Please read these Terms of Service (the “Agreement”) carefully before using any Miovision Services. This Agreement sets forth the terms and conditions controlling Customer’s right to use, and the manner of use of, Miovision’s Services.
1. USE CONSTITUTES ACCEPTANCE
- 1.1 BY ACCESSING, USING, CONFIGURING AND/OR ACTIVATING (“Use” or “Using”) MIOVISION’S SERVICE, CUSTOMER ACKNOWLEDGES AND AGREES THAT:
- (A) CUSTOMER HAS READ, UNDERSTOOD AND ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND
- (B) THIS AGREEMENT CONSTITUTES AN AGREED ALLOCATION OF RISK THAT IS REFLECTED IN THE AMOUNT PAYABLE BY CUSTOMER FOR THE SERVICE.
- 1.2 THE INDIVIDUAL WHO ENTERS INTO THIS AGREEMENT ON BEHALF OF CUSTOMER’S ORGANIZATION HEREBY REPRESENTS AND WARRANTS THAT: (A) THEY HAVE READ AND UNDERSTOOD ALL OF ITS TERMS AND CONDITIONS; AND (B) THEY HAVE THE AUTHORITY TO BIND THE CUSTOMER ORGANIZATION (AND ITS AFFILIATES) TO THIS AGREEMENT.
- 1.3 IF CUSTOMER DOES NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CUSTOMER MUST NOT USE ANY MIOVISION SERVICE, AND SHALL IMMEDIATELY CEASE ANY SUCH ACTIVITY AND REMOVE ANY ABILITY IT HAS TO USE ANY SERVICE.
This Agreement applies where Miovision provides Services to Customer. Customer may order the Services from, and make payment for the Services to, either: (a) Miovision directly; or (b) through a Partner. If Customer orders the Services from Miovision, then this Agreement applies together with the Quotation. If Customer orders the Services through a Partner, then this Agreement apply as between Customer and Miovision in relation to the supply of the Services by Miovision, and the Partner is required to obtain Customer’s acceptance of this Agreement. Miovision shall be under no obligation, and shall not have any liability, with respect to any arrangements or agreements between Customer and Partner.
3. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement (together with Miovision’s Quotation, where applicable) constitute the entire agreement between Miovision and Customer, in respect of the Services supplied by Miovision. Any Customer terms and conditions contained or referenced in any Purchase Order or otherwise shall not be applicable to Miovision.
- 4.1 Definitions. As used in the Agreement the following terms are defined as indicated below:
- “Affiliates” means, with respect to a Party to this Agreement, any other person or entity that now or in the future, directly or indirectly, controls, is controlled by, or is under common control with that Party. For purposes of the foregoing, “control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of management or policies of another person or entity, whether through ownership of voting securities or other ownership interest, by contract or otherwise.
- “Aggregated Statistics” means data and information related to Customer’s use of the Products and/or Services that is used by Miovision in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Products and/or Services.
- “Agreement” or “Terms of Service” means these terms and conditions applicable to the Use of the Services, which may be specified and updated from time to time at: https://www.miovision.com/terms-and-conditions/, plus the Quotation (if applicable).
- “Arbitration Centre” has the meaning given to that term in Section 14.12 (Dispute Resolution).
- “Assessment” has the meaning given to that term in Section 5.5 (Taxes).
- “Authorized User(s)” means employees, consultants, contractors, and agents of Customer, Customer’s Affiliates and Customer’s suppliers or service providers (as applicable) who are authorized by Customer to Use the Services under the rights granted to Customer pursuant to this Agreement.
- “Business Day” means any weekday (Monday through Friday, inclusive) but shall not include Saturdays, Sundays or any day designated as a holiday at the location of the applicable Miovision offices, including provincial holidays in Ontario, Canada and national holidays in Canada.
- “Commencement Date” means, unless agreed otherwise by Miovision in a Quotation, the date on which the Service is available for the Customer to use.
- “Confidential Information” has the meaning given to that term in Section 11.1 (Confidential Information).
- “Customer” means the ultimate customer of the Services (who may be named on the Quotation, when applicable) who intends to use the Service for its own use and without a view to resale thereof.
- “Customer Account” means Customer’s Services account accessible at www.miovision.com (or such other URL as Miovision may designate from time to time).
- “Customer Data” means, other than Aggregated Statistics and Miovision IP, any information, data, forms, files, reports or other materials or content of any nature, in any form or medium, that is submitted, posted, uploaded or otherwise transmitted by or on behalf of Customer or an Authorized User through the Products and/or Services.
- “Deliverable” means any and all reports, studies and/or other outputs to be provided by Miovision to Customer in relation to the Services (as may be described in the Quotation, when applicable).
- “Documentation” means all instructions, manuals, handbooks, user guides, technical literature and other written materials, including revisions thereto, for the Use of the Services as provided by Miovision from time to time, or as otherwise generally provided by Miovision to end customers in connection with the Services that define the features, operation and other key characteristics of the Services.
- “Event of Default” has the meaning set forth in Section 13.2 (Termination for Breach).
- “Feedback” has the meaning set forth in Section 10.7 (Customer Feedback).
- “Fees” means, collectively, any and all amounts owing by the Customer (as may be set out in a Quotation, when applicable) including the Subscription Fees for Services.
- “Force Majeure Event” has the meaning given to such term in Section 14.5 (Force Majeure).
- “Improvements” has the meaning given to such term in Section 10.7 (Customer Feedback).
- “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).
- “License” has the meaning given to such term in Section 10.4 (License to Customer).
- “Miovision” means either Miovision Technologies Incorporated or an Affiliate of Miovision Technologies Incorporated and is based on the country in which the Customer is located. The applicable Miovision entity will be named in the Quotation (when applicable) or is otherwise as determined by Miovision.
- “Miovision IP” includes all Intellectual Property in and associated with Miovision’s products and services (including, without limitation, the Services, and any Miovision support, Documentation, Products, and Deliverables) and all modifications, changes, enhancements, or additions made thereto (whether initiated by the Customer or otherwise), and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other Intellectual Property in connection with the foregoing. For the avoidance of doubt, Miovision IP includes Aggregated Statistics and any information, data or other content derived from Miovision’s monitoring of Customer’s Use of the Product, Services, Documentation or Deliverables, but does not include Customer Data.
- “Partner” means a Miovision-approved entity that purchases Miovision’s products and/or services from Miovision and markets and resells Miovision’s products and/or services to end customers, in accordance with an agreement between Miovision and the Partner.
- “Party” means Miovision or Customer; “Parties” means Miovision and Customer.
- “Products” means the tangible, physical, hardware equipment that may be Miovision-produced or otherwise approved for use with the Service by Miovision.
- “Purchase Order” means a written order for the subscription to the Services made by Customer and issued to Miovision pursuant to a Quotation.
- “Quotation” means Miovision’s written quotation issued to the Customer for the Services being purchased hereunder.
- “Service(s)” means Miovision’s software-as-a-service subscription offering and related Documentation. The term “Service(s)” shall include any and all Deliverables to be provided to the Customer by Miovision.
- “Subscription Fees” means the subscription fees payable for the Services for the applicable Subscription Term (the applicable rates may be as set out in a Quotation, when applicable). For clarity, there may be different Subscription Fee models applicable to the Services which shall be set out in the applicable Quotation.
- “Subscription Term” means the period of time during which the Customer has acquired the licensed right to Use the Services in accordance with and subject to the terms of this Agreement. The Subscription Term commences on the Commencement Date. The duration of the Subscription Term may be set out in the Quotation, when applicable.
- “Support Site” means the Miovision customer support site located at https://support.miovision.com.
- “Suspended Account” has the meaning given to that term in Section 7.7 (Suspension).
- “Taxes” has the meaning given to that term in Section 5.5 (Taxes).
- “Use” and “Using” have the meaning ascribed to them in Section 1.1.
- 4.2 Interpretation. In this Agreement: (a) capitalized terms shall have the meanings as defined in Section 4.1 (Definitions) or as otherwise defined in this Agreement; (b) section headings are provided for convenience and reference only and in no way defined, limit, construe or describe the scope or extent of such section or subsection or in any way affect this Agreement, and if any conflict of interpretation arises between a section heading and the text of the section, the text shall prevail; (c) all references to “Agreement” include these terms and conditions and any URLs, schedules, attachments, exhibits, or documents attached to or referenced in or by these terms and conditions and any Quotations, when applicable; (d) Section 14.3 (Entire Agreement; Governing Terms) sets out how any conflicts that arise between these terms and conditions and any URL, schedule, attachment, exhibit, or document attached to or referenced in or by these terms and conditions shall be determined; (e) unless the context requires otherwise, the singular will include the plural and vice versa; (f) “for example”, “includes” and “including” are not limiting; (g) “all” includes “any” and “any” includes “all”; and (h) references to “days” means calendar days unless stated otherwise.
5. PURCHASE ORDERS AND PAYMENT TERMS
- 5.1 Quotation. When Customer orders Services directly from Miovision, Miovision will issue a Quotation to the Customer for the particular Services to which the Customer is interested in subscribing. Customer will thereafter initiate the Services under this Agreement by accepting the Quotation. Once accepted by Customer, a Quotation is binding and non-cancellable. Each Quotation is subject to Miovision’s assessment of Customer’s creditworthiness and payment history at the time such Quotation is accepted by Customer. Miovision expressly reserves the right, in Miovision’s absolute and sole discretion, to cancel a Quotation or refuse to supply under a Quotation. When Customer orders Services through a Partner, the Customer and the Partner will handle the quotation and ordering processes as between Customer and Partner, and the Partner will order the Services for Customer from Miovision on Customer’s behalf.
- 5.2 Purchase Orders. When Customer orders Services directly from Miovision, Customer may: (a) submit a written, binding, non-cancellable Purchase Order to Miovision for the Services identified in the Quotation; or (b) sign the Quotation and return same to Miovision. If Customer issues a Purchase Order, Customer shall ensure that the Purchase Order accurately and completely references the applicable Quotation in its entirety, and shall, in each case, specify: (i) the Purchase Order number; (ii) the billing address; (iii) the Customer’s name; (iv) requested commencement date; (v) the Services description and the applicable Fees; (vi) quantity purchased (or licensed); (vii) authorized signature; and (viii) such other information as Miovision may reasonably request. Purchase Orders shall be addressed to the Miovision entity that issued the written Quotation to the Customer. Any and all Purchase Orders submitted in response to a Quotation shall be deemed to incorporate all terms and conditions of this Agreement and the Quotation.
- 5.3 Inconsistent Terms. Any terms and conditions 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, handwritten notes made by Customer on a Quotation prior to Customer signing the Quotation, or Customer’s posted terms and conditions), whether included with, or referenced in, such Purchase Order or signed-back Quotation, or otherwise, shall be expressly stricken and deemed null and void, unless a written amendment modifying this Agreement is agreed to and signed by an authorized representative of Miovision.
- 5.4 Payment Terms.
- 5.4.1 Subscription Fees. Customer shall pay the Fees without any set-off, withholding or deduction whatsoever. Customer shall make all payments hereunder on or before the due date.
- 5.4.2 Invoicing and Payment. Subject to Miovision’s credit evaluation and approval of Customer, the full payment of Fees owing is due thirty (30) days after the date on Miovision’s invoice, which may be issued to Customer on the Commencement Date of Services. Customer shall pay the Fees for the Services on or before the due date, and without any set-off, withholding or deduction whatsoever.
- 5.4.3 Currency and Transfer. All payments to Miovision must be made by wire transfer or ACH/EFT and in the currency as specified on Miovision’s invoice or, in the absence of a currency being specified on the invoice, in United States dollars. All Fees paid are non-refundable except as may otherwise be expressly provided in Section 10.11(C) of this Agreement.
- 5.4.4 Late Payments. Late payments will be assessed a service charge from the date such payment is due until the date it is paid in full, calculated at the lesser of: (a) 1.5% of the outstanding balance per month (18% per annum); or (b) the maximum rate allowed by law. Customer shall pay all reasonable costs incurred by Miovision in collecting any amounts overdue to Miovision by Customer, including reasonable legal, collection and recovery fees and expenses.
- 5.4.5 Data Overages. Customer agrees that Miovision may charge Customer for excess or unauthorized data use.
- 5.5 Taxes. All prices for the Services are exclusive of taxes and Customer will at all times be responsible for, without limitation, the following: (a) sales, value-added, use, excise, withholding and other applicable taxes; (b) import/export/customs duties, tariffs and/or taxes; (c) government permits or license fees and/or inspection fees; and (d) any penalties and interest charges relating to the foregoing, or any costs expended by Miovision to collect such amounts from Customer (collectively, “Taxes”). If the jurisdiction in which Customer is located requires Customer to withhold any taxes from the payment of the purchase price, unless Customer provides Miovision with a valid exemption certificate authorized by the appropriate taxing authority to Miovision’s reasonable satisfaction, the purchase price shall then be automatically deemed to be grossed up by an amount equal to the applicable withholding taxes so that the net amount received by Miovision shall be equal to the agreed upon purchase price. If Customer fails to pay any applicable taxes as of their original due date and Miovision receives an assessment or other notice (collectively, the “Assessment”) from any governmental taxing authority stating that such taxes are due from Miovision, then Miovision shall give Customer written notice of the Assessment and Customer shall pay the taxing authority within thirty (30) days of the receipt of such written notice from Miovision. If Miovision pays any applicable taxes to any governmental authority on behalf of Customer, Customer shall immediately upon Miovision’s demand reimburse Miovision the full amount of such payment, without any withholding, deduction or set-off whatsoever.
- 6.1 Right to Use Services. Subject to and conditioned on Customer’s payment of Fees and compliance with this Agreement, Miovision hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14.8 (Assignment)) right to Use the Services during the Subscription Term, solely for use by Authorized Users in accordance with this Agreement. Such use is limited to Customer’s internal use. The total number of Authorized Users, when applicable, shall not exceed the number acquired by Customer (as may be set forth in a Quotation, when applicable), except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of Fees payable under this Agreement.
- 6.2 Provision of Access. Customer and Authorized Users shall access the Services by means of a specific Customer Account using individual user login names and passwords provided by Miovision. Miovision shall provide Customer the necessary user logins and passwords to allow Customer to access the Customer Account and the Services. Customer is solely responsible for the confidentiality and use of user login names and passwords and the Customer Account and all charges incurred from use of the Services accessed with the Customer’s user login names and passwords or the Customer Account. In no event shall Miovision be liable for any loss of information of the Customer as a result of the use of the Services (or any Products, if applicable), or other claims arising from unauthorized access to or use of the Customer’s Account.
- 6.3 Authorized Users. In addition to the foregoing rights granted in this Section 6 (Services), the Customer shall have the right to provide access to the Services, the Customer Account and Customer’s user login names and passwords 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, the Customer Account or Customer’s user login names and passwords, or assign, sublicense or otherwise transfer any rights to the Services the Customer Account and Customer’s user login names and passwords granted by this Agreement other than as expressly permitted in writing by Miovision which must be signed by an authorized representative of Miovision. The Customer shall in all events be liable and indemnify Miovision for any breach of this provision by Customer or any Authorized User(s).
- 6.4 Customer Account. Miovision shall have the right, in its sole discretion, to access the Customer Account from time to time for purposes of Support, administration, invoicing and to inspect Customer’s utilization of Services so as to ensure Customer’s compliance with the provisions of this Agreement.
- 6.5 Additional Services. If Customer wishes to have Miovision provide additional Services in the future, Customer shall seek a quotation for such additional Services from Miovision (in which case, Miovision may provide a new Quotation to Customer for such additional Services) or from Partner. As additional Services are activated by Customer (which may be pursuant to a further Quotation), the Subscription Fees may be pro-rated by Miovision to ensure all Subscription Fees for Services are co-terminus and provide a single expiration date for purposes of the renewal of the Term.
- 6.6 Additional Products or Custom Development Services. This Agreement does not cover the purchase of any Products or custom development services. If Customer wishes to have Miovision provide any Products or any custom development services, Customer shall seek a quotation for such additional Products or custom development services from Miovision or Partner. The provision of any Products or any custom development services shall require the Miovision and the Customer, or Customer and Partner, entering into a separate agreement with mutually agreeable written terms and conditions applicable to the provision of such Products or custom development services.
- 6.7 Effect of Non-Renewal. If the Customer chooses not to renew the Services following the expiration or termination of the applicable Subscription Term, all access to the Services shall be terminated as of the expiration or termination of the applicable Subscription Term and Miovision shall have no obligation to provide any further access to the Services, nor any assistance or support in relation to such Services.
- 6.8 Reinstatement. If the Customer requests to reinstate its expired or terminated Services after a period of non-enrollment, the Customer shall seek such reinstatement from Miovision (in which case, Miovision will provide a new Quotation to Customer which may include a reinstatement fee), or from a Partner.
- 6.9 Data Connection. Customer is only permitted to transmit audio and video Customer Data from the Product(s) to the Services if Customer has subscribed to a Service that allows such transmission and such subscription is in good standing.
7. CUSTOMER RESPONSIBILITIES
- 7.1 General. Customer is responsible and liable for all uses of the Products and Services resulting from access provided to others, including Authorized Users, by Customer, directly or indirectly, whether such Use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Products and Services and shall cause Authorized Users to comply with such provisions.
- 7.2 Requirements. Customer is responsible for all of its own computer, equipment, software, network and internet connection costs related to its Use of the Services, and installation and configuration thereof. If Customer wishes to purchase Products from Miovision, the Miovision Terms of Sale for Hardware shall apply to such purchases.
- 7.3 Partner Payments. For all Services that Customer orders through a Partner, Customer is responsible for: (a) making all applicable payments to a Partner; and (b) ensuring that Partner pays Customer for such Services.
- 7.4 Compliance with Laws. Customer hereby certifies that it will, at its own cost and expense: (a) fully comply with all laws, ordinances, legislation and regulations applicable to the Use of the Services including privacy, data protection and national security related laws and regulations; (b) obtain all the consents and/or decrees to the extent required by law; and (c) use the Services only to the extent permitted by law and not to enable the commission of any violation of law by any person.
- 7.5 Compliance with Policies. Customer agrees that Customer shall comply with Miovision’s guidelines and policies when using the Products and Services. Miovision may update Miovision’s guidelines and policies from time to time and the guidelines and policies (including any updates thereto) shall form part of this Agreement and are hereby incorporated by reference. Miovision may provide the guidelines and policies to Customer, upon request, or publish the guidelines and policies on Miovision’s website at www.miovision.com.
- 7.6 Prohibited Acts. Customer may not itself, nor permit others to, and Customer shall ensure that Authorized Users do not, at any time, directly or indirectly: (a) use the Services for any purposes beyond the scope of the License rights and access granted in this Agreement; (b) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to derive source code from or create derivative works based on the Services, in whole or in party; (c) use, modify, enhance, copy or sublicense any software related to the Services; (d) remove, modify, obscure, deface or otherwise alter or tamper with any copyright, trademark or other proprietary notices, labels, legends or marks on the Services (including any copyright or other attribution statements for open source software); (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available the Services; (f) use any Service (or part thereof) in a manner, or for a purpose, that: (i) infringes, misappropriates, or otherwise violates any confidentiality, privacy, trade secret or intellectual property right, or any other right, of any person or entity; violates any applicable law (including data protection and privacy laws, and civil and criminal laws); (ii) is libelous or defamatory; or (iii) is obscene, indecent, harmful to minors or otherwise objectionable; (g) violate any applicable policies, rules or guidelines of Miovision or any of Miovision’s suppliers or service providers; or (h) disrupts or threatens the integrity, operation or security of any Service or any computer or communications systems.
- 7.7 Suspension. If Miovision does not receive payments of Fees when due, or Customer fails to comply with Section 7 (Customer Responsibilities), Section 10 (Ownership of Intellectual Property & Indemnification) or Section 11 (Protection of Confidential Information), in addition to any other rights and remedies Miovision may have in this Agreement, at law or in equity, Miovision may (with or without notice to Customer) take certain actions it deems appropriate including, but not limited to, Miovision may temporarily or permanently suspend or cancel: (a) Customer’s (and any of its Authorized Users’) access to or use of the Services; and/or (b) performance (in part or entirely) of any Quotations, when applicable (each a “Suspended Account”). A Suspended Account does not eliminate Customer’s obligation to pay those amounts outstanding to the date of such suspension or thereafter for the remainder of the Subscription Term, as the case may be. Miovision shall not be liable to Customer, or any other person, as a result of any suspension or termination of any Quotations or the Services, or any Suspended Account.
- 7.8 Indemnification. Customer shall defend, indemnify and hold Miovision and its Affiliates, 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 Customer) claim, suit, action or judgment (commenced or threatened) brought against Miovision resulting from: (a) the infringement or alleged infringement of a third party’s Intellectual Property Rights resulting from Miovision’s compliance with any designs, specifications or instructions of Customers; (b) any use of Customer Data by Miovision in accordance with the terms hereof; (c) Customer’s use of the Services other than as intended by Miovision; or (d) any failure to comply with, or breach of, Sections 5 (Purchase Orders and Payment Terms), 6 (Services), 7 (Customer Responsibilities), 9 (Warranties and Disclaimers), 10 (Ownership of Intellectual Property & Indemnification), 11 (Protection of Confidential Information), 12 (Limitation of Liability), 13 (Termination) or 14 (General Provisions) or any applicable laws by Customers; provided that: (i) Miovision notifies the Customer promptly in writing of the claim; (ii) Miovision gives the Customer full authority to defend, negotiate and settle the claim; and (iii) Miovision fully discloses all facts and details and co-operates fully in the defense.
8. SUPPORT; SERVICE LEVELS
- 8.1 Miovision will use commercially reasonable efforts to provide Support during the applicable Subscription Term in accordance with the Support Site.
- 8.2 Partners may provide the Support, or part thereof, to Customer from time to time as determined by Miovision at its sole discretion.
- 8.3 Customer acknowledges that the 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 the Systems, and Miovision will make reasonable efforts to announce the scheduled downtime via e-mail to Customer’s designated e-mail address.
- 8.4 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 and/or services; (b) any problem caused by modifications to Miovision’s products and/or services not made or authorized by Miovision; (c) any problem resulting from Customer or Authorized User combining or merging Miovision’s products and/or services with any hardware or software not supplied by Miovision, or not identified by Miovision as compatible with Miovision’s products and/or services; or (d) any custom development services.
- 8.5 Miovision shall use reasonable efforts to provide analysis of videos uploaded to the Services and deliver the resulting data in the relevant turnaround selected by the Customer within the Services. All turnaround time calculations are targets that Miovision will use commercially reasonable efforts to meet on a consistent basis. Customer acknowledges that circumstances outside the control of Miovision, including Force Majeure Events and hardware, software and/or communications systems failures, may impact on Miovision’s ability to achieve target service levels from time to time. Miovision shall not be liable for any claims resulting therefrom provided it is using commercially reasonable efforts to reinstate normal service levels and system access.
9. WARRANTIES AND DISCLAIMERS
- 9.1 Services Warranties.
- 9.1.1 Miovision warrants that, during the Subscription Term, the Services will operate substantially in accordance with, and have the functionality set out in, the then-current Documentation under normal uses and conditions. For clarity, Miovision may update the Documentation for the Services from time to time and this warranty shall apply to the Services in accordance with the most current Documentation. Miovision does not warrant that the operation of the Services will meet Customer’s requirements or specifications or that the Services are free from defects or that the operation of the Services will be uninterrupted, error free, virus-free or secure.
- 9.1.2 Furthermore, Miovision does not warrant that Services will appear or operate precisely as described or that all errors will be corrected. For greater certainty, Miovision does not warrant: (a) that the Services will operate without interruption or error-free or at particular performance levels; (b) the quality, completeness, accuracy, usefulness or integrity of any information resulting from the use of the Services; or (c) that the Services will not give rise to, or cause errors, bugs or other defects that can impact on all or any of the foregoing. The nature of the Services, including the use of and reliance on data provided by persons other than Miovision, is such as to also require the exercise by the Customer of subjective judgments as to accuracy, materiality, relevance and other factors. It is the responsibility of Customer to review, check and confirm results.
- 9.1.3 Customer acknowledges and accepts that there may be interruptions in service or events when utilizing the internet, and that access to the Services may be interrupted, suspended or terminated from time to time, due to circumstances beyond the control of Miovision. Despite Miovision’s reasonable commercial efforts, including usage of only top tier, enterprise class vendors for wireless communications and data hosting, to keep the Services accessible at all times, the Services may be unavailable from time to time for any reason, and the Customer acknowledges and agrees that Miovision shall not be responsible at any time for any claims, data lost 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 the internet provides the opportunity for unauthorized third parties to gain access to the Services and Customer Data. Accordingly, Miovision cannot and does not guarantee the privacy or security of any Customer Data or Customer Confidential Information 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. Customer acknowledges that Miovision shall not be liable for any access to or usage by third parties of any information used in connection with the Services, and Miovision’s sole and exclusive liability shall be for Miovision to correct any reported problem in the Services directly attributable to Miovision’s own support failure.
- 9.2 Warranty Disclaimers. THE PROVISIONS OF THIS SECTION STATE MIOVISION’S ENTIRE RESPONSIBILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY BREACH OF ANY WARRANTY REGARDING THE PRODUCTS AND SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 (WARRANTIES AND DISCLAIMERS), THE PRODUCTS AND 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 THE PRODUCTS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS SECTION 9 (WARRANTIES AND DISCLAIMERS) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, FOR ALL PRODUCTS AND SERVICES INCLUDING 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. MIOVISION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR ANY PURPOSE (PARTICULAR, SPECIFIC OR OTHERWISE) WITH RESPECT TO THE PRODUCTS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. MIOVISION DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR SPECIFICATIONS.
10. OWNERSHIP OF INTELLECTUAL PROPERTY & INDEMNIFICATION
- 10.1 Miovision IP. Customer agrees that Miovision owns, solely and exclusively, all rights, title, and interest to the Miovision IP. Customer acknowledges that Miovision may currently or in the future be developing technologies or products or services internally, or receiving technologies or products or services and related information from other parties, and that Customer Data may be incorporated into such technologies and products. Customer acknowledges and agrees that nothing in this Agreement shall limit in any way Miovision’s ability to use Customer Data to develop technologies or products or services, or to have products or services developed for it, that relate to all or any services provided to Customer, provided that in the course of such development, no provisions of this Agreement relating to Confidential Information are breached. Customer further acknowledges that Miovision may create original works for third parties that may incorporate aspects of the Customer Data, and Customer agrees that Miovision will not be prevented from independently creating such original, but similar, works for the benefit of third parties.
- 10.2 Services & Deliverables. Customer agrees that, except for any Customer Data, Miovision exclusively owns all rights, title and interest in the Services and the Deliverables, including all applicable Intellectual Property Rights in the Services and the Deliverables and that title thereto shall remain with Miovision. The Services and any Deliverables associated therewith do not constitute “works for hire” under any applicable copyright or similar laws. All applicable patents, copyrights, trademarks, trade secrets and other rights and interests in the Services and Deliverables are and shall remain entirely in Miovision. To the extent that the Services or Deliverables contain Confidential Information of the Partner or Customer, use of that Confidential Information shall remain subject to this Agreement. All other aspects of the Services and Deliverables shall be deemed Confidential Information of Miovision.
- 10.3 Non-Exclusivity. Customer acknowledges that Miovision provides similar services and deliverables to other end users, customers, resellers, distributors, partners and other entities, and that nothing in this Agreement shall be construed to prevent Miovision from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it similar products, services or materials or performing the same or similar functions as the Products and Services contemplated by this Agreement or any applicable Quotation. For greater certainty, Miovision is free to use without restriction its general knowledge, skills and experience and any ideas, concepts, know-how and techniques learned in the course of providing the Products and Services.
- 10.4 License to Customer. Subject to Miovision receiving payment for the Services from Customer (either directly or via a Partner) and Customer’s compliance with this Agreement, Customer hereby subscribes for, and Miovision grants to Customer, a limited, non-transferable, non-exclusive, non-sub-licensable right and license (the “License”) for Authorized Users to Use the Services exclusively for Customer’s internal use and for the applicable Subscription Term. Except for the limited License and rights specifically granted to the Customer in this Section 10 (Ownership of Intellectual Property & Indemnification) and elsewhere in this Agreement, nothing in this Agreement gives the Customer any right, title or interest in, to or under any Miovision IP. Customer shall have no rights other than those expressly stated in this Agreement.
- 10.5 Customer Data.
- 10.5.2 Customer Data is solely owned by, and is the sole responsibility of, the Customer. Customer acknowledges that all Customer Data transmitted or accessed using the Services is at Customer’s own risk and Customer will be solely responsible and liable for any damage or loss to Customer, its Authorized Users, and/or any other party resulting therefrom. Customer remains solely responsible for all Customer Data that is transmitted in connection with the Services, and Customer warrants that Customer possesses all rights necessary to provide and share such Customer Data. Miovision reserves the right to remove from any Services any Customer Data that Miovision, in its sole discretion, believes to be objectionable. Customer understands that, by providing Customer Data in connection with the Services, Customer hereby grants Miovision a non-exclusive, irrevocable, perpetual, worldwide, royalty-free right and license (with a right to sublicense) to reproduce, distribute, gather, organize, aggregate, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, combine and repackage, and otherwise use the Customer Data in any media now existing or developed in the future only so far as required to deliver the Services, to address and resolve technical issues, and to modify and improve the Services. Customer waives any rights of publicity, moral or other similar such right with respect to Customer Data while used in accordance with the preceding sentence. Further, Customer represents and warrants that: (a) Customer has all the rights necessary to grant Miovision such a license; and (b) Customer is responsible for Customer Data that may be lost or unrecoverable through use of the Services. Miovision recommends that Customer create and maintain regular backups of all Customer Data and associated data. Miovision reserves the right to place service limits (including as to volume of data and time) on the Customer Data and associated data stored or retained within the Service.
- 10.5.3 The Customer agrees that it is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is stored within the Services or on the Systems, disclosed to or used by Customer, or Authorized Users, in connection with Services.
- 10.6 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Miovision may collect and compile Aggregated Statistics. As between Miovision and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Miovision. Customer acknowledges that Miovision may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Miovision may: (a) make Aggregated Statistics publicly available in compliance with applicable laws; and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable laws; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
- 10.7 Customer Feedback. Customer may (but is not required to) provide feedback, comments and suggestions, including in respect of or concerning any improvements, errors, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to Miovision concerning any of Miovision’s products or services, or any Miovision intellectual property. Feedback may be provided directly to Miovision or through a Partner. Customer hereby grants to Miovision a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose. Miovision may develop technology, modifications, corrections, enhancements, derivatives or extensions (collectively, “Improvements”), and further may also develop branding elements based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, will be owned exclusively by Miovision. Customer agrees to execute such further documents and instruments as may be required to confirm such ownership by Miovision. Customer represents that the Feedback will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; or (b) violate any law, statute, ordinance or regulation.
- 10.8 Waiver of Moral Rights. To the extent that the Customer acquires rights in any Miovision IP, Customer hereby does and will: (a) assign such rights to Miovision; and (b) waive any and all moral rights Customer may have in Miovision IP to and in favor of Miovision.
- 10.9 Reservation of Rights. Miovision reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights, licenses and access expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title or interest in or to Miovision IP. Customer will use diligent efforts to protect Miovision IP in the Products and Services and will report promptly to Miovision any potential infringement of such rights of which Customer becomes aware. Miovision reserves the sole and exclusive right, at Miovision’s discretion, to assert claims for infringement or other violation of Miovision IP.
- 10.10 Confidentiality of Miovision Intellectual Property. 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.
- 10.11 Intellectual Property Indemnification. Miovision will defend and indemnify Customer for any damages and costs that are awarded against Customer based on a claim that the Services as provided by Miovision infringe on any valid patents in Canada or the United States of a third party, provided that the Customer: (a) gives Miovision prompt notice in writing of the claim and in no event later than five (5) business days after learning thereof; (b) gives Miovision full control over the defense and settlement of the claim, including any investigation related thereto; (c) fully cooperates with Miovision for the investigation, defense and settlement of the claim; (d) executes all documents necessary for the defense and/or settlement of the claim; and (e) has not compromised or settled the claim. Miovision shall have no obligations in the event that: (i) the Services have been modified or repaired by anyone other than Miovision without prior written approval from Miovision; (ii) the Services have been combined with other products, equipment, software, apparatus, devices, items or things not supplied by Miovision provided that the Services prior to being so combined would not have caused the infringement claim; (iii) the Services are used for an application not recommended by Miovision; (iv) the current, unaltered version of the Services could have avoided the infringement claim; (v) any settlements have been entered into without prior written approval from Miovision; or (vi) Customer was aware of the infringement claim as of the Commencement Date of the Services. If any such claim is brought or appears to Miovision likely to be brought, Miovision may at its own option either: (A) replace or modify the Services to make the Services non-infringing; (B) secure rights for the Customer to continue using the Services; or (C) if Miovision, acting reasonably, determines that (A) and (B) are not commercially reasonable options, provide a refund of the Subscription Fees received by Miovision for the remainder of the Subscription Term. Customer must immediately discontinue all use of the Service(s) giving rise to the original claim without prior written approval from Miovision.
- 10.12 EXCLUSIVE REMEDY. SECTION 10.11 (INTELLECTUAL PROPERTY INDEMNIFICATION) STATES THE ENTIRE LIABILITY AND OBLIGATION OF MIOVISION, AND THE SOLE REMEDY OF CUSTOMER, FOR ANY THIRD PARTY CLAIMS RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT. MIOVISION DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES.
11. PROTECTION OF CONFIDENTIAL INFORMATION
- 11.1 Confidential Information. Each Party acknowledges that it may be exposed to certain confidential and/or proprietary information and materials regarding the other Party’s business including, but not limited to, this Agreement, information concerning a Party’s business, technology, customers and suppliers (including, without limitation, any information that is embedded in, or related to: (a) the business of Miovision and/or its Affiliates; (b) any goods, products, software, services documentation that is disclosed, supplied or licensed by or on behalf of Miovision or its Affiliates; (c) the technology, customers, suppliers or services of Miovision and/or its Affiliates, and all Miovision IP; or (d) the development, testing, or commercial exploitation of any of the foregoing; all of which are considered and deemed to be trade secrets of Miovision and/or its Affiliates), which: (i) is disclosed by the disclosing Party in writing and is marked or identified as confidential or proprietary (or a like designation) at the time of disclosure or within a reasonable time thereafter; or (ii) is disclosed by the disclosing Party in any other manner and is identified as confidential at the time of disclosure or within a reasonable time thereafter; or (iii) given the circumstances of the disclosure, should be understood by the recipient, exercising reasonable business judgment, to be confidential (“Confidential Information”). For clarity, the disclosing Party’s customer lists, partner lists, marketing plans, business plans, product plans and pricing models, and Miovision’s Documentation shall always be treated as Confidential Information regardless of whether they are marked or identified as being confidential or proprietary or provided in writing, orally or otherwise. Documentation contains information proprietary to Miovision (or its Affiliates or a third party to which Miovision may have a legal obligation to protect such information from unauthorized disclosure, use or duplication) and any disclosure, use or duplication of Documentation or any of the information therein, for any reason other than the specific purpose for which it was disclosed by Miovision is expressly prohibited, except to the extent that Miovision may otherwise authorize in writing.
- 11.2 Exclusions. Confidential Information shall not include any information or material which: (a) was lawfully in the possession of the receiving Party prior to receipt from the disclosing Party; (b) is or becomes publicly available through no wrongful act of the receiving Party; (c) is obtained by the receiving Party from a third party without restriction; (d) is independently developed by the receiving Party; (e) is disclosed by the receiving Party with the disclosing Party’s prior written approval; or (f) is required to be disclosed by a court of competent jurisdiction or other governmental authority provided that the receiving Party takes reasonable steps to give the other Party sufficient prior written notice so that it can challenge such requirement.
- 11.3 Restrictions. Except in relation to trade secrets of Miovision and its Affiliates, each Party shall for a period of five (5) years following the expiry or termination of this Agreement: (a) use a reasonable standard of care to protect Confidential Information which shall be no less protective than the manner in which the receiving Party protects the confidentiality of and unwanted disclosure of its own confidential information; (b) not use Confidential Information except as permitted by the disclosing Party; (c) not disclose Confidential Information except to its Affiliates, employees or representatives to whom disclosure is necessary to effect the purposes of this Agreement, and who are similarly bound to hold the Confidential Information in confidence; and (d) not reproduce Confidential Information without the disclosing Party’s prior written consent. For clarity, trade secrets of Miovision and/or its Affiliates includes, without limitation, information that is embedded in, or related to: (i) the business of Miovision and/or its Affiliates; (ii) any goods, products, software, services documentation that is disclosed, supplied or licensed by or on behalf of Miovision or its Affiliates; (iii) the technology, customers, suppliers or services of Miovision and/or its Affiliates; or (iv) the development, testing, or commercial exploitation of any of the foregoing. The confidentiality obligations of the Partner and Customer shall apply indefinitely in relation to trade secrets of Miovision and/or its Affiliates.
- 11.4 Permitted Disclosures. Either Party may disclose this Agreement in confidence, and only to the extent reasonably necessary: (a) to legal counsel of the Party; (b) to accountants, banks, proposed investors, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in connection with a merger or acquisition or proposed merger or acquisition, or similar transaction.
- 11.5 Return of Confidential Information. Each Party shall, upon termination or expiration of this Agreement, return to the disclosing Party all tangible manifestations containing Confidential Information that have been provided under this Agreement, including any copies and reproductions. The provisions of this Section 11.5 (Return of Confidential Information) shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Information or copies thereof which must be stored by the receiving Party according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
12. LIMITATION OF LIABILITY
- 12.1 Exclusion of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF SALES OR PROFIT, FAILURE TO REALIZE EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS, PERSONAL INJURY, PROPERTY DAMAGE, ANY LOSS ASSOCIATED WITH OR ARISING IN RELATION TO ANY PRODUCTS OR SERVICES; OR ANY LOSS OR FAILURE RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT: (A) WHETHER OR NOT SUCH LOSSES, FAILURES OR FAILURES TO REALIZE ARE CONSIDERED DIRECT OR INDIRECT, ARE REASONABLY FORESEEABLE, OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, FAILURE OR FAILURE TO REALIZE; AND (B) HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE SERVICES, THE USE OF THE PRODUCTS, THE FAILURE OF THE PRODUCTS TO PERFORM, PERSONAL INJURY, DAMAGE TO PROPERTY, OR ANY OTHER REASON ARISING IN CONNECTION WITH THIS AGREEMENT; AND (C) REGARDLESS OF THE THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, WHETHER THE ACTION AROSE IN CONTRACT (INCLUDING, WITHOUT LIMITATION, FROM A FUNDAMENTAL BREACH, OR BREACH OF A CONDITION, FUNDAMENTAL TERM OR WARRANTY); OR IN TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE); OR OTHERWISE.
- 12.2 Aggregate Limitation. SUBJECT TO SECTION 12.1 (EXCLUSION OF CONSEQUENTIAL DAMAGES) AND SECTION 12.3 (CERTAIN DAMAGES NOT EXCLUDED OR LIMITED), MIOVISION’S LIABILITY TO CUSTOMER 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 SUBSCRIPTION FEES RECEIVED BY MIOVISION IN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD FOR THE PARTICULAR SERVICE SUBSCRIBED TO BY THE CUSTOMER GIVING RISE TO SUCH CLAIM. FOR CLARITY, MIOVISION HAS NO LIABILITY WHATSOEVER IN RELATION TO ANY ARRANGEMENTS OR AGREEMENTS BETWEEN CUSTOMER AND PARTNER (INCLUDING THE PROVISION OF ANY REFUND FOR CUSTOMER).
- 12.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (A) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) ANY CLAIMS FOR NON-PAYMENT; (C) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; OR (D) WITH RESPECT TO CUSTOMER, ANY FAILURE TO COMPLY WITH, OR BREACH OF, SECTIONS 5.4 (PAYMENT TERMS), 9 (WARRANTIES AND DISCLAIMERS, 10 (OWNERSHIP OF INTELLECTUAL PROPERTY & INDEMNIFICATION), AND 11 (PROTECTION OF CONFIDENTIAL INFORMATION) OF THIS AGREEMENT OR ANY APPLICABLE LAWS BY CUSTOMER OR CUSTOMER’S AFFILIATES OR AUTHORIZED USERS.
- 13.1 Termination for Breach. Each of the following occurrences shall be deemed to be a material breach of this Agreement (“Event of Default”):
- 13.1.1 the Customer fails to make payment of any amount due to Miovision;
- 13.1.2 the Customer breaches any of the obligations or provisions of this Agreement and fails to remedy such breach within fifteen (15) Business Days of written notice of such default from Miovision; or
- 13.1.3 the Customer breaches or threatens to breach any provision of this Agreement related to Miovision IP or Miovision’s Confidential Information, or anyone’s privacy rights.
- 13.2 Miovision’s Election. Upon an Event of Default, Miovision may, in its sole discretion, either (a) suspend Customer’s and/or Authorized User’s Use of the Services and/or support until the Event of Default is remedied to Miovision’s reasonable satisfaction; or (b) terminate this Agreement upon written notice by Miovision to Customer.
- 13.3 Effects of Termination. Upon the effective date of termination of this Agreement for any reason:
- 13.3.1 all rights and obligations under this Agreement shall terminate, and Miovision shall cease providing Customer and/or Authorized Users, as the case may be, with Use of any Services and/or support whatsoever;
- 13.3.2 Customer shall immediately pay to Miovision any and all amounts owed to Miovision under this Agreement, and all costs incurred by Miovision (including reasonable legal, collection and recovery fees and expenses) in enforcing its rights hereunder;
- 13.3.3 Customer shall immediately pay Miovision for all applicable Services discounts provided to Customer as part of any multi-year discount agreement (if applicable), which by virtue of termination of this Agreement shall no longer be applicable;
- 13.3.4 Customer will have ten (10) days following the effective date of termination to retrieve all Customer Data from the Services, afterwards Miovision has no obligation to retain any copy thereof;
- 13.3.5 Customer shall release Miovision from all obligations under this Agreement, and all rights and obligations of the Customer shall be at an end, subject to Section 14.17 (Survival);
- 13.3.6 each Party shall immediately return to the other, or destroy (including providing satisfactory evidence of such destruction), all copies of the disclosing Party’s Confidential Information in the receiving Party’s possession or control, subject to Section 11.5 (Return of Confidential Information) above;
- 13.3.7 Miovision shall continue to have all remedies which are available to it at law or in equity including, without limitation, the right to injunctive relief; and
- 13.3.8 certain provisions of this Agreement shall survive termination of this Agreement in accordance with Section 14.17 (Survival).
14. GENERAL PROVISIONS
- 14.1 End of Life. Miovision reserves the right to discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any or all of the Products and Services covered by this Agreement. Miovision will provide the notice as required by law, prior to discontinuing any Products and/or Services in accordance with Miovision’s end-of-life policy.
- 14.2 Publicity. Miovision shall have the right to: (a) develop public communications (including, without limitation, press releases, advertisements and customer success stories) which include references to the Customer and concern this Agreement or any related matter; and (b) use the Customer’s trademarks, service marks, logos and trade names in any such public communications and to identify Customer as a customer of Miovision’s on Miovision’s website and as a part of a general list of Miovision’s customers for use and reference in Miovision’s corporate, promotional and marketing literature. No such public communications shall be made by Miovision without the Customer’s prior written consent, and Customer shall not unreasonably withhold, condition or delay such consent.
- 14.3 Entire Agreement; Governing Terms. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and cancels and supersedes all prior understandings, agreements, discussions, covenants and arrangements between the Parties relating thereto. There are no representations, warranties, terms, conditions, undertakings, or collateral agreements, express, implied, statutory or otherwise, between the Parties, except as expressly set forth in this Agreement. All additional or different terms or conditions contained in Customer’s request for proposal, Purchase Order, acknowledgement, acceptance, invoice, or other business form shall be void and of no effect.
- 14.4 English Language. 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.
- 14.5 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, fires, strikes, labor difficulties, pandemics, epidemics, quarantine restrictions, Covid-19, governmental action, flood, earthquakes, terrorism, riot, war, 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.
- 14.6 Independent Contractors. The relationship of Miovision and Customer established by this Agreement is that of independent contractor and no part of this Agreement shall be deemed to be or construed as creating a joint venture, partnership, or other relationship between Miovision and Customer. Neither Party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other. Nothing in this Agreement shall create in either Party any right or authority to incur any obligations on behalf of or to bind in any respect, the other Party. Customer acknowledges and agrees that Miovision may, in its sole discretion, designate an authorized third Party agent, distributor, reseller or sub-contractor to perform any or all of Miovision’s obligations under this Agreement in accordance with this Agreement, which third party the Customer further acknowledges is not an employee but an independent contractor of Miovision. Each Party acknowledges that this Agreement does not prohibit either Party from entering into arrangements with other entities to provide products and services including similar or competitive products or services to those contemplated herein. Nothing in this Agreement will be construed to prevent Miovision from marketing, licensing, selling or otherwise providing the Products or Services, or any aspects of Miovision’s technology or other product or services offerings to any third party.
- 14.7 Non-solicitation. For a period of two (2) years from the Commencement Date, neither Party will 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 either Party an individual who is employed by either Party or who has resigned from employment by either Party in the then immediately preceding six (6) month period.
- 14.8 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. However, notwithstanding the foregoing, the Customer or Miovision may assign or transfer its rights under this Agreement: (a) to an Affiliate; and/or (b) to any successor in interest in the event that the Customer or Miovision, as the case may be, merges or consolidates with a third party, or a third party purchases all, or substantially all of the assets of the Customer or Miovision, as the case may be, 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.
- 14.9 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.
- 14.10 Notices. Any and all notices, demands and other communications under this Agreement shall be in writing, addressed to the other Party at the address for that Party (as may be set out on a Quotation, when applicable, or otherwise in the case of Miovision to: Attention: General Counsel, Miovision Technologies Incorporated, 137 Glasgow Street, Suite 110, Kitchener, Ontario ON N2G 4X8, Canada), and delivered either in person, by email, by reputable courier service, or by mail (postage prepaid). Either Party may change their address for notice by giving written notice of such change to the other Party in the manner provided in this Section. All notices shall be effective and deemed to be delivered: (a) if delivered in person or by courier, at the time of actual delivery; (b) if sent by email, on the Business Day following the date of dispatch; (c) if sent by mail (postage prepaid) within the country, the third (3rd) Business Day after its mailing; (d) if sent by mail (postage prepaid) outside the country, the tenth (10th) Business Day after its mailing.
- 14.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts of the Province of Ontario, Canada (and all courts competent to hear appeals therefrom) and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds, and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. In addition, the Parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
- 14.12 Dispute Resolution. All disputes and questions whatsoever which arise between the Parties in relation to this Agreement or the interpretation thereof, for which a Party does not consider has been satisfactorily resolved through the regularly or specially scheduled meetings of the Parties, shall be submitted first to the upper management level of the Parties. If the Parties’ upper management are unable to resolve the dispute or question within thirty (30) days, the Parties may agree to proceed to arbitration. Notwithstanding the foregoing, a Party shall retain the right to immediately seek injunctive or equitable relief. Arbitration shall take place in Toronto, Ontario, Canada and be conducted in the English language. The arbitration shall be held in accordance with the Rules of Arbitration of the International Chamber of Commerce (“Arbitration Centre”) then in force and shall be heard by one (1) arbitrator selected by the chairperson of the Arbitration Centre. Notwithstanding any other provision of this Agreement, in the event of claims or disputes regarding: (a) amounts owed a Party; or (b) breach or threatened breach of obligations relating to confidentiality, intellectual property, reverse engineering or regulatory matters, then without prejudice to the rights of the Parties to submit the matter to arbitration, a Party shall have the right to seek relief in any court with jurisdiction including, without limitation, for money damages or injunctive relief. Subject to the preceding sentence, each Party shall bear one half of the costs associated with the arbitration proceedings. The substantive laws
of Ontario will be applied, and the proceedings will be held in the English language in Toronto, Canada. The decision of the arbitral tribunal shall be final and binding on the Parties with no right to appeal.
- 14.13 Review. Miovision reserves the right to review compliance with this Agreement by Customer and Authorized Users.
- 14.14 Severability. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or unenforceable, such provision shall either be modified to the extent necessary to render it enforceable or shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. The provisions of this Agreement are and shall be deemed to be jointly drafted and written by both Parties to them and shall not be construed or interpreted against the Party originating or preparing them.
- 14.15 Amendments. This Agreement shall not be amended, modified or waived except in a writing signed by both Parties hereto. No course of dealing or usage of trade by or between the Parties shall be deemed to affect any such amendment, modification or waiver.
- 14.16 No Waiver. No failure or delay by either Party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy or any other right, power or remedy. No delay in exercising or failing to exercise any right or remedy shall operate as a waiver of any other right or remedy, or preclude the exercise of that remedy at any time, and any waiver of any right or remedy under this Agreement must be in writing and signed by each Party. The waiver by Miovision of any breach of this Agreement or default in any payment shall not be deemed to constitute a waiver of any contemporaneous or subsequent breach or default.
- 14.17 Survival. The provisions of Sections 5 (Purchase Orders and Payment Terms), 6 (Services), 7 (Customer Responsibilities), 9 (Warranties and Disclaimers), 10 (Ownership of Intellectual Property & Indemnification), 11 (Protection of Confidential Information), 12 (Limitation of Liability), 13 (Termination) or 14 (General Provisions) shall survive the expiration or termination of this Agreement.