Master Sale of Good and Services Agreement

 

This Agreement is a legal agreement between Customer and Miovision Technologies Incorporated and its Affiliates (collectively the “Company”) with respect to the provision of Company Products and Services. This Agreement is the complete and exclusive statement of agreement between Customer and Company. Customer’s acceptance of the Company Products and Services will constitute its acceptance of this Agreement.

1. Definitions.

Unless otherwise defined in the Order Form, when used in this Agreement the terms listed in Schedule “A” shall have the meanings set out therein when used in the Agreement.

2. Order Forms.

2.1 Order Forms, Data Security and Insurance

Company shall make available to Customer the Company Products and Services, and any Third Party Products in accordance with the terms of the Agreement. All Company Products and Services and associated Documentation are made available to Customer and its Authorized Users subject to Customer’s and its Authorized Users’ compliance with this Agreement. Any Third Party Products may be subject to additional terms which may be attached as an exhibit to the applicable Order Form. If not, subject to section 9.5, the Third-Party Software shall be licensed under the terms and conditions for Application Software. The Data Security Policy available at miovision.com/legal/policies/security-policy shall apply to all Customer Data and Traffic Data input into Application Software hosted by third party cloud hosting services on behalf of Company. Company shall maintain the insurance set out in the Insurance Addendum in Schedule “B” during the Term.

2.2 Warranties and Support Services

Company shall perform the Services in a competent and professional manner. If any Application Software or Hardware supplied as part of a Subscription Service is not operating substantially in accordance with its Documentation, Customer shall contact Company via email or customer service chat. The warranty and support processes at miovision.com/legal/policies shall apply. These are the sole remedies for failures of Company Products or Subscription Services to operate according to documentation.

2.3 Changes to Products and Services

Nothing in this Agreement prevents Company from changing or discontinuing any Company Product or Service. Subject to Section 8.5, Company will not materially reduce the functionality of any Subscription Service delivered during the Service Period. Company may use replacement parts that are new, refurbished, or equivalent. Some parts may be subject to manufacturer discontinuance.

2.4 Partial Deliveries

Company may, at its sole discretion, make partial deliveries of Company Products or Services to Customer. Each partial delivery will be invoiced per Sections 4.2 and 4.3.

3. Company Products and Services.

3.1 License Grant

Subject to Customer and its Affiliates’ compliance with the Agreement and payment of all applicable Fees, Company grants Customer a personal, non-exclusive, non-sublicensable, non-transferable, and terminable license for the Software during the Subscription and/or Lifetime License Period(s), permitting Authorized Users to: a) Access Application Software; b) Use the Software with associated Hardware for internal, non-commercial traffic management; c) Use APIs or SDKs to enable functionality with Third Party Software or Hardware; d) Access Data Services using a Company-supplied API key; e) Use and reproduce Documentation with the applicable Company Products or Services. These license rights terminate immediately upon termination of the Agreement. Customer is responsible for use of login credentials and API keys and must report loss or theft immediately.

3.2 Customer Contractors

Customer may permit a Customer Contractor to exercise the license rights granted to Customer in Section 3.1 provided that Company approves the Customer Contractor and the Customer Contractor agrees in writing: (i) that Company has no responsibility or liability to it whatsoever; (ii) to be bound by Sections 3.3 (Restrictions on Use), Section 3.4 (No Reverse Engineering), Section 3.6 (Ownership of Company Offerings and Company Works), Section 3.8 (Feedback and Innovations), Section 5 (Confidentiality), Section 10.4 (Governing Law), Section 10.5 (Forum) below; and (iii) to be liable to Company for any breach thereof; and (iv) that Customer hereby agrees to be jointly and severally liable to Company for any breach of these provisions by the Customer Contractor.

3.3 Restrictions on Use

None of Customer, its Affiliates, Customer Contractors or their respective Authorized Users may use the Company Offerings or results of the Professional Services, or any information contained in, or derived therefrom or otherwise provided by Company, for anything other than their intended use and otherwise furthering the purposes of this Agreement, and without limiting the generality of the foregoing, none of Customer, Affiliates, Customer Contractors or Authorized Users will use the Company Offerings, or the results of the Professional Services, or any information contained therein, derived therefrom or otherwise provided by Company, for the purpose of developing or having developed any products competitive with Company Products or Services. None of Customer, its Affiliates or any Customer Contractor shall knowingly, after making such inquiries as a reasonable person in their position would undertake, use or permit others to use the Company Offerings, or results of any Professional Services, or any portion thereof, in isolation or with any other software, digital product, or data, including any Customer Data or Traffic Data in a manner that in Company’s judgment, acting reasonably, interferes with, degrades or adversely affects any software, system, network or data used by any person including Company or its partners or otherwise has a detrimental effect upon Company or any of their respective customers or offerings, and Customer shall, and shall ensure that its Affiliates and any Customer Contractor immediately cease any such activity upon Company delivering notice requiring same to Customer. Further, none of Customer, its Affiliates or any Customer Contractor will use or permit others to: (a) Use any Company Product or Service or the result of such use in breach of applicable laws; (b) Without limiting the generality of sub-section (a) use any Company Product or Service or the result of such use to: commit any crime, breach any statutory requirements, or for any tortious purpose including to deceive, harass or stalk another individual or to collect or use the Personal Information of any individual without lawful right to do so; (c) Resell, except as expressly contemplated by an Order Form, or in the case of Distribution Partners, in its Distribution Agreement, otherwise make or attempt to make available to third parties the right(s) to access any Company Product or Service (other than Hardware or any Third Party Hardware, in which title has passed to Customer) or Company Works, or any data or technology contained in any of the foregoing (other than Traffic Data which Customer owns) ; (d) Make any API key access token available in any manner whatsoever to anyone other than Customer’s Authorized Users; (e) Exceed the licensed use of a Company Product or Service as set out in the Agreement or use or configure a Company Product or Service in a manner designed to improperly avoid incurring fees; (f) Transfer any portion of a Lifetime License Period from one item of Hardware or a Vehicle to another.; (g) Circumvent any security technology or processes that are part of a Company Product or Service or the Company’s or Company’s third party cloud hosting service’s infrastructure; (h) Propagate any computer virus, worm, Trojan Horses, malware or malicious code; (i) Remove or alter any proprietary rights notices on or associated with the Company Product or Service; or (j) Attempt to do any of the foregoing prohibited activities. Company reserves the right to monitor the Company Products and Services and the use thereof to ensure compliance with this Section and the remainder of the Agreement.

3.4 No Reverse Engineering

Except to the extent that this prohibition is prohibited by law, none of Customer, its Affiliates, or any Customer Contractor shall alter, modify, adapt, create derivative works, deface, disassemble, benchmark, or Reverse Engineer the Software, any Hardware provided as part of a Subscription Service or any Company Works, or attempt to do so, or permit, acquiesce, authorize or encourage any other person to do so.

3.5 Ownership of Customer Data

Nothing herein shall transfer any ownership right, title or interest in or to the Customer Data or Traffic Data to Company. Company shall have the right to use the Customer Data and Traffic Data solely to provide the Services and to train and otherwise improve the Company Offerings and to use analytics generated by the Company Products and Services to provide and improve the Company Products and Services. In addition, provided that Company ensures that no Personal Information or Customer Data is included in the Traffic Data and subject to the indemnity set out in section 7.1, Customer hereby grants to Company the non-exclusive, transferable right to disclose, process, publish, aggregate, create derivative works of, and sell and otherwise commercialize as part of a Data Service, and in any other manner whatsoever, any Traffic Data. For avoidance of doubt, Customer acknowledges and agrees that Traffic Data that identifies a particular intersection does not ‘identify’ Customer or its Affiliates or Authorized Users or specific transactions carried out by Customer.

3.6 Ownership of Company Offerings and Works

Nothing in this Agreement transfers or grants to Customer, or to any Affiliate, Authorized User or Customer Contractor, any ownership right, title or interest in or to any Software, any Hardware made available by Company as part of Subscription Services, or to any Company Works, or in or to any Intellectual Property Rights associated with any Company Offering, Company Works, or results of Processing Services and Professional Services or to any portion thereof. For avoidance of doubt, subject to Customer’s underlying rights in the Customer Data and Traffic Data, Company shall own all ownership rights, title and interest and all Intellectual Property Rights in or to any subject matter created, developed or contributed by Company or the Company Products or Services hereunder (including the Company Works) and is free to commercialize same in any manner whatsoever. If and to the extent that Customer acquires any Intellectual Property Rights in the Company Offerings or Company Works, Customer hereby assigns all such rights to Company effective at the time of Customer acquiring same and agrees to sign such further documents to confirm such assignment as Company reasonably requests. Upon expiration or termination of the Agreement Company shall provide or enable Customer to obtain the Traffic Data stored at that time in the Application Software in a public format. For clarity, except to third party cloud service providers solely as required and for the purpose of providing the Services (e.g. provided as part of data to be stored or to be used to enable Authorized Users to log into the Software), no Customer Data shall be provided to any third party by Company without first obtaining Customer’s prior written express consent to do so or the third party providing evidence to Company that it has the legal authority to require same.

3.7 Feedback and Innovations

Company shall own all such feedback, including any associated Intellectual Property Rights. Customer acknowledges and agrees that the knowledge it has with respect to traffic management technologies, and the uses thereof, is based in large part on its access to the Company Products and Services, and Customer, its Affiliate(s) and any Customer Contractor(s) hereby agree that in consideration of the access to the Company Products and/or Services and Company’s business granted herein, they shall not take, or threaten to take, any steps, directly or indirectly through some other person, to prevent Company from further developing the Company Products or Services or any portion thereof, in any manner whatsoever, or to prevent Company, or its Distribution Partners from distributing and commercializing (including selling and offering to sell) the Company Products or Services or such further developments or from their respective customers using the Company Products and/or Services or such developments whether Customer, its Affiliate(s) or Customer Contractor(s) develops or implements such further developments or obtains associated Intellectual Property Rights (including for avoidance of doubt, patent rights) related to the Company Products and/or Services or developments prior to Company doing so or not. Customer, Affiliates and any Customer Contractors further agree that they shall not seek any compensation from Company, its Distribution Partners or customers in relation to such developments and agrees to sign such further documents and take such further steps as are reasonably necessary to give effect to this provision and further agrees that it shall not challenge the enforceability or validity of this provision. Without limiting the foregoing, Customer, its Affiliates and any Customer Contractor hereby agree not to enforce against Company, its Affiliates and customers or Distribution Partners any patent rights relating or potentially applicable to the Company Products and/or Services or the results of the use of Company Products and/or of the Services.

3.8 Limitations on Company’s Responsibility

Unless Company expressly agrees otherwise, its sole responsibility is the provision of the Company Products, Services and Third Party Products, if any, and Company shall not be liable for delays in Delivery of the Company Products and/or Services. Except for Subscription Services, or as part of the Set-Up Services in each case solely to the extent installation by Company is required in the Order Form, Customer shall be responsible for the installation of the Hardware and all other aspects of the Customer system including meeting the Customer System Requirements and providing any street furniture in or on which the Hardware is installed at an intersection for the particular Company Product or Service. Company Products and Services will comply with applicable federal legal requirements in the United States and Canada. If they must comply with any additional legal requirements, such as a state, province or local municipality, or those of another country, Customer is solely responsible for identifying all such requirements to Company in writing prior to Acceptance of the associated Order Form. Company shall have no responsibility for: (i) any performance of non-performance of Company Products or Services caused by installation not performed by Company or a failure of Customer to satisfy the Customer System Requirements ; or (ii) any delays caused by delays in Customer fulfilling the Customer System Requirements or, if applicable, installation of the Hardware.

3.9 Title

Subject to payment of all applicable Fees, Software is licensed and not sold under this Agreement and title to Software does not pass to Customer. Title and risk of loss to Hardware that is not made available as part of a Subscription Service passes to Customer FCA Company’s dock (Incoterms 2023). All rights not expressly granted to Customer in this Agreement are reserved.

4. Fees.

Customer shall pay to Company the fees specified in the Order Form (the “Fees”) in accordance with the payment terms set out therein. Customer shall provide the reports, if any, required by the Order Form to enable Company to calculate the Fees and shall comply with any requirements with respect to the content and timing of delivery of the report set out in the Order Form. Unless otherwise specified in the Order Form, all invoiced amounts shall be in United States Dollars (USD) and Customer shall pay all invoices net thirty (30) days from date of invoice and reference the invoice number with such payment. Unless Customer obtains Company’s prior written authorization: all payments to Company must be made by wire transfer or ACH/EFT in the correct currency. Company may in its discretion accept payment by cheque subject to Customer paying an additional processing fee and except as expressly set out in this Agreement, all Fees paid are non-refundable. Company reserves the right to change the Fees for: (a) Services with a Service Period, after the expiry of the then current Service Period ; and (b) Professional Services, other than Support Services, at any time provided that the change shall not apply to the Fee for Professional Services included in an executed Order Form; and in the case of Processing Services when the applicable rates in the Customer’s rate card change. Notwithstanding the foregoing, Company may change the fees for products and services that are not included in the Order Form or for intersections, Vehicles or instances of Software that are not covered by the Order Form, at any time.

4.2 Invoicing Fees

Unless otherwise specified in an Order Form, Company may issue an invoice to Customer for the Fees for a Company Product or Service upon Delivery of that Company Product or Service. If the Order Form contemplates multiple Service Periods for a particular Company Product or Service, then after the initial Service Period, Company may invoice Customer for subsequent Service Periods up to thirty (30) days prior to the expiry of the then current Service Period.

4.3 Interim Fees

If an Order Form covers multiple intersections or Vehicles, and a Company Product or Service will not be Delivered for all intersections or Vehicles at the same time, then notwithstanding section 4.2, Company may issue invoices for interim Fees for those Company Products or Services as soon as they are Delivered for an intersection/Vehicle, with the interim Fees calculated by: (a) pro-rating the Fees based on the total number of intersections/Vehicles; and (b) in the case of Services, pro-rating the Fees on a monthly basis based on the applicable Service Period; until the Company Products and Services have been Delivered for all intersections and/or Vehicles under the Order Form (other than any ongoing Processing Services or training) or Customer agrees in writing that no further deliveries are required. At that time, the Service Periods for any Service for which interim Fees have been charged, shall be extended such that the Service Period ends on the same date for all intersections/Vehicles.

4.4 Taxes

All Fees are exclusive of Taxes and Customer shall be responsible for all Taxes associated with the supply of Company Products and Services. If any amounts are required to be withheld by Customer from any amount otherwise payable by Customer to Company under this Agreement, then unless Customer provides Company with a valid exemption certificate authorized by the appropriate taxing authority satisfactory to Company acting reasonably, Customer shall pay an additional amount such that the net amount actually received by Company will, after such withholding (including withholding from any additional amount payable pursuant to this sentence), equals the full amount of the Fees then due.

4.5 Interest

Company may, at its absolute and sole discretion, charge interest at the lower of: (a)18% per annum compounded monthly; and (b) the highest rate permitted by law. Company is also entitled to recover any sums expended in connection with the collection of undisputed sums not paid when due, including collection agency fees and reasonable attorney fees.

4.6 Security Interest

Customer hereby grants to Company, and Company shall have the right to retain and to register, a security interest in and to any and all Company Products, and to Hardware made available as part of Subscription Services until: (a) in the case of the Company Products, all applicable Fees, together with applicable interest and any late payment charges, have been paid to Company in full; and (b) in the case of Hardware made available as part of Subscription Services, the Hardware has been returned to Company in good condition, normal wear and tear excepted. If requested by Company, Customer shall execute financing statements or other instruments necessary to perfect this security interest.

5. Confidentiality.

5.1 Obligations of Confidentiality

The Parties acknowledge and agree that they may disclose to the other Party (each in turn a “Disclosing Party”) certain Confidential Information in order to further the purposes of this Agreement and that the Company Products and Services and the Company Works, contain and/or are performed using the valuable confidential information of Company. The Party receiving such information (the “Receiving Party”) will hold in confidence specifically authorized in writing by the Disclosing Party shall not disclose to any third party (including to any Customer Contractor(s) unless authorized in writing by Company) any Confidential Information disclosed to them or to which they are provided access in relation to this Agreement. It shall not be a breach of this requirement to: (a) provide the Confidential Information to employees, dependent contractors or legal advisors of the Receiving Party or to Company Distribution Partners , that have a need to know to fulfill the purposes of this Agreement and are each subject to obligations with respect to disclosure, use, reproduction and return of Confidential Information that are consistent with the requirements of this provision; or (b) disclose the Confidential Information to the extent required to do so by a court of law provided that the Receiving Party uses all reasonable efforts to provide sufficient notice of this requirement to the Disclosing Party to enable the Disclosing Party to seek an order limiting or preventing the disclosure of the Confidential Information. The Receiving Party further agrees not to use or reproduce the Confidential Information except as reasonably necessary to fulfill the purposes of this Agreement. The Receiving Party shall ensure that it has taken precautions that are consistent with industry practices and in all instances are not less than a reasonable standard of care to ensure that the Confidential Information is not lost or stolen. Upon the termination of this Agreement or at any time upon request, the Receiving Party shall either return the Confidential Information or have an officer certify its destruction, provided that this obligation shall not apply to any archival copies of the Confidential Information which form part of the automatic back-up of the Receiving Party’s data. These restrictions shall apply for so long as the information satisfies the definition of Confidential Information. If applicable laws require that the term of confidentiality obligations be limited to a set term in order to avoid being found unenforceable, then these obligations shall apply for the maximum period permitted by law, except in the case of trade secrets when they shall apply for so long as the Confidential Information in question remains a trade secret.

6. Privacy.

6.1 Personal Information

Company collects and uses certain information in the provision of the Products and Services, including information which may constitute Personal Information under applicable privacy laws. For example, the Company uses email addresses to enable Authorized Users to log into Application Software. The Company also collects the IP addresses of the devices that directly access or attempt to access Application Software for security purposes. For more information regarding the type of Personal Information the Company collects, uses, and discloses in the context of the Company Offerings and Professional Services, consult Company’s Privacy Policy available at https://miovision.com/legal/policies/. By using a Company Offering or Professional Service, or submitting any Personal Information to the Company, Customer and its Affiliates agree to the terms of the Company Privacy Policy.

6.2 Consents

Certain Hardware may produce high quality video that may enable the identification of individuals. Unless Customer has the legal rights required to collect such information, Customer should configure the Hardware so as to obfuscate the identity of individuals. If Customer or its Affiliates collect any Personal Information as part of the Traffic Data, Customer shall provide prior written notice of this to the Company and hereby represents and warrants that Customer will have obtained all necessary consents from the identifiable individual, or otherwise have the requisite legal authorization for, and in advance of, the collection, use, processing, storage, transmission and/or disclosure of such information by or to the Company, its agents, contractors and/or cloud service providers solely to further the purposes of this Agreement and any other purposes for which Customer and/or its Authorized Users expressly consent in writing.

6.3 Location of Customer Data and Traffic Data.

6.4 Notices

Company shall notify Customer in accordance with its Data Security Policy if it becomes aware that any Customer Data or Traffic Data has been lost or stolen. Customer must immediately report to Company’s privacy officer at privacy@miovision.com if any Company Traffic Data has been lost or stolen or it becomes aware of any breaches of Section 3.1 or 3.2.

7. Indemnity.

7.1 Company Indemnity

Company shall defend Customer and its Affiliates against any third party claim or action brought against Customer or its Affiliates to the extent the claim or action or any liability therefrom arises from: (a) an allegation that a Company Product or Service infringes the intellectual property rights of a third person; or (b) Company’s use of Traffic Data originating from Customer to create Company Traffic Data (each a “Customer Claim”) and shall indemnify Customer for, and pay every judgment of a court of competent jurisdiction and attorney fees awarded against Customer to the extent it results from a Customer Claim. Customer must: (a) immediately notify Company upon receiving notice of a Customer Claim; (b) give Company the right to conduct the defence and settlement of the claim provided that any settlement cannot impose any liability or obligation on Customer or its Affiliates with Customer’s prior written consent; and (c) act in accordance with the reasonable instructions of Company and give Company such assistance as Company reasonably requests provided that Company reimburses Customer for any out of pocket expenses it incurs as a result. Company shall not be responsible for any Customer Claim where an alleged infringement arises from (i): a modification to a Company Product or Service not made by or on behalf of Company or made to comply with Customer’s instructions; (ii) the combination of a Company Product or Service with any Third Party Product or third party service, including any Customer product or service; or (iii) a failure by Customer to use the current, unaltered version or model of the Company Product or Service; or (iv) Customer’s breach of this Agreement. In no event shall Company have any obligations or liability under this indemnity if: (A) Customer fails to comply with its obligations under this provision; (B) Customer was aware of the alleged infringement prior to executing the Order Form; or (C) if the alleged infringement arises in whole or in part from any information or data (other than Traffic 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 same.

7.2 Customer Indemnity

Customer shall defend Company against any third party claim or action brought against Company to the extent that the claim or action or any liability therein arises from (a): the installation or other set-up service of a Company Product or Service not performed by or on behalf of Company; (b)the unauthorized or improper use of a Company Product or Service; (c) a modification to a Company Product or Service not made by or on behalf of Company or made or modified by Company as instructed by Customer; (d) the breach by Customer, its Affiliates or Customer Contractor of Section 3.3 (Restrictions on Use); (e) the combination of a Company Product or Service by or on behalf of, Customer or Affiliates with any Third Party Product or third party services that has not been pre-authorized by Company in writing, including any such Customer or Affiliate product or service or (f) any personal injury, wrongful death or property damage resulting from a Company Product or Service or the use thereof by Customer; (each a “Company Claim”); and shall pay every judgment of a court of competent jurisdiction and attorney fees awarded against Company to the extent that it results from a Company Claim. Company must (i) immediately notify Customer upon receiving notice of a Company Claim; (ii) where Customer is responsible for the entire claim and not just a portion of the liability in the claim or action, give Customer the right to conduct the defense and settlement of the claim and act in accordance with the reasonable instructions of Customer; and (iii) give Customer such assistance as Customer reasonably requests provided that Customer reimburses Company for any out of pocket expenses it incurs as a result. In no event shall Company have any obligations or liability under this indemnity if Customer fails to comply with its obligations under this provision.

7.3 Entire Remedy

The indemnities set out in this section set out the entire remedy of the Parties in respect of third party claims.

8. Term and Termination.

8.1 Term

This Agreement shall come into effect on the Effective Date and shall remain in effect until two years following the date that all of the Company Products and/or Services under the Order Form (other than Processing Services or training) have been Delivered (or Customer agrees in writing that no further deliveries are required) under the Order Form (the “Initial Term”). Thereafter it shall subsequently automatically renew for one-year periods (each a “Renewal Term”) unless Company or Customer indicate their decision not to renew at least thirty (30) days prior to the end of a renewal period (collectively the Initial Term and any Renewal Terms are the “Term”).

8.2 Termination for Change in Terms

Notwithstanding Section 8.1, if Company changes the terms of this Agreement, which it may do to reflect or address changes in its business or changes in applicable laws, by providing notice of same to Customer, Customer may terminate the Agreement by providing at least ten (10) days written notice to Company of its decision to do so no later than sixty (60) days following delivery of notice of the change to Customer.

8.3 Termination for Reduction in Funding

If Customer is a government agency and funding necessary to satisfy its obligations under the Agreement is reduced or eliminated by the then current government, then Customer may terminate the Agreement by providing written notice to Company of its requirement to do so, and paying Company for any Company Product or Service Delivered prior to the effective date of termination.

8.4 Termination for Breach or Insolvency

Either Party may terminate this Agreement by delivering written notice of its decision to do so to the other Party: (a) if the other Party is in breach of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice of the breach; or (b) if such other Party is adjudicated bankrupt, becomes insolvent, makes any assignment for the benefit of its creditors, or a receiver or trustee is appointed for any of its property under bankruptcy or insolvency law.

8.5 Inability to Perform

Company may terminate this Agreement immediately if: Company is no longer able to provide a Company Product or Service due to a court decision; (b) any of the Company Products or Services are not in conformity or compliance with applicable laws or a request from a government entity(ies) where conformity cannot be ensured within a reasonable time.

8.6 Refunds upon Termination

If Customer terminates the Agreement pursuant to Sections 8.2, 8.3, 8.4, or 8.5, then Company, shall refund any Fees paid by Customer for Subscription Services on a pro-rata basis.

8.7 Suspension

Company reserves the right to suspend performance (and/or in the case of a breach of Section 3.3(e) to limit, throttle, or cap data use) of its obligations under this Agreement (including for Data Services and for Application Software, alone or as part of Subscription Services) if Customer fails to pay any undisputed amounts due to Company under this Agreement or breaches Section 3.3, 3.4 or 6.2 and in the event of a Data Security Incident as defined in the Company’s Data Security Policy. Any such suspension shall not release the Customer of its payment obligations under this Agreement. Customer agrees that Company shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to such suspension.

9. Limitation on Liability.

9.1 Implied Warranty Disclaimer

EXCEPT AS EXPRESSLY SET OUT HEREIN: (A) THE COMPANY PRODUCTS AND SERVICES ARE MADE AVAILABLE HEREUNDER “AS IS” AND “AS AVAILABLE”; AND (B) NEITHER PARTY MAKES ANY WARRANTIES, CONDITIONS, ENDORSEMENTS, REPRESENTATIONS OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.

9.2 Third Party Cloud Services

CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY USES THIRD-PARTY CLOUD SERVICES SUCH AS AMAZON WEB SERVICES AND FURTHER ACKNOWLEDGES THAT COMPANY HAS LIMITED ABILITY TO CONTROL THE PERFORMANCE OF THESE CLOUD SERVICE PROVIDERS OR THE TERMS AND CONDITIONS ON WHICH THE CLOUD SERVICES ARE PROVIDED. THE MAXIMUM TOTAL AGGREGATE LIABILITY OF COMPANY UNDER THIS AGREEMENT IN RESPECT OF THE ACTS AND OMISSIONS OF ANY CLOUD SERVICE PROVIDER, SHALL NOT EXCEED THE LIABILITY OF THE CLOUD SERVICE PROVIDER TO COMPANY UNDER THE AGREEMENT BETWEEN COMPANY AND THAT CLOUD SERVICE PROVIDER, SUBJECT TO ANY EXCLUSIONS OF LIABILITY FOR THE CLOUD SERVICE PROVIDER UNDER THAT AGREEMENT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE LIABILITY OF COMPANY FOR THE ACTS OR OMISSIONS OF THE CLOUD SERVICE PROVIDER EXCEED, OR IN ANY WAY OR MANNER INCREASE, THE TOTAL AGGREGATE LIABILITY OF COMPANY UNDER THIS AGREEMENT BEYOND THAT SET OUT IN SECTION 9.4.

9.3 Exclusion of Certain Damages

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR WHETHER OR NOT A PARTY HAS BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

9.4 Limitation of Aggregate Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES ARISING IN ANY MANNER WHATSOEVER, FROM OR IN CONNECTION WITH THIS AGREEMENT IN A TOTAL AGGREGATE AMOUNT EXCEEDING THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.

9.5 Third Party Products

IF COMPANY AGREES TO PROVIDE TO, OR INSTALL ANY THIRD PARTY PRODUCT ON BEHALF OF CUSTOMER, COMPANY DOES SO AS A SERVICE TO CUSTOMER, AND CUSTOMER ACKNOWLEDGES AND AGREES, THAT COMPANY HAS NO ABILITY TO CONTROL THE DESIGN OR PERFORMANCE OF SUCH THIRD PARTY PRODUCT, THAT COMPANY PROVIDES THE THIRD PARTY PRODUCT ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY SHALL HAVE NO LIABILITY FOR THE DESIGN OR PERFORMANCE OF THAT THIRD PARTY PRODUCT WHATSOEVER, AND THAT COMPANY’S SOLE RESPONSIBILITY WITH RESPECT TO THE THIRD PARTY PRODUCT, INCLUDING WITHOUT LIMITATION, ITS DESIGN OR PERFORMANCE, SHALL BE TO PASS THROUGH THE BENEFIT OF ANY WARRANTY PROVIDED BY THE SUPPLIER OF THE THIRD PARTY PRODUCT TO CUSTOMER.

9.6 Exclusion of Personal Liability

EXCEPT WHERE AN INDIVIDUAL HAS ACTED OUTSIDE THE SCOPE OF HIS OR HER AUTHORITY AND IN A WILFUL MANNER, IN NO EVENT WILL EITHER PARTY’S OFFICERS, DIRECTORS OR EMPLOYEES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE DEEMED TO BE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION.

9.7 Application of Limitations

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT; AND (B) TO EACH PARTY AND TO EACH PARTY’S AFFILIATES, SUPPLIERS, DISTRIBUTION PARTNERS, AND SERVICE PROVIDERS.

9.8 Exceptions to Limitations

NOTWITHSTANDING ANY OTHER PROVISION, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE IN SECTION 9.6) SHALL NOT APPLY TO: (A) ANY WILFUL OR MALICIOUS BREACH OF ANY PART OF SECTIONS 3.1 – 3.4 ; (B) ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT IN SECTION 5; (C) ANY WILFUL THEFT OF THE INTELLECTUAL PROPERTY RIGHTS OF ONE PARTY BY THE OTHER PARTY OR BY ITS AFFILIATES OR CUSTOMER CONTRACTOR(S); (D) THE PAYMENT OF AMOUNTS DUE TO COMPANY UNDER THIS AGREEMENT; (E) THE AMOUNTS PAYABLE IN RELATION TO THE INDEMNITIES UNDER SECTION 7; OR (F) IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.

9.9 Network Reliability

COMPANY USES REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE ACCESS TO COMPANY OFFERINGS WILL BE UNINTERRUPTED AND ERROR FREE. HOWEVER, DUE TO THE NATURE OF THE INTERNET, THIS CANNOT BE GUARANTEED. COMPANY SHALL NOT BE RESPONSIBLE AT ANY TIME FOR ANY CLAIMS, LOST DATA OR DAMAGES INCURRED WHILE, OR AS THE RESULT OF TRANSMITTING DATA OVER THE INTERNET AS PART OF OR TO OR FROM A COMPANY OFFERING. CUSTOMER ACKNOWLEDGES THAT: (I) THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO GAIN ACCESS TO COMPANY OFFERINGS, CUSTOMER DATA AND TRAFFIC DATA; AND COMPANY CANNOT AND DOES NOT GUARANTEE THE PRIVACY OR SECURITY OF ANY CUSTOMER DATA OR TRAFFIC DATA TRANSFERRED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET AND HAS NO LIABILITY OR RESPONSIBILITY BEYOND ITS OBLIGATIONS TO COMPLY WITH ITS DATA SECURITY POLICY. COMPANY HEREBY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THE PROVISION OF COMPANY OFFERINGS CAN OR WILL BE MAINTAINED.

9.10 Over-the-Air and Mapping Data

OVER-THE-AIR TRANSMISSIONS AND MAP AND SPAT CALCULATIONS ARE NOT INFALLIBLE, AND VEHICLES USING PCAAS AND/OR OPTICOM AND/OR DATA SERVICES MUST CONTINUE TO RELY ON VISUAL CONFIRMATIONS OF GREEN LIGHTS PRIOR TO ENTERING INTERSECTIONS AND COMPANY HAS NO LIABILITY WHATSOEVER FOR CUSTOMER OR ITS AUTHORIZED USERS’ FAILURE TO DO SO.

10. General.

10.1 Entire Agreement; Purchase Orders; Priority

This Agreement including all schedules and the Order Form, and any exhibits attached thereto or referenced therein, constitutes the entire agreement of the Parties with respect to the subject matter thereof. It supersedes all requests for quotes, discussions, correspondence or communication of any nature relating to the subject of this Agreement, all of which shall no longer be of any force or effect. If Customer issues a purchase order, any additional, inconsistent or conflicting terms appearing in a purchase order shall be of no force or effect and shall not amend the Order Form or the Agreement. In the event of a conflict between these terms and conditions, a schedule and the Order Form or exhibit, the body of this Agreement shall take priority, solely to the extent of the conflict, unless the Order Form, exhibit or schedule indicates a specific intent to override these terms and conditions. In the event of a conflict, the Order Form shall take priority over the (other) Schedules. This Agreement may only be modified in writing signed by the Party against whom enforcement of the modification is being sought

10.2 Audit Right

Either Party (the “Auditing Party”) shall have the right at any time, but no more than once in any twelve (12) month period, during regular business hours, through an independent auditor reasonably satisfactory to the other Party (the “Audited Party”) as soon as reasonably possible after delivering notice, and in any event no later than five (5) days after such notice, at the Auditing Party’s expense to inspect and audit the Audited Party’s activities to ensure that that the Audited Party is complying with the terms and conditions of this Agreement including the accuracy of any reports Customer is required to provide Company relating to Company Products and/or Services and the accuracy of the payment of any associated Fees. Any inspection or audit shall be conducted at the Audited Party’s premises. The auditor shall execute a confidentiality agreement in a form reasonably acceptable to the Audited Party (consent to which shall not be unreasonably refused or delayed). Notwithstanding the foregoing, the auditor shall be permitted to provide to the Auditing Party, with only the results of the audit (i.e. compliance or non-compliance) and only if the audit reveals non-compliance with the provisions of this Agreement or a related Agreement, with such other information as the Auditing Party reasonably requires in order to effectively enforce its rights under this Agreement and the Auditing Party shall be permitted to use such information solely for these purposes. As part of the inspection or audit, the auditor shall be entitled to conduct such examinations (which may include an examination of the Audited Party’s books, records, computers, agreements, and accounts) as may reasonably be required to ensure that the Audited Party is complying with the provisions of this Agreement. If, as a result of such inspection or audit, the Audited Party determines that the Audited Party has materially breached the terms and conditions of this Agreement, which breach is not cured within thirty (30) days following the Auditing Party providing written notice of same, the Auditing Party may deliver notice to the Audited Party of its decision to terminate for a material breach of the Agreement pursuant to Section 8.4 or direct the Audited Party to take all steps and do all things, within reason, as may be necessary or otherwise required in order to comply with the terms of this Agreement . In the event that any such audit discloses a shortfall in payment to the Auditing Party or overpayment by the Auditing Party of more than five percent (5%) of what was required to have been paid hereunder, the Audited Party shall be responsible, and shall reimburse the Auditing Party for any costs the Auditing Party reasonably incurs in conducting such inspection or audit. If such audit discloses overpayment of amounts due hereunder, Company will promptly remit the amounts due to the Customer.

10.3 Waiver

A waiver of any default will not constitute a waiver of any other or subsequent default. No waiver of any terms, conditions or provisions of this Agreement will be effective unless it is in writing and signed by the waiving party.

10.4 Publicity

Customer agrees that, in exchange for the pricing provided by Company, Customer grants Company the right to: (a) develop public communications (including, without limitation, press releases, advertisements and customer success stories) which include references to the Customer and concern this Agreement or any related matter; and (b) use the Customer’s trademarks, service marks, logos and trade names in any such public communications and to identify Customer as a customer of Company on Company’s website and as a part of a general list of Company’s customers for use and reference in Company’s corporate, promotional and marketing literature. Notwithstanding the foregoing, no public communications shall be publicly released by Company without the Customer’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.

10.5 Force Majeure

If either of the Parties becomes unable to carry out the whole or any part of its obligations under this Agreement due to acts of God, acts of governmental authorities, pandemics, strikes, war, riots or any other cause of such nature or circumstances beyond a Party’s reasonable control (“Event of Force Majeure”), then the performance of the obligations of the affected Party shall be excused during the continuance of any inability so caused, but such inability shall, as far as possible, be remedied or mitigated so far as is possible. Either Party shall give immediate notice to the other Party upon becoming aware of an Event of Force Majeure. If an Event of Force Majeure continues for a period exceeding sixty (60) days or such other period as is mutually agreed to by the Parties, the other Party may terminate this Agreement by giving the affected Party seven days written notice of its intention to do so.

10.6 Governing Law

The Agreement shall be governed and construed in accordance with the laws of the Province of Ontario along with any federal laws applicable therein unless Customer’s address as set out in this Agreement is located in the United States, in which case the Agreement shall be governed and construed in accordance with the laws of the State of New York along with any federal laws applicable therein. In either case the rules of private international law that lead to the application of the laws of any other jurisdiction shall not apply. The United Nations Convention on Contracts for the Sale of Goods (1980) does not apply.

10.7 Forum

The Provincial and Federal courts of the Province of Ontario shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement unless Customer’s address as set out in this Agreement or Order Form is located in the United States, in which case the State and federal courts located in the Borough of Manhattan, New York, New York shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement. In either case, each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents and attorns to the exclusive jurisdiction and venue of the courts as set out in this provision.

10.8 Government Use

If Customer is a government entity, then notwithstanding sections 10.4 and 10.5, the applicable laws and courts of the jurisdiction where the government Customer is located shall apply. If Customer is part of an agency, department, or other entity of the United States government (“Federal Government”), then U.S. federal laws shall apply and U.S. federal courts in the jurisdiction where the government Customer is located shall have jurisdiction. If the procurement, use, duplication, reproduction, release, modification, disclosure or transfer of the Company Offerings is subject to federal acquisition regulations, the Parties hereby acknowledge and agree that the Company Offerings have been developed at private expense and are “commercial item(s)”, “commercial computer software” and “commercial computer software documentation” and “restricted computer software”. Any use of the Software shall be governed solely by the terms of the Agreement.

10.9 Language

This Agreement is drawn up in English at the request of the Parties. If this Agreement is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translations thereof. Unless, and only to the extent prohibited by law in Customer’s jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including the terms of the Agreement, any correspondence, discovery, submission, filings, pleadings, oral pleadings and arguments, and orders or judgments.

10.10 Injunctive Relief

The Parties agree that a material breach of this Agreement may cause irreparable harm to a Party, for which a remedy at law may be inadequate. Accordingly, in addition to any remedies at law, subject to any express limitations under this Agreement, either Party may seek injunctive relief without posting any security.

10.11 Carbon Credits

If applicable, any carbon credits generated from the use of the Company Products or Services or the results thereof, shall be the property of the Company.

10.12 Severability

If any court finds any part of this Agreement to be invalid or unenforceable that part shall be severed from this Agreement and its invalidity or unenforceability shall not in any way affect the remaining provisions of this Agreement, which shall continue in full force and effect.

10.13 Notices

Any notice, request, demand or other communication required or permitted hereunder shall be sufficiently given only if in writing and only if delivered by hand, email, or courier addressed to the other Party at the address set out in the Order Form or to such other person or address as the Parties may from time-to-time designate in writing delivered pursuant to this notice provision, with a copy of all notices (except for support notices) also emailed to legal@miovision.ca. Any such notices, requests, demands or other communications shall be received and effective: (i) upon the date of delivery if delivered by hand, if registered mail (or its equivalent) or courier; or (ii) in the case of email, the date of confirmation of receipt by answer-back from the recipient to whom the notice, request, demand or other communication was given.

10.14 Survival

Notwithstanding the termination or expiration of this Agreement, those provisions that by their nature are intended to survive after the Agreement ends, including, Sections 1, 3.4, 3.5,3.6, 3.8, 3.9, 5, 6, 7, 9 and 10, shall survive.

10.15 Export 

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 Company Products or other 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.

10.16 Hazardous Materials

Customer acknowledges that certain materials provided by the Company may be considered hazardous materials under various laws and regulations. Customer agrees to familiarize itself (without reliance on the Company, except as to the accuracy of special safety information furnished by the Company), with any hazards of such materials, their applications and the containers in which such materials are shipped and to inform and train its employees and customers to such hazards. Customer will hold the Company harmless against any claims by its agents, employees or customers relating to any such hazards, except to the extent such claims arise solely and directly from the Company’s failure to meet its written specifications, or the inaccuracy of safety information furnished by the Company.

10.17 No Authority to Bind

No Party shall have authority to or shall hold itself out as having any authority to incur, assume or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of or on behalf of or in any way binding upon the other Party.

10.18 Assignment

Neither Party may assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the other Party and any purported assignment without such consent shall be null and void and of no effect. Notwithstanding the foregoing, Company may, without the requirement to obtain the consent of the Customer, assign or transfer Company’s rights under this Agreement: (a) to an Affiliate; (b) to a lender whose security interests must be perfected; or (c) to any successor in interest in the event that Company merges or consolidates with a third party or a third-party purchases all, or substantially all of the shares or assets of Company, 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.

10.19 Counterparts

This Agreement may be executed in counterparts, or including electronic counterparts, each of which when executed by any of the Parties shall be deemed to be an original, and such counterparts shall together constitute one and the same Agreement.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

Schedule “A” – Definitions.

1. “Accepted” or “Acceptance” an Order Form is accepted: a) in the case of Customer, the earlier of Customer signing the Order Form and Customer issuing a purchase order incorporating the Agreement by reference; and b) in the case of Company, the earlier of Company accepting the purchase order and Company providing any Company Product or Service under the Agreement.

2. “Adaptive Software” means Application Software that requires material Set-Up Services in order for Customer to effectively use that Software and identified as such in the Order Form.

3. “Affiliate” means, with respect to a Party, any other such entity Controlling, Controlled by or under common Control with such entity, and in the case of Customer, identified as an Affiliate on the Order Form. “Control” means direct or indirect: (i) ownership of more than fifty (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity; or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. Each Party shall be jointly and severally liable for the acts and omissions of its Affiliates that would constitute a breach of this Agreement or would constitute a breach of this Agreement if performed or omitted by that Party. Entities shall remain Affiliates only for so long as the Control described above exists.

4. “Agreement” means these Terms and Conditions and any Schedules attached thereto, the Order Form and any exhibits thereto, and any documents incorporated by reference therein.

5. “Application Software” means Company proprietary software required to be made available under the Order Form and licensed hereunder for the applicable Service and/or Lifetime License Period described in that Order Form.

6. “Authorized Users” means: (a)the employees of Customer and its Affiliates authorized by Customer to access and use the Software; (b) in the case of PCaaS Subscription Services and Opticom Application Software, those authorized by Customer to drive the Vehicles; and (c) in the case of Data Services, subject to any limitations in the Order Form, those driving the Vehicles authorized by Customer to receive the Data Services. Subject to Section 3.2, Authorized Users may include individuals engaged as employees and dependent contractors by Customer Contractors.

7. “Company” means the legal entity identified as Company in the Order Form.

8. “Company Offerings” means the Company Products, Subscription Services, Data Services, and Processing Services.

9. “Company Products” means the Hardware (and associated Firmware) and Application Software.

10. “Company Traffic Data” means data made available by Company as part of a Data Service.

11. “Company Works” means the Software, Company Traffic Data and any results generated by the use of the Company Products and Services (eg maintenance and security logs etc.) other than the Traffic Data.

12. “Confidential Information” means any information provided or otherwise made available by one Party to the other hereunder that is: (a) marked as confidential; (b) otherwise identified as confidential at the time of disclosure; or (c) would obviously be considered confidential in the context in which it was given that: i) is not publicly available at the time of its disclosure and does not later become publicly available through no fault of the receiving Party; ii) was not in the possession of the receiving Party prior to its disclosure under this Agreement; iii) was not independently developed by the receiving Party; and iv) is expressly disclosed by the Party for the purposes of and solely to the extent required by a requirement under any applicable freedom of information legislation.

13. “Customer” means the legal entity identified as Customer in the Order Form.

14. “Customer Data” means any confidential information or other information other than Traffic Data, supplied to Company by Customer hereunder and any Personal Information collected by Customer using a Company Offering or Third Party Product in conjunction with a Company Offering.

15. “Customer Contractor” means outsourcing company(ies) or independent third party contractor(s) contracted by Customer or its Affiliates to provide them with services and authorized by Company in writing and in accordance with Section 3.2 to use the Company Offerings and any results of Professional Services.

16. “Customer System Requirements” means the system requirements that Customer is required ensure are in place for the Company Offerings attached as an exhibit to, or incorporated by reference into, the Order Form.

17. “Data Service” means a Subscription Service that delivers Company Traffic Data specified in the Order Form to Customer or its Authorized Users as further detailed in the Order Form.

18. “Delivery” means the date when Company has completed its responsibilities to enable a Company Offering to be ready for use by Customer. Delivery occurs for: (a) Adaptive Software and PCaas Subscription Services upon completion of the Set-up Services for those Company Offerings; (b) other Application Software (licensed as part of a Subscription Service or for the duration of the associated Lifetime License Period) or Third Party Software used in conjunction with Hardware upon Delivery of the associated Hardware; (c) Hardware that is not made available as part of a Subscription Service and any Third Party Hardware, upon delivery FCA (Incoterms 2023) Company’s dock; (d) for Data Services upon delivery of the API key access token for the Service to Customer; (e) for Support Services at the commencement of the applicable Service Period(s); (f) Processing Services upon completion of the Services; and (g) unless otherwise set out in the Order Form, for other Professional Services, upon achievement of a milestone set out in the Order Form or completion of the performance of the specific Professional Service.

19. “Distribution Partners” means distributors, resellers, value added resellers, technology partners and integrators.

20. “Documentation” means any user manuals and other user and technical documentation as prepared and made available by Company for the Company Products or Services.

21. “Effective Date” means the date on which the Order Form is Accepted by the Customer.

22. “Fees” has the meaning set out in Section 4.1.

23. “Firmware” means the Company proprietary code installed on the Hardware.

24. “Hardware” means Company proprietary hardware, devices, equipment and components made available either as part of a Subscription Service with Company retaining title thereto, or sold to Customer, in each case as detailed in an Order Form.

25. “including” means including without limitation.

26. “Intellectual Property Rights” means all intellectual property rights, industrial property rights and other similar rights recognized throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including: (a) copyrights, rights in trade secrets, trademarks, patents, design rights, data base rights, rights in processes, rights in methods, moral rights, mask work rights, publicity and personality rights, and privacy rights; and (b) any application or right to apply for any of the rights referred

27. “Lifetime License Period” means: (a) for Firmware, and Application Software stored on behalf of Company on third party cloud hosting servers, the life of the Hardware in which it is installed, or with which the Application Software license is associated upon Delivery of the Hardware; and (b) for Processing Services, the period of time during which the data processing account of Customer is active; and (c) for Data Services the life of a Vehicle to which the Data Services are Delivered.

28. “Order Form” means a Company order form, quote or a proposal in which these terms and conditions are incorporated by reference, or a statement of work (SOW) attached to these terms and conditions, and any exhibits attached thereto or referenced therein. Neither Party is obligated to execute an Order Form but once accepted by both Parties, an Order Form shall not be modified except as agreed in writing and signed by authorized representatives of the Parties.

29. “Personal Information” means any information that can be used to identify an individual and is protected under any applicable federal, provincial, state, or local privacy laws.

30. “Processing Services” means Company processing Traffic Data produced by Hardware on behalf of Customer as described in an Order Form.

31. “Professional Services” means Set-up Services, training, Support Services and any development or other professional including engineering services identified on an Order Form.

32. “Reverse Engineer” means any act of reverse engineering, translating, disassembling, decompiling, decrypting, scraping, or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, “protocol analysis” or “black box” reverse engineering) data, software (including backend APIs, interfaces and any other data included in or used in conjunction with programs that may or may not technically be considered software code) api key access tokens, or hardware or any method of obtaining or converting any information, data or software from one form into human-readable form or such other form as enables Customer or its Affiliate(s) or Customer Contractor(s) to utilize that information, or data contained therein, or any hardware or software for purposes other than those contemplated by this Agreement.

33. “Services” means Subscription Services, Processing Services, and Professional Services.

34. “Service or Subscription Period(s)” means in relation to: (a) Subscription Services and Support Services for Company Products, the period(s) during which the Services are to be provided to Customer as set out in the Order Form. Unless otherwise specified in an Order Form, Service and Subscription Periods automatically renew upon expiry of the then current period.

35. “Set-up Services” means any site survey, project management, software configuration, hardware installation and/or configuration, engineering or other services that Company is to perform to enable the Company Offering to be ready for use by Customer or its Authorized Users as described in the Order Form.

36. “Subscription Services” means, if specified in the Order Form, the provision by Company on an auto-renewing subscription fee basis of access to: (a) Application Software; and (b) in the case of the PCaaS Subscription Services, to Company owned Hardware installed at the intersections covered by the Order Form for use in conjunction with the Application Software; (c) in each of (a) and (b) to maintenance and support for the Application Software and/or Company owned Hardware; and (c) Data Services.

37. “Support Services” means the Company Product maintenance and/or support services described in the Order Form or in an exhibit attached thereto or referenced therein.

38. “Software” means Application Software (including Adaptive Software) and Firmware.

39. “Taxes” means all: (a) sales, value-added, use, excise, withholding and other applicable taxes other than taxes on the income of Company; (b) import/export/customers duties, tariffs; (c) government permit fees, license fees, or inspection fees; and (d) any penalties and interest charges relating to the foregoing, or any costs expended by Company to collect such amounts from Customer.

40. “Term” has the meaning set out in Section 8.1.

41. “Third Party Hardware” means hardware that is not manufactured by or on behalf of Company that is included in the Order Form.

42. “Third Party Products” means Third Party Hardware and/ or Third Party Software.

43. “Third Party Software” means standalone software (i.e. software that is not part of the Software) that is proprietary to a third party and may be subject to additional license terms with a third party.

44. “Traffic Data” means the data collected and/or recorded by Company Offerings and Third Party Products connected to Company Offerings at intersections or from Vehicles and includes number and classification of vehicles, vulnerable road users, traffic light timing, and “near miss data”, but does not include any Personal Information collected by Customer using the Company Offerings or Third Party Products.

45. “Update” and “Upgrades” means in relation to Application Software, respectively bug fixes and minor improvements to Software designated by a change in numbers after the decimal point and major structural changes or changes in functionality to Software designated by a change in the numbers prior to the decimal point in each case to the version number for the Software. Application Software licenses granted on a lifetime license basis and not as part of a Subscription Service do not include Upgrades.

46. “Vehicles” means: (a) emergency or other vehicles specified in the Order Form in which Application Software has been installed or to which PCaaS Subscription Services are to be made available under the Order Form; and (b) vehicles (or mobile devices used in vehicles) as described in the Order Form to which Data Services are to be delivered on behalf of Customer; in each case for the purpose of changing traffic lights for more efficient movement of those vehicles through traffic.

Schedule “B” – Insurance Addendum

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.

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

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.

4. Security and Privacy. Miovision shall maintain network security, and privacy coverage during the customer’s 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.

5. Certificates. The policy limits required in this Schedule B 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.

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

© 2025 Miovision Technologies Incorporated Intellectual Property.
Version 042025.