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  • End User Licensing Agreement

End User Licensing Agreement

 End User Licensing Agreement

1. Introduction

This End User Licensing Agreement (“EULA” or “Agreement”) is made and entered into as of the date signed on the Order Form (“Effective Date”) by and between MetaWorldX, Inc., an Ontario, Canada corporation on behalf of itself and its Affiliates (“MWX” or “we” or “us”), with its principal place of business at 155 Commerce Valley Drive East, Thornhill, ON L3T 7T2 Canada, and [Customer’s Business Name], an Ontario, Canada corporation with its principal place of business at [Enter address here] (“Customer”, “you”).

MWX and Customer may be referred to collectively as “Parties” or individually as a “Party.”

This Agreement sets out the general terms and conditions under which MWX agrees to provide, and Customer and End User agree to receive and use, the Services. By accessing or using the Services, Customer and End User acknowledge that they have read, understand, and agree to be bound by this Agreement, MWX’s Privacy Notice and End User Conduct Policy (https://www.metaworldx.com/privacy-policy/) which are hereby incorporated into and made a part of this Agreement. Those who do not agree with the terms of this Agreement should not access or use the Services.

2. Interpretation

Unless the context clearly requires otherwise, references to “Agreement” mean, and this Agreement consists of, all of the following: (i) the general terms and conditions and any Appendices and Addenda attached hereto, (ii) any Service Order Form; and (iii) any and all MWX policy documents or support manuals referenced in any of the foregoing. In the event of a conflict between the provisions in any documents forming part of this Agreement, the documents shall be given precedence in the following descending order: (1) the provisions of these general terms and conditions, (2) the provisions of any Appendix or Addenda to this Agreement; and (3) the provisions of any Service Order Form. Unless otherwise stated, “including” and “e.g.” are not exclusive or limiting and will be deemed followed by “without limitation”.

3. Definitions. Applicable terms not otherwise defined below in this Section 3 shall have the meaning defined hereunder in this Agreement, or in a Service Order Form.

  • 3.1. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • 3.2. “Authority” means the individual agreeing to this Agreement who represents to MWX that they have the authority to bind Customer and any Affiliates to this Agreement.
  • 3.3. “Customer Software” means software licensed by MWX to Customer that is typically deployed on or accessed through Customer’s machines to enable access to and use of the MWX Customer Software may include or be provided with code licensed under third-party agreements, including open source software.
  • 3.4. “Customer Materials” means all content, documentation, data, information or other material that Customer loads, or grants MWX the right to process, on or through the MWX Services. Customer Materials also includes any content generated or loaded by Users, and any integrations with the MWX Services created by Customer using the MWX platform.
  • 3.5. “Documentation” means any written specifications, manuals, notes, online product documentation, user instructions and any files made available to Customer by MWX as part of the MWX Services, as may be updated from time to time by MWX.
  • 3.6. “End Users” means those individuals who have access or use the Services. An End User must sign up for an End User Account by registering for an account and providing their full legal name, a valid email address, and any other information required to complete the registration process.  See also “User”.
  • 3.7. “Hosted Application” includes non-pre-packaged computer software, its related modules, data storage mechanisms, databases and related designs, printed materials, and online or electronic documentation including the MWX Process map, all as described in a Service Order Form.
  • 3.8. “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.
  • 3.9. “Reseller” means an intermediary person or company which is not an End User or User but which is in direct contract with MWX to market and sell the Services. Reseller shall not, without the explicit written authorization of MWX, appoint sub-resellers, resellers and agents to market, sell and install the Services. 
  • 3.10. “Service Order Form” means the binding Customer ordering document governed by the Agreement and signed by Customer that describes, among other things, Customer’s use and access entitlements, the Support Services package selected by the Customer, any additional features or modules ordered by the Customer, the duration of the Subscription Term and the fees payable by the Customer in exchange for its use of the MWX Service platform.
  • 3.11. “Services” means MWX’s proprietary, Digital Twin solution or Digital-Twin-as-a-Service (DTaaS), including but not limited to Smart Cities, Smart Buildings, Critical Infrastructure, Health & Safety), any associated Application Programming Interface (“APIs”) and web and mobile solutions, and shall include without limitation all software, sample code, object code, features, platform access rights, and elements of same, any integration services with other applications, training, as well as all Documentation provided in connection with same.
  • 3.12. “Support Services” means technical support and application management services, as fully described in the Support Services Rider.
  • 3.13. “Term” means the term of the Agreement, including the initial Subscription Term and any Renewal Term(s) as further described in Section 8.
  • 3.14. “User” means the named person or persons authorized by Customer to use the MWX Services as defined in a Service Order. Users may be designated in different categories in a Service Order, but all Users shall be identified as “Named Users” having a unique identifier (“UID”) and password to connect to the MWX Services. A Named User cannot share Users IDs and passwords with other Users during the Subscription Term, and Customer usage of the MWX Services is not intended to be for concurrent or shift- based Named User access rights may be reassigned to new Named Users if the original Named User no longer uses and accesses MWX Services because of a role change, employment termination or similar reasons. Any exceptions to the general designation of Users as Named Users shall be set forth in applicable Service Orders. See also “End User”.

4. Right To Access The Services

  • 4.1. Provision of Services. The MWX Services and Support Services are provided on a subscription basis for a set term designated on the Service Order Form (each, a “Subscription Term”). MWX may also offer Professional Services (as defined in Section 9) related to the MWX Services. Customer shall purchase and MWX shall provide the specific MWX Services and related Professional Services (if any) as specified in the applicable Service Order entered into as of the Effective Date.
  • 4.2. Accessing the Services. Access to the Services may be procured via a Service Order Form entered into by and between Customer and MWX, including Customer’s wish to procure more Services or purchasing additional End User subscriptions. Customer must purchase a subscription for each End User who accesses or uses the Services. During each Subscription Term, MWX grants to Customer and its Users the following rights: a) the right to use and access the MWX Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, and b) the right to use and access the Documentation; each strictly in accordance with any scope of use restrictions designated in the applicable Service Order.
  • 4.3. Grant of License. Conditioned upon the Customer complying with the terms and conditions of this Agreement (including payment of the applicable charges), MWX grants the Customer, for the Term set out in the Service Order Form, a limited right to access and to use the Hosted Application and the Services that the Customer has subscribed to or has purchased, as specified in such Service Order Form. For greater certainty, except as expressly set out in this Agreement, MWX grants the Customer a limited, non-exclusive, non-sublicensable, non- transferable, license to use MWX’s products or Services in accordance with this Agreement; and this license shall not extend to any Customer Affiliate unless such Affiliate is specifically named on the applicable Service Order Form. The term of any license granted by Supplier pursuant to this Section 3 is co-terminus with the term for the Service with which the Software is associated.

5. General Use Of The Services

  • 5.1. Customer’s Responsibilities Regarding End Users. Customer is responsible for the conduct of its End Users and for ensuring that End Users abide by the terms of this Agreement at all times in connection with their use of the Services. It is Customer’s responsibility to (i) inform End Users of any relevant MWX policies, practices and settings that Customer elects to enforce related to its End Users’ use of the Services; (ii) obtain any rights, permissions or consents from its End Users that are necessary for Customer’s lawful use of the Services and the collection and processing of Customer Data by MWX in connection with Customer’s use of the Services; and (iii) respond to and resolve any dispute between Customer and an End User related to or based on Customer Data and/or Customer’s use of that Customer Data in connection with Customer’s use of the Services.
  • 5.2. Login Credentials. Customer and End User are responsible for all login credentials, including usernames and passwords, and MWX shall not be liable for any damages or losses that may occur as a result of Customer’s failure, or the failure of End Users, to maintain the confidentiality of their login credentials. End Users are not permitted to share or use the same login credentials to the Services. MWX reserves the right to refuse registration of or cancel passwords it deems inappropriate, in which case it will notify Customer of such refusal. Customer is responsible for notifying MWX [enter e-mail here] if it becomes aware of any unauthorized use of or access to its Customer Account or any End User Account.
  • 5.3. Users. Use of and access to the MWX Services is permitted only by Users designated by Customer. Customer may grant certain Users administrative privileges (which may include authority to provision new User accounts, create new Tenants, assign Users to Tenants or control User access permissions at the account or Tenant level) as further described in the Documentation (“Administrators”). Customer will, through its Administrators, assign user IDs and passwords for each User to access the MWX Services. Customer shall require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken by Users on Customer’s account and for rescinding access to its account (including its Tenants) by any User that Customer no longer wishes to have access. Users may also be Customer’s end user customers.
  • 5.4. Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of MWX (“Contractors”) and Customer Affiliates to serve as Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement, and any such use of the MWX Services by such Contractor or Affiliate is for the sole benefit of Customer (or such Affiliate). Use of the MWX Services by Affiliates, Contractors, Users and Customer in the aggregate must be within the restrictions and limitations described in the applicable Service Order.
  • 5.5. Customer System Access. Customer agrees to access the Hosted Application Services and other related Services using a supported web browser as specified in the Documentation.  Customer has the sole responsibility for all use and receipt of the Services by any person by or through the Customer’s Systems or any other means controlled by Customer.
  • 5.6. No Advice. Customer acknowledges and agrees that the Services are simply a tool to assist Customer, that MWX does not provide legal, safety, compliance or any services, and that Customer is solely responsible for Customer’s and its Users’ safety and compliance with all laws, rules and regulations, as well as for any outcome as a result of conclusions, decisions or actions based on their use of the Services. For greater clarity, MWX is not liable to Customer for any failure or loss (including injury or death) whatsoever that arose out of a decision or action as a result of using the Services.
  • 5.7. Acceptable Use. In addition to complying with the other terms set forth in this Section 3, Customer, its Users and Affiliates agree to (i) use the Services in compliance with all applicable laws and regulations; and (ii) comply with the terms of MWX’s End User Conduct and Content Policy.  Unless expressly required by applicable law without the possibility of contractual waiver, the Customer shall not attempt or permit any of its Users or any third parties, to do any of the following:
    • reverse engineer, reproduce, decompile, recompile, disassemble, merge, modify, adapt or translate the Services or any component thereof, or create derivative works based on the Services, nor allow any third party to do the same;
    • work around any technical limitations in the Services or use the Services in any way that exceeds the Services’ technical or usage limitations;
    • copy or modify the MWX Services or any Documentation (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing;
    • make more copies of the Services or documentation than is permitted under this Agreement or use back-up copies of the Services for purposes other than restoring the Customer’s use of the Services following a failure of such Services or the hardware that it is installed upon (including for purposes of training, testing or as a hot standby or caching server);
    • transfer, assign, sublicense, or rent the Services or any part thereof to any other person or entity, or permit timesharing or service bureau use of, or commercially exploit the Services or any part thereof, in each case except in accordance with this Agreement;
    • use the MWX Services to provide or create, or incorporate the MWX Services into, any similar service provided to a third party or otherwise directly expose the functionality of the MWX Services to any third party (except to Users as permitted herein);
    • incorporate the Services into anything not provided by MWX, except (i) for incorporation of the Services or Documentation with application program interfaces that MWX makes publicly available for such Services or Documentation, provided that such use is performed by the Customer for the Customer’s benefit only, (ii) to the extent expressly permitted, to customize the Services in accordance with the accompanying Documentation, or (iii) as expressly permitted under a separate written agreement with MWX;
    • perform any benchmark testing or any of the following security testing of any Services without MWX’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;
    • transfer the Services to another location or to other equipment without the prior written consent of MWX;
    • use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material or to store or transmit material in breach of applicable laws or third party rights;
    • remove or obscure any proprietary or other notices contained in the MWX Services (including any reports or data printed from the MWX Services) and in the Documentation;
    • publicly disseminate information regarding the performance of the MWX Services;
    • adversely impact the speed, security or integrity of the MWX Services (or any data contained within the MWX Services).
  • 5.8. Professional Services. MWX shall provide agreed upon professional consulting services (“Professional Services”) that may be purchased in the applicable Service Order. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay MWX at the per-hour rates set forth in the applicable Service Order (or, if not specified, at MWX’s then-standard rates) for any Professional Services. Customer will reimburse MWX for reasonable travel and lodging expenses as incurred, as pre- approved in writing by Customer. Customer may use anything delivered as part of the Professional Services in support of authorized use of the MWX Services and subject to any terms set forth in Service Order Form and the applicable SOW, but MWX shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by MWX (or its agents) (excluding any underlying Customer Materials, Customer’s pre-existing proprietary software or other materials designated in writing or Confidential Information).

6. Customer Obligations

  • 6.1. In General. Customer shall ensure that Customer, its Affiliates and its Users’ use of the MWX Services is at all times compliant with Customer’s privacy policies and all applicable laws.
  • 6.2. Responsibility for Customer Materials. Customer is solely responsible for the accuracy, content and legality of all Customer Materials (including those submitted by its Users) and for permitting MWX to lawfully use, process and access Customer Materials in connection with MWX performance of the MWX Services. Subject to the terms of this Agreement, Customer hereby grants to MWX a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Materials solely to the extent necessary to provide the MWX Services to or as directed by Customer. Customer represents and warrants to MWX that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Materials as contemplated in this Agreement, and that no Customer Materials will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, (iii) any terms of service, privacy policies or other agreement governing Customer Materials or (iv) the MWX Acceptable Use Policy. MWX is not responsible for the results produced by, or Customer’s use of, the MWX codes or APIs. Customer shall ensure that any integrations creates using the MWX codes or APIs are compatible and interoperable with MWX Services and any other third party systems.
  • 6.3. Protected Health Information; Data Processing under GDPR and CCPA; Compliance with Laws.
    • HIPAA and PHI. Customer agrees to not submit to or load onto the MWX Services any Protected Health Information (“PHI”) compliant with the Health Insurance Portability and Accountability Act (“HIPAA”);
    • GDPR and CCPA. Similarly, if applicable, Customer and MWX may enter into a data processing addendum (“DPA”) governing Customer’s ability to load and permit MWX to process, any personal data or information regulated under applicable data protection laws (including the European Union’s General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”)), in connection with the MWX Services, in which additional terms may include applicable designations of controller and processor and related obligations, the application of standard contract clauses, and descriptions of compulsory rules, practices and processes enabling the secure transfer of personal data from various global locations. For purposes of this Section, each party shall comply with all applicable data protection laws governing each of their respective business operations, in the geographic locations in which MWX Services (on the one hand) and Customer and its Users are offered or situated (on the other hand). For purpose of this Agreement, MWX is designated as the data processor, and Customer is designated as the data controller. Any executed DPA shall be incorporated by reference into this Agreement and is subject to its terms.
    • Compliance with Laws. Each party shall comply with all applicable international, national, state, provincial or local laws, regulations, directives, statutes, judicial rulings, orders, or other mandates have the force and effect of law during and after the Term of this Agreement, in connection with each of their respective business operations. Customer acknowledges and agrees that MWX Services may only be used and accessed in geographical territories in which the MWX Services (including VoIP or video chat) are lawful and authorized, and do not contravene or violate prevailing government regulations.
  • 6.4. Backups of Customer Materials. Except for disaster recovery measures described in the Documentation, the MWX Services does not archive or backup Customer Materials. MWX shall not of its own accord intentionally delete any Customer Materials from the MWX Services prior to termination of Customer’s applicable Subscription Term. Except for the foregoing, MWX expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Materials.
  • 6.5. Third Party Services. MWX may, from time to time, inform Customers of third-party services that can be used by Customers in connection with the MWX Services, including services from companies associated with MWX’s partner program, and Customer may opt to use these or other third-party services in connection with the MWX Services. Customer’s use of any third-party service in connection with the MWX Services, and any terms, conditions, representations and/or warranties associated with such use, are solely as set forth in the end user license agreement (“EULA”) terms between Customer and such third-party service providers. MWX makes no endorsement, representation or warranty with regard to any such third-party services, or any content or materials used on connection with such third-party service, even if such provider is certified by MWX or designated as a partner by MWX. As such, MWX shall not be responsible or liable to Customer in any manner for any such third-party service, or compliance with the EULA. MWX does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services, or for any integrations or interfaces created by use of MWX’s solution that connect such third-party services.

7. Service Orders; Pricing Payment Terms; Taxes.

  • 7.1. Service Orders and Pricing. The parties shall enter into and execute a Service Order as of the Effective Date for the initial Subscription Term. MWX may issue new Service Orders for any of the following circumstances: a) for each Renewal Term, b) for any usage by Customer that exceeds the limits set forth in an individual Service Order, c) for Affiliate use of the MWX Services (though Customer remains liable for any Affiliate use), or d) for additional access and use rights to new MWX Service modules or capabilities that MWX makes available only for a separate fee. Separate MWX Services modules generally available as of the Effective Date are described in the Documentation, and include session recording technology and multi-party session capabilities. MWX reserves the right to increase fees applicable to MWX Services (as well as for additional Users, session recording functionality, multi-party session capabilities and other fees for new modules and features) by providing Customer sixty (60) days’ notice prior to the end of each active Subscription Term.
  • 7.2. Order Upgrades. If Customer chooses to upgrade its Service Plan or increase the number of End Users authorized to access and use a Service during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the Subscription Charges that exist between Customer and MWX during the applicable Subscription Term. The subscription term for additional End Users shall be coterminous with the then-current Subscription Term for the existing End Users. In any subsequent Subscription Term, Customer’s Subscription Charges will reflect any such upgrades. Any discount provided to Customer is applicable only to the initial Subscription Term detailed in a Service Order Form and will not be applied to any subsequent Subscription Terms.
  • 7.3. Order Downgrades. Customer may not downgrade its Subscription Plan or reduce the number of End User subscriptions during any Subscription Term. If Customer desires to downgrade its Subscription Plan or reduce the number of End User subscriptions under any Subscription Plan for a subsequent Subscription Term, Customer must provide MWX with thirty (30) days written notice prior to the end of Customer’s then-current Subscription Term. Downgrading a Service Plan may cause loss of content, features, or capacity of the Services as available to Customer under its Customer Account, and MWX is not responsible for such loss. No credits or refunds will be issued for usage that is less than the purchased number of subscriptions or for unused time on subscriptions.
  • 7.4. Payments Terms. MWX Services fees are invoiced in advance upon the commencement of the Subscription Term, at the frequency set out in the Service Order. Except as otherwise set forth in a SOW, Professional Services fees are invoiced on a time and materials basis, monthly in arrears. Customer will pay each invoice within 30 days following the invoice Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower. Customer will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of MWX’s delinquency notice. If Customer fails to timely cure such delinquency, or regain compliance under Section 8.2 (defining the cure period for breach), MWX may suspend Customer’s use of the MWX Services or terminate this Agreement for breach, in addition to any other available rights and remedies. Customer is responsible for all fees, expenses and other costs relating to or connected with making invoiced payments to MWX under this Agreement, including the direct payment of all banking fees, processing fees, currency conversions, or similar transactional costs and fees; none of which Customer may deducted or off-set from the MWX’s invoiced total fee. All terms of this Section shall apply unless expressly stated otherwise in the applicable Service Order Form, SOW, or the Documentation.
  • 7.5. Voice And Data Charges; Customer Connectivity. MWX Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If MWX has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section, MWX will invoice Customer and Customer will pay that amount unless Customer provides MWX with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, MWX shall be solely responsible for Taxes assessable against MWX based on MWX’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law. Should Customer be required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to MWX, then Customer shall increase the sum payable to MWX by the amount necessary to yield to MWX an amount equal to the sum it would have received had no withholdings or deductions been made.
  • 7.6. No Set-Off. Customer will not set-off or offset against MWX’s invoices amounts that Customer claims are due to Customer by MWX, or any amounts resulting from any billing or collection Customer will bring any claims or causes of action Customer may have in a separate action and waive any rights Customer may have to offset, set-off, or withhold payment for the MWX Services delivered by MWX.
  • 7.7. Voice And Data Charges; Customer Connectivity. Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used to access and use the MWX Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the MWX Services may also cease to function due to reasons outside of MWX control, and MWX shall not be liable for, and Customer expressly releases MWX from any liability, in connection with such events or activities.
  • 7.8. Use Verification. MWX may remotely review the scope of Customer’s use of the MWX Services, and on MWX’s 15-day prior written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement with respect to access to and use of the MWX If MWX determines that Customer has exceeded its permitted access and use rights to the MWX Services as described in a Service Order, MWX will notify Customer and Customer will, within 30 days, either: (1) disable any unpermitted use; or (2) purchase additional use and access rights commensurate with Customer’s actual use, at MWX’s then effective rates and fees.

8. Term and Termination.

  • 8.1. Term. The term of this Agreement (“Term”) and the MWX Services period set forth in the initial Service Order Form (the “Subscription Term”) shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereof and for the duration set forth in the Service Order.
  • 8.2. Termination. Customer may terminate this Agreement on each anniversary date of the Subscription Term by providing MWX ninety (90) days advance written notice. Terminating a Subscription Term prior to its expiry will not relieve the Customer from its payment obligations for the full term agreed to and outlined in the Service Order Form.
  • Either party may terminate this Agreement (including all related Service Orders) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
  • 8.3. Renewal. Each Subscription Term shall automatically renew for the same period as the previous term unless, prior to the expiry of the then current Subscription Term, Customer provides ninety (90) days advance written notice of its intention to not to renew.  A new Service Order Form and invoice will be issued and MWX reserves the right to adjust its pricing on any subsequent renewal.
  • 8.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the MWX Services (including any and all related MWX Technology) and delete (or, at MWX’ request, return) any and all copies of the Documentation, any MWX passwords or access codes and any other MWX Confidential Information in its possession. MWX shall make Customer Materials available for retrieval for thirty (30) days following termination of this Agreement for any reason. Thereafter, Customer acknowledges that following termination (and the Customer Materials retrieval period), it shall have no further access to the MWX Services or any Customer Materials submitted to the MWX Services, and that MWX may delete any such materials as may have been stored by MWX at any Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

9. Confidential Information.

  • 9.1. Confidential Information Defined. As used herein, “Confidential Information” means non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information shall include any information regarding a party’s financial condition, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, customer information, and customer data. MWX Technology, MWX Services and Documentation shall be deemed MWX Confidential Information. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (i) is or becomes generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s) from the disclosing party and the receiving party can reasonably show such independence.
  • 9.2. Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or independent contractors with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure to at least the same extent as does this Agreement. Each receiving party agrees to promptly notify the disclosing party upon learning of any unauthorized disclosure of the disclosing party’s Confidential Information, and shall provide reasonable assistance to the disclosing party to remedy and contain such breach. In connection therewith, Customer agrees to provide any such written notice to MWX. The foregoing notwithstanding, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, if legally permitted, and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, at this disclosing party’s cost and expense.
  • 9.3. Equitable Remedies. The parties agree that a breach of the confidentiality obligations set forth in this Agreement by receiving party may cause immediate and irreparable damage to disclosing party and shall entitle disclosing party, without the necessity of posting a bond, to seek injunctive relief to prevent the continued unauthorized use of disclosing party’s Confidential Information, as well as to pursue all other remedies available to disclosing party at law.

10. Representations and Warranties.

  • 10.1. Limited MWX Services Warranty. MWX warrants, for Customer’s benefit only, that the MWX Services will operate in substantial conformity with the applicable Documentation. MWX’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for MWX to use commercially reasonable efforts to correct the reported non-conformity, or if MWX is unable to correct the defect MWX Services, or if MWX determines such remedy is impracticable, either party may then terminate the applicable MWX Services following a cure period of not less than thirty (30) days. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.
  • 10.2. Limited Support and Professional Services Warranty. In addition, MWX shall perform Support Services and Professional Services in a competent, professional and workmanlike manner consistent with applicable industry practices. Provided Customer provides timely written notice of non-conforming Support or Professional Services performance within thirty (30) days following the completion of each Support or Professional Service, MWX will timely re-perform the applicable Service in accordance with the foregoing warranty, and if MWX is unable or incapable of performing the Support Services within thirty (30) days following the warranty claim, Customer may terminate the Subscription Term, and shall receive as its sole remedy, a refund of any fees Customer has pre-paid for use of the MWX Services for the terminated portion of the applicable Subscription Term. If MWX is unable or incapable of reperforming the Professional Services within thirty (30) days following the warranty claim, Customer may terminate the SOW, and receive a refund for that portion of the Professional Services that is defective.
  • 10.3. Warranty Disclosure.

    A) EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 7.1 and 7.2, ABOVE, THE MWX SERVICES ARE PROVIDED “AS IS”. NEITHER MWX NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. MWX DOES NOT WARRANT THAT CUSTOMER’S USE OF THE MWX SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES MWX WARRANT THAT IT WILL REVIEW THE CUSTOMER MATERIALS FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER MATERIALS WITHOUT LOSS. MWX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF MWX. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

    B) MWX HAS NO LIABILITY OR RESPONSIBILITY, AND CUSTOMER IS SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE MWX SERVICES (INCLUDING MWX’S SECURITY OBLIGATIONS) WILL MEET CUSTOMER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. MWX DOES NOT REPRESENT OR WARRANT THAT THE MWX SERVICES WILL ACHIEVE CUSTOMER’S DESIRED RESULTS AND MWX DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON USE OR OTHER RESULTS OF THE MWX SERVICES. MWX HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY USERS.

    C) CUSTOMER ACKNOWLEDGES THAT MWX SERVICES ARE NOT DESIGNED OR INTENDED FOR ACCESS AND/OR USE IN OR DURING HIGH-RISK ACTIVITIES, INCLUDING BUT NOT LIMITED TO: MEDICAL PROCEDURES; ON-LINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. CUSTOMER UNDERSTANDS THAT THE MWX SERVICES DO NOT ALLOW AND SHOULD NOT BE USED FOR CALLS TO EMERGENCY SERVICES NUMBERS (E.G., IN THE UNITED STATES 911, OR IN THE UNITED KINGDOM 999 AND 112). WITHOUT LIMITING ANY OTHER DISCLAIMERS SET FORTH IN THIS AGREEMENT, MWX EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

  • 10.4. By Customer. Customer represents and warrants that the Customer has the right and authority to enter into this Agreement, to perform its duties and obligations hereunder, exercise its rights hereunder, and to grant the licenses granted by Customer under this Agreement. Customer further represents and warrants that Customer has secured for MWX all right, license, permission and consent necessary to access and use Customer Materials, Users’ account information and any data Users upload to the MWX Services platform for the purposes of delivering the MWX Services, responding to any technical problems, troubleshooting and testing, and that Customer Materials do not and will not infringe on any privacy, intellectual property or other rights of third parties. Customer represents and warrants that Customer’s use of the MWX Services shall comply with all applicable laws, regulations, statutes, judicial decisions or other rules and regulatory or governmental rulings in connection with Customer’s business operations. Customer shall be solely liable to MWX or to third parties, for any violation, breach or non-compliance with any of the foregoing obligations.

11. Indemnification.

  • 11.1. MWX Indemnification. MWX shall defend Customer from and against any claim by a third party alleging the MWX Services when used as authorized under this Agreement, infringes a patent, copyright, or trademark and shall indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by MWX (including reasonable attorneys’ fees) resulting from such claim, provided that MWX shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for MWX to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the MWX Services is (or in MWX’s opinion is likely to be) enjoined, if required by settlement or if MWX determines such actions are reasonably necessary to avoid material liability, MWX may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the MWX Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer any fees Customer has pre-paid for use of the MWX Services for the terminated portion of the applicable Subscription Term. The foregoing indemnification obligation of MWX shall not apply: (1) if the MWX Services are modified by any party other than MWX, but solely to the extent the alleged infringement is caused by such modification; (2) if the MWX Services are combined with platforms, data, products or processes not provided by MWX, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the MWX Services; (4) to any action arising as a result of Customer Materials, or any other third-party applications, data or components contained within the MWX Services; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the MWX Services but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without MWX’s prior written consent. THIS SECTION 1 SETS FORTH MWX’S AND ITS PARTNERS AND SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
  • 11.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless MWX from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Materials or breach or alleged breach by Customer of Section 3 (Customer Obligations), (b) any service or product offered by Customer in connection with or related to the MWX Services or (c) sharing of Customer Materials with (or use thereof by) third-party Users. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim from MWX (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation from MWX at Customer’s expense.

12. Limitation Of Liability.

  • 12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS PARTNERS OR SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
  • 12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS PARTNERS AND SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO MWX DURING SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT.
  • 12.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 8 (Acceptable Use); (b) under Section 6 (Customer Obligations); (c) from a party’s breach of its obligations in Section 9 (Confidential Information) (but excluding claims related to Customer Materials); or (d) a party’s indemnification obligations under Section 11 of this Agreement.
  • 12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

13. Ownership.

  • 13.1. Rights in Customer Materials. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Materials as provided to MWX. Subject to the terms of this Agreement, Customer hereby grants to MWX a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Materials solely to the extent necessary to provide the MWX Services to or as directed by Customer.
  • 13.2. MWX Technology. This is a subscription agreement for access to use of the MWX Services. Customer acknowledges that it is obtaining only a limited right to the MWX Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that MWX or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the MWX Services, Support Services, Documentation, Professional Services deliverables (but excluding any Customer Materials incorporated therein) and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “MWX Technology”). Except as expressly set forth in this Agreement, no rights in any MWX Technology are granted to Customer. Further, Customer acknowledges that the MWX Services is an online, hosted solution, and that except for Client Software, Customer has no right to obtain a copy of the MWX Services. MWX reserves all rights in and to MWX Technology not expressly granted to Customer hereunder.
  • 13.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any MWX product or service to MWX (“Feedback”). MWX may freely use, disclose reproduce, license or otherwise distribute or exploit Feedback in connection with any of its products or services entirely without any obligation or restriction to notify, account for, or compensate Customer on account of intellectual property rights or otherwise.
  • 13.4. Service Data. Notwithstanding anything to the contrary herein, Customer agrees that MWX may obtain technical and other data about Customer’s use of the MWX Services (“Service Data”), and MWX may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the MWX Services during and after the Term of this Agreement, provided that MWX does not identify Customer as the source of such Service Data without Customer’s prior written permission.

14. Miscellaneous

  • 14.1. The Parties are and shall be independent contractors with respect to all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Customer does not have any authority of any kind to bind MWX in any respect whatsoever. There are no third party beneficiaries to this Agreement. Without limiting this section, Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.
  • 14.2. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. MWX may assign its obligations in full or in part to any third party as it may see fit. Customer shall not assign this Agreement without the advance written consent of  Either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.2 will be null and void.
  • 14.3. Notices. All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, to the addresses identified in this Agreement. Notices shall be deemed given when delivered by registered post or courier, with return receipt or acknowledgment requested.
  • 14.4. Force Majeure. Except for Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
  • 14.5. Export Compliance. In its use of the MWX Services, Customer agrees to comply with all export and import laws and regulations of the United States, the European Union and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its Users to) access or use the MWX Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the MWX Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
  • 14.6. Publicity. Customer hereby grants MWX approval to use the Customer’s name and logo on MWX web site, in MWX promotional materials and social media, in a factual manner, for business development purposes. The Parties shall work together in good faith to issue at least one mutually agreed upon press release upon Customer’s launch of the Services, and Customer otherwise agrees to reasonably cooperate with MWX to serve as a reference upon request.
  • 14.7. Governing Law; Law Venue. This Agreement is made and will be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded.  The exclusive venue for all claims arising out of or in connection with this Agreement shall be in Toronto, Ontario, Canada, but the Parties agree that MWX may seek equitable relief in any venue it so chooses.
  • 14.8. Entire Agreement. This Agreement, including all Schedules to this Agreement, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any schedule, the terms and conditions of this Agreement will govern. No Party hereto has relied on any statement, representation or promise of any Party or representative thereof except as expressly set forth in this Agreement. Any changes or amendments to this Agreement must be in writing, expressly refer to the changes to this Agreement, and be duly executed by both parties.
  • 14.9. Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.
  • 14.10. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
  • 14.11. Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the Parties by exchange of signature pages by PDF, facsimile or email.
  • 14.12. English Version Controls. Non-English translations of this Agreement may be provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
  • 14.13. Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect, including 5.7, 9, 10, 11, 12 and 13.  Obligations also apply to respective successors and assigns.