EUSA
TekVision End User Services Agreement
This End User Services Agreement (“Agreement”) is entered into between TekVision Technologies Inc. with its principal address at 675 Cochrane Drive, East Tower, 6th Floor, Markham ON, L3R 0B8, Canada (“TekVision”), and you (“Customer”). This Agreement governs Customer’s use of the Service and Software, and Customer acknowledges and agrees that use of the Services and Software is permitted only in accordance with the terms of this Agreement.
Customer’s acceptance of these terms may be evidenced in the following ways: (a) by executing an agreement with TekVision or another party authorized to provide access to Customer to the Services or Software which incorporates or references these terms (a “Master Agreement”); or (b) by agreeing to order the Services or Software via an online marketplace and subject to the terms and conditions set out in the marketplace (“Marketplace Terms”). This Agreement supplements any Master Agreement or Marketplace Terms and in the event of any inconsistency or conflict between any Master Agreement or Marketplace Terms (as applicable) and this Agreement, this Agreement will govern.
- DEFINITIONS
As used in this Agreement:
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable entity; and control, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests or ownership interests of the applicable entity or the possession, direct or indirect, of the power to direct the management and policies of the applicable.
1.2. “Agreement” means this End User Services Agreement and any documents specifically incorporated by reference herein, as such materials may be updated by TekVision from time to time.
1.3. “Customer Data” means any data, information or material provided or submitted by Customer to the Service in the course of using the Service (other than data, information or material which has been provided to TekVision by another party or which TekVision develops independently without reference to Customer Data).
1.4. “Effective Date” means the date this Agreement is acknowledged by Customer.
1.5. “Equipment” means any devices which Customer or its end users may need to connect to, access or otherwise use the Services or Software, including, without limitation, mobile devices, laptops, desktops, modems, servers, software, and operating systems (other than the Software), networks and network hardware, and web servers.
1.6. “Service(s)” means TekVision’s the online c services and Software tools and the content, developed, operated, and maintained by TekVision, and made accessible to Customer via https://www.tekvision.com or another web site or IP address designated by TekVision, or ancillary online or offline products and services provided to Customer by TekVision, to which Customer is being granted access pursuant to a Master Agreement or in accordance to Marketplace Terms.
“Software” means the source code or object code which forms a part of the Services (which may include third party software programs).
1.8. “Usage Policy” means TekVision’s standard policies governing the use of its Software and Service as published at https://www.tekvision.com/legal/usagepolicy/.
- SAAS SERVICES
2.1. TekVision will make the Service available to Customer subject to the terms of this Agreement, and will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, other than during periods of scheduled maintenance or as required to implement bug fixes and updates.
- RESTRICTIONS AND RESPONSIBILITIES
3.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, documentation or data related to the Services or Software (including any third party software integrated therein); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by TekVision or the Service documentation published by TekVision); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; use the Services or Software in a manner that is defamatory, contrary to law or public policy; use the Services or Software in connection with any malicious act, such as the insertion of disabling code into the systems of a third party or to launch a denial of service attack on any third party; or use the Services or Software in a manner that infringes on the rights of any third party.
3.2. Customer may not remove or export from the United States or Canada or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the International Trade Branch (ITB) of Global Affairs Canada, United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets, Control Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), or any other Canadian, United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3. Customer represents, covenants, and warrants that Customer will use the Services or Software only in compliance with TekVision’s Usage Policy and all applicable laws and regulations. Customer will indemnify and hold harmless TekVision against any damages, losses, liabilities, settlements and expenses (including without limitation costs, legal expenses and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. TekVision is entitled to, but is not required to, monitor Customer’s use of the Services to ensure compliance with this Agreement (including compliance with laws or regulations). Customer is responsible for maintaining the security and integrity of its own environment. Customer will take such steps as necessary to restrict access to the Software and Services to users authorized by Customer and permitted by this Agreement. TekVision is entitled to suspend or prohibit any use of the Services it believes may be in violation of applicable law and regulations or in violation of any applicable Master Agreement or Marketplace Terms (including non-payment of any fees as required by them).
3.4. The Services and Software are not designed to process any personal information nor personal data (as defined pursuant to applicable laws and regulations). Customer will refrain from uploading, storing or processing via the Services all personal information and personal data. In the event Customer becomes aware that any upload, storage or processing of personal information or personal data through the Services, Customer will immediately notify TekVision and take all steps reasonably required by TekVision to remove such personal information or personal data as soon as reasonably possible.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1. Customer shall, as between the parties, retain all right, title and interest in and to the Customer Data. TekVision shall, as between the parties, own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, updates, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with professional services or support provided in connection with the Services or the Software, and (c) all intellectual property rights related to any of the foregoing.
4.2. TekVision shall have the right to collect, process, store, and analyze data and other information relating to the provision, use and performance of the Services or Software and related systems and technologies (including, without limitation, Customer Data and data derived therefrom), and TekVision will be free (during and after the term hereof) to (i) use such information and data to improve and modify the Services and Software and for other development, diagnostic and corrective purposes in connection with the Services and other TekVision offerings, and (ii) use and disclose such data solely in aggregate or other anonymized form. Customer hereby grants to TekVision all rights necessary for TekVision and its service providers to exercise such rights.
- TERM AND TERMINATION
This Agreement is effective for the duration of your use of the Services and Software. TekVision will be entitled to terminate this Agreement and your use of the Services and Software immediately, in the event of any breach of this Agreement by you, or in the event of any termination or expiration of any agreement pursuant to which you are granted access or use of the Services or Software.
The following provisions will survive any termination or expiration of this Agreement: Sections 3, 4, 6, 7, and 8, and relevant defined terms.
- WARRANTY AND DISCLAIMER
TekVision shall use reasonable efforts consistent with prevailing industry standards to maintain and perform the Services in a manner which minimizes errors and interruptions in the Services and shall perform any related professional services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TekVision or by third-party providers, or because of other causes beyond TekVision’s reasonable control, but TekVision shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. For greater certainty, TekVision will not be responsible for any failure to perform the Services or Software in the event such performance is hindered or prevented by an event of fire, flood, earthquake, explosion or other casualty, nature disaster, accident or act of God, war or other violence, national or regional emergency, or other similar event outside the control of TekVision. NOTWITHSTANDING ANYTHING TO THE CONTRARY: TEKVISION DOES NOT WARRANT, REPRESENT OR PROVIDE THE CONDITION THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT PROVIDE ANY WARRANTY, REPRESENTATION, OR CONDITION AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND TEKVISION DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE GREATEST EXTENT PERMITTED BY LAW, TEKVISION AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS AND LICENSORS OF SOFTWARE INCLUDED IN, OR USED IN CONNECTION WITH, THE SERVICE OR SOFTWARE), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY: (A) LOST PROFITS, LOSS OF OR REPLACEMENT OF DATA, GOODS, SERVICES, LOSS OR DIMINUTION OF GOODWILL OR BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND TEKVISION’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED FIFTY DOLLARS ($50.000); IN EACH CASE, WHETHER OR NOT TEKVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- MISCELLANEOUS
8.1. This Agreement shall be governed by the laws of the Province of Ontario, and the federal laws of Canada as applicable therein without regard to its conflict of laws provisions. Unless otherwise set out in a Master Agreement, the parties hereby attorn to the exclusive jurisdiction of the courts of Ontario. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
8.2. TekVision will be entitled to update and amend this Agreement by posting updated versions of this Agreement on the TekVision website or in connection with any applicable Marketplace Terms. Customer acknowledges and agrees that such amendments may be made without prior notice and that it is Customer’s responsibility to check the TekVision website or the applicable marketplace for updates on a regular basis. Continued use of the Services or Software following any such amendment will constitute Customer’s acceptance of the amended Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.3. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind TekVision in any respect whatsoever. Other than for purposes of the enforcement of Sections 6 and 7 of this Agreement, there are no third party beneficiaries of this Agreement. The parties listed in Sections 6 and 7 are hereby deemed to be third party beneficiaries of such provisions whose rights are held in trust by TekVision.
8.4. Other than expressly set out in a Master Agreement, Customer is not entitled to assign or transfer (including indirectly through a change of control) its rights or obligations under this Agreement without the prior written consent of TekVision. Any purported assignment or transfer without TekVision’s written consent will be deemed null and void. TekVision is entitled to assign or transfer its rights or obligations to any third party in its sole discretion (including indirectly through a change of control) without any requirement to provide notice to, or obtain consent from, Customer.