These Terms and Conditions set out the provisions pursuant to which Panvista will provide services set out on the Cover Sheet to the Customer identified on the Cover Sheet.
1 DEFINITIONS & INTERPRETATION
1.1 The following terms have the following meanings:
(a) “Acceptance” means the provision by Customer of a notice to Panvista indicating Customer’s acceptance of the Deliverables pursuant to Section 3.2;
(b) “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity;
(c) “Agreement” means the Cover Sheet and these Terms and Conditions (as updated from time to time) together with any Schedules attached hereto or referenced on the Cover Sheet;
(d) “Business Day” means any day, other than Saturday, Sunday or any statutory or civic holiday observed in the city of Toronto, Ontario;
(e) “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary”, or similar designation or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party without restriction or disclosure and without breach by such third party of a non-disclosure obligation; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure;
(f) “Content” means any information, text, graphics, data, profiles, advertisements, audio and video clips or other materials uploaded, downloaded or manually inputted to the Service from the Content Location or Sites;
(g) “Content Location” means the primary location(s) where content from Customer (which is to be inputted to the Service) resides as indicated on the Cover Sheet;
(h) “Deficiencies” means any failure of the Deliverables to function or operate in accordance with the Deliverables Requirements;
(i) “Deliverables” means either or both of the Software Deliverables or the Service Deliverables, as the case may be;
(j) “Deliverable Requirements” means either or both of the Software Deliverables Requirements or the Service Deliverables Requirements, as the case may be;
(k) “Fees” means the fees listed on the Cover Sheet;
(l) “Launch Date” has the meaning attributed to it in Section 2.1;
(m) “Initial Term” has the meaning attributed to it in Section 10.1;
(n) “IPR Claim” has the meaning attributed to it in Section 8.1;
(o) “Panvista Indemnitee” has the meaning attributed to it in Section 8.2;
(p) “Panvista Materials” means the proprietary Panvista technology (including software, databases and platform) and any materials used by Panvista to provide the Service (including any copies, corrections, bug fixes, enhancements, modifications or new versions thereof and all research and development and experimental development in respect thereto) excluding the Content Location, Content and Service Deliverables;
(q) “Permitted User” means an end user who is entitled by Customer to access content on a Site;
(r) “Platform” means any mobile, tablet, social network, embeddable and/or desktop platform listed on the Cover Sheet;
(s) “Platform Provider” means the owner or provider of a Platform to which Content may be delivered through the Service;
(t) “Renewal Term” has the meaning attributed to it in Section 10.1;
(u) “Service” means the delivery of Content to the Platforms using the Panvista Materials, the provision of access to Content on Sites via the Software Deliverables on the Platforms and provision of related support and services;
(v) “Service Deliverables” means the Content resulting from the input, reformatting and data import/export necessary for provision of the Service as contemplated in Section 2 along with any other deliverables agreed by the parties;
(w) “Service Deliverable Requirements” means the specifications for the Service Deliverables that describe Customer’s functional, operational, performance and technical specifications and requirements for the Service Deliverables as agreed to by the parties, which shall be set out in such form as agreed to by the parties, the contents of which are incorporated by reference herein;
(x) “Support Hours” has the meaning attributed to it in Section 12.4;
(y) “Software Deliverables” means the Platform software and software applications developed or produced or otherwise provided by Panvista to Customer which shall form part of the Panvista Materials;
(z) “Software Deliverable Requirements” means the specifications for the Software Deliverables that describe Customer’s functional, operational and technical specifications and requirements for the Software Deliverables as agreed to by the parties, which shall be set out in such form as agreed to by the parties, the contents of which are incorporated by reference herein; and
(aa) “Site” means one or more websites that hosts Customer content across one or more Platforms and which is accessible to Permitted Users through the landing page of the Software Deliverables. Additional Sites may be added to the Service from time to time by agreement of the Parties;
(bb) “Term” has the meaning given in Section 10.1.
1.2 In this Agreement: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the word “including” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation,” throughout this Agreement; (c) all dollar amounts are expressed in Canadian dollars unless expressly provided otherwise on the Cover Sheet.
1.3 Headings and the division of this Agreement into articles and sections are for convenience of reference only and shall not affect the interpretation hereof. If there is any conflict or inconsistency between the terms in the various parts of this Agreement, the sections in the Cover Sheet will take precedence, followed by these Terms and Conditions.
2 SERVICE
2.1 Service Launch. On or around the Effective Date, Panvista shall procure the necessary rights and licenses from the Platform Providers to make the Service available on the Platforms. Customer shall provide Panvista with all information reasonably required for Panvista to connect to and provide the Service via the Content Location and Sites. The Service will begin on the date the first of any software applications forming part of the Software Deliverables is available for viewing for the Customer’s intended audience (“Launch Date”). On or around the Launch Date, Panvista shall retrieve Content from the Content Location which was generated over the preceding one (1) month and deliver it to the Platforms. Thereafter, subject to the Service Levels, the Service will automatically retrieve and deliver new Content from the Content Location to the relevant Platforms. Content on the Sites can be updated by automatic retrieval from the Content Location and Customer may update Content on the Sites directly through access to Panvista’s backend as further described below.
2.2 Changes. Customer may request and Panvista may provide any of those additional features as set out on the Cover Sheet for the Service at rates to be agreed as part of the subscription fee. Change requests for features not set out on the Cover Sheet may be requested by Customer by providing a written description of the requirements. Panvista shall use commercially reasonable efforts to respond to any such requests within ten (10) Business Days of the date on which Panvista receives the change request with an estimate of the time required to complete the requested changes together with the estimated cost of such time and any materials required. Neither party will be bound to perform under or accept any change request made under this Section 2.2 unless or until both parties agree to the same in writing.
2.3 Customer Access. Panvista hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use and access the Panvista Materials for the purpose of using the Service from the Launch Date for the Term and updating the Content available on a Site with access to Panvista’s backend administration. Customer shall be provided with login details enabling direct access to the database forming part of the Panvista Materials which contains the Content. Customer shall have the ability to edit, add to and delete the Content which is in the Panvista Materials, but shall not otherwise alter the Panvista Materials.
2.4 End User Access. Customer will have control over which Permitted Users are entitled to access Content on specific Sites by provision of unique passwords, access codes or keywords (as indicated by Panvista) and the ability to monitor use of the Sites through the Service by exercising Customer’s back-end administrator privileges. For greater certainty, Panvista will not be responsible for any third party access to the Sites or for monitoring such use.
2.5 Customer Responsibilities. Customer is responsible for any and all Content and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Content to be made available to Panvista for Panvista to provide the Service for reformatting, configuring and delivery to the Platforms. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Content; (ii) safeguard the login details provided in Section 2.3 and prevent unauthorized access to or use of the Service and Panvista Materials, and shall notify Panvista promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Service.
3 DELIVERY OF DELIVERABLES
3.1 Delivery. Panvista agrees to develop, deliver or make available, as applicable, to Customer the Deliverables in accordance with the delivery timetable agreed to by the parties acting reasonably. In the event of a delay, Panvista will advise Customer as soon as possible of a new date for delivery or making available, as applicable.
3.2 Testing. Customer shall, upon receipt or having made available the Deliverables from Panvista, conduct such tests as it may deem appropriate to ensure that the Deliverables comply with the applicable Deliverables Requirements. Customer shall have 10 Business Days in which to carry out tests on the Deliverables. If Customer is satisfied that the Deliverables meet the applicable Deliverable Requirements, Customer shall notify Panvista of its acceptance of the Deliverables (the delivery of each such notice, an “Acceptance”). If Customer fails to provide a notice of Acceptance within 10 Business Days, Customer shall be deemed to have accepted the Deliverables and the Fees required on Acceptance shall become due and payable
3.3 Deficiencies. In the event of any Deficiencies in any Deliverables, or in the case of Software Deliverables, Customer shall provide Panvista of notice of such deficiencies together with reasonable detail of the nature of such Deficiencies, all of the circumstances in which they occurred, and information concerning the nature of how the operation of such Deliverables fail to comply with the applicable Deliverables Requirements.
3.4 Warranty for Software Deliverables. Panvista warrants to Customer that from the date of the first delivery by Panvista to Customer of each Software Deliverable (the “Warranty Period”) that such Software Deliverable shall conform to the Software Deliverables Requirements for such Software Deliverable during the Term. In the event of a breach of the warranty provided in this Section 3.4 during the Warranty Period, Panvista shall promptly remedy such non-conformance in accordance with the terms of Section 12.
4 PROPRIETARY RIGHTS
4.1 Reservation of Rights. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that Panvista owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Panvista Materials and Panvista grants Customer no further licenses of any kind hereunder, whether by implication, estoppel or otherwise. Subject to Section 2.3, Customer acknowledges that only Panvista shall have the right to maintain, enhance or otherwise modify the Panvista Materials, the Service and the Software Deliverables.
4.2 Content. As between Panvista and Customer, Customer exclusively owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Content and Service Deliverables. For greater certainty, nothing in this Agreement shall restrict Panvista’s right to compile and use Data (including use on a worldwide, royalty-free, perpetual basis for market research, case studies and other similar initiatives). For the avoidance of doubt, Customer shall not be named in any market research, case studies or other initiatives which make use of the Data, unless Customer consents to the same, which consent shall not be unreasonably withheld or delayed.
For the purposes of this Section 4.2, the term “Data” means aggregated and statistical data and other information including (but not limited to) data relating to the number of user downloads, page views, return visits, bounce rates and time spent on content. For the avoidance of doubt “Data” does not include Content.
4.3 Non-Exclusive License Granted to Panvista. For the Term hereof, Customer grants to Panvista and its subcontractors a non-exclusive, non-transferable right and license to access and use the Content to the extent necessary to perform the Service and deliver the Deliverables as contemplated by this Agreement, provided always that such license will be for such purposes only. In addition, the Panvista Materials and Content may be branded ‘powered by Panvista” in such location and size on the Service as the parties shall agree.
4.4 Suggestions. Panvista shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the operation of the Service.
4.5 Deliverables. Customer acknowledges and agrees that ownership of and title to any Software Deliverables, including all copyright, trademarks, patents, trade secrets and all other intellectual property rights therein shall be owned exclusively by Panvista, Panvista acknowledges and agrees that ownership of and title to any Service Deliverables (excluding Panvista Materials and Software Deliverables), including all copyright, trademarks, patents, trade secrets and all other intellectual property rights therein, shall be owned exclusively by Customer. Panvista hereby transfers, assigns and conveys, and agrees that it shall, to the extent necessary in the future transfer, assign and convey to Customer, in writing all right, title and interest in and to all Service Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
4.6 Service Use Guidelines. Customer shall use the Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Panvista Materials except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or Panvista Materials; or (d) access the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Service.
5 PAYMENT TERMS AND TAXES
5.1 Payment Terms. In consideration for the receipt of the Service, Deliverables and the licenses and other consideration granted hereunder, Customer shall pay Panvista the fees specified on the Cover Sheet. Fees for the Service will be invoiced annually in advance for the upcoming year. Unless otherwise stated, all payments shall be made to Panvista within thirty (30) calendar days after receipt of the invoice. Panvista reserves the right to increase monthly service fees on an annual basis.
5.2 Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
5.3 Overdue Payments. Any payment not received from Customer by the due date will accrue late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.
5.4 Suspension of Service. If Customer account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Panvista reserves the right to suspend the Service provided to Customer, until such amounts are paid in full or terminate the Service and this Agreement.
6 CONFIDENTIALITY
6.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
6.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6.3 Other Exemptions. Notwithstanding the foregoing provisions in this Section 6, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of the Agreement; (v) in confidence, to auditors, accountants and their advisors; and (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure of this Agreement. For greater certainty, nothing in this Section 6.3 will diminish a receiving party’s obligations under this Agreement to comply with applicable privacy and personal information protection laws.
7 REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
7.1 Representations and Warranties by Each Party. Each party represents, warrants to the other party that: (i) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.
7.2 Panvista Warranties. Panvista represents and warrants to Customer that during the Term it will provide the Service, the Hosting Services and the support services in a manner consistent with the Service Levels. Panvista does not warrant that Customer’s use of the Service will be error-free, uninterrupted or secure. Panvista further represents and warrants that it shall have available at its disposal and will make available upon request by Customer additional page view delivery capacity than currently provided for in the Service Levels subject to such additional fees agreed to by the parties.
7.3 Customer Warranties. Customer represents and warrants that: Customer has the legal power to enter into this Agreement and that during the Term: (a) Customer has all rights necessary to provide Panvista with Content for use in accordance with the terms of this Agreement; and (b) Panvista’s use of the Content in accordance with the terms of this Agreement will not violate the rights of any third party. Customer shall be responsible for the accuracy of the Content and Panvista shall not be liable to Customer, any user or any third party for any use of or inaccuracy in any Content under this Agreement.
7.4 Disclaimer. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION 7 THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND. PANVISTA AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICE OR THE DELIVERABLES PROVIDED UNDER THIS AGREEMENT AND PANVISTA SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8 INDEMNITY.
8.1 Panvista IP Indemnity. Panvista shall indemnify, defend and hold the Customer harmless from and against damages, claims, demands, actions and costs (including legal/attorney fees), charges, expenses, liabilities final settlement or award made to a third party by a court or tribunal of competent jurisdiction in relation to any infringement by the Service and/or Panvista Materials of any third party’s proprietary or intellectual property right an (“IPR Claim”); provided that, i) the IPR Claim is not due to any modifications made to the Content or the Panvista Materials by Customer or as a result of any of the matters set out in section 8.2; and ii) Customer shall notify Panvista promptly of any such claim, permit Panvista to control the defense and settlement of such claim and reasonably assist Panvista in defending or settling such IPR Claim. If Panvista has reason to believe that it would be subject to an injunction or continuing damages based on the Service and/or Panvista Materials or if Customer, Panvista (including its Affiliates) or any user is subject to an injunction or continuing damages based on the Service or any Software Deliverable, then Panvista may, at its option: (i) procure the rights necessary for Customer to continue to use the Service, Deliverables and/or Panvista Materials, as applicable; or (ii) terminate this Agreement and the Service immediately and refund to Customer all unapplied amounts paid by Customer to Panvista in advance in respect of the quarter in which the Service is terminated.
8.2 Customer IP Indemnity. Customer shall indemnify, defend, and hold Panvista, its Affiliates, and the officers, directors, agents, and employees of all of the foregoing (each, a “Panvista Indemnitee” and collectively, the “Panvista Indemnitees”) harmless from and against any and all loss, damage, claims, demands, actions and costs (including legal/attorney fees), charges, expenses and liabilities of whatsoever nature incurred by a Panvista Indemnity directly or indirectly out of or in connection with: (i) the alleged misappropriation or infringement of the proprietary or intellectual property rights of a third party in respect of the Content and/or use or access of the Content Location or a Site; or (ii) any representation, warranty or other commitment made by Customer to any third party (including users) in respect to the Service (“Claim”).
Panvista shall in its discretion give the Customer conduct of any Claim to control the defense and settlement of such Claim (provided that Panvista may participate with counsel of its own choosing), and Panvista shall provide reasonable assistance, at Customer’s expense, in defending or settling such claim. If either party has reason to believe that it would be subject to an injunction or continuing damages based on the Content or access to or use of the Sites, Content Location (or if any Platform Provider is subject to an injunction or continuing damages based on the Content), then such party shall promptly notify the other and the parties shall cooperate to take such action as necessary to ensure the Service is no longer infringing.
9 LIMITATION OF LIABILITY
IN NO EVENT SHALL PANVISTA BE LIABLE TO THE CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT PANVISTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL PANVISTA’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
10 TERM AND TERMINATION
10.1 Term. Unless terminated earlier pursuant to the terms and conditions of this Agreement, this Agreement shall commence on the Effective Date and shall remain in force for an initial term of one (1) year from the Launch Date (the “Initial Term”), automatically renewable for further periods of one (1) year anniversaries of the Launch Date (each a “Renewal Term”) unless and until terminated by either party in accordance with the terms of this Agreement (the “Term”).
10.2 Termination. Either party may terminate this Agreement with written notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party except as permitted in Section 13.2; (ii) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
10.3 Termination for Convenience. Customer may terminate this Agreement for convenience upon the provision of sixty (60) days prior written notice to Panvista prior to the end of the Initial Term or a Renewal Term.
10.4 Survival. The following Sections shall survive the termination or expiration of this Agreement for any reason: 1, 4, 6, 7.4, 9, 10.4. 10.5, 11, 13 and all terms related to payment (until payments have been made in full) and any other terms herein which expressly state that such terms will survive or which by their nature are required to survive to give effect to the surviving terms stated to survive, shall survive the termination or expiration of this Agreement for any reason and will continue in full force and effect subsequent to and notwithstanding such termination, until such provisions are satisfied or by their nature expire.
10.5 Effect of Termination. Upon termination of this Agreement, the Service and Customer’s right of access to the Panvista Materials will immediately terminate and Panvista will promptly deliver to Customer, at Panvista’s own expense, all information and materials in its possession or control that are the property of Customer including, without limitation, the Service Deliverables as they exist at the time of termination. Upon termination of this Agreement, Customer will promptly deliver to Panvista, at Customer’s own expense, all information and materials in its possession or control that are the property of the Panvista and not licensed hereunder.
11 DISPUTE RESOLUTION.
11.1 If any controversy or claim (a “Dispute”) arises during the Term concerning the interpretation of this Agreement or any part hereof, the parties will in good faith attempt to resolve such dispute promptly and in an amicable manner under the following informal dispute resolution procedure. If a dispute arises which is not resolved in the normal course to the satisfaction of all of the parties, then any party may provide the other parties with written notice of the existence of the Dispute (“Dispute Notice”). Representatives of the parties will meet within ten (10) Business Days after the date the Dispute Notice was received by the other party (in person or by way of telephone or other electronic means).
11.2 If the parties’ representatives cannot resolve the Dispute within five (5) Business Days after being notified of the Dispute, then, unless otherwise expressly provided in this Agreement, each party may take whatever steps are necessary to protect its interests. However, no Dispute will be the subject of litigation or other formal proceeding between the parties before being considered by the representatives, as set forth in this Section; provided, however, that either party may seek injunctive or other equitable relief without complying with the above described procedure.
11.3 The fact that the parties are attempting to resolve a Dispute pursuant to this Section 11.3will not relieve either party of any of its obligations under this Agreement, and each party will continue to perform its obligations hereunder (including payment) while any such Dispute is being escalated, subject to any express terms in this Agreement to the contrary.
12 SERVICE LEVELS & SUPPORT
12.1 Service Levels. Subject to planned service outages, the Service will be provided twenty-four (24) hours per day, seven (7) days per week, with an availability of 99.5% in any given billing cycle. Planned service outages will be notified at least 24 hours in advance and Panvista will use its reasonable endeavours to schedule such outages between the hours of 4PM and 10AM EST.
12.2 Technical Responses. Panvista will use reasonable endeavours to respond to urgent service request from Customer within one (1) Business Day. Where possible, Panvista will provide a workaround or a correction for problems which have a serious impact on the service or deliverables. Panvista will give updates to Customer as and when appropriate for the category of problem.
12.3 Support Exceptions. Panvista will not be responsible for correcting a Problem arising from any of the following:
(a) Problems resulting from any modifications of a Software Deliverable or a Service Deliverable made by any person other than Panvista;
(b) incorrect use of the Service, a Software Deliverable or a Service Deliverable; or
(c) to the extent the relevant environment is not within Panvista’s control, any fault in the equipment or in any programs used in conjunction with the Service, a Software Deliverable or a Service Deliverable.
12.4 Support Hours. Customer can contact Panvista between 9:00 am to 5:00 pm Eastern Time during a Business Day (“Support Hours”) at (647) 477-5750.
12.5 Advice. During Support Hours Panvista will provide Customer with such technical advice by telephone, email, facsimile transmission, or mail as will be necessary to resolve Customer’s difficulties and queries in using the Service, a Software Deliverable or a Service Deliverable but not related to any notifications of Problems or Technical Response, or for further clarity, failure of the Service, Software Deliverables or Service Deliverables to conform to the Service Levels or perform as specified in the Software Deliverable Requirements or Service Deliverable Requirements, respectively.
12.6 Hosting and Data. Data is backed-up daily and stored by Panvista and its third party service providers primarily in Canada and the USA. On termination of this Agreement for whatever reason, Customer data will be deleted within 2 weeks by Panvista and its third party service providers from their servers and databases.
12.7 Access to Backend. In order to control permissions and access to Sites, Customer will be given account access to Panvista’s backend for Customer’s Sites at admin.panvista.com.
13 GENERAL
13.1 Publicity. Panvista may refer to Customer in Panvista’s list of customers and may use Customer’s name, logo and screenshots for the Content Location and Sites (provided the screenshots do not contain any confidential information of Customer or its clients) applications for marketing-related purposes for this and related-marketing purposes. No other use of Customer’s name or logo, any other trademark or trade-name of Customer is permitted without the express prior written consent of Customer.
13.2 Assignment. This Agreement shall not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party, which consent shall not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, Panvista may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of the Customer. Any assignment in violation of this Section 13.2 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
13.3 Waiver. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
13.4 Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with this Agreement.
13.5 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries.
13.6 Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth on the Cover Sheet. Notice shall be considered delivered and effective on the earlier of actual receipt or when: (a) personally delivered; (b) the day following transmission if sent by telex, telegram, electronic mail or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the addresses set forth on the first page of this Agreement or at such other address as shall be specified by either party to the other in writing in accordance with this Section 13.6.
13.7 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
13.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
13.9 Force Majeure. Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
13.10 Subcontractors. Panvista may subcontract the performance of this Agreement, or any part of this Agreement without the prior written consent of Customer.
13.11 No Third Party Beneficiaries; Enurement. There are no third party beneficiaries to this Agreement. This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
13.12 Further Assurances. Each party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
13.13 Complete Understanding. These Terms and Conditions, the Cover Sheet and any external documents referenced therein (including delivery timetables and deliverable requirements), constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal or representation (whether written or oral) concerning its subject matter. To the extent of any conflict between the Schedules to this Agreement and the body of the Agreement, the terms of the Schedule shall prevail.
13.14 Language. The Parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language. Les parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise.
Last Updated: March 21, 2012