1. USE CONSTITUTES ACCEPTANCE
BY ACCESSING, USING, CONFIGURING OR ACTIVATING (“Use” or “Using”) ANY MIOVISION PRODUCTS OR CLICKING AN ONLINE BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, THE AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT:
I. AUTHORIZED USER HAS READ, UNDERSTOOD AND ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND
II. THE INDIVIDUAL WHO ENTERS INTO THIS AGREEMENT ON BEHALF OF CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER (AND ITS AFFILIATES) TO THIS AGREEMENT.
This Agreement applies where Miovision provides Services to an Authorized User. Authorized User may order the Services from, and make payment for the Services to, either: (a) Miovision directly in accordance with the applicable Quotation, Purchase Order, or Miovision Master Services Agreement (“MSA”) and (b) through a Partner under the terms of a separate agreement with said Partner (“Partner Agreement”).
Certain capitalized terms are defined in Section 14 (Definitions) and others are defined contextually in this Agreement. Capitalized terms not defined in this Agreement shall be given the definition provided to it in the MSA.
3.1. Provision of Access. Authorized Users shall access the Services by means of a specific Account using individual user login names and passwords. Authorized User is solely responsible for the confidentiality and use of user login names and passwords, use of the Authorized User Account, and all charges incurred from Use of the Services accessed via their Account.
3.2. Customer and Authorized User Access. Customers have the right to provide access to the Services to its Authorized Users for the purpose of searching, viewing, and requesting Customer Data. In no event shall the Customer provide anyone, other than Authorized Users, with access to the Services.
3.3. Miovision Account Access. Miovision shall have the right, in its sole discretion, to access all Authorized User Accounts for all Customers, from time to time for the purposes of Support, administration, invoicing and to inspect Customer and its Authorized User’s utilization of Services for the purpose of ensuring compliance with the provisions of this Agreement.
3.4. Additional Services and Hardware. This Agreement does not cover the purchase of any Hardware or any custom development services and should be read in conjunction with the MSA or any Miovision agreements that make reference to this Agreement.
4. CUSTOMER RESPONSIBILITIES
4.1. Compliance with Policies. Customer and each Authorized User shall comply with Miovision’s guidelines and policies, located at https://www.miovision.com/legal/policies which are hereby incorporated by reference, when using the Products. Miovision may update Miovision’s guidelines and policies from time to time.
4.2. Data Connections.
a) Configuration. Customer shall not install, configure or commission Miovision Products or data connections in a manner that: (i) permits or results in a Prohibited Use as further described in Section 4.5 hereof; or (ii) results in data use in excess of any limitations outlined in the applicable Quotation, Purchase Orders, or Partner Agreement (the “Usage Limits”).
b) Right to Monitor. Miovision has the right to: (i) monitor the usage of any data connection; and (ii) contact Customer, or Authorized Users through their Account, if there are any issues or misuse of the data connection or violation of the Usage Limits.
c) Right to Limit Use. Miovision reserves the right to limit, throttle or cap data use to ensure that applicable Usage Limits are not exceeded.
4.3. Customer Requirements. Customer is responsible for all of its own tools, computer, software, network and internet connection costs related to its Use of the Products.
4.4. Compliance with Laws. Customer hereby certifies that it will, at its own cost and expense, fully comply with all laws, ordinances, legislation and regulations applicable to the possession, Use, operation, repair, maintenance, transportation, importation and exportation of Products.
4.5. Prohibited Use. Miovision provides programmatic access and integration means to the Products via application programing interfaces and other technologies and Miovision encourages the use of these Product features. However, Customer shall not (and shall not permit others, including without limitation, Authorized Users to) directly or indirectly: (i) use the Products for any purposes beyond the scope of the licensed rights and access granted in this Agreement; (ii) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to derive source code from or create derivative works based on the Products, in whole or in part; (iii) use, modify, enhance, copy or sublicense any software or firmware embedded in any Products; (iv) remove, modify, obscure, deface or otherwise alter or tamper with any copyright, trademark or other proprietary notices, labels, legends or marks on any Products; (v) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the Products, except to the extent as expressly permitted in Section 8 (Intellectual Property and Licenses) or where Customer has obtained full title to the Products; or (vi) use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates Applicable Law.
5.1. Customer and Authorized User Representations and Warranties. Customer and its Authorized Users represent and warrant 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. The Miovision Limited Warranty for Hardware and Firmware as further described in its Hardware & Firmware Warranty (http://www.miovision.com/legal/policies/hardware-warranty) is hereby incorporated by reference.
b) Services. Miovision warrants that during the Term, the Services will operate substantially in accordance with, and have the functionality set out in, the then-current written Documentation for the Services under normal uses and conditions.
c) Warranty Limitations. The Services use of, and reliance on, data provided by parties other than Miovision requires the exercise by the Customer and its Authorized Users of subjective judgments as to accuracy, materiality, relevance and other factors. It is the responsibility of the Customer and its Authorized Users to review, check and confirm results. Miovision uses reasonable efforts to ensure that the Use of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed.Miovision shall not be responsible at any time for any claims, lost data or damages incurred while transmitting information on the internet with respect to the Services. While Miovision shall take reasonable precautions to ensure security of the Services, and to protect Customer Data, the Customer acknowledges that: (i) the internet provides the opportunity for unauthorized third parties to gain access to the Services and Customer Data; and (ii) Miovision cannot and does not guarantee the privacy or security of any Customer Data transferred over or stored in any system connected to the internet, and disclaims any warranty or representation that confidentiality of information transmitted through the provision of the Services can or will be maintained.
d) Warranty Disclaimers. THE PROVISIONS OF SECTION 5.2 (MIOVISION LIMITED WARRANTIES) AND SECTION 7 (LIMITATION OF LIABILITY) STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND CUSTOMER’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 Authorized User) claim, suit, action or judgment (commenced or threatened) brought against Miovision resulting from: (i) the infringement or alleged infringement of a third-party’s Intellectual Property Rights resulting from Miovision’s compliance with any designs, specifications or instructions of Partner or Authorized User; (ii) any use of Customer Data by Miovision in accordance with the terms hereof; (iii) use of the Products other than as intended by Miovision; (iv) the performance of any illegal, fraudulent or unauthorized services by, or on behalf of, Partner or Authorized User; (v) Customer’s or any Authorized User’s failure to comply with, or breach of, any terms of this Agreement or any Applicable Laws. In relation to any indemnity by 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 its obligations.
7. LIMITATION OF LIABILITY
7.1. Specific Limitations.
a) Product Use. Miovision is not responsible or liable for the Use of Products resulting from access via Customer Accounts or by its Authorized Users, whether such Use is permitted by or in violation of this Agreement.
b) Backups. Miovision maintains backup copies of all Customer Data, but Miovision will in no circumstances have any liability for the loss or destruction of, or for corruption or disclosure of, Customer Data caused by Customer, or its Authorized User’s, errors, the acts or omissions of third parties, circumstances constituting a Force Majeure Event or circumstances arising from transmission over public telecommunications (including internet) lines, or transportation via commercial carriers.
c) Data Access. Miovision shall not be liable for any access to or usage by third parties of any information used in connection with the Services.
d) Warranties. Miovision’s sole and exclusive liability for a breach of warranty under Section 5.2(b) (Services) shall be for Miovision to correct any reported problem in the Services that is directly attributable to Miovision’s own errors or omissions.
e) Customer Responsibilities. Miovision is not liable for any interruption to the Miovision Services resulting from actions taken to ensure Customer compliance with this agreement including but not limited to Section 4 (Customer Responsibilities).
7.2. Exclusion of Consequential Damages. In no event will Miovision have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if Miovision have been advised of the possibility of such damages or if 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 OR ON BEHALF OF CUSTOMER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY.
7.4. Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (A) DAMAGES ARISING FROM INFRINGEMENT OF MIOVISION IP (AS DEFINED IN SECTION 8.1) 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 Customers 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, 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.
8. INTELLECTUAL PROPERTY & LICENSES
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. The foregoing includes all Intellectual Property in and associated with Miovision’s Products (including, without limitation, the Hardware, Firmware, Services, Professional Services, Developments, Documentation, Support or other products or services) and all modifications, changes, enhancements, or additions made thereto (whether initiated by the Customer, Authorized User, 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. IP Rights Notices. Customer and Authorized Users are 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 and Authorized Users make of the Documentation. Use of the Products does not grant any ownership rights to Customer, or any other party, in or to the Miovision Technology or Miovision IP.
8.3. Non-Exclusivity. Miovision provides similar services and products to other end users, customers, resellers, distributors, partners and other entities, and nothing in this Agreement shall be construed to prevent Miovision from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it similar services, products or materials or performing the same or similar functions as the Products contemplated by this Agreement or any applicable 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 Customer and Authorized Users under this Agreement.
8.4. Customer Licenses and Right to Use.
a) Perpetual Firmware License. Subject to Miovision receiving payment in full for the applicable Firmware, and Customer and Authorized User’s compliance at all times with the terms of this Agreement, Miovision grants to Customer a limited, non-transferable, non-exclusive, perpetual and non-sub-licensable right and license for Authorized Users to access and Use the applicable purchased version of Miovision’s Firmware on the particular Miovision’s Hardware device described in the applicable Order Form.
b) Use of Services. Subject to Miovision receiving payment in full for the applicable Products, and Customer’s and Authorized User’s compliance at all times with the terms of this Agreement, Miovision grants to Customer the right to access, Use and display the Service(s) exclusively for Customer’s internal use during the Term. Customer acknowledges and agrees that some of the Products or portions thereof is produced under license from third parties. Specifically, Surtrac services are licensed from Carnegie Mellon University and U.S. Patent No. 9,830,8312 and 9,159,229 are licensed from Carnegie Mellon University.
8.5. Customer Data.
b) Ownership. Customer Data is solely owned by, and is the sole responsibility of, the Customer. Customer is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data.
c) License Grant. Customer grants Miovision a worldwide, royalty-free, perpetual, irrevocable, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform the Customer Data in connection with the delivery and improvement of Services for Customer. This license is necessary for Miovision to deliver, test and improve the Products. In particular, Miovision may: (i) collect, compile, store and use Customer and Authorized User’s behavioural data for Miovision’s internal use to help Miovision understand how Miovision’s products and services are being used by end users (“Behavioural Data”); and (ii) use frames or segments from video components of the Customer Data for the purposes of training, improving or validating Miovision’s automated processing systems (“Training Frames”).
d) Anonymous Data. Customer grants Miovision full rights to anonymize Customer Data and any usage information so that it does not identify Customer as a user, identify specific transactions carried out by Customer, or contain any other confidential information of Customer or any other individual or entity (“Anonymous Data“). Customer agrees that Miovision: (i) has full ownership over Anonymous Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data with other information and services (“Aggregate Data“); (iv) has the right to use the Aggregate Data in the furtherance of Miovision’s business; and (v) may disclose, sell, and publish Aggregate Data to any party through any means. Miovision is prohibited from disclosing Customer Data and usage information to any party except in accordance with this Agreement or Customer’s express consent.
8.6. Feedback. Customers may (but are not required to) provide feedback, comments and suggestions, including in respect of, or concerning, any improvements, errors, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to Miovision. Feedback may be provided directly to Miovision by a Customer or via a Partner. 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.
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: (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.
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, Authorized User, Partner or any third-party, any Intellectual Property Rights or other right, title or interest in or to the Miovision IP or any other Miovision Intellectual Property.
8.9. Confidentiality of Miovision IP. All Miovision IP 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. TERM AND TERMINATION
9.1. Term. This Agreement shall take effect on the date Customer, or its Authorized Users are granted access to the Services and, unless terminated earlier pursuant to the terms of this Agreement, shall remain in effect during the period of time specified in the MSA, an applicable Order Form, or Partner agreement, during which the Customer is permitted to Use the Services (the “Initial Term”). Unless otherwise stated in the Parties’ MSA, an applicable Order Form, or Partner agreement, this Agreement shall renew for additional one (1) year periods, or as may be otherwise detailed in the applicable renewal Order Form (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, as applicable.
9.2. Suspension. Miovision may suspend Customer’s access, performance, data limits or Use of the Services (including Customer’s access to the Hosted Services and Software) at any time for a breach of Customer’s obligations under this Agreement or the MSA including, without limitation, overdue payment, a violation of any licenses or license restrictions, a violation of Section 4 (Customer Responsibilities), or any misuse of the Services. Any suspension shall not relieve Customer of its obligations under this Agreement. Miovision will not be liable to Customer nor to any third-party for any suspensions.
9.3. Miovision Termination. Miovision may terminate this agreement effective immediately:
a) if any of the Services is not in conformity or compliance with Applicable Laws or requests from government entities and conformity cannot be ensured within a reasonable time;
b) in order to comply with Applicable Law or requests of governmental entities;
c) Miovision is no longer able to provide Services due to circumstances beyond its’ reasonable control; or
d) in the event that the MSA governing the purchase of the Services by or on behalf of Customer is terminated.
9.4. Effects of Termination. Unless otherwise stated in this Article 9, upon the effective date of termination or expiration of this Agreement for any reason:
a) all rights and obligations under this Agreement shall terminate subject to Section 13.17 (Survival), and Miovision shall cease providing Customer and Authorized Users with access to the Services and Support;
b) Miovision will retain Customer Data for a period of at least 30 days to allow Customer to create a backup; and
c) Both parties shall continue to have all remedies which are available to them at law or in equity including, without limitation, the right to injunctive relief.
10. PROTECTION OF CONFIDENTIAL INFORMATION
10.1 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 summons,
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.
10.2 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.
10.3 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 10.3.
10.4 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.
10.5 Irreparable Harm; Remedy. Both parties acknowledges and agrees that, in the event of a breach of any of the foregoing provisions in this Article 10, 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.
10.6 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, both Parties 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.
11. SECURITY PRACTICES AND REQUIREMENTS.
11.1. Miovision shall use industry standard efforts that are designed to keep all Customer Confidential Information and Personal Information secure and free from unauthorized access or disclosure, as described in Miovision’s Security Guidelines (https://miovision.com/legal/policies/security-policy), and Miovision shall, and shall direct its Representatives to, at all times comply with, the Security Guidelines.
12.1. Reasonable Effort. Miovision’s standard support levels are found at its Maintenance & Support Policy (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.
12.2. Down Time. Support will not be available during system maintenance periods, or such times as Miovision may require for purposes of upgrades and maintenance to Services or underlying systems, and Miovision will make reasonable efforts to announce the scheduled downtime via e-mail to Authorized User’s designated e-mail address.
12.3. Exclusions. Support does not include services required as a result of: (a) Customer or Authorized User misuse, improper use, alteration, or damage of Miovision’s products or services; (b) any problem caused by modifications to Miovision’s products or services not made or authorized by Miovision; (c) any problem resulting from Customer or Authorized User combining or merging Miovision’s products or services with any hardware, software or services not supplied by Miovision, or not identified by Miovision as compatible with Miovision’s products or services; or (d) any custom development services. Circumstances outside the control of Miovision, including Force Majeure Events, and hardware, software or communications systems failures, may impact Miovision’s ability to achieve target service levels. Miovision shall not be liable for any claims resulting therefrom provided Miovision is using reasonable efforts to reinstate normal service levels and system access.
13. GENERAL PROVISIONS
13.1. Entire Agreement. This Agreement, including any URLs, Order Form, 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 the MSA, any Order Form, or Partner Agreement that are necessary to give effect to this Agreement, including, but not limited to, the Products being purchased and the applicable Term are hereby incorporated by reference.
b) 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.
c) Negotiated Terms. Any negotiated and fully executed version of this Agreement will take precedence over any standard forms of this Agreement for the Term set out in the negotiated documents.
d) Inconsistent Terms. If there is a conflict between this Agreement and any other Miovision agreements, including any agreements incorporated by reference, the other Miovision agreements shall prevail.
13.2. 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 Services and Support covered by this Agreement. Miovision will provide any notice required by law, prior to discontinuing any Products covered by this Agreement. Nothing in this Agreement shall preclude Miovision from modifying the content, features, functionality, pricing, or warranty terms of any of Miovision’s Products or any other products or services in any way at any time at Miovision’s sole discretion.
13.3. Publicity. 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.
13.4. 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.
13.5. 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 and in accordance with Section 9 (Term and Termination).
13.6. Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. No part y shall have authority to bind the other party in any way or represent that it has such authority.
13.7. 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.
13.8. Assignment. Neither party shall assign or transfer any rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Miovision may, without the requirement to obtain the consent of the 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.
13.9. 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.
13.10. 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 Order Form, when applicable, or otherwise in the case of Miovision, to: Attention: Legal Team, Miovision Technologies Incorporated, 137 Glasgow Street, Suite 110, Kitchener, Ontario ON N2G 4X8, Canada). All notices shall be effective and deemed to be delivered: (i) if delivered in person or by courier, at the time of actual delivery; (ii) if sent by email, on the third (3rd) day following the date of dispatch; (iii) if sent by mail (postage prepaid) within the country, the fifth (5th) day after its mailing; (iv) if sent by mail (postage prepaid) outside the country, the tenth (10th) day after its mailing.
13.11. Governing Law. For Customer that are non-governmental entities, this Agreement is governed by and construed in accordance with the laws of the Province 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. For Customer that are governmental entities, the applicable laws and courts of Customer jurisdiction shall apply. The UN Convention on Contracts for the International Sale of Goods does not apply to these Terms. 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.
13.12. 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.
13.13. Dispute Resolution. Unless prohibited by Applicable Law, 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 Waterloo, 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.
13.14. Carbon Credits. If applicable, any carbon credits generated from the use of the Products shall be the property of Miovision.
13.15. 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 Hardware, Services, Documentation, Deliverables, Support or other Miovision products or services to a location or in a manner that at the time of export requires an export license or other governmental approval without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with Applicable Laws.
13.16. 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.
13.17. Amendments. MIOVISION MAY UPDATE THESE TERMS FROM TIME TO TIME AND WILL PROVIDE THE CUSTOMER WITH NOTICE OF SUCH CHANGES.
13.18. 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.
13.19. Survival. The provisions of Sections 3 (Services), 4 (Customer Responsibilities), 5 (Warranties), 7 (Limitation of Liability), 8 (Intellectual Property and Licenses), 9 (Term and Termination), 10 (Protection of Confidential Information), and 12 (General Provisions) shall survive the expiration or termination of this Agreement.
As used in the Agreement the following terms are defined as indicated below:
“Account” means Customer’s Subscription Services account(s) accessible at (i)
www.miovision.com; or (ii) such other URL(s) as Miovision may designate from time to time.
“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.
“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 and Services contemplated by this Agreement.
“Authorized User(s)” 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. In each case, Customer is responsible for the acts and omissions of its Authorized Users.
“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.
“Customer” shall mean an ultimate legal entity, government agency or organization to whom an Order Form is issued or issued by.
“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 Authorized User through the Hardware or Services, or as collected or generated thereby; and (b) any and all traffic data, traffic data aggregations and other information collected by the Hardware 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 Hardware or Services. Customer User Data excludes Miovision Data.
“Deliverable(s)” means any and all reports, studies or other outputs to be provided by Miovision to Customer in relation to the applicable Services as may be further described in the applicable Quotation or Partner Agreement.
“Documentation” means all marketing, sales, instructions, manuals, handbooks, guides, technical literature and other written materials, including revisions thereto, for the Use of the Services as provided by Miovision from time to time, either electronically or in hard copy form under this Agreement or otherwise generally provided by Miovision to end customers in connection with the Services.
“Error” means any failure of the Services to conform to the applicable specifications or documentation.
“Account” means Customer’s Subscription Services account(s) accessible at (i)
www.miovision.com; or (ii) such other URL(s) as Miovision may designate from time to time.
“Firmware” means the firmware and software products developed by Miovision and/or designed for installation on a specific Miovision Hardware unit as described in the applicable Miovision Quotation or Partner Agreement.
“Hardware” means any Miovision supplied hardware or other components described as hardware in any applicable Order Form.
“Hosted Services” means the Services described in this Agreement that enable Customer and Authorized Users to Use the Software, including Software-as-a-Service, as provided herein.
“Hosting Provider” means the Third-Party Provider engaged by Miovision to host the Software for Use by Customer hereunder.
“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).
“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://www.miovision.com/legal/policies/support-policy), as amended from time to time by the parties in writing.
“Miovision” means either Miovision Technologies Incorporated or an Affiliate of Miovision Technologies Incorporated as named in an applicable Quotation.
“Miovision Data” means all data associated with the Hardware, Services, Documentation, Deliverables, Support or any other products or services, or generated by or through the use of any of the foregoing, other than Customer Data. For clarity, Miovision Data includes, without limitation, the Anonymous Data, Behavioural Data, the Training Frames, and all Miovision IP in the Deliverables.
“Order Form” means an ordering document, including but not limited to a Customer Purchase Order or a Quotation, specifying the Products to be provided hereunder that is entered into between the Customer and Miovision, including any addenda and supplements thereto.
“Partner” means a Miovision-approved entity that purchases Miovision’s products or services from Miovision and markets and resells Miovision’s products or services to end customers, in accordance with an agreement between Miovision and the Partner.
“Products” means offerings Miovision makes available to the Customer for purchase and further defined in an Order Form or applicable statement of work, including without limitation, all Hardware, Software, Firmware, Services, Developments, and Professional Services.
“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 statement of work; 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 or Software-as-a-Service, technical support contracts and other provisions of generic goods or services.
“Purchase Order” means a written order for the subscription or license to the Services provided under this Agreement.
“Quotation” means Miovision’s written quotation for the Services being purchased under the MSA and licensed or Used in accordance with this Agreement.
“Scheduled Maintenance” means all scheduled maintenance provided by Miovision in accordance with Maintenance & Support Guidelines (https://www.miovision.com/legal/policies/support-policy) hereto.
“Service(s)” means those services provided by Miovision to Customer and Authorized Users pursuant hereto, including, but not limited to, Software-as-a-Service, Hosted Services, Maintenance and Support services, Statement of Work services, training services and the provision of Deliverables and Documentation.; or any other services made available by Miovision from time to time and described in the applicable Quotation or Partner Agreement.
“Software” means the collective or individual computer software programs identified within any Order Form, including on Quotation, Statement-of-Work, Customer hardware and/or hosted by the Hosting Provider, or delivered as Software-as-a-Service (SaaS) and includes any accompanying research and development, documentation and work papers, and all new releases, versions, Updates, Error fixes, modifications and enhancements.
“Third-Party Provider” means a third party that provides services or software to Miovision or Customer hereunder.
“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.