TERMS AND CONDITIONS
Last updated: Sep 11, 2022
This Subscription Agreement (this “Agreement”) is entered into as of the date between VAISION Inc. (“Company” or “VAISION”) and the customer listed on any order form (“Customer”) executed by the parties. Each of Customer and VAISION may be referred to individually as a “Party” and collectively as the “Parties.” The Parties may from time to time enter into additional Order Forms, which will be part of this Agreement. These Terms and Conditions govern VAISION’s provision, and Customer’s use, of certain hardware and software furnished by VAISION to Customer as well as access to certain services provided by VAISION as described on any order form(s) (collectively “the VAISION Service”).
1. ACCESS AND USE.
1.1 Orders. Each Customer shall use an order form to order the VAISION Service from the Company (“Order Form”). Each Order Form shall set out a description of the costs associated with the provision of the VAISION Service and the period of time Customer will have access to the particular VAISION Service (the “Access Term”).
1.2 Provision of Access. Subject to the terms and conditions contained in this Agreement, VAISION hereby grants to Customer and its authorized users a non-exclusive, non-transferable right to access the VAISION Service set forth in the applicable Order Form during the Access Term for the number of authorized users and the number of Streams set forth on the Order Form up to the Service Limits. VAISION shall provide to Customer the necessary passwords, access and security policies and protocols to allow Customer and its authorized users to access the VAISION Services. The Customer and its authorized users access is limited to VAISION’s software only and shall have no access to VAISION’s hardware, unless otherwise authorized by VAISION in writing.
1.3 Ownership and Use of Customer Data. Customer retains all right, title and interest in and to Customer Data. Subject to the foregoing, Customer hereby grants to VAISION a non-exclusive, non-transferable right and license to use the Customer Data during the Term for the limited purposes of performing VAISION’s obligations under this Agreement and to use the Customer Data in combination with other customers’ data to create anonymous aggregated statistics and associated insights.
1.4 Ownership of VAISION Service. Subject to the rights granted in this Agreement, VAISION retains all right, title and interest in and to the VAISION Service, and Customer acknowledges that it neither owns nor acquires any additional rights or licenses in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that VAISION retains the right to use the foregoing for any purpose in VAISION’s sole discretion.
1.5 Customer acknowledges and agrees that authorized users may only use the VAISION Services in accordance with the terms and conditions in the End User Terms, which are available here: VAISION End User Terms.
2.1 VAISION shall retain full ownership of and title to any and all intellectual property rights therein, including all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights.
2.2 Customer Restrictions. Customer shall not (a) modify or make any alterations or modifications to VAISION Service; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the VAISION Service are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (c) allow third parties other than authorized users to gain access to the VAISION Service; or (d) remove any proprietary notices or markings on VAISION Service.
2.3 License Grant. Subject to the terms and conditions of this Agreement, VAISION grants to Customer a limited non-exclusive, non-transferable, non-sublicensable license during the subscription period commencing upon the date the Order Form is executed (“Subscription Period”) to use the software (including firmware and software, in object code format) that is installed on the hardware, solely as part of VAISION Service (and not on a standalone basis), and subject to additional restrictions and limitations (if any) set forth in the Order Form.
2.4 License Restrictions. Customer acknowledges that the software and its structure, organization, and source code constitute valuable trade secrets of VAISION. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the software; (b) merge the software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer or allow the use of the software by, on behalf of, or for the benefit of any third party; or (d) otherwise use or copy the software except as expressly allowed under Section 2.3.
3. PAYMENT OBLIGATIONS AND PAYMENT TERMS.
3.1 Payments. VAISION or it’s approved designate shall submit invoices to the Customer. VAISION or it’s designate will only provide VAISION Service upon receipt of payment, unless otherwise agreed upon.
3.2 Taxes and Duties: In addition to any payments due under this Agreement between VAISION and Customer, the Customer is responsible for all taxes and duties, including without limitation, any sales, use, value added, royalty or withholding taxes imposed by any Canadian government entity or other government entity. If VAISION is obligated to collect taxes, then the appropriate amount will be added to Customer’s invoice.
3.3 Returns and Restocking: Returns of third party components will not be accepted after fourteen (14) days. Returns of third party components under one hundred dollars ($100) will not be accepted. A twenty percent (20%) restocking fee will be applied to returns of third party components having a value of one hundred dollars ($100) or greater that are received within fourteen (14) days.
3.4 Renewal Fees: Subscription fees for any additional years of subscription (“Renewal Subscription Fees”) will be invoiced no later than thirty (30) days in advance of the start of the additional years of subscription. The Renewal Subscription Fees will be identified by an applicable Order Form. The payment on a renewal invoice will be due within thirty (30) days. A late fee of one and a half percent (1.5%) will be applied to overdue renewal invoices.
4. SUPPORT SERVICES.
During the Subscription Period, VAISION will provide to Customer reasonable telephone and email support during VAISION’s regular business hours to assist Customer with identifying and resolving problems and errors using the VAISION Service and will use commercially reasonable efforts to correct any reproducible errors.
5. CUSTOMER DATA AND SECURITY.
Customer may permit authorized users to access the VAISION software as contemplated by this Agreement. Customer will be responsible for all actions or omissions of its authorized users. Customer shall use commercially reasonable efforts to prevent unauthorized access to the VAISION Service. VAISION will use industry standard means to protect Customer Data from unauthorized access. Customer acknowledges and agrees that VAISION has no obligation to archive back-up Customer Data, nor will VAISION have any liability for any loss or corruption of Customer Data, nor will VAISION have any obligation to retain any Customer Data after the Access Term.
Each Party will have access to certain Confidential Information of the other. Confidential Information will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party, terms of this Agreement, and terms on any Order Forms, that have been identified as confidential or should reasonably be treated as confidential. Without limiting the foregoing, VAISION Service will be deemed Confidential Information of VAISION. Each Party agrees: (a) not to disclose the Confidential Information of the other to anyone except its employees, contractors and advisors (“Representatives”) on a strict need to know basis; (b) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (c) to use commercially reasonable efforts to protect the confidentiality of the Confidential Information. Each Party may disclose Confidential Information to the extent required: (1) by securities laws; (2) to comply with a court or governmental order, or to comply with applicable law; or (3) to establish or preserve a party’s rights under this Agreement. Each Party will be responsible for the acts and omissions of its Representatives related to any breach of this Section.
7. WARRANTIES; DISCLAIMER.
VAISION represents and warrants that it will provide the VAISION Service and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. These warranties shall not apply to: (a) use of VAISION Service or any component thereof other than according to the terms of the Agreement or related documentation; (b) modification, maintenance, or repair of the hardware and/or software by Customer or any third party; (c) any combination or integration of the hardware and/or software with any element not provided by VAISION; (d) any Open Source software and/or third party components included in or with the software; or (e) any damage caused by abuse, abnormal physical or electrical stress on, or improper use of VAISION hardware. VAISION does not warrant that the Customer’s use of VAISION Service will be error-free or uninterrupted. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VAISION SERVICE PROVIDED “AS IS,” AND VAISION MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE VAISION HARDWARE (IN WHOLE OR IN PART) OR ANY OTHER SOFTWARE OR SERVICES PROVIDED TO CUSTOMER BY VAISION.
VAISION will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that VAISION Service infringes Canada intellectual property rights of such third party, and VAISION will pay those costs and damages awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. VAISION will have no obligation with respect to any infringement claim to the extent based upon (i) any use of VAISION Service not in accordance with this Agreement or for purposes beyond the scope set forth in the applicable documentation, (ii) any use of any release of VAISION Service other than the most current release made available to Customer, (iii) any modification of VAISION Service by any person other than VAISION or its authorized agents or subcontractors, (iv) any combination or integration of VAISION Service with hardware, software, data, and/or technology not provided by VAISION, or (v) any Open Source software and/or Third Party software. This Section states VAISION’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions. VAISION’s obligations as set forth above are expressly conditioned upon each of the following: (a) Customer will promptly notify VAISION in writing of any threatened or actual claim or suit; (b) VAISION will have sole control of the defense or settlement of any claim or suit; and (c) Customer will reasonably cooperate with VAISION, at VAISION’s expense, to facilitate the settlement or defense of any claim or suit.
9. LIMITATION LIABILITY.
9.1 Disclaimer. Except for a breach of Section 7, in no event will either party be liable to the other party for any consequential, indirect, exemplary, special or incidental damages, including any loss of use, data, profits, or goodwill, arising from or relating to this Agreement, VAISION Service or any other hardware, software, services or content provided hereunder, whether in contract or tort or otherwise, even if VAISION has been notified of the likelihood of such damages. VAISION will not be liable for procurement costs of substitute product or services.
9.2 Cap. The total cumulative liability of VAISION arising from or relating to this Agreement and VAISION Service, and any other services provided hereunder, will not exceed the amount of fees paid to VAISION by Customer under this Agreement in the twelve (12) months preceding the circumstances giving rise to the first claim at issue, this limitation is cumulative and will not be increased by the existence of more than one incident or claim.
10. FORCE MAJEURE.
One of the immediate risks to business operations is likely to come from disruptions in the supply chain. While contracting parties have a basic obligation to fulfill their promises in the contract, as the economy slows down and they are unable to do so, there are existing mechanisms in some contracts and at law to address non-performance in the face of COVID-19.
Force Majeure “Force majeure” provisions in contracts are designed to address extreme and unanticipated risks that prevent a party from fulfilling its obligations for reasons beyond its control. If applicable, a force majeure clause excuses a party’s non-performance of its contractual obligations. The following is an example of a more comprehensive force majeure clause:
Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance to the extent such performance is hindered, delayed or prevented by acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, shortage of supply, unforeseeable price hike, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement and the Ancillary Agreements, as applicable, as soon as reasonably practicable.
Whether the provision applies, however, will depend on the scope of the language in the clause, including the (i) risks covered by the clause, (ii) the extent of the impact of the event on the contract, (iii) the cause of the non-performance, and (iv) any notice and mitigation obligations placed on the parties.
(i) Risk: As seen above, some force majeure clauses explicitly identify the risks that may excuse non-performance. Adjectives such as “pandemic”, “epidemic”, “quarantine” etc. make it more likely that a party will be entitled to rely on such a clause in the contract in the context of COVID-19. Similarly, the specificity of provisions that reference, government actions, declarations of emergency or the “non-availability of markets” would likely support a party’s reliance on the clause. Broader terms, such as “plague” or “Act of God”, and “circumstances beyond a party’s reasonable control” are less specific, but may still support a party seeking to rely on the clause in the face of COVID-19. The interpretation of force majeure provisions in past cases has been highly fact specific, and there is virtually no jurisprudence in Canada, addressing the application of force majeure clauses in the context of a pandemic
(ii) Impact: Force majeure clauses also generally specify the extent to which the impact of the event must impede the party’s ability to perform its obligations before it can excuse nonperformance. Contractual language may range from the more permissive “substantially hinders or delays” to the restrictive “renders impossible”.
11. TERM AND TERMINATION.
11.1 Term. This Agreement will continue to apply as long as the Subscription Period remains in effect, unless earlier terminated by either Customer or VAISION as set forth herein (the “Term”). In the event Customer terminates this Agreement before the expiration of the initial Subscription Period, the Customer is responsible for full payment of VAISION Service for the full term. The Subscription Period will automatically renew annually at the current subscription rate, unless either provides notice to the other of its intent not to renew the Agreement no less than ninety (90) days prior to the end of the then applicable Term. Either party may terminate this Agreement if the other is in breach of any material obligation under this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. VAISION may terminate this Agreement, effective immediately upon notice to Customer, if Customer ceases business operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially all of its assets.
11.2 Effects of Termination. Upon termination or expiration of this Agreement: (a) any outstanding amounts owed by Customer to VAISION will become immediately due and payable; (b) all license rights granted under Section 2.3 of this Agreement will immediately cease to exist.
11.3 Suspension of Service. If Customer fails to pay undisputed amounts in a timely fashion, VAISION shall have the right to suspend the Service, without any liability to the Customer until such amounts are paid in full.
11.4 Survival. Sections 2.2 (Customer Restrictions), 2.4 (License Restrictions), 6 (Confidentiality), 7 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.2 (Effects of Termination), and 11 (General) will survive expiration or termination of this Agreement for any reason for ten (10) years.
12.1 Compliance with Export Laws. Customer understands and acknowledges that the Company’s products and services are subject to Canadian export control laws and regulations. Customer shall comply with these laws and regulations and agrees that it shall not, without any required prior Canadian government authorization, export, re-export, or transfer the Company’s products or services, either directly or indirectly, in violation of such laws and regulations, including but not limited to export, re-export, or transfer to any country subject to an embargo by the Canadian Government.
12.2 Assignments. Neither Party may assign, delegate, or otherwise transfer (by operation of law or otherwise) this Agreement or any of its rights or obligations to a third party without the other Party’s written consent, except that either Party may assign or transfer this Agreement without such consent as a consequence of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains.
12.3 Governing Law and Venue. This Agreement will be governed by the laws of the Province of Ontario, except for disputes, controversies, or claims regarding intellectual property, any dispute, controversy or claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or related to this Agreement which remains unresolved following the negotiations and escalation procedures set forth herein, shall be resolved by binding arbitration pursuant to this Section and the then current rules and supervision of the Canadian Arbitration Association (“CAA”). Any arbitration or litigation shall be held in Ontario.
12.4 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.6 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
12.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Any additional, different, conflicting or inconsistent terms on any purchase order or any other document submitted by Customer are hereby expressly rejected.