GENERAL TERMS AND CONDITIONS
Last updated: 16 January 2023
These general terms and conditions (“Terms”) shall govern the sale of the Atrax system and other related products by Smartrek Technologies inc. (“Smartrek”), as well as the performance of services and the grant of license rights to the customer indicated in a Quote, as defined below, or in the documentation exchanged with Smartrek (“Customer”). Smartrek and Customer are individually referred to as a “Party” and collectively as the “Parties”.
These Terms, any Quote or Order confirmation, as defined below, as well as any invoice or other related documents issued by Smartrek (collectively the “Agreement”) comprise the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior contracts, understandings, negotiations, and discussions, whether oral or written, between the Parties. If Customer is purchasing products or services from an authorized distributor of Smartrek, this Agreement shall apply with the adaptations necessary.
A Quote is valid for a period of 30 day, unless it mentions otherwise, and shall be signed by the Customer within that delay.
Any conduct by Customer which implicitly recognizes the existence of the Agreement between the Parties including, without limitation, issuance of a purchase order, acceptance of delivery of products or partial or full payment thereof, shall be deemed to be an acceptance of this Agreement, even if Customers has failed to return the signed Quote to Smartrek. A purchase order may but must not be issued by the Customer.
To become binding upon Smartrek once explicitly or implicitly or accepted by Customer, a Quote is subject to final discretionary confirmation by an authorized representative of Smartrek at its head office in Canada. A sale contract shall be deemed entered into in Canada at the date on which such approval is given (“Effective Date”)
This Agreement prevails over any of the Customer’s general terms and conditions of purchase, regardless of whether or when Customer has submitted such terms. Fulfilment of Customer’s order does not constitute acceptance of any of the Customer’s terms and conditions and may not be interpreted as modifying this Agreement.
Any conflicts between the documents forming part of the Agreement will be resolved in the following order of precedence: (i) Final invoice issued by Smartrek, with respect to the price of the products only; (ii) the Order Confirmation; if any (iii) the Quote, if any; (iv) these Terms.
1.1 For the purposes of this Agreement, the following terms shall have the definitions set forth below:
i. “Atrax System”: means the wireless monitoring and automation system based on the SpiderMesh ® technology, consisting of Products such as the Android tablet, sensors Gateways and A-links as well as Software, which can be used by the Customer for data collection and as a remote device management solution;
ii. “Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Atrax System;
iii. “Customer Data” means any data, content, code, video, images or other materials of any type that Customer or Authorized Users upload, submit, transfer or otherwise transit to or through the Atrax System. For the avoidance of doubt, Customer Data includes Resultant Data, subject to the terms of this Agreement;
iv. “Customer Equipment” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems and networks, whether operated directly by Customer or through the use of third-party services;
v. “Documentation”: means any manuals, instructions or other documents or materials that Smartrek provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Smartrek Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof;
vi. “Fees” means the fees for the supply of the Products and the performance of the related Services, as mentioned in a Quote or otherwise agreed between the Parties;
vii. “Law” means any statute, law, ordinance, regulation, rule, code, order, treaty, common law, judgment, decree, other requirements or rule of law of any federal, provincial, state, local or foreign government, or any arbitrator, court or tribunal of competent jurisdiction;
viii. “Person” means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association, or any other entity;
ix. “Personal Data” means any information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information;
x. “Products”: means the Atrax System and all hardware components or other related products offered by Smartrek, such as electronic components, radio modules, radio transceivers printed circuit boards, probes and sensors, etc;
xi. “Quote”: means the proposal submitted by Smartrek to Customer, if any, setting out the details of Smartrek’s offer of Product and Services;
xii. “Resultant Data” means information, data and other content that is derived from or generated by the use of the Atrax System;
xiii. “Services”: means any activity or intervention under the technical responsibility of Smartrek that may be included in a Quote or agreed upon between the Parties, to be performed as set out in this Agreement;
xiv. “Smartrek Materials” means the Products, Software, Services, Documentation, the SpiderMesh® technology as well as any and all other information, data, documents, materials, works, information technology infrastructure, electronic system, networks and other content used by Smartrek;
xv. “Software”: means all computer programs, software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, including the Web 3.0 App and the Smartrek Android application, used or developed by Smartrek in relation with the Atrax System and its other Products;
xvi. “SpiderMesh ®”: means the cooperative wireless mesh technology developed by Smartrek ;
xvii. “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, equipment or components of or relating to the Atrax System or other Products that are not proprietary to Smartrek;
xviii. “Web 3.0 App”: means the cloud-based application developed by Smartrek and available as software as a service, offering advanced features for visualizing data collected by sensors (air flow, temperature, humidity, etc.) and enabling operations such as configuring sensors, setting alerts, access historical data, export data to create reports, etc, including the related services.
1.2 Additional terms and expressions used in a particular context are defined elsewhere in this Agreement and shall have the meaning expressly assigned to them.
2.1 Smartrek hereby sells to Customer, which agrees to purchase, the Products and Services provided for in the Quote or otherwise agreed between the Parties.
2.2 Smartrek will perform the Services included in the Quote, if any, or agreed upon between the Parties in accordance with the terms of this Agreement.
2.3 Subject to the fulfilment of its obligations hereunder, Customer is further granted a license to use the Software embedded in the Atrax System, under the terms set forth herein.
2.4 Customer acknowledges that the licence included in the purchase price of the Atrax System is for a use “on premises” of the Software and that a cloud-based option offering extended features is available through a separate subscription to the Web 3.0 App, which shall apply in addition to this Agreement.
2.5 Smartrek represents and warrants that:
i. it will assign qualified personnel which have the required technical and/or functional know-how for the type of Services to be delivered, whereby Smartrek shall be subject to an obligation of means only with respect to the performance of the Services
ii. the Atrax System and the Services won’t violate any applicable Law, or any third party right, including any Intellectual Property right;
iii. it will maintain, at its sole costs, all necessary permits, licenses or other similar authorizations, if any, that are requested to perform the Services and sell the Products;
3. ENTRY INTO FORCE AND DURATION
3.1 This Agreement shall enter into force on the Effective Date and shall remain in effect for an indetermined period, unless terminated by a Party in accordance with the terms hereof.
4. PURCHASE OF ADDITIONAL PRODUCTS
4.1 Customer may order additional Products as needed, by submitting a written purchase order to Smartrek containing all information requested by Smartrek, either manually or through an electronic data interchange system (“Purchase Order”).
4.2 A Purchase Order shall not become binding upon Smartrek unless and until Smartrek has approved it by issuing an order confirmation (“Order Confirmation”).
4.3 All sales of Products between the Parties, whether or not included in a Quote, will be subject to the terms of this Agreement.
4.4 Modification or cancellation of a Purchase Order or a Quote confirmed by Smartrek is not permitted, unless otherwise agreed in writing between the Parties. In case of unilateral cancellation by Customer, Smartrek shall be entitled to liquidated damages equal to 20% of the total amount of the accepted Quote or Purchase Order, plus the costs of all configuration and drawings services already performed, if any, and the costs of the raw materials, materials, parts and components already purchased prior to receipt of the cancellation notice. Smartrek will in such case issue a corresponding invoice, which shall be payable by Customer within 15 days of the invoicing.
4.5 Return of Products are subject to Smartrek’ s prior authorization or may otherwise be refused. Upon such authorization, Smartrek will be entitled to charge a restocking fee of 25% of the returned Products’ total price, provided that they are in merchantable condition according to Smartrek ’s standards. Customer shall otherwise be granted a 90 days delay to collect them at its own costs at Smartrek’ s premises, after which Smartrek shall be entitled to dispose of them as it deems appropriate. .
4.6 Smartrek reserves the right to make modifications and improvements on the Smartrek Material, deviating from the illustrations or specifications in technical sheets or other sales material, without prior notice. Smartrek may furthermore discontinue any Products without prior notice and at its sole discretion and will not be responsible for providing improvement, spare parts or updates on discontinued Products.
4.7 Delivery terms will be FCA, Smartrek facility, Levis, Canada (Incoterms 2020) (“Delivery Point”), unless otherwise indicated in the Quote. Smartrek may assist Customer in the organization of the transport, in which case all related costs will be invoiced to Customer separately in addition to the purchase price of the Products.
4.8 All delivery dates specified in a Quote or an Order Confirmation are estimates only. Smartrek will use reasonable efforts to deliver the Products on the estimated delivery date, but Customer acknowledges and agrees that delays in shipment and delivery may occur and that Customer shall have no claim for damages or other compensation whatsoever due to any delay in delivery. Any failure by Customer to make timely payment may also delay delivery, and Smartrek shall be entitled to suspend deliveries until full payment is made.
4.9 Unless otherwise agreed in writing by the parties, Smartrek shall deliver the Products using its standard methods for packaging and shipping such Products. Customer shall take delivery of the Products within 30 days of Smartrek’ s written notice that the Products have been delivered to the Delivery Point.
4.10 If, for any reason, Customer fails to take possession of any of the Products within the delay set forth herein, Smartrek may store the Products until the Customer picks them up, whereby Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Such costs shall then be reimbursed to Smartrek prior to handing over the Products to Customer.
4.11 Smartrek may, at its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped, whether such shipment is in whole or partial fulfilment of a Quote or an Order Confirmation.
4.12 Any discrepancy between the Products ordered and those delivered as well as any apparent defect must be reported within five (5) business days following receipt of the Products by Customer, failing which the Products shall be deemed conform with respect to the foregoing.
4.13 Smartrek shall retain title to the Product until receipt of full payment thereof by Customer. Smartrek shall have a lien and security interest on all Products purchased hereunder, regardless of when acquired, to secure the payment of any and all sums owed by Customer to Smartrek. Customer undertakes to execute all documents and make all declarations reasonably required by Smartrek to register or enforce such lien.
5. PERFORMANCE OF SERVICES
5.1 Smartrek will provide Customer with the following Services, if and to the extent included in a Quote or otherwise agreed between the Parties and provided that Customer has fulfilled its obligations hereunder:
i. onboarding consultation and advisory services;
ii. customised configuration of the Atrax System for Customer needs;
iii. Installation and deployment of the Atrax System;
iv. Technical assistance;
v. Support and maintenance of the Software;
vi. Hardware, software and application design;
vii. Product adaptation and development;
viii. Block code;
x. Any other service agreed upon between the Parties.
5.2 Smartrek is not responsible or liable for any delay or failure of performance of Services caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure“).
5.3 If either Party wishes to change the scope of performance of the Services set forth in the Quote or if Customer requires additional services, it shall submit details of the requested change or addition in writing (“Service Request”).
5.4 Upon notification of the Service Request, Smartrek will, within a reasonable time, provide Customer with a written estimate of:
i. the expected delay required to implement the Service Request;
ii. any necessary variations to the Fees and other charges for the Services arising from the Service Request, being understood that the hourly rate for additional services in force at that time shall apply;
iii. the likely effect of the change on the Atrax System, if any; and
iv. any other impact the change might have on the performance of this Agreement.
5.5 Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such Service Request (a “Service Order“). No Service Order shall be binding upon the Parties unless it is signed by both of them.
5.6 Services shall in no event include the diagnosis and rectification of any event resulting from:
i. unauthorized use of the Atrax System or use in violation of Customer’s obligations under this Agreement;
ii. use of the Atrax System not in accordance with the Documentation or otherwise contrary to Smartrek’s instructions;
iii. modifications or enhancements to the Atrax System not made by Smartrek, or made without Smartrek’s prior written consent;
iv. use of the Atrax System in conjunction with equipment or software not approved by Smartrek;
v. inadequate training by Customer of the Authorized Users on the use of the Atrax System;
vi. damage due to abuse, misuse, negligence, theft, vandalism, etc;
vii. Customer Failure;
viii. any other cause or reason not attributable to Smartrek.
(altogether the “Not covered Service(s)”)
5.7 Smartrek may agree to perform Not covered Services, subject to their technical feasibility, availability of its personnel and agreement with Customer on the financial and other terms and conditions of such performance of Services. In all events, when requesting Services under this Agreement, Customer shall inform Smartrek’s representative of any fact involving a Not covered Services, otherwise additional charges may apply and/or the performance of the Service may be denied by Smartrek.
5.8 Smartrek may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor“), provided that Smartrek shall remain liable towards Customer for the compliance by the Subcontractors with the terms of this Agreement.
6. FINANCIAL TERMS
6.1 The currency of this Agreement is the Canadian dollar (CA$), unless otherwise indicated in the Quote, and payment shall be made in CA$. If the Quote or a Service Order is issued in another currency, payments shall be made in that same currency.
6.2 Customer shall pay Smartrek the Fees set forth in the Quote, a Service Order or otherwise agreed between the Parties. Customer shall further reimburse Smartrek for out-of-pocket expenses incurred in connection with the performance of the Services, to the extent they were pre-approved by Customer (“Reimbursable Expenses“).
6.3 The price for Not covered Services or additional Services shall be based on Smartrek’ s hourly rate in force at the time such Services are performed.
6.4 The Fees will be invoiced upon delivery of the Products or performance of the Services, the net amount of which shall be payable by Customer within 30 days from the issuance of the corresponding invoice, unless otherwise indicated in the Quote. Reimbursable Expenses shall be paid by Customer within 30 days after the date of the invoice thereof, unless otherwise provided for in the Quote.
6.5 Credit limits and extensions are subject to the prior review and approval of Smartrek, in its sole discretion. Smartrek reserves the right to require advance payment prior to shipping any Product or performing any Service if, in its reasonable opinion, the financial condition or previous payment record of Customer so warrants. Smartrek shall in no case be obligated to extend any credit to Customer.
6.6 Customer shall notify Smartrek in writing of any disagreement with an invoice, along with a reasonably detailed description of such disagreement, within 5 business days from the date of an invoice. Customer will be deemed to have accepted all invoices for which Smartrek has not received timely notification of a disagreement. The Parties shall seek to resolve them expeditiously and in good faith. Notwithstanding anything to the contrary, Customer shall continue performing its obligations under this Agreement during the settlement of any disagreement, including, without limitation Customer’s obligation to pay all due and undisputed amounts invoiced by Smartrek.
6.7 All prices are exclusive of all harmonized sales tax, products and services tax, value added tax, use and excise taxes, present or future import taxes, anti-dumping or countervailing duties and any other similar taxes or charges imposed by any governmental authority.
6.8 All amounts payable to Smartrek under this Agreement shall be paid by Customer in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.
6.9 Any payment that is not paid when due shall bear interest at the rate of 2% per month (24% yearly), from its due date until paid. Customer shall further reimburse Smartrek for all reasonable costs incurred by Smartrek in collecting any late payments or interest, including legal and attorney fees, court costs and collection agency fees.
7. USE OF THE ATRAX SYSTEM
7.1 Subject to the fulfilment of its obligations hereunder, Customer is hereby granted a limited, non-exclusive, non-transferable, non-sub licensable, personal and revocable license, to use in object code form the Software embedded in the Atrax System for the sole purposes of using the Atrax System as well as for the processing of data collected by the Atrax System in the normal course of its business. The use of the Software by, or for the benefit of, any person other than an Authorized User of Customer is expressly prohibited. This license is granted for the operational life of the Atrax System.
7.2 Customer shall be liable to provide and to maintain, at all time and at its own costs, the Customer Equipment required to use the Atrax System, as instructed by Smartrek from time to time.
7.3 Customer shall comply with all instructions that may be issued from time to time by Smartrek with respect to the operation of the Atrax System. Except as otherwise provided herein, Customer shall be solely responsible for the supervision, management and control of the Atrax System and its use by the Authorized User.
7.4 Upgrades and updates will be provided to Customer, if and when available, either without charge or for a fee, as the case may be.
7.5 Customer undertakes to and warrants that it will:
i. configurate the access credentials of the Authorized Users in the Software;
ii. cooperate with Smartrek as required whenever Services are provided by Smartrek for the implementation of the Atrax System, including by providing such information, decisions, approval and accesses reasonably requested to enable Smartrek to perform its obligations hereunder;
iii. obtain from Smartrek, if necessary and at its own costs, any training for the use of the Atrax System by Customer and the Authorized Users;
iv. at all time operate the Atrax System in accordance with the Documentation and with suitable Customer Equipment;
v. ensure that it owns or have otherwise obtained the necessary rights and consents in and relating to Customer Data so that they will not infringe, misappropriate, or otherwise violate any Intellectual Property, privacy or other rights of any third party, including Authorized Users, or violate any applicable Law, to the full exoneration of Smartrek.
vi. be solely liable for all Customer Data, including its content and use by Customer and the Authorized Users;
vii. use the Atrax System in compliance with the terms of this Agreement.
7.6 Customer shall not, and shall cause the Authorized Users and its Representatives not to:
i. copy, modify, or create derivative works of the Smartrek Materials;
ii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Smartrek Materials to any Person other than Authorized Users;
iii. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software or other Smartrek Materials, in whole or in part;
iv. remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices from any Smartrek Materials, including any copy thereof;
v. access or use the Smartrek Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable Law;
vi. access or use the Smartrek Materials for purposes of competitive analysis of the Atrax System or other Smartrek Materials, the development, provision or use of a competing software service or product, or any other purpose that is to Smartrek’s detriment or commercial disadvantage;
vii. generally, access or use the Smartrek Materials beyond the scope of the authorization granted under this Agreement; and
viii. authorize or encourage any third party to do the above mentioned.
8.1 Smartrek warrants to Customer that, for a period of one year from the date of a Product’s delivery (“Warranty Period“), that such Products will be free from material defects in material and workmanship and(ii) will be free from any security interest, lien and encumbrance, except those mentioned herein arising from the sale and purchase of Products between the Parties.
8.2 The warranty covers the Products only and not their performance. Products manufactured by a third party may be contained in, incorporated into, attached to or packaged together with the Products and are not covered by Smartrek’s warranty. Smartrek will make all commercial reasonable efforts to assist Customer by providing the relevant information with respect to any warranty granted by a third party on a Product’s component, Customer being solely liable to claim any such warranty directly to the third-party supplier. .
8.3 In case of an alleged defect of the Products discovered by Customer and as a precondition for the application of the warranty: (i) Customer shall give a written notice to Smartrek reasonably describing the alleged defect, within 10 days from the date of receipt of the Products at destination; and (ii) Smartrek shall be given a period of 30 days following receipt of the notice from Customer to inspect and investigate such Product and may accordingly require that Customer either grants an access to its premises or returns the Product for inspection.
8.4 Subject to the limitations set forth in this warranty, if Smartrek determines that a Product is defective during the Warranty Period, it shall have sole discretion to either: (i) repair or replace such Products (or the defective part thereof); or (ii) credit or refund the price of such Products or part thereof. Smartrek liability under the warranty shall be limited to the purchase price of the Products. Any required travel costs for Smartrek personnel, if required, including transportation, accommodation, and meals, shall be paid by Customer. All freight cost for parts shall be borne by Customer.
8.5 No warranty will apply in cases where a Product would be defective for reasons other than those expressly covered thereunder, including for causes attributable to Customer, and any claims in this regard shall be deemed waived by Customer. Among others, without limitation, the following is excluded from the warranty and eligibility of a claim: (i) failure to follow the use, maintenance and other instructions contained in Documentation, especially if the Product was used by unqualified personnel; (ii) further use of the Product by Customer after notification of the alleged defect; (iii) if, for any reason, it is impossible for Smartrek to carry out an inspection of the Products; (iv) external conditions or other acts of God; (v) normal wear and tear, including the replacement of parts which, by their very nature, require periodic replacement.
8.6 No warranty whatsoever shall apply to products for which customer is in default of its payment obligations.
9. PROTECTION OF PERSONAL DATA
9.2 Personal Data of Authorized Users will be subject to and protected by Smartrek privacy and security policy (“Privacy and Security Policy “) as it may be amended from time to time.
9.3 Customer agrees that for the purpose of this Agreement, and subject to Smartrek’ s compliance with the Law applicable to the Personal Data concerned, Smartrek shall be entitled to process Personal Data on behalf of Customer outside of Canada and the European Union and, more specifically, in the United States.
10. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
10.1 For the purpose of this Agreement:
i. “Confidential Information” means all information not generally known to the public to which the Recipient Party will have access in relation to the Disclosing Party and its related entities concerning its business, technology, operations and financial situation. Such information includes, without limitation, specifications, documentation, programming, mapping and configuration techniques, research and development (including but not limited to the results of tests, successful or unsuccessful), lists of materials, working methods, ongoing projects, names of clients, suppliers, subcontractors, consultants and business partners, contracts, reports, forecasts, current or historical data on prices, cost price and other accounting data, business plans, as well as the Intellectual Property. Such confidential information may be verbal, written, computerized or in any other medium whatsoever and without being necessary to mark as “confidential” an information communicated by tangible medium. However, Confidential Information does not include any information that the Receiving Party can demonstrate with documentary evidence:
a) was rightfully known to the Recipient Party without restriction on use or disclosure before such information was disclosed or made available to the Recipient Party in connection with this Agreement;
b) was or becomes generally known by the public other than by non-compliance with this Agreement by the Recipient Party or any of its Representatives;
c) was or is received by the Recipient Party on a non-confidential basis from a third party that was not, at the time of such receipt, under any obligation to maintain its confidentiality;
d) was independently developed by the Recipient Party without reference to or use of any Confidential Information; and
e) was disclosed with the Disclosing Party’s written approval.
ii. “Disclosing Party” means the Party to this Agreement that discloses Confidential Information.
iii. “Intellectual Property” means all intellectual property rights, whether registered or not, registrable or not, owned by a Party or any third party in the world such as, without limitation, copyrights and copyrightable works (including programming languages, computer programs, software and applications), rights in data and databases, patent, industrial designs, inventions (whether patentable or not), discoveries, trade secrets, know-how, processes, methodologies, domain names logos trade-marks, trade-names and other rights acknowledged by statute or general Law in any part of the world regarding the above, including but not restricted thereto, any application for protection and the right to undertake judicial or administrative proceedings for past, present or future infringements of said intellectual property rights as well as the right to recover damages for such infringements.
iv. “Improvement” means any concept, idea, design or invention which is a modification, adaptation, variation, addition, improvement or derivative to or of the Intellectual Property of a Party.
v. “Recipient Party” means the Party to this Agreement that receives Confidential Information.
10.2 Each Party when acting as a Recipient Party expressly undertakes and commits itself to the following:
i. to treat the Disclosing Party’s Confidential Information with the same level of care and caution that it would exercise in dealing with its own Confidential Information, being understood that each Party shall use at least a commercially reasonable degree of care;
ii. not to, directly or indirectly, for its own benefit or for the benefit of any Person, disclose or allow the disclosure of Confidential Information of the Disclosing Party, for any purpose whatsoever except for the performance of its rights and obligations hereunder and in compliance with the terms of this Agreement (“Permitted Purposes“);
iii. not, directly or indirectly, for its own benefit or for the benefit of any Person and for any purpose other than the Permitted Purposes:
a) decompile, deconstruct, reverse engineer or otherwise analyze any Confidential Information of the Disclosing Party; or
b) copy, translate, distribute or otherwise use any Confidential Information of the Disclosing Party;
without its prior written consent;
iv. to disclose the Disclosing Party’s Confidential Information to its Representatives on a need-to-know basis and for the Permitted Purposes only. The Recipient Party shall be responsible to ensure that its Representatives use the Disclosing Party’s Confidential Information in compliance with the terms of this Agreement at all times and be liable for any breach of this Agreement by its Representatives;
v. to promptly notify the Disclosing Party of any unauthorized use or disclosure of its Confidential Information and to take such reasonable measures, at the Disclosing Party’s costs and upon its request, as may be required to protect the Confidential Information and prevent its unauthorized use or a breach of this Agreement.
10.3 In the event that the Recipient Party is compelled by Law or a court of competent jurisdiction to disclose any Confidential Information of the Disclosing Party, the Recipient Party may disclose such Confidential Information, provided that it shall, to the extent practicable and permitted by Law, promptly inform the Disclosing Party of the request or requirement for such disclosure, in order to give the Disclosing Party an opportunity, at its own discretion and expenses, to seek to make such disclosure subject to a protective order or other remedy to preserve the confidentiality of the Confidential Information.
10.4 The Parties agree that the Disclosing Party is the sole owner of all rights, titles and interests in its Confidential Information. The use of any Confidential Information by the Recipient Party will at all times remain for the benefit of the Disclosing Party. Nothing in this Agreement shall be construed as a transfer of rights or a license to use any Intellectual Property rights of the Disclosing Party, other than as expressly provided for in this Agreement or otherwise agreed between the Parties in writing.
10.5 All Intellectual Property rights, titles, and interests in and to the Smartrek Materials, are and will remain at all times with Smartrek. With respect to Third-Party Materials, the third-party providers own all Intellectual Property rights, titles, and interests, in and to the Third-Party Materials. Customer acknowledges and agrees that it has no right, licence, or authorization with respect to any of the Smartrek Materials or Third-Party Materials except as expressly set forth herein or in any applicable third-party licence, in each case subject to the terms of this Agreement or of the third-party licence.
10.6 Customer acknowledges that it is not entitled to make any Improvement to the Smartrek Material without the prior written consent of Smartrek. Any Improvements of the Smartrek Material by Customer shall be the sole property of Smartrek. Accordingly, unless otherwise agreed between the Parties, Customer hereby irrevocably assigns, and shall cause its Representatives to irrevocably assign to Smartrek, without additional consideration, all right, title and interest throughout the world in and to the Smartrek Material. Customer further hereby waives and shall cause its Representatives to waive, to the extent permitted by applicable Law, any and all claims they may now or hereafter have in any jurisdiction to the moral rights with respect to Smartrek Material.
10.7 Customer is and will remain the sole and exclusive owner of all Intellectual Property rights, titles, and interests in and to all Customer Data, subject to the term of this Agreement. Customer hereby grants Smartrek and its subcontractors the limited right and permission to use Customer Data, for the Initial Term and any Renewal Term only, solely for the purpose of performance of Smartrek’ s rights and obligations under this Agreement and in compliance with the terms hereof.
10.8 Customer shall retain all rights, title and interests in the Intellectual Property rights related to the Resultant Data. However, Customer hereby grants Smartrek an irrevocable, perpetual, fully paid-up, royalty-free, transferable, sub-licensable and worldwide license to use, execute, reproduce, transmit, modify (including to create derivative works), or otherwise exploit the Resultant Data for its internal business purposes.
10.9 Customer may also submit comments, information, questions, data, ideas, description of processes, or other information to Smartrek while using the Smartrek Material (“Feedback“). Smartrek may, in connection with any of its Products or Services, freely use, copy, disclose, license, distribute and exploit any Feedback, without any obligation, royalty or restriction based on Intellectual Property rights, for any purpose whatsoever. Feedback will not be considered Customer’s Confidential Information and nothing in this Agreement shall restrict Smartrek’ s right to independently use, develop, evaluate, or market any such Feedback.
10.10 Each Party acknowledges and agrees that a breach or threatened breach by the other Party of any of its obligations under this section would cause the other Party irreparable harm, for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity or otherwise.
10.11 The provisions of this article shall survive termination of this Agreement for any reason and remain binding upon the Parties and their successors and assignees until all Confidential Information of the other Party has become public information without fault, act or omission of a Party or its Representatives and as long as necessary to protect a Party’s legitimate interest in its Intellectual Property, which in any event shall mean for a minimum period of twenty years, calculated from the Effective Date of this Agreement.
11.1 Smartrek shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee“) from any claim by a third party alleging that Customer’s or an Authorized User’s use of the Smartrek Material (excluding Customer Data and Third-Party Materials) in compliance with this Agreement infringes an Intellectual Property right of a third party. In the event that the Smartrek Materials are, or in Smartrek’ s opinion are likely to infringe, misappropriate or otherwise violate any third-party’s Intellectual Property right, Smartrek may, at its option and sole cost and expense and without further liability to Customer:
i. obtain the right for Customer to continue to use the Smartrek Materials materially as contemplated by this Agreement;
ii. modify or replace the Smartrek Materials, in whole or in part, to seek to make it (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or
iii. by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Smartrek Materials or any specified part or feature thereof.
11.2 The foregoing indemnity obligation does not apply to any claim arising out of or relating to any:
i. access to, or use of, the Smartrek Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Smartrek;
ii. modification of the Smartrek Materials by a third party, other than with Smartrek’ s written approval and in accordance with Smartrek’ s written specification;
iii. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Smartrek.
11.3 Customer shall indemnify, defend, and hold harmless Smartrek and its subcontractors and each of their respective officers, directors, employees, agents, successors, and assigns (each, a “Smartrek Indemnitee“) from and against any and all losses, damages, liabilities, claims, judgments, settlements, interest, awards, penalties, fines or expenses of whatever kind, including reasonable legal fees, disbursements, and charges, and the cost of enforcing any right to indemnification hereunder as well as the cost of pursuing any insurance providers (“Losses“) incurred by such Smartrek Indemnitee in connection with any claim by a third party arising out of or related to any:
i. Customer’s breach or non-fulfilment of this Agreement;
ii. gross negligence or wilful misconduct of Customer;
iii. any inaccuracy in a representation of Customer;
iv. Smartrek’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
v. Customer Data, including any processing of Customer Data by or on behalf of Smartrek in accordance with this Agreement;
vi. any failure by Customer to comply with any applicable Law.
11.4 Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified under this Agreement. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such claim and shall employ counsel of its choice reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this section will not relieve the Indemnitor of its obligations hereunder, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. LIMITATION OF LIABILITY
12.1 Smartrek has developed and maintains the Atrax System to the best of its knowledge and skills and its professional team is committed to provide an excellent level of Service. However, Customer acknowledges that the Atrax System, all related Services and the Smartrek Materials are provided “as is” and “as available”. Smartrek hereby disclaims all warranties other than those expressly set forth in this Agreement, whether express, implied, statutory, or otherwise. More specifically, all implied conditions and warranties of merchantability, fitness for a particular purpose and all warranties arising from course of dealing, usage, or trade practice are excluded. Smartrek makes no warranty of any kind that the Atrax System or the Smartrek Materials, or any Products or results of the use thereof, will meet Customer’s or any other Person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any Customer Equipment except if and to the extent expressly set forth in the Quote or this Agreement, be secure, accurate, complete, free of harmful code, or error free.
12.2 All Third-Party Materials are provided “as is” and any representation or warranty of or concerning any Third-Party Materials, if any, is strictly between Customer and the third-party owner or distributor of the Third-Party Materials.
12.3 Smartrek shall have no obligation to check and shall incur no liability for Customer’s use of the Atrax System and maintenance of Customer’s Equipment as well as regarding the content of Customer Data transiting through the Atrax System. Smartrek has no obligation to and will not verify such content nor its compliance with the applicable Law, especially with respect to privacy, publicity or any other personality rights.
12.4 Customer is solely liable for understanding the requirements of its business and for determining which Products Services are fit for its purposes. Smartrek shall have no obligation to check and shall incur no liability for the Customer’s intended use of the Product or Services. Whenever Smartrek provides advice, such is given on the basis of a recommendation made in good faith, using reasonable skill and care, but without any guarantee of performance or of result.
12.5 Smartrek may not be held liable for any indirect, incidental or consequential loss, damage, cost or expenses or any kind matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, including for any loss of production, loss or corruption of data, loss of profits or of contracts, loss of operations time, loss of goodwill, loss of anticipated profits or anticipated savings, even if Smartrek has been advised, knew or should have known of their possibility. This limitation will apply even if any remedy fails of its essential purpose. For the sake of clarity, loss includes a partial loss or reduction in value as well as a complete or total loss. Some jurisdictions do not allow the limitation for incidental or consequential damages, which may result in additional recourses being available in those jurisdictions.
12.6 Except as otherwise provided for herein in no event will the aggregate liability of Smartrek under or in connection with this Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the Fees received from Customer for the purchase of the Atrax System. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.
12.7 The exclusions and limitations under this section do not apply to Smartrek’s liability for gross negligence or wilful misconduct.
13. FORCE MAJEURE
13.1 Neither Party shall be liable for its failure or delay to perform any of its obligations hereunder due to any contingency beyond the reasonable control of the affected Party, except with respect to Customer payment obligations but including, without limitation, floods, earthquakes, lightning, hail, or other natural calamities; epidemic, pandemics or other public health emergency; expropriation, confiscation or requisitioning of facilities, supply or availability of materials or labor; acts or inaction on the part of any governmental authority or person purporting to act therefore, any Law, act or order of any court, board, government or other authority of competent jurisdiction; embargoes, or acts of war, whether such war be declared or not; public disorders, acts of terrorism, insurrection, rebellion, riots or violent demonstrations, strikes, walkouts or labor controversies; fire, explosion, shortage of water, power, labor and any other similar cause (whether or not of the same character as the foregoing) (“Force Majeure“).
13.2 A Party must notify the other Party immediately upon occurrence of a Force Majeure event and take reasonable measures to mitigate the damages caused by such event, otherwise it shall be liable towards the other Party for any resulting loss or damages suffered by the not affected Party. Upon occurrence of a Force Majeure event, the time for any performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
14.1 This Agreement shall be terminated in the following events:
i. at a Party’s sole option, upon written notice to the other Party, if such other Party fails to cure any breach of an obligations hereunder within 30 days of the delivery of a written notice requesting such other Party to fulfil its obligation;
ii. at Smartrek’ s sole option, if Customer fails to pay any amount when due to Smartrek and such failure continues for 14 days after Smartrek sending a written notice of non-payment
iii. Immediately and automatically, upon a Party’s cessation of operations, liquidation, dissolution, insolvency, bankruptcy or the filing of any proposal that may constitute an act of bankruptcy;
iv. at Smartrek’ s sole option, upon written notice with immediate effect to Customer, in the event of a breach by Customer of any obligation related to Intellectual Property;
v. in the event that Customer assigns, transfers or otherwise conveys its rights under this Agreement without Smartrek’ s prior written approval, upon a 30 days prior termination notice by Smartrek, calculated from the date it becomes informed of such event.
15. RIGHTS AND OBLIGATIONS FOLLOWING TERMINATION
15.1 In the event this Agreement is terminated for any reason:
i. Customer agrees to immediately pay all amounts owed to Smartrek as well as those for which payment terms or credit have been granted by Smartrek prior to the termination;
ii. Smartrek shall have the right, but not the obligation, to prepare and deliver the Products for a Quote or Purchase Orders accepted prior to the termination of this Agreement;
iii. upon Customer requests in writing at the latest one (1) year after the Effective Date of expiration or termination of this Agreement, Smartrek shall deliver to Customer the then most recent version of Customer Data maintained by Smartrek, provided that Customer has at that time paid all fees then outstanding and subject to payment by Customer of any expenses and fees, on a time and materials basis, for Smartrek’ s services in transferring such Customer Data;
iv. Each Party shall immediately cease all use of any Confidential Information of the other Party and, within five (5) business days of a Party’s request, return to such Party or destroy all documents and tangible materials containing, reflecting, incorporating, or based on that Party’s Confidential Information;
v. any rights and obligations which by their nature extend beyond the term of this Agreement shall survive and continue after any expiration or termination and shall bind the Parties and their legal representatives, successors, heirs and assigns, where assignment is expressly permitted.
15.2 No Party shall be liable for consequential damages of any kind toward the other Party, including loss of present or prospective profits, anticipated sales, expenditures, investments, commitments made in connection with this Agreement, or on account of such expiration or termination.
16. GOVERNING LAW AND SETTLEMENT OF DISPUTES
16.1 This Agreement shall be governed by and interpreted, construed and performed in accordance with the Laws applicable in the province of Quebec, Canada, to the exclusion of its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods is excluded and shall not apply to this Agreement nor to any sale of Products hereunder.
16.2 Any dispute arising out of or related to this Agreement, including without limitation with respect to its formation, existence, validity, effects, interpretation, performance, breach, resolution or termination, shall be mandatorily and finally settled by arbitration in accordance with the International Arbitration Rules of the Canadian Commercial Arbitration Centre. The Parties agree to conduct the arbitration in accordance with the rules on expedited arbitral proceedings for any dispute, regardless of its value. The number of arbitrators shall be one, the seat of the arbitration shall be Montreal and the language of the proceedings shall be English.
16.3 Notwithstanding the foregoing, the arbitration clause of this section shall not apply to claims arising from third parties, including governmental authorities, when they have brought legal proceedings against Smartrek for acts or omissions of Customer or if such third-party claims are based, in whole or in part, on a ground for which Customer is liable to indemnify Smartrek under the terms of this Agreement. Smartrek shall in such event retain all its recourses against Customer, including but not limited to its right to implead and call Customer in warranty.
17.1 Any formal notice or communication to be given under this Agreement shall be in writing and sent by international express courier service, email or hand delivered. Any such notice or communication, if sent by email, shall be deemed to have been received on the same business day if sent prior to 5 p.m. (local time of the recipient), otherwise on the next business day, provided proof of sending of such notice can be produced or, if delivered by international express courier service or by hand, shall be deemed to have been received at the time it is delivered. Notices shall be sent to the contact details indicated by Customer in the Quote or in other documentation exchanged between the Parties, Smartrek’ s contact details are as follows:
● Address: 200-44, rue John-A.-Scott, Lévis, province of Quebec, Canada G6Z 8K7
● Email: email@example.com
with copy to: firstname.lastname@example.org
18. GENERAL PROVISIONS
18.1 This Agreement, together with its schedules and other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
18.2 Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of Law, or otherwise, without Smartrek’s prior written consent, which shall not unreasonably withheld or delayed. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this section shall be void.
18.3 No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18.4 This Agreement is for the sole benefit of the Parties and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
18.5 The relationship of the Parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the parties, nor shall either party be deemed the agent of the other party or have the right to bind the other party in any way without the prior written consent of such party, except as specifically provided in this Agreement.
18.6 This Agreement can be modified or amended by Smartrek from time to time, including any referenced schedule or policies. Smartrek will use reasonable efforts to notify Customer of any amendment, for example by sending an email to Customer, posting a notification on its website, etc.
18.7 This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
18.8 If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it shall be replaced, to the extent possible, by a legally valid and enforceable provision. The remainder of this Agreement shall nevertheless continue in full force and effect to the extent that continued operation under this Agreement without the invalid or unenforceable provision is consistent with the intent of the parties as expressed in this Agreement.
18.9 Customer agrees that this Agreement shall be entered into electronically and that its acceptance of the terms hereof will have the same effect and value as if they had been signed personally. A printed version of this Agreement or of any notice sent by e-mail will be admissible in litigation, as will any other business document or record generally kept in paper form.
18.10 The Parties have requested this Agreement and all related documents to be drafted in English/Les parties ont requis que cette entente ainsi que tous les documents y étant reliées soient rédigés en anglais.