Monitio Intelligence - Terms and Conditions

THESE "TERMS AND CONDITIONS" IS A LEGAL AGREEMENT (THE"AGREEMENT" or "TERMS AND CONDITIONS" AS FURTHER DEFINED BELOW) ENTERED INTO BETWEEN THE INDIVIDUAL OR PERSON ("YOU" or "CUSTOMER") IDENTIFIED ON ANY ORDER FORM (AS DEFINED BELOW)(WHETHER FOR TRIAL OR SUBSCRIPTION SERVICES) REFERENCING THIS AGREEMENT (EACH AN "ORDER") AND MONITIO INTELLIGENCE INC., A CANADIAN CORPORATION WITH OFFICES AT #112, 3600 Steeles Ave E, Markham, ON L3R 9Z7 ("MONITIO INTELLIGENCE") RELATING TO THE MONITIO INTELLIGENCE SERVICES. BY (I) YOU CLICKING THROUGH THIS AGREEMENT ELECTRONICALLY, OR (II) EXECUTION OF AN ORDER FORM, OR (III) USING THE SERVICES, YOU AND MONITIO INTELLIGENCE MUTUALLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF. EACH ORDER SHALL BE MUTUALLY AGREED TO AND ENTERED INTO BETWEEN YOU AND MONITIO INTELLIGENCE PROVIDED THAT IF YOU PURCHASE THE SERVICES THROUGH A MONITIO INTELLIGENCE AUTHORISED PARTNER (THE "RESELLER"), THE ORDER MAY BE ENTERED INTO BETWEEN MONITIO INTELLIGENCE AND THE RESELLER FOR YOUR USE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT, EMPLOYEE OR REPRESENTATIVE OF THE CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON SUCH PARTY'S BEHALF.

In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Monitio Intelligence and You agree as follows:

DEFINITIONS. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:

"Affiliate" means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
"Aggregate Information" means data and information related to Your use of the Services that is used by Monitio Intelligence in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. For clarity, Aggregate Information shall be Monitio Intelligence's Confidential Information.
"Agreement" means the entire agreement between MONITIO INTELLIGENCE and You for the provision of the Services, and includes these Terms and Conditions, any Schedules, Addendums or Exhibits referenced herein, any Order Form in effect, and incorporates Monitio Intelligence's Privacy Policy located at https://www.monitio.ca.
"Applicable Law" means any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to the provision of the Services and Your use thereof, including without limitation data protection and privacy laws;
"Authorized Users" means Your employees, consultants, contractors, agents and anyone including Persons whom You provide access and use of the Services under the rights granted to You pursuant to this Agreement;
"Beta Versions" means any pre-release, beta products and/or features of generally available Services Software that MONITIO INTELLIGENCE make available that are still under development;
"Confidential Information" has the meaning in Section 6.1.
"Customer Systems" means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by You or through the use of third-party services.
"Documentation" means this Agreement, the Order Form, Statement of Work, or other user documentation related to the use or operation of the Services, each as made available by MONITIO INTELLIGENCE electronically via the Services or otherwise in writing.
"Effective Date" means the earlier date of (1) the Order Form issued in relation to this Agreement; (2) the delivery of the Services by MONITIO INTELLIGENCE to You; or (3) Your first use of the Services;
"Fees" means all amounts payable by You to MONITIO INTELLIGENCE pursuant to this Agreement, plus all duties, levies, taxes and other fees in association with your use of the Services.
"Intellectual Property" means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
"Intellectual Property Rights" or "IPR" means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.
"Order Form" means an ordering document specifying the Services to be provided hereunder that is entered into between MONITIO INTELLIGENCE and You or any of either party's Affiliates, including any addenda and supplements thereto.
"Personal Data" or "Personal Information" means any information about an identified or identifiable individual including, without limitation, data or information entered into the Services by You or Your visitors, personnel, or others, that has not been made publicly available and includes Sensitive Data and as further defined under Applicable Law.
"Persons" mean any individual, partnership, corporation, association, trust, members of joint venture entities, limited liability entity, governmental authority, unincorporated organization, or other entity.
"Processing" means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and as further defined under Applicable Law.
"Professional Services" means any additional services purchased by You in relation to the Service Software, pursuant to Professional Services Addendum.
"Representatives" means, with respect to a party, that party and its Affiliates' employees, directors, officers, general partners, shareholders, owners, service providers, sublicensees, independent contractors, subcontractors, agents, advisors, and consultants.
"Sensitive Data" means (a) social security number, passport number, driver's license number, or similar identifier (or any portion thereof), (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; (f) date of birth; (g) criminal history; (h) mother's maiden name; and (i) any other information that falls within the definition of "special categories of data" under the General Data Protection Regulation or any other Applicable Law.
"Security Incident" means accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information.
"Services" means the Service Software and associated services that are purchased by You as described in the Documentation; any third-party technology provided by MONITIO INTELLIGENCE as part of the purchased services; and expressly excludes Third Party Applications, Customer provided data, software, or similar technology;
"Service Software" means the MONITIO INTELLIGENCE proprietary software-as-a-service application or applications (including any new versions, updates, revisions, improvements and modifications of the foregoing that MONITIO INTELLIGENCE provides in its sole discretion).
"Third Party Product" means any product that is purchased by You from MONITIO INTELLIGENCE, as a reseller of such product, pursuant to the Hardware Addendum.
"Monitio Materials" means the Services and Monitio Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by MONITIO INTELLIGENCE or any its third party it appoints in connection with the Services or otherwise comprise or relate to the Services or Monitio Systems. For the avoidance of doubt, Monitio Materials include Aggregate Data and any information, data, or other content derived from Monitio Intelligence's monitoring of Your access to or use of the Services, but do not include Your Personal Data.
"Monitio Systems" means the information technology infrastructure used by or on behalf of MONITIO INTELLIGENCE in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by MONITIO INTELLIGENCE or through the use of third-party services.

SERVICES

Services License. Subject to Your and Your Authorized Users compliance with all the terms and conditions of this Agreement, MONITIO INTELLIGENCE hereby grants You a non-exclusive, non-transferable right to access and use the Services during the Term, solely for Your own internal use and business operations.
Reservation of Rights. MONITIO INTELLIGENCE reserves all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to MONITIO INTELLIGENCE IPR.
Services Warranty. Other than with respect to a free trial or proof of concept period or beta testing, MONITIO INTELLIGENCE undertakes to provide the Services in a professional manner, consistent with industry standards; and use commercially reasonable efforts to respond to a support request in accordance with section 2.4 below and as agreed in Documentation (collectively, the "Services Warranty").
Support. MONITIO INTELLIGENCE will provide reasonable telephone, web-based, and / or e-mail technical support to You during Monitio Intelligence's normal business hours ([email protected]). MONITIO INTELLIGENCE will make reasonable efforts to respond to Your support queries within one business day of Monitio Intelligence's receipt of a support query. In the event You purchase services that extend beyond the support for the use of the Services in its current form, including, without limitation, changes to the design, use, or functionality of the Services or upgrades, improvements, modifications, features, changes, customizations, increased functionality, or additions to the Services, the terms of the Professional Services Addendum will apply.
Use of Data. You hereby grant to MONITIO INTELLIGENCE all such rights and permissions in or relating to Personal Information and Aggregate Data as are necessary or useful to MONITIO INTELLIGENCE and its Representatives to (i) enforce this Agreement,(ii) provide the Services to You, (iii) to improve the features and functionality of the Services (iv) communicate with You in the event You or visitors to Your facilities submit any questions or requests to MONITIO INTELLIGENCE; and (v) exercise Monitio Intelligence's rights and perform obligations hereunder.
Third Party Query. In the event that any request, correspondence, enquiry or complaint from Your use of the Services, including from Your visitors, a regulatory or third party is made directly to MONITIO INTELLIGENCE in connection with Monitio Intelligence's processing of Personal Information, MONITIO INTELLIGENCE shall promptly inform You, providing details of the same, to the extent legally permitted. Unless legally obligated to do so, MONITIO INTELLIGENCE shall not respond to any such request, inquiry or complaint without Your prior consent except to confirm that the request relates to You.
Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

MONITIO INTELLIGENCE has and will retain sole control over the operation, provision, maintenance, and management of the Monitio Materials; and
You have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of Monitio Materials by any Person by or through the Customer Systems or any other means controlled by You or any Authorized User, including any: (a) information, instructions, or materials provided by any of them to the Services or MONITIO INTELLIGENCE; (b) results obtained from any use of the Services or Monitio Materials; and (c) conclusions, decisions, or actions based on such use; and
Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

FREE OR BETA VERSIONS OF THE SERVICES If You are using a free trial, demonstration license or proof of concept version ("POC") of the Services or a beta version of a specific feature within the service, MONITIO INTELLIGENCE makes such Services available to You until the earlier of (a) the end of (i) the free trial or POC period; (ii) beta testing period; or (iii) underlying agreement for the demonstration is terminated, as communicated by MONITIO INTELLIGENCE (b) the start date of any purchased version of such Services, or (c) written notice of termination from MONITIO INTELLIGENCE. You are authorized to use a trial, POC, and demonstration license of the Service only for evaluation and not for any commercial or productive purposes.
CUSTOMER RESPONSIBILITIES

Use Policy. You shall at all times (a) be responsible for the accuracy, quality and legality of the Personal Data, the means by which You acquired it, and Your use of Personal Data with the Services, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify MONITIO INTELLIGENCE promptly of any such unauthorized access or use, (c) use Services only in accordance with Documentation and Applicable Laws, (d) comply with terms of service of any Third-Party Applications with which You use the Service (e) be responsible for (i) all hardware devices needed to access or use the Services, such as display devices, iPads, and the like; and (ii) internet access to such devices.
Access to Services. You are solely responsible and liable for all uses of the Services resulting from access provided by You, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. You shall ensure that only appropriate Authorized Users have access to the Services, that such Authorized Users have been trained in proper use of the Services. Without limiting the generality of the foregoing, You are 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 You would be deemed a breach of this Agreement by You. You 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 Services, and shall cause Authorized Users to comply with such provisions. You acknowledge and agree that MONITIO INTELLIGENCE shall not be liable for any loss or damage arising from unauthorized access to, or use of, the Services from Your account due to your failure to comply with this provision.
Use Restrictions. You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any persons to (a) copy, modify, or create derivative works of the Services in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law.
Prohibited Acts. You shall not (a) use the Services to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to MONITIO INTELLIGENCE or places MONITIO INTELLIGENCE in a position of non-compliance with Applicable Law or MONITIO INTELLIGENCE certifications; (b) upload to, or store within, the Services (and Personal Information shall not contain) any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) use the Services to store or transmit any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines or code that may damage or detrimentally interfere with the Services or any data or Personal Information maintained on or in connect with the Services; (d) send or (cause to send) Sensitive Data through the mail or text message relay functionalities available through the Services, and will be liable for any Security Incident in connection with the sending of Sensitive Data through such functionalities by You; (e) conduct any scans or other intrusion testing on or to our Services, or publish any document in this regard without obtaining the prior written consent of MONITIO INTELLIGENCE.

SUSPENSION OF SERVICES

Notwithstanding anything to the contrary in this Agreement, MONITIO INTELLIGENCE may directly or indirectly by any lawful means suspend, either temporarily or permanently Your access to or use of all or any part of the Services, without incurring any resulting obligation or liability if:

MONITIO INTELLIGENCE receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires MONITIO INTELLIGENCE to do so;
Subject to Applicable Law, You ceased to continue Your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
Your use of the Services places MONITIO INTELLIGENCE at risk of non-compliance with Applicable Law, its certifications, other legal or contractual obligations it is subject to; or
MONITIO INTELLIGENCE believes in its good faith and reasonable discretion that:

You or any Authorized User has failed to comply with any material term of this Agreement, or has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirements;
You or any Authorized User is, has been or is likely to be involved in any fraudulent, misleading, or unlawful activities; or
You or any use of the Services disrupts or poses a security risk to Services or to any other customer or vendor of MONITIO INTELLIGENCE.

Any such suspension described in section 5.1 is a "Service Suspension". This Section 5 does not limit any of Monitio Intelligence's rights or remedies whether at law, in equity, or under this Agreement.
MONITIO INTELLIGENCE shall use commercially reasonable efforts to provide written notice of any Service Suspension to You and to provide updates regarding resumption of access to the Services following any Service Suspension. MONITIO INTELLIGENCE shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. MONITIO INTELLIGENCE will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You may incur as a result of a Service Suspension.

CONFIDENTIALITY

Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to 6.2 "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, Intellectual Property, Personal Information, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential".
Exclusions. Confidential Information does not include any information that (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (d) was or is independently developed by the Receiving Party or its Representatives without reference to or use of any Confidential Information; (e) was at the time of disclosure in the possession of the Receiving Party or any of its Representatives and was obtained without an obligation of confidence; or (f) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party's prior written consent.
Protection of Confidential Information. As a condition to be provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

not make any unauthorized use or disclosure, in whole or in part, of the Confidential Information or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
Except as may be permitted under the terms and conditions and section 6.4 and 6.5, not to disclose or permit access to Confidential Information other than to its Representatives who:

need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights and performance of its obligations under and in accordance with this Agreement;
have been informed of the confidential nature of the Confidential Information; and
are subject to subject to confidentiality duties or obligations to the Receiving Party which are no less restrictive than the terms applicable to the Confidential Information under this Agreement;

Protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; and
Promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.

Permitted Disclosure. Notwithstanding the foregoing, MONITIO INTELLIGENCE may access or disclose Your Confidential Information if: (a) MONITIO INTELLIGENCE in good faith believes that disclosure is necessary to comply with any Applicable Law, legal process or government request; (b) to perform under or enforce the terms of this Agreement, including instructing a third party for collection of outstanding amounts owed by You under this Agreement; (c) to protect the security or integrity of the Services, (d) to respond to an emergency which MONITIO INTELLIGENCE believes in its reasonable opinion requires MONITIO INTELLIGENCE to disclose information to assist in preventing a death or serious bodily injury, or (e) in connection with a change of control or a potential change of control of MONITIO INTELLIGENCE or a MONITIO INTELLIGENCE Affiliate, provided that reasonable measures are used to preserve the confidentiality of the Confidential Information being disclosed. In each of the foregoing cases, MONITIO INTELLIGENCE will disclose only such Confidential Information as MONITIO INTELLIGENCE believes, in good faith, is necessary.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Applicable Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Publicity. You hereby grant MONITIO INTELLIGENCE a non-exclusive, worldwide, royalty-free and fully paid license to use, display, mention Your name, logo and/or mark in MONITIO INTELLIGENCE marketing material and statements (whether oral or in writing) including any press release, external advertising, marketing or promotion materials regarding the Service or its business for the duration that You are in contract with MONITIO INTELLIGENCE. You may withdraw this license at any time by emailing [email protected].
Case Study. You hereby agree to participate in the development of a case study (or a similar asset) highlighting the success of your use of the Services that may be used by MONITIO INTELLIGENCE for business development purposes. You shall have the right to approve the case study materials prior to any publication, but such approval shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, MONITIO INTELLIGENCE shall have no obligation to develop or publish a case study with respect to Your use of the Services.

INDEMNIFICATION

Indemnification by You. You shall defend, indemnify, and hold MONITIO INTELLIGENCE and MONITIO INTELLIGENCE Representatives harmless against any loss, damage, or cost (including reasonable attorneys' fees) incurred in connection with a claim, demand, suit, or proceeding by a third party alleging that Your use of the Services (i) infringes upon the privacy rights of a third party, (ii) is in violation or alleged violation of any Applicable Laws, or (iii) is a result of Your or Your Authorized User's negligence, wilful misconduct, or use of the Services in a manner not authorized by this Agreement, provided You are notified in writing by MONITIO INTELLIGENCE as soon as reasonably practicable as to any such claim. MONITIO INTELLIGENCE shall provide reasonable information, cooperation and assistance in defending any such claim.
Indemnification by MONITIO INTELLIGENCE. MONITIO INTELLIGENCE shall defend, indemnify, and hold You, your directors, officers, employees, and Affiliates harmless against any loss, damage, or cost, and any lawsuit to the extent based thereon, that is brought by a third party against You alleging that the Services infringe any patent, trade secret, copyright or other Intellectual Property Rights ("Infringement Claim"), so long as MONITIO INTELLIGENCE is notified in writing by You as soon as reasonably practicable as to any such Infringement Claim. If MONITIO INTELLIGENCE believes that the Services may be subject to an Infringement Claim, or Your use of the Services is held to infringe and its use is enjoined, or threatened to be enjoined, then MONITIO INTELLIGENCE will, at Monitio's own expense and option: (i) procure for You the right to continue using the Services; or (ii) replace same with non-infringing Services; or (iii) modify the Services so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for MONITIO INTELLIGENCE, then MONITIO INTELLIGENCE may terminate Your rights to access and use those portions of the Services that are subject to such Infringement Claim, in which case MONITIO INTELLIGENCE will refund You a pro rata amount of any prepaid fees applicable to the unutilized portion of the Term of the terminated Services. THIS SECTION 7.2 REPRESENTS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AGAINST MONITIO INTELLIGENCE FOR ANY INFRINGEMENT CLAIMS.Notwithstanding the foregoing, MONITIO INTELLIGENCE has no obligation with respect to any actual or claimed infringement if the Infringement Claim is solely caused by Your data, use of the Services other than as specified in Documentation, or Your combination of the Services with any products, software, services, data or other materials not provided by, required by, or approved by MONITIO INTELLIGENCE, unless such use is necessary in order to use the Services as instructed by MONITIO INTELLIGENCE.

THIRD PARTY DEVELOPERS

The Services may include features and functionality that permit you to connect the Services to any third party applications ("Third Party Applications") developed by third parties ("Third Party Developers"). You acknowledge and agree that:

MONITIO INTELLIGENCE is not such Third Party Developers and is not an Affiliate of such Third Party Developers; and
To the extent that You authorize the use of the Services in connection with Third Party Applications, You consent to MONITIO INTELLIGENCE releasing to Third Party Developers any Confidential Information entered into the Services reasonably required by such Third Party Developers for the proper fuse of such Third Party Applications, and such Third Party Developer's use of such Confidential Information shall be governed by Your agreement with such Third Party Developers;
MONITIO INTELLIGENCE does not monitor or have any control over, and makes no claim or representation regarding Third Party Applications or Third Party Developers and MONITIO INTELLIGENCE are not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any of the foregoing.

MONITIO INTELLIGENCE makes no representations or warranties regarding Third Party Developers, Third Party Applications, or their use of Confidential Information, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers is binding on MONITIO INTELLIGENCE nor shall breach of such representation or warranty relieve You of your obligations to MONITIO INTELLIGENCE. Third Party Developers may require You to enter into license agreements or pay license fees for the use of their Third Party Applications, which, unless expressly set out herein, are not included in the Fees.
The Services may contain features designed to interoperate with Third Party Applications. To use such features, You may be required to obtain access to such Third Party Applications directly from the provider. If the provider of any such Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service feature, MONITIO INTELLIGENCE may cease to provide such Service features without any obligation of a refund, credit or other compensation to You.

INTELLECTUAL PROPERTY

Ownership.Except as expressly set forth herein, no express or implied license or right of any kind is granted to You regarding the Services, MONITIO INTELLIGENCE Intellectual Property, or any part of the foregoing, including any right to obtain possession of any source code, data or other technical material relating to MONITIO INTELLIGENCE Intellectual Property. All Intellectual Property Rights or made available or disclosed to You in the provision of the Services are and shall remain the sole and exclusive property of MONITIO INTELLIGENCE and except for the limited license to use the Intellectual Property as part of your use of the Services in accordance with this Agreement, no right, title, or interest is granted in the Intellectual Property.
MONITIO INTELLIGENCE and its Affiliates shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the Services or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your Feedback. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in MONITIO INTELLIGENCE or its Affiliates by virtue of this Agreement or otherwise, You hereby transfer and assign to MONITIO INTELLIGENCE all rights, title, and interest which You may have to such refinements and improvements. As between the parties, You own all Intellectual Property rights in Your Personal Information provided pursuant to this Agreement.

FEES AND PAYMENT

Fees. You shall pay MONITIO INTELLIGENCE the Fees as set forth in the applicable Order Form and in accordance with this Section 10 without off-set or deduction. Fees are based on the number of devices being used to access the Services, the subscription and services package selected by You from MONITIO INTELLIGENCE.
Payment: You shall pay all Fees within 30 days from date of the applicable invoice, unless otherwise expressly agreed in writing between the parties. The Fees will be invoiced in advance on an annual subscription model basis, unless otherwise expressly agreed by the parties.
Credit Card. To the extent that Fees are billed and paid through a third party credit card processor, such third party's standard terms and conditions shall apply.
Taxes. All Fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government, financial institution or regulatory authority on any amounts payable by You hereunder, other than any taxes imposed on Monitio Intelligence's income.
No Deductions or Setoffs. All amounts payable to MONITIO INTELLIGENCE under this Agreement shall be paid by You to MONITIO INTELLIGENCE in full without any setoff, recoupment, counterclaim, deduction, debit, or withhold for any reason (other than any deduction or withholding of tax as may be required by Applicable Law).
Bank Charges. You are responsible for Your own electronic funds transfers, transfer or other related service fees or charges related to payment to MONITIO INTELLIGENCE.
Expenses: You will reimburse expenses related to Monitio Intelligence's performance of on-site services as requested under an applicable Order Form and in accordance with Your travel policies (where agreed to apply). MONITIO INTELLIGENCE will provide such reasonable receipts or other documentation of expenses as You may reasonably request.
Late or Non-Payment. Failure to make any payment when due shall constitute a material breach of this Agreement. In addition to all other remedies available to MONITIO INTELLIGENCE under this Agreement or under Applicable Law:

MONITIO INTELLIGENCE may charge interest on the past due amounts at a rate of 1.5% per month calculated daily and compounded monthly (18% per annum equivalency) or, if such interest rate is not permitted by Applicable Law, then the highest rate permitted under Applicable Law commencing on the due date until such time as it is paid;
You shall reimburse MONITIO INTELLIGENCE for all reasonable costs incurred by MONITIO INTELLIGENCE in collecting any late payments or interest, including attorney's fees, court costs, and collection agency fees;
If such failure continues for five (5) days following written notice thereof, MONITIO INTELLIGENCE may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to You or any other Person by reason of such suspension.

Fee Increases. In the event You increase the number of devices with access to the Services during a subscription term, You must promptly notify MONITIO INTELLIGENCE and MONITIO INTELLIGENCE may, at its discretion, change the Fees applicable to the add-on device license based on its then current fee structure. MONITIO INTELLIGENCE reserves the right to increase the Fees on renewal of the subscription services by providing written notice to You at least 30 days prior to commencement of the renewal term.
Currency. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. Dollars (USD).

TERM AND TERMINATION

Initial Term. This Agreement shall commence on the Effective Date and unless terminated earlier pursuant any of the Agreements express provisions, will continue in effect for one (1) year from such date unless agreed otherwise in writing (the "Initial Term").
Renewal Term. This Agreement will automatically renew for additional consecutive periods of same length as the Initial Term unless (a) terminated pursuant to this Agreement's express provisions or (b) either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term")
Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

MONITIO INTELLIGENCE may terminate this Agreement, effective on written notice to You, if You: (a) fail to comply with notice of non-payment under section 10.8.3; or (b) breaches any of its obligations under section 4.3-4.4.
Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files, or has filed against it, a petition for voluntary bankruptcy or otherwise becomes subject, voluntarily or involuntary, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (c) makes or seeks to make a general assignment for the benefit of its credits; or (d) applies for or has appointed a receiver, trustee custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business (e ) there is a force majeure (as specified in section 14.11) event lasting more than 30 days.

EFFECT OF TERMINATION

Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
You shall immediately discontinue use of the Services on all devices and You shall delete or destroy all electronic and physical stand-alone copies of the Services.

Termination will not relieve You of obligation to pay any Fees accrued or payable to MONITIO INTELLIGENCE under the terms of this Agreement and You shall remain obligated to pay all Fees owed for the remainder of any subscription term for the Services, all of which Fees shall become immediately due and payable in full.
Upon Your written request, provided such request is made within 30 days of the date of termination of this Agreement, MONITIO INTELLIGENCE will make available a CSV extract of Your Confidential Information entered into the Services and that is in Monitio Intelligence's possession or control. MONITIO INTELLIGENCE will have no obligation to retain, maintain or provide You with such data after 30 days from termination unless agreed to in writing between the parties and thereafter MONITIO INTELLIGENCE may, at its option, delete or destroy all copies of Your Confidential Information in its possession or control.
Notwithstanding anything to the contrary in this Agreement, MONITIO INTELLIGENCE may retain the Confidential Information (a) solely to the extent and for so long as required by Applicable Law; and (b) in its backups, archives, and disaster recovery systems until such Confidential Information is deleted in the ordinary course; and (c) all such information described in this section will remain subject to all confidentiality requirements of this Agreement.

LIMITATION OF LIABILITY AND DISCLAIMERS

Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN: (1) THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND; AND (2) TO THE MAXIMUM EXTENT PERMITTED BY LAW, MONITIO INTELLIGENCE AND ITS AFFILIATES EACH EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY REPRESENTATIVE OF MONITIO INTELLIGENCE OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY MONITIO INTELLIGENCE FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF MONITIO INTELLIGENCE WHATSOEVER. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, MONITIO INTELLIGENCE SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR IT'S AFFILIATES BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ALL APPLICABLE ADDENDUMS) OR ITS SUBJECT MATTER UNDER ANY LEGAL OR THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION.
EXCEPT FOR (A) A BREACH OF YOUR LICENSE TO USE THE INTELLECTUAL PROPERTY AS SET OUT IN SECTION 4 OF THIS AGREEMENT, (B) YOUR OBLIGATION TO PAY THE FEES UNDER THIS AGREEMENT, (C) EITHER PARTY'S LIABILITY FOR CLAIMS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (D) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY (AND ITS RESPECTIVE AFFILIATES) TO THE OTHER PARTY ARISING UNDER OR RELATED TO ANY SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ALL APPLICABLE ADDENDUMS) EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO MONITIO INTELLIGENCE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

GENERAL PROVISIONS

Export Compliance. The Services and Monitio Materials, technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. MONITIO INTELLIGENCE and You each represents that it is not named on any U.S. government denied-party list or similar list in any other jurisdictions. You will not permit any Authorised User to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation or in violation of any other country's export laws or regulations directly applicable to MONITIO INTELLIGENCE or its Affiliates.
Outage Policy. YOU ACKNOWLEDGE AND UNDERSTAND THAT MONITIO INTELLIGENCE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT MONITIO INTELLIGENCE MAY OCCASIONALLY EXPERIENCE DISRUPTION DUE TO INTERNET DISRUPTIONS OR DISRUPTIONS THAT ARE NOT WITHIN MONTIO INTELLIGENCE'S CONTROL. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.
Modifications. Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your subscription term and will automatically apply as of the renewal date unless you elect not to renew pursuant to section 11.2. Notwithstanding the forgoing, in some cases including but not limited to where changes are needed to address compliance with Applicable Laws, or as necessary for new features, Monitio Intelligence may specify that such modifications become effective during the current subscription term. If the effective date of such modifications is during Your then current subscription term and You object to the modifications, then (as Your exclusive remedy) You may terminate Your affected Order Form(s) upon notice to Monitio Intelligence . MONITIO INTELLIGENCE will refund You any Fees you have pre-paid for use of the affected Services for the terminated portion of the applicable subscription term. To exercise this right, You must provide MONITIO INTELLIGENCE with notice of Your objection and termination within thirty (30) days of MONITIO INTELLIGENCE providing notice of the modifications. For avoidance of doubt, any Order Form is subject to the version of this Agreement in effect at the time of the Order Form, unless agreed in writing by the Parties.
Feedback. You may from time to time provide MONITIO INTELLIGENCE suggestions, comments or other feedback regarding the Services("Feedback") . You agree that all Feedback is and shall be given entirely voluntarily. You hereby grant to MONITIO INTELLIGENCE a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or Feedback provided by You relating to the use and operation of the Services.
Subcontractors. MONITIO INTELLIGENCE may from time to time in its reasonable discretion may have third parties perform any part of the Services. MONITIO INTELLIGENCE will at all times remain responsible for such third parties and their compliance in accordance with this Agreement.
Data Transfer. MONITIO INTELLIGENCE is a Canadian entity with offices in Europe and United States and undertakes processing of Personal Information across these offices, and such Personal Information may be accessed by its Representatives from any location outside of the country from where the Personal Information originated. You hereby provide your consent for MONITIO INTELLIGENCE to transfer, access, process Personal Information from any location subject to Applicable Laws. MONITIO INTELLIGENCE may need to provide certain communications, such as service announcements and administrative messages. These communications are considered as part of the Services.
Evaluations, trials and betas. MONITIO INTELLIGENCE may, but is not obligated to, provide access to trial accounts, trial use and Beta Versions to You and this Agreement shall apply to your use of the same and may be subject to any additional terms that MONITIO INTELLIGENCE may specify and is only permitted during the term we designate (or, if not designated, until terminated in accordance with the Agreement). MONITIO INTELLIGENCE may modify or terminate your right to use trial accounts and Beta Versions at any time and for any reason in its sole discretion, without liability to you. You understand that Beta Versions are still under development, and may be inoperable or incomplete and are likely to contain more errors and bugs than the generally available on the Software Services. MONITIO INTELLIGENCE makes no promises that any Beta Versions will ever be made generally available. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to trial accounts, and Beta Versions including any Support, warranty and indemnity obligations.
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Anti- Slavery and Sanction. You shall ensure that You have in existence, and have maintained and enforced an adequate anti- slavery and human trafficking policy with required procedures in place to ensure compliance with all applicable legislations, statutes and codes from time to time in force under Applicable Law including but not limited to the Modern Slavery Act 2015. You shall (i) upon request by MONITIO INTELLIGENCE, certify in writing that You remain in compliance with this Section 14.9; and (ii) not directly or indirectly, engage in or conspire to engage in any transaction that violates, or attempts to violate, any of the material provisions set forth in any applicable economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by Her Majesty, the European Union, the US Government (including those administered by OFAC), the United Nations or any other relevant sanctions authority.
Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the parties agree to attorn to the exclusive jurisdiction of Ontario.
Assignment. This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, whose consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may transfer or assign this Agreement (a) to an Affiliate; (b) in the event of a sale, merger or other transfer of substantially all of its business and assets; or (c) in the event of a sale or transfer by MONITIO INTELLIGENCE of the Services and substantially all Monitio Intelligence's business components required to operate the Services, without the other party's consent. The terms and conditions of this Agreement shall enure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns
Notice. All legal notices will be in writing and addressed to the attention of the other party's General Counsel (or chief legal officer) of its Legal Department unless notified otherwise. All notices shall be in English and shall be effective upon actual receipt, except for notices sent by e-mail or other electronic means, which shall be deemed to have been received the day after such notices are sent. All legal notices to MONITIO INTELLIGENCE shall be sent to [email protected] along with a hard copy to #112 ?C 3600 Steeles Ave E, Markham, ON L3R 9Z7.
Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
Enforceability. Failure to enforce any provision will not constitute a waiver. If any provision of this Agreement is found unenforceable, the balance of this Agreement will remain in full force and effect.
Relationship. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.
Interpretation. In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, "or" is not exclusive" and "including" is not limiting, whether or not such non-limiting language (such as "without limitation" or "but not limited to") is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. It is intended that this Agreement shall not violate any Applicable Law and the unenforceability or invalidity of any provision (in accordance with a court's ruling) shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from this Agreement and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.
Survival. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement will survive any expiration or termination of this Agreement: Section 1 (Definitions), Section 2.5 (Use of Data), Section 6(Confidential Information), Section 7 (Indemnification), Section 9 (Intellectual Property), Section 12 (Effects of Termination), Section 13 (Limitation of Liability), Section 14 (General Provisions).
Entire Agreement. This Agreement and any referenced exhibits or other Documents therein constitutes the entire understanding of the parties with respect to this subject matter. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) these Terms and Conditions and (3) other referenced documentation. If You issue a purchase order in connection with an Order, such purchase order shall be solely for Your internal administrative purposes and to facilitate payment. In no event shall the terms of such purchase order modify or become part of this Agreement or become binding on MONITIO INTELLIGENCE even if MONITIO INTELLIGENCE signs an acknowledgment copy of such purchase order.
U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement and shall not apply to any Order Form issued in connection herewith.

Last Updated: November 3, 2020.