Terms of Service
BEFORE YOU USE THE SERVICES PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY.
BY SIGNING AN ORDER FORM WITH VIZE LABS INC. (“VIZE LABS”) OR USING THE SERVICES, YOU AND ANY ENTITIES THAT YOU REPRESENT (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR ORDER FORM. IF CUSTOMER ENTERS INTO A NEW ORDER FORM OR RENEWS A SUBSCRIPTION, THE TERMS AND CONDITIONS IN EFFECT ON THE EFFECTIVE DATE WILL APPLY TO THAT NEW ORDER FORM AND/OR RENEWED SUBSCRIPTION TERM.
When Vize Labs introduces new or additional features, functionality or services, Vize Labs may provide terms or make updates to these Terms that apply to Customer’s use of those new or additional features, functionality, or services.
The following capitalized terms will have the following meanings whenever used in this Agreement.
- “Agreement” means:
(a) the Order Form that incorporates these Terms by reference;
(b) these Terms; and
(c) all Statements of Work, as it or they may from time be amended or supplemented.
- “Applicable Laws” means, in respect of any person, property, transaction or event, all applicable Canadian or foreign federal, provincial, state, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any Governmental Authority, all as amended from time to time.
- “Authorized User” means an individual who is authorized by Customer to use the Services, and to whom Customer (or, when applicable, Vize Labs at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Authorized Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
- “Business Day” means any day of the year, other than a Saturday, Sunday or any statutory holiday, in the Province of Saskatchewan.
- “Customer” means the customer identified in the Order Form that refers to these Terms.
- “Customer Content” means text, audio, video, images, and other information submitted by or for Customer to the Services, and used for the purpose of personalizing the presentation of screens, messaging or other communications from Customer to users.
- “Customer Data” means data submitted by or for Customer to the Services or provided by Vize Labs to Customer in output files generated by the Services, excluding Customer Content, Third Party Content, Third Party Materials, and Service Attributes.
- “Customer Regulator” means any Governmental Authority that has regulatory authority over Customer, and includes privacy regulators.
- “Customer Regulatory Requirements” has the meaning specific in Section 3.7.
- “Documentation” means any manuals, instructions or other documents or materials that Vize Labs provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
- “Force Majeure Event” means any event or circumstances beyond the reasonable control of a party, including an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, Internet or telecommunication service failure or delay, Third-Party Material failure or delay, or a denial of service attack.
- “Governmental Authority” means any governmental or regulatory authority, agency, commission or board of any Canadian or foreign federal, provincial, state, municipal or local government, parliament or legislature, or any court or, without limitation, any other law, regulation or rule-making entity having or purporting to have jurisdiction in the relevant circumstances, and whether now or in the future constituted or existing, or any person acting or purporting to act under the authority of any of them.
- “IP Rights” means any 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 rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Licensed Device” means the computer, tablet, smartphone, laptop, or other electronic device on which the Services is intended to be installed and operated.
- “Lighthouse Services” means any additional advisory services which Vize Labs has agreed to provide to Customer, as set out in the Agreement.
- “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind.
- “New Version” means any new version of the Services that Vize Labs may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Vize Labs’s designation of a new version number) and which Vize Labs may make available to Customer at an additional cost under a separate written agreement.
- “Non-Vize Labs Application” means a service or software application that is provided by a third party or by Customer and that interoperates with the Services, including, without limitation, Microsoft Office 365, Microsoft Edge (formerly Internet Explorer), Google Chrome, Mozilla Firefox, Apple Safari, Facebook, Workplace by Facebook, Zoom, Twitter and Slack.
- “Open-Source Components” means any software component that is subject to any open-source copyright licence agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or licence agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
- “Order Form” means an ordering document or online order specifying the Services to be provided under the Agreement that is entered into between Customer and Vize Labs, including any schedules, exhibits, addenda, as it may from time to be amended or supplemented.
- “Permitted Use” means use of the Services by an Authorized User for the benefit of Customer or in the ordinary course of Customer’s business.
- “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- “Regular Support Hours” means 9:00 a.m. to 5:00 p.m. (Saskatchewan Time) during Business Days.
- “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, and subcontractors.
“Service Attributes” means:
(a) data related to the provision or use of the Services, such as resource identifiers, metadata tags, security and access roles, logs, rules, audit trail events, usage policies, permissions, usage metrics, statistics and analytics; and
(b) data required for billing or administration of the Services, including billing and contact information.
- “Services” means the products and services that are ordered by Customer under the Form and made available online by Vize Labs, as described in the Documentation. Services do not include Non-Vize Labs Applications, Lighthouse Services, or Support Services.
- “Statement of Work” means a statement of work specifying any additional Lighthouse Services not originally specified in the Order Form between Vize Labs and Customer.
- “Support Data” means all data that is provided to Vize Labs by or on behalf of Customer (or that Customer authorizes Vize Labs to obtain from the Services) in relation to a request by Customer for Support Services.
- “Support Services” means any support services described in the Agreement.
- “Territory” means Canada.
“Third Party Materials” means materials and information, in any form or medium, that are not proprietary to Vize Labs, including any third-party:
(a) documents, data, content or specifications;
(b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and
(c) accessories, components, parts or features of any of the foregoing.
- “Upgrade” means any update, upgrade, release or other adaptation or modification of the Services, including any updated Documentation, that Vize Labs may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Services, but does not include any New Version.
- “Agreement” means:
PROVISION OF SERVICES BY VIZE LABS
Services. Provided there is compliance by Customer with the Agreement, Vize Labs will:
(a) make the Services available to Customer pursuant to the Agreement;
(b) provide Support Services as described in the Agreement in effect from time to time; and
(c) use commercially reasonable efforts to make the online services available 24 hours a day, 7 days a week, except for (i) planned downtown (of which Vize Labs will give make best efforts to give advanced electronic notice of), and (ii) any unavailability caused by circumstances beyond Vize Labs’s reasonable control, including a Force Majeure Event.
- Lighthouse Services. Vize Labs will provide Lighthouse Services in accordance with an Order Form or Statement of Work. Actual meeting times and availability of advisors may vary. Advisor availability is subject to occasional downtime for system and server maintenance, company events, observed Canadian holidays and events beyond Vize Labs’s control.
- Services. Provided there is compliance by Customer with the Agreement, Vize Labs will:
USE OF SERVICES BY CUSTOMER
Subscriptions. Unless otherwise provided in the Order Form:
(a) Services are purchased as subscriptions; and
(b) Any added subscriptions will terminate on the same date as the underlying subscriptions.
- Service Limits. Customer’s use of the Services may be subject to service limited specified in the Order Form. Customer will not exceed any such service limits.
Customer Responsibilities. Customer will:
(a) ensure it possesses all relevant licenses to any Non-Vize Labs Applications which are required for the provision of the Services;
(b) be responsible for Authorized User’s compliance with the Agreement and the Documentation;
(c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Documentation, and notify Vize Labs promptly of any such unauthorized access or use;
(d) use Services and Documentation only in accordance with the Agreement, the Documentation, and applicable Laws; and
(e) comply with terms of service of any Third Party Materials with which Customer uses Services.
Customer Restrictions. Customer receives no title to or ownership of any copy or of the Services. Without limiting the generality of the foregoing, Customer shall not:
(a) copy, modify, correct, adapt, translate, enhance, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Services;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, decompile, disassemble, decode, or adapt the Services or otherwise attempt to derive or gain access to any of the Services’ source code, in whole or in part;
(d) bypass or breach any security device or protection used for or contained in the Services or Documentation;
(e) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or IP Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Services or Documentation;
(f) use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP Right, privacy right or other right of any person, or that violates any Applicable Law;
(g) use the Services for purposes of: (I) benchmarking or competitive analysis of the Services; (II) developing, using or providing a competing software product or service; or (III) any other purpose that is to Vize Labs’s detriment or commercial disadvantage; or
(h) use the Services or Documentation other than for the Permitted Use or in any manner or for any purpose not expressly permitted by this Agreement.
- Removal of Non-Vize Labs Applications. If Vize Labs receives information that a Non-Vize Labs Application used with the Services by Customer may violate Applicable Laws or third-party rights, Vize Labs may so notify Customer and in such event Customer will promptly disable such Non-Vize Labs Application or modify the Non-Vize Labs Application to resolve the potential violation. If Customer does not take required action in accordance with the above, Vize Labs may disable the applicable Service and/or Non-Vize Labs Application until the potential violation is resolved. If requested by Vize Labs, Customer will confirm such deletion and discontinuance of use in writing and Vize Labs will be authorized to provide a copy of such confirmation to any third party claimant or Governmental Authority, as applicable.
Non-Vize Labs Providers. Vize Labs or third parties may make available third-party products or services, including Non-Vize Labs Applications and implementation and other consulting services.
(a) Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-Vize Labs provider, product or service is solely between Customer and the applicable non-Vize Labs provider. Vize Labs does not warrant or support Non-Vize Labs Applications or other non-Vize Labs products or services, whether or not they are designated by Vize Labs as “certified” or otherwise, unless otherwise expressly provided in the Order Form.
(b) If Customer chooses to use a Non-Vize Labs Application with the Services, Customer grants Vize Labs permission to allow the Non-Vize Labs Application and its provider to access Customer Data as required for the interoperation of that Non-Vize Labs Application with the Service. Vize Labs is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such non- Vize Labs Application or its provider.
(c) The Services may contain features designed to interoperate with Non-Vize Labs Applications. To use such features, Customer may be required to obtain access to such Non-Vize Labs Applications from their providers, and may be required to grant Vize Labs access to Customer’s accounts on such Non- Vize Labs Applications. Vize Labs cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Vize Labs Application ceases to make the Non- Vize Labs Application available for interoperation with the corresponding Service features in a manner acceptable to Vize Labs.
(d) NOTWITHSTANDING ANY OTHER PART OF THESE TERMS, IN NO CASE IS VIZE LABS LIABLE FOR ANY INACCURATE DATA ORIGINATING OR ARISING FROM NON-VIZE LABS APPLICATIONS.
Change to the Services. Vize Labs may make changes to the Services from time to time, in its discretion, including to add, change or remove features or functionality. Vize Labs will provide Customer with not less than 60 days’ prior notice of any major change to the Services that might impact the systems of Customer. For new or additional features, functionality or Services, Vize Labs may require Customer to:
(a) sign a new Order Form or an amended Order Form;
(b) agree to pay additional fees; and
(c) agree to additional contract terms specific to the feature, functionality or Service.
- Subscriptions. Unless otherwise provided in the Order Form:
MAINTENANCE AND UPGRADES.
- Provision of Maintenance. During the Term, Vize Labs shall exercise commercially reasonable efforts promptly to correct any failure of the Services to perform according to its Specifications (“Maintenance”) during Regular Support Hours.
- Upgrades. During the Term, Vize Labs will provide Customer with all Maintenance releases (including updated Documentation) that Vize Labs may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance releases, on being provided by Vize Labs to Customer hereunder, are deemed Services subject to all applicable terms and conditions of this Agreement. Customer will install or download all Maintenance releases as soon as practicable after receipt. Customer does not have any right hereunder to receive any New Versions of the Services that Vize Labs may, in its sole discretion, release from time to time.
Fees and Payment. Customer shall pay to Vize Labs all Subscription Fees and Lighthouse Services Fees (together the “Fees”) set out in the Agreement. Except as otherwise specified in the Agreement:
(a) Fees are based on subscriptions purchased and not actual use;
(b) payment obligations are non-cancellable and fees paid are non-refundable; and
(c) quantities purchased cannot be decreased during relevant subscription term.
- Fee Changes. The Fees set out in the Agreement may be changed from time to time subject to 90 days’ prior written notice from Vize Labs.
- Payment Processing Services. Payment processing services for the Services are provided by payment services providers as Vize Labs may choose from time to time (collectively referred to as the “Payment Processing Services Provider”). You hereby authorize Vize Labs to share with the Payment Processing Services Provider that financial information, banking details and transaction information related to your use of the payment processing services and the Services. You also agree that Vize Labs is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
- Invoices. Payment against any and all invoices rendered by Vize Labs to Customer will be due within 30 calendar days thereof. Late payments shall be subject to a late payment charge of one per cent (1%) per month (12% per annum).
- Taxes. Amounts due under this Agreement are payable to Vize Labs without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Vize Labs the withheld or deducted amount.
- Fees and Payment. Customer shall pay to Vize Labs all Subscription Fees and Lighthouse Services Fees (together the “Fees”) set out in the Agreement. Except as otherwise specified in the Agreement:
INTELLECTUAL PROPERTY & FEEDBACK
- IP Rights in the Services. Customer acknowledges and agrees that:
(a) Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Services or Documentation, or in any related IP Rights;
(b) Vize Labs is and will remain the sole and exclusive owner of all right, title and interest in and to the Services and Documentation, including all IP Rights relating thereto; and
(c) Customer hereby unconditionally and irrevocably assigns to Vize Labs (or Vize Labs’ designee), its entire right, title and interest in and to any IP Rights that Customer may now or hereafter have in or relating to the Services or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
Customer Co-operation and Notice of Infringement. Customer shall, during the Term:
(a) take all reasonable measures to safeguard the Services and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
(b) at Vize Labs’ expense, take all such steps as Vize Labs may reasonably require to assist Vize Labs in maintaining the validity, enforceability and Vize Labs’ ownership of the IP Rights in the Services and Documentation;
(c) promptly notify Vize Labs in writing if Customer becomes aware of (I) any actual or suspected infringement, misappropriation or other violation of Vize Labs’ IP Rights in or relating to the Services or Documentation, or (II) any claim that the Services or Documentation, including any production, use, marketing, sale or other disposition of the Services or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the IP Rights or other rights of any person; and
(d) fully co-operate with and assist Vize Labs in all reasonable ways in the conduct of any claim, action, proceeding or suit (each, an “Action”) by Vize Labs to prevent or abate any actual or threatened infringement, misappropriation or violation of Vize Labs’ rights in, and to attempt to resolve any claims relating to, the Services or Documentation, including having Customer or Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
- No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any IP Rights or other right, title or interest in or to any of the Services or Documentation.
- Feedback. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vize Labs’ right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback (as defined below), without compensating or crediting Customer or Authorized User in question, except to the limited extent that Article 7 (Confidential Information) governs Feedback that constitutes Customer’s Confidential Information. Notwithstanding the provisions of Article 6, Customer may not designate Feedback as its Confidential Information to the extent that such Feedback relates to Vize Labs or its products or services. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vize Labs’ products or services.)
- License by Customer for Customer Data and Customer Content. As between Customer and Vize Labs, Customer owns all right, title and interest in and to all Customer Data and Customer Content. Customer grants Vize Labs, its affiliates, and applicable Representatives a worldwide, limited-term license to host, copy, transmit and display Customer Data and Customer Content as necessary for Vize Labs to provide the Services in accordance with the Agreement. Notwithstanding any other provision of the Agreement, Customer also grants to Vize Labs and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to collect Customer Data and other information relating to the provision, use and performance of the Services, in aggregate or other de-identified or anonymized forms, and to analyze and use such aggregated, de-identified or anonymized Customer Data and other information to improve and enhance the Services and for other Vize Labs offerings.
- IP Rights in the Services. Customer acknowledges and agrees that:
Confidential Information Defined. “Confidential Information” refers to the following documents which one party to this Agreement (“Discloser”) discloses to the other (“Recipient”):
(a) any document Discloser marks “Confidential”;
(b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 3 Business Days;
(c) any source code disclosed by Vize Labs, whether or not marked as confidential;
(d) any technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing and information; and
(e) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential.
Notwithstanding the foregoing, Confidential Information does not include information that:
(f) is in Recipient’s possession at the time of disclosure;
(g) is independently developed by Recipient without use of or reference to Confidential Information;
(h) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or
(i) is approved for release in writing by Discloser.
Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.
Nondisclosure. Recipient shall not:
(a) use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”);
(b) disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 7; or
(c) disclose Confidential Information to any other third party without Discloser’s prior written consent.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted under the terms and conditions of Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (I) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (II) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Article 7; and (III) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Article 7;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and, in no event, less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Article 7.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Article 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
Compelled Disclosure. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall:
(a) promptly, and before such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek an injunction, protective order or other remedy or waive its rights under Section 7.3; and
(b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking an injunction, protective order or other limitations on disclosure.
If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other competent authority that such Confidential Information will be afforded confidential treatment.
- Injunction. Recipient agrees that breach of this Article 7 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser shall be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
- Confidential Information Defined. “Confidential Information” refers to the following documents which one party to this Agreement (“Discloser”) discloses to the other (“Recipient”):
REPRESENTATIONS & WARRANTIES.
- Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that it has validly entered into the Agreement and has the legal power to do so. When executed and delivered by the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, but subject to bankruptcy and other laws affecting creditor’s rights as well as principles of equity.
- Customer Warranty. Customer represents and warrants to Vize Labs that any material provided by Customer to Vize Labs under or in connection with this Agreement, and its use in accordance with this Agreement, will not infringe any rights (including IP Rights) of any third party.
DISCLAIMER OF WARRANTIES.
(a) ALL SERVICES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES, INCLUDING LIGHTHOUSE SERVICES PROVIDED BY VIZE LABS ARE PROVIDED “AS IS.”
(b) VIZE LABS HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(c) WITHOUT LIMITING THE FOREGOING, VIZE LABS MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY OTHER VIZE LABS OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
(d) ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
- Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Vize Labs regarding future functionality or features.
From Vize Labs. Vize Labs shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party to the extent that such Losses arise from any allegation in such Action that the Services, or any use of the Services, in the Territory in accordance with this Agreement (including the Documentation) infringes any Canadian IP Right in the Territory. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any:
(a) Open-Source Components or other Third-Party Materials;
(b) patent issued on a patent application published after the Effective Date;
(c) incorporation by the Services of, or combination, operation or use of the Services in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Vize Labs or specified for Customer’s use in the Documentation;
(d) modification of the Services other than: (I) by Vize Labs in connection with this Agreement; or (II) with Vize Labs’ express written authorization and in strict accordance with Vize Labs’ written directions and specifications;
(e) failure to timely implement any Maintenance release, modification, update or replacement of the Services made available to Customer by Vize Labs;
(f) use of the Services after Vize Labs’ notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;
(g) negligence, abuse, misapplication or misuse of the Services or Documentation by or on behalf of Customer, Customer’s Representatives or a third party;
(h) use of the Services or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Vize Labs’ instructions;
(i) events or circumstances outside of Vize Labs’ commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); or
(j) Action or Losses for which Customer is obligated to indemnify Vize Labs under Section 9.2.
From Customer. Customer shall indemnify, defend and hold harmless Vize Labs from and against any and all Losses incurred by Vize Labs in connection with any Action by a third party to the extent that such Losses arise out of or relate to any allegation:
(a) that any IP Right or other right of any Person, or any Law, is or will be infringed, misappropriated or otherwise violated by any (I) use or combination of the Services by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by Vize Labs nor authorized by Vize Labs in this Agreement and the Documentation, and information, materials or technology or other matter whatsoever directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated or used with, as part of, or in connection with the Services or Documentation;
(b) of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant or obligation under this Agreement;
(c) of or relating to negligence, abuse, misapplication, misuse, injury, death, loss of or damage to real or tangible personal property, or more culpable act or omission (including recklessness or wilful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Services or Documentation or otherwise in connection with this Agreement; or
(d) of or relating to use of the Services or Documentation by or on behalf of Customer or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Vize Labs’ instructions.
- Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under Section 9.1 or Section 9.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Indemnified Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9.3, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Mitigation. If the Services, or any part of the Services, is, or in Vize Labs’ opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right, or if Customer’s use of the Services is enjoined or threatened to be enjoined, Vize Labs may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services materially as contemplated by this Agreement;
(b) modify or replace the Services, in whole or in part, to seek to make the Services non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Services under this Agreement; or
(c) if none of the remedies set forth in Section 9.4(a) or 9.4(b) is reasonably available to Vize Labs, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Services, effective immediately on written notice to Customer, in which event Customer shall cease all use of the Services and Documentation immediately on receipt of such notice.
- SOLE REMEDY. THIS ARTICLE 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND VIZE LABS’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY IP RIGHTS OF ANY THIRD PARTY.
- From Vize Labs. Vize Labs shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party to the extent that such Losses arise from any allegation in such Action that the Services, or any use of the Services, in the Territory in accordance with this Agreement (including the Documentation) infringes any Canadian IP Right in the Territory. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any:
LIMITATION OF LIABILITY.
EXCLUSION OF DAMAGES. IN NO EVENT WILL VIZE LABS, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY:
(a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS;
(b) LOSS OF GOODWILL OR REPUTATION;
(c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS;
(d) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY;
(e) COST OF REPLACEMENT GOODS OR SERVICES;
(f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES; OR
(g) DAMAGES ARISING FROM, OR IN RESPECT OF, ANY USE OF THE SERVICES TO SUPPORT THE REPRIMAND, DISMISSAL, TERMINATION, OR DISCIPLINE OF ANY PERSON.
IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF VIZE LABS AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO VIZE LABS UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL VIZE LABS, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY:
TERM & TERMINATION.
- Term. This Agreement commences as of the effective date of the Order Form and will continue in effect as outlined in the Agreement unless terminated earlier under any of the Agreement’s express provisions (the “Initial Term”).
- Renewal Term. This Agreement will automatically renew for successive 12-month terms unless earlier terminated under any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days before the expiration of the then-current subscription term (each, a “Renewal Term” and , collectively, together with the Initial Term, the “Term”).
Termination. This Agreement may be terminated at any time:
(a) by Vize Labs, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement, where such failure continues for more than 10 days after Vize Labs’ delivery of written notice thereof (the “Payment Failure”);
(b) by either party for cause on 30 days written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured at the expiration of such period;
(c) by Vize Labs, effective immediately, if Customer (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property.
Effects of Termination. Upon termination of this Agreement or Term, Customer shall cease all use of the Services and delete, destroy, or return all copies of the Services, Documentation, and Vize Labs Confidential Information in its possession or control, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials. The following will survive termination or expiration of this Agreement:
(a) any obligation of Customer to pay Fees incurred before termination;
(b) Section 3.4 (Customer Restrictions), Section 3.6 (Non-Vize Labs Providers), Section 3.7 (Customer Compliance with Laws and Regulatory Requirements), Article 6 (Intellectual Property & Feedback), Article 7 (Confidential Information), Article 8 (Representations and Warranties), Article 9 (Indemnification), Article 10 (Limitation of Liability), and this Section 11.4; and
(c) any other provision of this Agreement that must survive to fulfill its essential purpose.
CUSTOMER DATA AND PERSONAL DATA.
- Use of Customer Data and Service Attributes. Vize Labs will only use Customer Data and Service Attributes to provide the Services to Customer, except with the prior written consent of Customer or as otherwise permitted under the Agreement. Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and of the means by which Customer acquires Customer Data. Customer represents and warrants to Vize Labs that Customer has all rights, consents, permissions and legal authority as may be necessary to provide Customer Data to Vize Labs and to authorize Vize Labs to process the Customer Data to provide the Services.
Disclosure of Customer Data and Service Attributes. Vize Labs will not disclose Customer Data or Service Attributes outside of Vize Labs or its affiliates except:
(a) as Customer directs or as required to provide the Services or services;
(b) to Vize Labs subcontractors and service providers to the extent reasonably necessary for the provision of the Services, including to third party intermediaries who assist in the provision of services and the Services;
(c) as otherwise described in the Agreement or the Documentation; or
(d) as required by Applicable Laws.
- Disclosure of Customer Data and Service Attributes to Governmental Authority. If a Governmental Authority contacts Vize Labs with a demand for Customer Data or Service Attributes, Vize Labs will attempt to redirect the Governmental Authority to request that data directly from Customer. If compelled to disclose Customer Data or Service Attributes to a Governmental Authority, Vize Labs will promptly notify Customer and provide a copy of the demand unless legally prohibited from doing so. Upon receipt of any other third-party request for Customer Data or Service Attributes, Vize Labs will promptly notify Customer unless prohibited by Applicable Laws. Vize Labs will reject the request unless required by Applicable Law to comply. If the request is valid, Vize Labs will attempt to redirect the third party to request the Customer Data or Service Attributes directly from Customer.
Personal Data. To the extent that the Customer Data includes Personal Data, then:
(a) Customer is the controller of such Personal Data and Vize Labs is solely a processor acting on behalf of Customer; and
(b) Vize Labs will promptly report to Customer any requests received from individuals for access to, correction or deletion of, or otherwise related to, their Personal Data.
- Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vize Labs employee or contractor will be an employee of Customer.
- Authorized Users. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible and liable for the acts and omissions of Authorized Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Customer’s own acts and omissions. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(a) Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only where it is sent to an address or email specified in an Order Form (or to such other address or such other person that such addressee party may designate from time to time).
(b) Notices sent in accordance with this Section 13.4 will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (iv) on the 2ND day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, failure of communications networks, denial of service/access attacks or other causes beyond the performing party’s reasonable control.
- Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Vize Labs’ prior written consent. Any purported assignment, delegation or transfer in violation of this Section 13.6 is void. This Agreement is binding on and enures to the benefit of the parties and their respective permitted successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Governing Law and Forum: This Agreement is governed by and construed in accordance with the Laws of the Province of Saskatchewan and the federal Laws of Canada applicable therein. Any Action arising out of or related to this Agreement or the licences granted hereunder will be instituted exclusively in the courts of the Province of Saskatchewan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process notice or other document by mail to such party’s address set forth herein will be effective service of process for any Action brought in any such court. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
- Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Export. Customer acknowledges that the Services will not be exported except as authorized by the laws of the jurisdiction in which the Services was obtained.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
- Counterparts; Electronic Transmission. Any Order Form or Statement of Work may be executed in counterparts and such counterparts together shall constitute a single instrument. Delivery of an executed counterpart of an Order Form or Statement of Work by electronic means, including, without limitation, by facsimile transmission or by electronic transmission of portable document format (“.pdf”) file or other electronic file, shall be equally effective as delivery of a manually executed counterpart. The parties hereto acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defence based on the execution in counterparts or the delivery of executed counterparts by electronic means.
- Electronic Signatures and Electronic Delivery. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures. Delivery of an executed copy of this Agreement by facsimile or electronic transmission constitutes valid and effective delivery
- Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
Dispute Resolution. Should a dispute arise regarding any invoice or any other matter in connection with this Agreement, the parties agree that they shall meet and negotiate in good faith to attempt to resolve the dispute. If the dispute cannot be resolved though good faith negotiations between the parties within 5 days then either party may provide the other with written notice of the need to appoint a mediator. Should the parties fail to agree upon a mediator within 5 days after the notice or the parties fail to resolve the dispute by way of mediation then such dispute shall be finally resolved by binding arbitration pursuant to the provisions of The Arbitration Act, 1992 (Saskatchewan) (the “Act”), as from time to time in force or as amended. The arbitration shall be administrated by the Rules of the Court of Queen’s Bench and the Rules of the Court of Appeal for Saskatchewan, in accordance with section 58 of the Act. The arbitration shall take place in Saskatoon, Saskatchewan before a single arbitrator selected by agreement of the parties. Should the parties fail to agree on an arbitrator, the arbitrator shall be appointed by a court of competent jurisdiction pursuant to the Act. The costs of arbitration, including legal fees and disbursements, shall be awarded by the arbitrator in the manner which the arbitrator considers appropriate under the circumstances.
THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
LAST UPDATED: February 24, 2021.