disputed in good faith must be paid by Customer on the later of: (i) the applicable invoice payment date; (ii) immediately following the resolution of the dispute; or (iii) such other date as mutually agreed to by the Parties in writing. Customer will notify Miovision in writing of any amounts it disputes and reasons why it disputes the amounts prior to the applicable invoice payment date.
e) 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 favour of Miovision in the amount of the purchase price and any applicable interest and late payment charges where applicable.
3.9 Taxes. All prices for the Products are exclusive of taxes and Customer will at all times be responsible for, without limitation, the following: (i) sales, value-added, use, excise, withholding and other applicable taxes; (ii) import/export/customs duties, tariffs or taxes; (iii) government permits, license fees or inspection fees; and (iv) 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 Quotations are estimates only. Final tax determination will be made at time of invoicing. Taxes stated on 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. CUSTOMER RESPONSIBILITIES
4.1 Data Connections.
a) Data Connection Purpose. 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 purpose of Miovision’s data connection is to allow Miovision to communicate with the Products for: (i) remote Product configuration and signal monitoring by Miovision; and (ii) device administration by Miovision, such as Miovision applying security patches/updates/upgrades to the Products.
4.2 Installation of Products.
a) Standard Installation. Customer shall be solely responsible for the installation of the 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 Products or antenna is installed, or to any Partner, End User or third-party items.
b) Miovision Installation. Should Customer request that Miovision perform the installation, Miovision may, in its sole discretion, agree to provide such installation subject to the 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.
4.3 Compliance with Laws. Both Parties hereby certify that they will, at their own cost and expense, fully comply with all laws, ordinances, legislation, and regulations applicable to the possession, use, operation, repair, maintenance, transportation, importation and exportation of Products.
4.4 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.
5. WARRANTIES AND DISCLAIMERS
5.1 Customer Representations and Warranties. Customer represents and warrants to Miovision that Customer has the power and authority to enter into this Agreement, and it is not a party to any agreement with, nor does it have any obligations to, any third-party which would conflict in any way with any of its obligations under this Agreement, and the Customer will indemnify and save harmless Miovision for any breach of the foregoing.
5.2 Miovision Limited Warranties.
a) Hardware and Firmware Warranty. Miovision’s limited warranty for Hardware and Firmware is further described at https://www.miovision.com/legal/policies/hardware-warranty which is hereby incorporated by reference.
b) Services Warranty. Miovision warrants that during the applicable Services Term, the Services will operate substantially in accordance with, and have the functionality set out in, the then-current written Documentation for the Services under normal uses and conditions.
c) Developments Warranty. Miovision warrants that all professional services rendered in accordance with any Developments SOW shall be performed in a professional and workmanlike manner, consistent with then-current industry standards (“Developments Warranty”). Such remedy shall only be available if Customer notifies Miovision in writing within thirty (30) calendar days of the delivery for each Development as set forth in the applicable SOW. This Developments Warranty will apply only if: (i) the Development(s) 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 Developments(s) other than with Miovision’s written consent.
5.3 Warranty Disclaimers. THE PROVISIONS OF SECTION 5.2 (MIOVISION LIMITED WARRANTIES) AND SECTION 7 (LIMITATION OF LIABILITY) STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND END USER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY BREACH OF ANY WARRANTY REGARDING MIOVISION’S PRODUCTS AND ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.2 (MIOVISION LIMITED WARRANTIES), MIOVISION’S PRODUCTS AND OTHER SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY OF ANY KIND. MIOVISION, ON BEHALF OF ITSELF AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND LICENSORS, HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) REGARDING OR RELATING TO MIOVISION’S PRODUCTS AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT. THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.2 (MIOVISION LIMITED WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, FOR ALL OF MIOVISION’S PRODUCTS AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR ANY PURPOSE (PARTICULAR, SPECIFIC OR OTHERWISE), TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
6.1 Customer Indemnification. Customer shall defend, indemnify and hold Miovision, and their respective directors, officers and employees, harmless against any and all damages, liability, costs and expenses (including legal fees and expenses) arising out of any third-party (including, without limitation, any End User or Authorized User) claim, suit, action or judgment (commenced or threatened) brought against Miovision resulting from: (i) the infringement or alleged infringement of a third-party’s Intellectual Property Rights resulting from Miovision’s compliance with any designs, specifications or instructions of Customer; (ii) use of the Products other than as intended by Miovision; (iii) the performance of any illegal, fraudulent or unauthorized services by, or on behalf of, Customer; (iv) the installation of the Products including, without limitation, arising from the installation by anyone other than Miovision; (v) Customer’s failure to comply with, or breach of, any terms of this Agreement or any applicable laws; and (vi) any representation, warranty or condition made by a Partner or Partner’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: (a) Miovision will promptly notify Customer of such claims; (b) Customer shall have the sole control of the defence of such claims and all negotiations for its settlement or compromise (provided that any settlement does not create obligations for Miovision); (c) Miovision may, at its option and expense, be represented by counsel of its choice in any action or proceeding related to such claims; (d) Miovision shall furnish to Customer on request all information reasonably required by Customer that is in Miovision’s possession or control for such defence; (e) Miovision will not admit any such claims or make any payments with respect to such claims without the prior written consent of Customer, acting reasonably; and (f) Miovision shall, at Customer’s expense, cooperate with, and provide such assistance to Customer in the defence of such claims as reasonably requested by Customer. Nothing in this Section 6.1 (Customer Indemnification) shall limit Miovision’s rights or remedies in the event Customer fails to perform any of its obligations.
6.2 Miovision Hardware and Developments 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 Developments 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: (i) replace or modify the Hardware or Developments to make it non-infringing; (ii) secure rights for the Customer to continue using the Hardware or Developments; or (iii) if Miovision, acting reasonably, determines that (i) and (ii) are not commercially reasonable options, refund to Customer, upon the return of such Hardware or Developments, the price paid less depreciation of twenty percent (20%) for each year since the delivery date.
6.3 Miovision Services 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 technology used to provide the Services 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: (i) replace or modify the Services or Firmware to make them non-infringing; (ii) secure rights for the Customer to continue using the Services or Firmware at no additional cost; or (iii) terminate the Agreement in accordance with Section 10 (Term and Termination). Customer must immediately discontinue all use of the Services or Firmware giving rise to the original claim.
6.4 Indemnification Requirements. Miovision’s indemnification obligations under Section 6.2 (Miovision Hardware and Developments Indemnification) and Section 6.3 (Miovision Services and Firmware Indemnification) are provided only where Customer: (i) gives Miovision prompt notice in writing of the claim and in no event later than seven (7) days after learning thereof; (ii) gives Miovision full control over the defense and settlement of the claim, including any investigation related thereto; (iii) fully cooperates with Miovision for the investigation, defense and settlement of the claim; (iv) executes all documents necessary for the defense or settlement of the claim; and (v) has not prejudiced, compromised, or settled the claim.
6.5 Indemnification Limitations. Miovision shall not be required to indemnify Customer in the event that: (i) the Products have been modified or repaired by anyone other than Miovision without prior written approval from Miovision; (ii) 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; (iii) the Products are used for an application not recommended by Miovision; (iv) using the current, unaltered version or model of the Products could have avoided the infringement claim; (v) any settlements have been entered into without prior written approval from Miovision; (vi) Customer was aware of the infringement claim as of the date of the Quotation for the Hardware or Developments; or (vii) 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 Section 6.3 (Miovision Services and Firmware 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.
7. LIMITATION OF LIABILITY
7.1 Specific Limitations.
a) Partial Shipments. Miovision will have no liability for partial shipments or failure to deliver products by the Estimated Ship Date.
b) Installation. Miovision shall have no liability to Partner, End User or any third-party in relation to the installation of the Products or where the installation causes or contributes damage or loss to the Products, cabinet, or other street furniture in or on which the Products or antenna is installed.
c) Product Use. Miovision is not responsible or liable for uses of the Products resulting from access provided, directly or indirectly, by Customer to others, including, without limitation, End Users and Authorized Users, whether such access or use is permitted by or in violation of this Agreement.
d) Service Warranty. Miovision’s sole and exclusive liability for a breach of Section 5.2(b) (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.
e) Developments Warranty. Customer’s sole and exclusive remedy for a breach of Section 5.2(c) (Developments Warranty) shall be, at Miovision’s option, either to (i) re-perform such professional services; or (ii) provide Customer with a refund for the allegedly defective Developments.
7.2 Exclusion of Consequential Damages. In no event will Miovision have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if Miovision have been advised of the possibility of such damages or if Customer’s remedy otherwise fails its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
7.3 Aggregate Limitation. SUBJECT TO SECTION 7.2 (EXCLUSION OF CONSEQUENTIAL DAMAGES) AND SECTION 7.4 (CERTAIN DAMAGES NOT EXCLUDED OR LIMITED), MIOVISION’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM, LOSS OR DAMAGE ARISING FROM THIS AGREEMENT SHALL AT ALL TIMES BE LIMITED TO ACTUAL DIRECT DAMAGES, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL AMOUNTS PAID BY 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.
7.4 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (A) DAMAGES ARISING FROM INFRINGEMENT OF MIOVISION IP (AS DEFINED IN SECTION 9.1) OR MIOVISION’S OTHER INTELLECTUAL PROPERTY RIGHTS; (B) ANY CLAIMS FOR NON-PAYMENT; (C) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; (D) WITH RESPECT TO CUSTOMER, 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.
7.5 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 Partner, End Users, End Users’ Affiliates, Authorized Users, or anyone else for or in relation to any third-party product or service. Partner, End Users, End Users’ Affiliates, Authorized Users hereby irrevocably waive any claim against Miovision with respect to such third-party products or services.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall take effect on the applicable Commencement Date for each Product purchased by Customer and shall remain in effect through the end of the last applicable Services Term contained in an initial Quotation (the “Initial Term”). Customer may renew each Service Term for subsequent periods as detailed in the applicable renewal Quotation (each a “Renewal Term” and together with the Initial Term the “Term”). Miovision shall use reasonable efforts to provide a renewal notice to Customer sixty (60) days prior to the expiry of each applicable Services Term and each Renewal Term will start immediately after any prior Services Term ends.
8.2 Termination for Infringement. In the event that Miovision cannot reasonably obtain the necessary rights or provide a non-infringing Service, then either Party may immediately terminate this Agreement for infringement in relation to the applicable Services and upon written notice to the other Party.
8.3 Mutual Termination for Cause. Either Party may terminate this Agreement for cause effective immediately: (i) if the other Party breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving notice from the non-breaching Party; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
8.4 Miovision Termination for Cause. Miovision may terminate this agreement for cause effective immediately:
a) if any of the Products is 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 Services due to circumstances beyond its’ reasonable control;
c) the Customer fails to comply with Section 4 (Customer Responsibilities); or
d) the Customer fails to make payment of any amount due to Miovision;
8.5 Effects of Termination. Upon the effective date of termination or expiration of this Agreement for any reason:
a) Customer shall immediately pay to Miovision any and all amounts owed under this Agreement for Services rendered, work performed to date on Deliverables, or Products delivered in accordance with Section 3.4 (Delivery of Products), under each applicable Quotation or Purchase Order accepted in accordance with Section 3.1 (Quoting and Pricing);
b) all rights and obligations under this Agreement shall terminate subject to Section 12.17 (Survival), and Miovision shall cease providing Customer with access to any Services, Deliverables, or Support;
c) Miovision may terminate any agreements with End Users in accordance with the Miovision TOU and any data associated with End Users will be made available to End User for a period of at least 30 days to allow End User to create backups;
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 Section 12.17 (Survival); and 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.
8.6 Effects of Miovision Termination for Cause. Upon the effective date of termination of this Agreement by Miovision for cause:
a) Customer shall immediately pay to Miovision all costs incurred by Miovision (including reasonable legal, collection and recovery fees and expenses) in enforcing its rights hereunder; and
b) Customer shall immediately pay Miovision for all applicable discounts provided to Customer as part of any multi-year discount agreement (if applicable) which by virtue of termination of this Agreement shall no longer be applicable.
8.7 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.
8.8 Reinstatement. If the Customer requests to reinstate its expired or terminated 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.
9. OWNERSHIP OF INTELLECTUAL PROPERTY
9.1 Miovision Intellectual Property. The Products are protected by copyright, trademark, patent, trade secret, and other laws and for the purpose of this Agreement do not constitute “works for hire” under any applicable copyright or similar laws. Miovision owns and retains, solely and exclusively, all rights, title, and interest to the Intellectual Property in Miovision’s Products whether the Products are separate or combined with any other products or services. This includes all Intellectual Property in and associated with Miovision’s products and services (including, without limitation, the Hardware, Firmware, Services, Developments, Documentation, Support or other products or services) and all modifications, changes, enhancements, or additions made thereto (whether initiated by the Customer or otherwise), and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other Intellectual Property in connection with any of the foregoing (collectively “Miovision IP”).
9.2 Non-Exclusivity. Miovision provides similar services and deliverables to other end users, customers, resellers, distributors, partners and other entities, and nothing in this Agreement shall be construed to prevent Miovision from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it similar products, services or materials or performing the same or similar functions as the Products contemplated by this Agreement or any applicable Quotation. For greater certainty, Miovision is free to use without restriction its general knowledge, skills and experience and any ideas, concepts, know-how and techniques learned in the course of providing Miovision’s Products to Customer under this Agreement.
9.3 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 grants to Miovision a worldwide, royalty-free, perpetual, irrevocable, fully paid-up, non-exclusive, sublicensable and transferable license to use, disclose and exploit all such Feedback for any purpose.
9.4 Licenses and Title.
a) Hardware Title. Title to the Hardware and all risks of loss of, loss of use of, or damage to the Hardware shall pass to the Customer upon delivery in accordance with the Section 3.4 (Delivery of Products).
b) Developments License. Subject to Miovision receiving payment in full for the applicable Developments, Miovision grants to Customer a limited, non-transferable, non-exclusive, revocable, perpetual, and non-sub-licensable right and license for End Users and Authorized Users to access and use the Developments solely in combination with other Miovision Products as may be further described in an applicable SOW. c) Firmware and Services. Licence rights are granted pursuant to the TOU.
9.5 Waiver of Moral Rights. To the extent that the Customer acquires rights in any of the Miovision IP, Customer hereby does and will: (i) assign such rights to Miovision; and (ii) waive any and all moral rights Customer may have in such Miovision IP or other Miovision Intellectual Property to and in favour of Miovision.
9.6 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
9.7 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.
10. PROTECTION OF CONFIDENTIAL INFORMATION
10.1 Confidential Information. Each Party acknowledges that it may be exposed to certain confidential or proprietary information and materials regarding the other Party’s business including, but not limited to, this Agreement, information concerning a Party’s business, technology, customers, partners and suppliers (including, without limitation, any information that is embedded in, or related to: (i) the business of Miovision; (ii) any goods, products, software, services, deliverables or documentation that is disclosed, supplied or licensed by or on behalf of Miovision; (iii) the technology, customers, partners, suppliers, products, documentation, software, deliverables or services of Miovision, and all Miovision IP and other Miovision Intellectual Property Rights; and (iv) the development, testing, or commercial exploitation of any of the foregoing; all of which are considered and deemed to be the “Trade Secrets” of Miovision), which: (a) is disclosed by the disclosing Party in any manner and is marked or identified as confidential or proprietary (or a like designation) at the time of disclosure; or (b) given the circumstances of the disclosure, should be understood by the recipient, exercising reasonable business judgment, to be confidential (“Confidential Information”). For clarity, the disclosing Party’s customer lists, partner lists, marketing plans, business plans, product plans and pricing models, and Miovision’s Documentation shall always be treated as Confidential Information regardless of whether they are marked or identified as being confidential or proprietary or provided in writing, orally or otherwise.
10.2 Exclusions. Confidential Information shall not include any information or material which: (i) was lawfully in the possession of the receiving Party prior to receipt from the disclosing Party; (ii) is or becomes publicly available through no wrongful act of the receiving Party; (iii) is obtained by the receiving Party from a third-party without restriction; (iv) is independently developed by the receiving Party; (v) is disclosed by the receiving Party with the disclosing Party’s prior written approval; or (vi) is required to be disclosed by a court of competent jurisdiction or other governmental authority provided that the receiving Party takes reasonable steps to give the other Party sufficient prior written notice so that it can challenge such requirement.
10.3 Restrictions. Except in relation to Trade Secrets of Miovision, each Party shall for a period of five (5) years following the expiry or termination of this Agreement: (i) use a reasonable standard of care to protect Confidential Information which shall be no less protective than the manner in which the receiving Party protects the confidentiality of and unwanted disclosure of its own confidential information; (ii) not use Confidential Information except as permitted by the disclosing Party; (iii) not disclose Confidential Information except to its Affiliates, employees or representatives to whom disclosure is necessary to effect the purposes of this Agreement, and who are similarly bound to hold the Confidential Information in confidence; and (iv) not reproduce Confidential Information without the disclosing Party’s prior written consent. The confidentiality obligations of the Customer shall apply indefinitely in relation to Trade Secrets of Miovision.
10.4 Permitted Disclosures. Either Party may disclose this Agreement in confidence, and only to the extent reasonably necessary: (i) to legal counsel of the Party; (ii) to accountants, banks, proposed investors, and financing sources and their advisors; (iii) in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in connection with a merger or acquisition or proposed merger or acquisition, or similar transaction. 10.5 Return of Confidential Information. Each Party shall, upon termination or expiration of this Agreement, return to the disclosing Party all tangible manifestations containing Confidential Information that have been provided under this Agreement, including any copies and reproductions. The provisions of this Section 10.5 (Return of Confidential Information) shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving Party according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
11.1 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 Worker’s 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. Miovision shall maintain network security, and privacy coverage 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.
11.5 Certificates. The policy limits required in this Section 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
12. GENERAL PROVISIONS
12.1 End of Life. Following the Initial Term, Miovision reserves the right to discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any or all of the Products covered by this Agreement. Miovision will provide the notice as required by law, prior to discontinuing any Products covered by this Agreement 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 Miovision’s Products, 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: (i) 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 (ii) 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, Quotations, SOW and schedules or attachments, constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes all prior understandings, agreements, discussions, covenants, and arrangements between the Parties relating thereto.
a) Incorporation. The terms of any Quotation, Purchase Order, SOW, or documents as otherwise stated herein, that are necessary to give effect to this Agreement are hereby incorporated by reference.
b) End User 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 a Quotation issued by Miovision to Customer and this Agreement, the terms contained in the Quotation issued by Miovision to Customer shall take priority to the extent of the conflict for that Quotation only.
c) Negotiated Terms. Any negotiated and fully executed version of this Agreement will take precedence over any standard forms of this Agreement for the Term set out in the negotiated documents.
d) Inconsistent Terms. If there is a conflict between this Agreement and any other Miovision agreements, including any agreements incorporated by reference, 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 Section 8 (Term and Termination).
12.6 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship. No Party shall have authority to bind the other Party in any way or represent that it has such authority.
12.7 Non-solicitation. During the Term and for a period of one (1) year thereafter 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: (i) to an Affiliate; (ii) to a lender whose security interests must be perfected; or (iii) to any successor in interest in the event that Miovision merges or consolidates with a third-party, or a third-party purchases all, or substantially all of the shares or assets of Miovision, provided that in each case the assignee or transferee agrees to be bound by this Agreement. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns.
12.9 No Third-Party Beneficiaries. Nothing contained herein, express, or implied, is intended to confer upon any person or entity, other than the Parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
12.10 Notices. Any and all notices, demands and other communications under this Agreement shall be in writing, addressed to the other Party hereto at the address for that Party (as may be set out in the applicable Quotation, or otherwise in the case of Miovision, to: Attention: Legal Team, Miovision Technologies Incorporated, 137 Glasgow Street, Suite 110, Kitchener, Ontario ON N2G 4X8, Canada). All notices shall be effective and deemed to be delivered: (i) if delivered in person or by courier, at the time of actual delivery; (ii) if sent by email, on the third (3rd) day following the date of dispatch; (iii) if sent by mail (postage prepaid) within the country, the fifth (5th) day after its mailing; (iv) if sent by mail (postage prepaid) outside the country, the tenth (10th) day after its mailing.
12.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts of the Province of Ontario, Canada (and all courts competent to hear appeals therefrom) and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds, and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. In addition, the Parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
12.12 Dispute Resolution. The Parties will submit all disputes arising under this Agreement to arbitration. Notwithstanding the foregoing, a Party shall retain the right to immediately seek injunctive or equitable relief in a court of competent jurisdiction. Arbitration shall take place in Toronto, Ontario, Canada and be conducted in the English language. The arbitration shall be held in accordance with the Rules of Arbitration of the International Chamber of Commerce (“Arbitration Centre”) then in force. Each Party shall bear one half of the costs associated with the arbitration proceedings. The decision of any arbitration shall be final and binding on the Parties with no right to appeal.
12.13 Export and Control Restrictions. This Agreement is made subject to any restrictions concerning the export of products or technical information that may be imposed on the Parties from time to time. Each Party agrees that it will not export directly, or indirectly, any 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.
12.14 Severability. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or unenforceable, such provision shall either be modified to the extent necessary to render it enforceable or shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
12.15 Amendments. This Agreement shall not be amended, modified, or waived except in a writing signed by both Parties.
12.16 No Waiver. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Party’s rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
12.17 Survival. The provisions of Sections 3 (Purchase Orders and Payment Terms), 4 (Customer Responsibilities), 5 (Warranties and Disclaimers), 7 (Limitation of Liability), 8 (Term and Termination), 9 (Ownership of Intellectual Property), 10 (Protection of Confidential Information and 12 (General Provisions) shall survive the expiration or termination of this Agreement.
As used in the Agreement the following terms are defined as indicated below:
“Affiliates” means, with respect to a Party to this Agreement, any other person or entity that now or in the future, directly or indirectly, controls, is controlled by, or is under common control with that Party.
“Authorized User(s)” means employees, consultants, contractors, and agents of Customer, Customer’s Affiliates and Customer’s suppliers or service providers (as applicable) who are authorized by Customer to access and use the Products, Subscription Services and/or Miovision Scout™ Data Processing Services under the rights granted to Customer pursuant to this Agreement.
“Batch” means a group of locations (i.e. intersections) as set out on a Quotation, for which the group of locations has a common date which the Subscription Services will be activated for the End User. For clarity, a Quotation may have one or more Batches described within it.
“Commencement Date” unless otherwise mutually agreed in the applicable Quotation, means: a) for Subscription Services: the Commencement Date of a given Batch is the date upon which the Batch will be activated for the End User as detailed in the applicable Quotation; b) for Firmware: the later of the date the Hardware with the activated Firmware is shipped to the End User, or the date the Firmware is activated on the Hardware for the End User; c) for Hardware, Development or Support purchases, the date of the accepted Quotation or Purchase Order, as applicable for such Hardware, Development or Support; and d) for Miovision Scout™ Data Processing Services, the date of the accepted Quotation or Purchase Order, as applicable, for such Miovision Scout™ Data Processing Services.
“Customer” means either the End User or a Partner.
“Developments” means custom engineering services including research and development, software development, deployment scheduling, or setup and initialization including any timelines, deliverables, and fees as may be further defined in an SOW.
“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, Subscription Services and/or Miovision Scout™ Data Processing Services.
“End User” means the ultimate customer of the Products for its own use and without a view to resale thereof.
“Estimated Ship Date” means the estimated date that the Product(s) will ship to the Customer as may be set out in the applicable Quotation.
“Fees” means, collectively, any and all amounts owing by the Customer with respect to the Products ordered under the applicable Quotation.
“Firmware” means the firmware and software products developed by Miovision and/or designed for installation on a specific Miovision Hardware unit as described in the applicable Miovision Quotation.
“Hardware” means the Miovision TrafficLink™ Hardware or the Miovision Scout™ Hardware, and any other components specifically described as hardware in the applicable Quotation. MIOVISION TERMS OF PURCHASE Version: November 1, 2021 Page 10 of 10 MIOVISION CONFIDENTIAL & PROPRIETARY
“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: (i) rights associated with works of authorship throughout the universe including, but not limited to, copyrights, moral rights, and mask works; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) 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).
“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.
“Miovision Scout™ Data Processing Services” means Miovision’s data processing services for data generated by End Users using Miovision Scout™ Hardware and related Documentation. The term “Miovision Scout™ Data Processing Services” shall include any and all deliverables to be provided to the End User by Miovision in relation to the Miovision Scout™ Data Processing Services pursuant to the applicable Quotation.
“Miovision Scout™ Data Processing Services Term” means the period of time specified in the application Quotation during which the Customer is granted the licenses and right to access and use the Miovision Scout™ Data Processing Services in accordance with and subject to the terms of this Agreement. The Miovision Scout™ Data Processing Services Term commences on the applicable Commencement Date for Miovision Scout™ Data Processing Services.
“Miovision Scout™ Hardware” means the tangible, physical, Miovision-produced, Miovision Scout™ branded hardware equipment and related Documentation that may be purchased by Customer under this Agreement. As used in this Agreement, the term “Miovision Scout™ Hardware” includes any and all firmware incorporated therein, and expressly excludes Miovision TrafficLink™ Hardware, Services, and Developments.
“Miovision TrafficLink™ Hardware” means the tangible, physical, Miovision-produced, Miovision TrafficLink™ branded hardware equipment and related Documentation that may be purchased by Customer under this Agreement. As used in this Agreement, the term “Miovision TrafficLink™ Hardware” includes any and all firmware incorporated therein, and expressly excludes Miovision Scout™ Hardware, Services, and Developments.
“Partner” means the Miovision-approved entity named on the applicable Quotation that purchases Products from Miovision in accordance with this Agreement for the purpose of marketing and reselling such Products in accordance with this Agreement and the applicable partner agreement.
“Party” means Miovision or Customer; “Parties” means Miovision and Customer.
“Purchase Order” means a written order for the purchase or license of Products, made by Customer and issued to Miovision pursuant to this Agreement and the Miovision Quotation.
“Quotation” means Miovision’s written quotation to the Customer for the Products being purchased under this Agreement.
“Service(s)” means any or all of the following: (i) Subscription Services; (ii) Miovision Scout™ Data Processing Services; or (iii) any other services made available by Miovision from time to time and described in the applicable Quotation.
“Services Term” means the applicable Subscription Services Term or Miovision Scout™ Data Processing Services Term.
“Subscription Service(s)” means Miovision’s software-as-a-service subscription offering for End Users specific to: (a) Miovision TrafficLink™ Hardware; or, (b) any other services made available by Miovision from time to time and described in the applicable Quotation or Partner Agreement. The term “Subscription Service(s)” shall include all related Documentation, as well as the deliverables to be provided to the End User by Miovision in relation to the Subscription Services pursuant to the applicable Quotation.
“Subscription Services Term” means the period of time specified in the applicable Quotation during which the Customer is granted the licenses and right to access and use the Subscription Services in accordance with the Miovision TOU.
“Unacceptable Use” means (i) use of Miovision’s data connection for a purpose other than what is intended by Miovision; (ii) excessive or inappropriate use of Miovision’s data connection including use for non-traffic-related purposes; (iii) technical issues with Customer equipment; (iv) the configuration of Miovision’s data connection is tampered with; (v) any resale, transfer, distribution or sharing of Miovision’s data connection (or any of its functionality) with or to any other person or party; (vi) any alteration, copying, reproduction of or tampering with electronic serial numbers or other identification, signaling or transmission functions or components of the Product; (vii) third-party products or services that are connected to the Product, Subscription Services, or Miovision’s data connection; (vii) use Miovision’s data connection for the transmission of video or audio without a corresponding audio or video subscription or (viii) as further described in Miovision’s Acceptable Use Policy at https://miovision.com/legal/policies/acceptable-use-policy.