SUBSCRIPTION AGREEMENT
Last updated : 16 January 2023
This Subscription Agreement (“Agreement”) shall govern the access rights to the Web 3.0 App, as defined below, as well as the performance of related services by Smartrek Technologies inc. (”Smartrek”) to the customer mentioned in the Quote, as defined herein, or in the documentation exchanged with Smartrek (“Customer”). Smartrek and Customer are individually referred to as a “Party” and collectively as the “Parties”.
1. DEFINITIONS
1.1 “Access Credentials” means any username, identification number, password, personal identification number (PIN) or other security technology used to verify an individual’s identity and authorization to access and use the Web 3.0 App;
1.2 “Aggregators”: means the third-party providers of the cloud communications platform as a service, that collects, produces, processes, host, Customer Data and redistributes Alerts to and from the devices of Customers or its Authorized Users;
1.3 “Alert” means the SMS, email or automatic call sent or made to Customer to provide alert on the system status and other relevant information captured by the sensors and enabling Customer to take corresponding actions, such alerts being sent as per the configuration of the Web 3.0 App by the Customer;
1.4 “Alert Fees”: means fees payable by the Customer for each Alert sent by the Web 3.0 App;
1.5 “Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Web 3.0 App;
1.6 “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 Web 3.0 App. For the avoidance of doubt, Customer Data includes Resultant Data, subject to the terms of this Agreement;
1.7 “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;
1.8 “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 Web 3.0 App or Smartrek Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof;
1.9 “Fees” means the fees for the access to and use of the Web 3.0 App;
1.10 “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;
1.11 “Person” means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association, or any other entity;
1.12 “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;
1.13 “Quote”: means the proposal submitted by Smartrek to Customer, if any, setting out the details of Smartrek’s offer with respect to the use of the Web 3.0 App and the related services;
1.14 “Representatives” means, with respect to a Party, that Party’s and its affiliates’ respective employees, officers, directors, consultants, agents, independent contractors, subcontractors, service providers, sublicensees and legal advisors;
1.15 “Resultant Data” means information, data and other content that is derived from or generated by the use of the Web 3.0 App;
1.16 “Smartrek Materials” means the Web 3.0 App, the Documentation and the Smartrek Systems as well as any and all other information, data, documents, materials, works and other content that are provided or used by Smartrek or any subcontractor in connection with the Web 3.0 App or otherwise related to the Smartrek Systems;
1.17 “Smartrek Systems” means the information technology infrastructure used by or on behalf of Smartrek in providing the Web 3.0 App and performing the related services, such as all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Smartrek or through the use of third-party services;
1.18 “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 Web 3.0 App that are not proprietary to Smartrek;
1.19 “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, as well as the related services;
1.20 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. SCOPE OF THE AGREEMENT
2.1 Smartrek hereby grants to Customer, subject to the fulfilment of all its obligations hereunder, a non-exclusive, non-perpetual, terminable, and non-transferable right to access and to use the Web 3.0 App, for its internal business purposes only, in accordance with the terms of this Agreement and for the duration of the Initial Term or of any Renewal Term of this Agreement, as defined herein.
2.2 The Web 3.0 App is an application belonging to Smartrek and deployed on a cloud service hosted in the United States and Canada and operated by Smartrek. It enables the visualization and management of data, configuration of Authorized Users’ Access Credentials, creation of reports, etc.
2.3 Smartrek will maintain in force at all times a service agreement with the Aggregator for the operation of the Web 3.0 App, but has no control on the performance of such services by the Aggregator. Customer therefore expressly acknowledges and agrees that, with respect to delivery obligation of Alert and operation of the Web 3.0 in general, the scope of this Agreement is limited to Smartrek undertaking to fulfil its obligation towards the Aggregator, to the exclusion of any other liability.
2.4 Customer shall be liable to provide and to maintain, at all time and at its own costs, the high-speed internet connectivity and cellular phone services required to receive the Alerts and use the Web 3.0 App. Customer further undertakes to maintain the Customer Equipment required to use the Web 3.0 App, as instructed by Smartrek from time to time.
2.5 The Web 3.0 App will be made available to Customer within a reasonable delay following the Effective Date, as defined below, of this Agreement. Smartrek shall not be liable for any delay caused by an act or an omission of Customer.
3. TERM AND DURATION
3.1 This Agreement shall be deemed effective as of the date set forth in the Quote or the date on which Customer accesses the Web 3.0 App, whichever occurs first (“Effective Date”). It shall remain in force for an initial period of one (1) month (“Initial Term”) and automatically renew for successive renewal terms of one (1) month (each a “Renewal Term(s)”).
3.2 Each Party can terminate this Agreement at any time, Customer by unsubscribing to the Web 3.0 App and Smartrek upon a 10 days prior written notice to Customer. The Web 3.0 App will in such event remain in effect until expiry of the Initial Term or current Renewal Term.
4. FINANCIAL TERMS AND CONDITIONS
4.1 Customer shall pay Smartrek the Fees set forth in the Quote or on any other platform or medium used by the Parties to enter into and perform this Agreement. The Fees may be increased at any time upon a thirty (30) days prior notice sent to Customer.
4.2 The Fees are payable in advance for the Initial Term and each Renewal Term on the payment platform of a third-party service provider.
4.3 The Alert Fees shall be paid by the Customer in the form of credit purchased by the Customer in the Web 3.0 App.
4.4 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.
4.5 Fees and charges related to the Web 3.0 App are based on a reasonable use of its functionalities. In case of requests deemed excessive by Smartrek, additional charges may apply.
5. OBLIGATIONS AND WARRANTIES OF SMARTREK
5.1 In addition to its other obligations under this Agreement, Smartrek undertakes to and warrants that:
i. the Web 3.0 App will be available as per Smartrek’s policies then in force;
ii. it will maintain the Web 3.0 App in good working order with access restricted to qualified employees or contractors of Smartrek;
iii. the Web 3.0 App does not and won’t violate any applicable Law, or any third party right, including any Intellectual Property right, as defined below.
6. OBLIGATIONS AND WARRANTIES OF CUSTOMER
6.1 In addition to its other obligations under this Agreement, Customer undertakes to and warrants that it will:
6.1.1 set up, maintain, and operate in good repair order, free from malware and in accordance with Smartrek’s instructions, all Customer Equipment on or through which the Web 3.0 App is accessed or used;
6.1.2 configurate the Access Credentials of the Authorized Users in the Web 3.0 App;
6.1.3 obtain from Smartrek if necessary and at its own costs, any additional training than the initial onboarding provided for in this Agreement for the use of the Web 3.0 App;
6.1.4 at all time operate the Web 3.0 App in accordance with the Documentation and with suitable Customer Equipment;
6.1.5 use the Web 3.0 App in compliance with the terms of this Agreement;
6.1.6 own or otherwise have 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.
6.2 Customer shall not, and shall cause the Authorized Users and its Representatives not to:
6.2.1 copy, modify, or create derivative works of the Smartrek Materials;
6.2.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Smartrek Materials to any Person other than Authorized Users, including on or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service, except as permitted under this Agreement;
6.2.3 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Web 3.0 App or the Smartrek Materials, in whole or in part;
6.2.4 bypass or breach any Smartrek security device, or protection used by the Smartrek Materials or access or use the Smartrek Materials other than by an Authorized User through the use of their own then-valid Access Credentials;
6.2.5 input, upload, transmit, or otherwise provide to or through the Smartrek Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
6.2.6 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Smartrek Material or Smartrek’s provision of services to any third party, in whole or in part;
6.2.7 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;
6.2.8 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;
6.2.9 access or use the Smartrek Materials for purposes of competitive analysis of such 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;
6.2.10 otherwise access or use the Smartrek Materials beyond the scope of the authorization granted under this Agreement; and
6.2.11 authorize or encourage any third party to do the above mentioned.
6.3 Smartrek may suspend, terminate, or otherwise deny access to, or use of, all or any part of the Smartrek Materials by Customer, any Authorized User or any other Person, without incurring any resulting obligation or liability, if
6.3.1 Smartrek receives an order from a governmental authority that expressly or by reasonable implication requires Smartrek to do so;
6.3.2 Customer is in default to fulfil its payment obligations hereunder; or
6.3.3 Smartrek believes, in its reasonable discretion, that:
(i) Customer or any Authorized User has failed to comply with any term of this Agreement, accessed or used the Smartrek Material beyond the scope of the rights granted hereunder;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities.
7. SUPPORT AND MAINTENANCE
7.1 Smartrek shall provide the support and maintenance services for the Web 3.0 App in accordance with its then current policies, during the period for which Customer has paid the applicable Fee.
8. SECURITY MEASURES
8.1 Smartrek will take the appropriate technical and security measures to protect the physical security, confidentiality and integrity of the Customer Data and of the Personal Data of Authorized Users that will be kept by, imported on or will transit through the Web 3.0 App, in accordance with the terms of this Agreement and applicable Law. Security measures include:
8.1.1 Use of encryption technologies to protect Customer Data in transit;
8.1.2 Logical segregation of data between Customers;
8.1.3 The use of revision-controlled configuration management solutions to automate changes and maintain a history of changes;
8.1.4 The use of health checking, monitoring and alerting systems either by Smartrek or by the Aggregator ;
8.2 Customer has and will retain sole responsibility for:
8.2.1 all Customer Data, including its content and use by Customer and the Authorized Users. 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.
8.2.2 all information, instructions and other materials provided by or on behalf of Customer or any Authorized User in connection with the Web 3.0 App;
8.2.3 the Customer Equipment;
8.2.4 the security and use of Access Credentials of Customer and its Authorized Users;
8.2.5 all access to and use of the Smartrek Materials directly or indirectly by or through Customer Equipment or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on such access or use.
8.3 Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
8.3.1 securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to, or use of, the Web 3.0 App; and
8.3.2 control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Web 3.0 App.
9. PROTECTION OF PERSONAL DATA
9.1 The Parties acknowledge that the Customer Data, and other data processed in the course of use of the Web 3.0 App or performance of this Agreement, will constitute at least in part Personal Data within the meaning of the Laws in force in Canada, the United States, the European Union or other country. Such data will be mainly collected and processed by Customer, whereby Smartrek acknowledges that it will collect Personal Data of Authorized Users for the purpose of granting access to the Web 3.0 App. Consequently, each Party undertakes, during the period of validity of this Agreement and for the entire duration provided for by Law or by any personal data protection policy applicable to the Authorized Users or other individuals concerned, to comply with the applicable Laws on personal data protection while collecting and processing personal data entrusted to each of them, to maintain an adequate level of security of their computer systems as required by such Laws and to indemnify and hold the other Party harmless from any violation of applicable Law. This concerns more specifically, but not exclusively, the obtention of the required consents from the data subjects, restriction of Personal Data treatments, disclosure to third parties, Personal Data transfers, protection of confidentiality, secure storage, destruction within the prescribed time limits, etc. Each Party further undertakes to publish, maintain and comply at all times with a privacy policy that meets the requirements of applicable Laws.
9.2 Personal Data of Authorized Users will be subject to and protected by Smartrek privacy and security policy (“Privacy and Security Policy [1]”) 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:
10.1.1 “Confidential Information” means all information not generally known to the public, including Personal Data, 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, 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:
(i) was rightfully known to the Recipient Party without restriction on use or disclosure before such information’s being disclosed or made available to the Recipient Party in connection with this Agreement;
(ii) 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;
(iii) was or is received by the Recipient Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality;
(iv) was or is independently developed by the Recipient Party without reference to or use of any Confidential Information; and
(v) was disclosed with the Disclosing Party’s written approval.
10.1.2 “Disclosing Party” means the Party to this Agreement that discloses Confidential Information.
10.1.3 “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.
10.1.4 “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.
10.1.5 « 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:
10.2.1 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;
10.2.2 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“);
10.2.3 not, directly or indirectly, for its own benefit or for the benefit of any Person and for any purpose other than the Permitted Purposes:
(i) decompile, deconstruct, reverse engineer or otherwise analyze any Confidential Information of the Disclosing Party; or
(ii) copy, translate, distribute or otherwise use any Confidential Information of the Disclosing Party;
without its prior written consent;
10.2.4 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;
10.2.5 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 Material, are and will remain with Smartrek. With respect to Third-Party Materials, the applicable 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 and 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 the Smartrek Material.
10.7 Customer may also submit comments, information, questions, data, ideas, description of processes, or other information to Smartrek while using the Smartrek Material, excluding however information related to Customer’s or the Authorized users’ identity (“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.
10.8 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.
10.9 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.
10.10 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. REPRESENTATIONS AND WARRANTIES
11.1 . Each Party represents and warrants to the other Party that:
11.1.1 it is an entity duly formed and validly existing in the jurisdiction of its formation;
11.1.2 it has all required corporate power and capacity to enter into this Agreement as well as to grant the rights and perform the obligations provided for hereunder;
11.1.3 when executed and delivered by each of the Parties, this Agreement will constitute a legal, valid, and binding agreement enforceable between the Parties.
12. INDEMNIFICATION
12.1 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.
12.2 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.
12.3 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.
13. LIMITATION OF LIABILITY
13.1 Smartrek has developed and maintains the Web 3.0 App 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 Web 3.0 App, all related Services and 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 Web 3.0 App or 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 a Quote or this Agreement, be secure, accurate, complete, free of harmful code, or error free.
13.2 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.
13.3 Smartrek shall have no obligation to check and shall incur no liability for the maintenance of Customer Equipment and Customer’s use of the Web 3.0 app, including without limitation:
i. Automation, control and update of the Web 3.0 App;
ii. Failure of transmission of an Alert to the receiving device of the Customer;
iii. Configuration of the Web 3.0 by Customer; or
iv. Failure of the Web 3.0 App to respond as configurated or to the manual command of Customer.
13.4 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.
13.5 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 sum received from Customer for the use of the Web 3.0 apps in the last 12 months. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.
13.6 The exclusions and limitations under this section do not apply to Smartrek’s gross negligence or wilful misconduct.
14. FORCE MAJEURE
14.1 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”).
14.2 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.
15. EFFECT OF TERMINATION OR EXPIRATION
15.1 Upon any expiration or termination of this Agreement for any reason:
15.1.1 The right granted to Customer to use the Web 3.0 Apps shall be terminated and Smartrek shall disable all Customer and Authorized User access to the Web 3.0 App and Smartrek Materials;
15.1.2 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;
15.1.3 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; and
15.1.4 any rights and obligations which by their nature extend beyond the term of this Agreement (whether the Agreement is terminated after the Initial Term or any Renewal Term) 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.
15.1.5 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.
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. NOTICES
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 when subscribing to the Web 3.0 Apps or in other documentation exchanged between the Parties, including a Quote. Smartrek’ s contact details are as follows:
● Address: 200-44, rue John-A.-Scott, Lévis, province of Quebec, Canada G6Z 8K7
● Email: martin.carrier@smartrektechnologies.com
with copy to: tuong-vi.nguyen-dang@smartrektechnologies.com,
thifen-ly.nguyen-dang@smartrektechnologies.com
18. MISCELLANEOUS
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.. If Smartrek modifies the Agreement during the Initial Term or a Renewal Term, the modified version will be effective upon Customer’s next Renewal Term. In this case, if Customer objects to the updated Agreement, he may choose not to renew this Agreement as its exclusive remedy. Customer may be required to click through the updated Agreement to show its acceptance. If Customer does not agree to the updated Agreement after it becomes effective, Smartrek may suspend the access to the Web 3.0 App.
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 .
[1] https://www.smartrek.io/privacy-policy/