HomeMy WebLinkAboutAdden 2
CAG-21-316, Adden #2-22
Rev Oct. 1, 18
DIGITAL IRIS Customer Agreement
THIS DIGITAL IRIS CUSTOMER AGREEMENT GOVERNS THE PROVISION AND USE OF THE DIGITAL IRIS SERVICES,
WIRELESS DATA SERVICES AND DIGITAL IRIS-RELATED SUPPORT SERVICES PURCHASED BY YOU (“CUSTOMER”)
FROM T2 SYSTEMS CANADA INC. (“T2”).
BY CLICKING THE BOX ON THIS WEBSITE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU
ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER LEGAL ENTITY YOU HEREBY
REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, AND “CUSTOMER” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU OR
SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, YOU MUST NOT
ACCEPT THIS AGREEMENT AND NEITHER YOU NOR SUCH ENTITY MAY USE THE SERVICES.
1. DEFINITIONS. In this Agreement:
(a) "Activation Date" means the first date that each pay station unit is enabled by T2 to connect to the
Services.
(b) "Affiliate" means, in respect of an entity, any entity which directly or indirectly controls, is
controlled by, or is under common control with such entity. "Control" for purposes of this
definition, means direct or indirect ownership or control of more than 50% of the voting interests
of an entity.
(c) "Agreement" means this Digital Iris Customer Agreement, including all Sales Quote(s).
(d) "Confidential Information" means and includes any written or orally or visually disclosed
information relating to the disclosing party's business identified as “confidential” or which the
receiving party should reasonably know is confidential or not generally known to the public,
including, without limitation:
(i) all know-how, technology and other proprietary information owned, licensed, used or
developed by the disclosing party, including proprietary rights protected by trade secret
and other intellectual property rights, and
(ii) all information relating to the disclosing party's business, the Services, and to all other
aspects of the disclosing party's structure, personnel, operations, financial matters,
marketing, commercial strategies, customer lists, customer data, contractual records,
correspondence, products, programs, devices, concepts, inventions, designs, methods,
data, and items provided to the disclosing party by third parties subject to restrictions on
use or disclosure.
(e)“Core Services”means the minimum number of services that customer must subscribe to
throughout each term as identified on the Sales Quote;
(f) "Documentation" means the documentation, help files, user manuals, handbooks and any other
written or electronic material relating to the Digital Iris Services provided by T2 to its customers
from time to time.
(g) "T2 System" means, in respect of the Digital Iris Services, the entire physical operation(s), located
at the T2 facilities designated by T2 from time to time to host the Digital Iris Services, including all
networks and servers, hardware and software utilized in the provision of the Digital Iris Services
located behind the Point of Access.
(h) "Effective Date" means the date on which Customer first accepts this Agreement.
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(i) "Digital Iris Services" means the Digital Iris services subscribed to by Customer, and includes the
Core Services as set out in the Sales Quote(s).
(j) "Fees" means the fees for the Services as set out in the Sales Quote(s), and any other amounts
payable under this Agreement, as calculated from the Activation Date.
(k) "Non-Conformity" means the failure of the Digital Iris Services software to perform according to
the Documentation.
(l) "Point of Access" means T2's border router(s) which is (are) used to establish connectivity from the
T2 System to T2's internet service provider and the public Internet.
(m) "Representatives" means, in respect of a party, the directors, officers, employees, agents and
contractors of such party.
(n) “Sales Quote(s)” means the sales quote forms executed by Customer from time to time setting out
the details of the Services subscribed to by Customer, including applicable fees, which upon
execution by Customer will be incorporated by reference into and form an integral part of this
Agreement.
(o) "Services" means the Digital Iris Services, Wireless Data Services, Support Services and/or any
additional services.
(p)"Support Services"means Digital Iris technical support services purchased by Customer, as
described in the pay station warranty description, as amended from time to time.
(q) "System Availability Period" means, in respect of the Digital Iris Services, twenty-four (24) hours
per day, seven (7) days per week excluding the System Maintenance Period.
(r) "System Maintenance Period" means, in respect of the Digital Iris Services, scheduled
maintenance periods during which Digital Iris Services access will not be available to Customer due
to required system maintenance, upgrades, and other hosting requirements for the T2 System.
(s) “Wireless Data Services” means the third party wireless data services, if any, purchased by
Customer from T2 for the purpose of enabling communications between the T2 System and
Customer’s parking pay stations.
All other terms defined in this Agreement shall have the meanings ascribed thereto.
2. TERM. This Agreement shall commence on the Effective Date and shall continue for a three (3) year term.
This Agreement will be automatically renewed for an additional term of one (1) year effective
immediately after the expiration of any then current term, unless T2 or Customer gives written notice of
non-renewal to the other party at least sixty (60) days in advance of the expiration of the then-current
term.
3. DIGITAL IRIS SERVICES.
(a) Subject to the terms of this Agreement, T2 will supply the Digital Iris Services subscribed to by
Customer, and Customer is granted a limited, non-exclusive, non-transferable right to access and
use Digital Iris Services software, solely as necessary for Customer’s use of the Digital Iris Services
for its internal business purposes.
(b) T2 will provide Customer with one (1) administration account (login and password) to access the
Digital Iris Services on the T2 System.
(c) T2 will provide the Digital Iris Services in accordance with the following standards:
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(i) T2 is classified under the PCI Security Standards as a Level 1 Service Provider. The
Digital Iris Services will remain in compliance with current PCI security standards at all
times;
(ii) T2 will be responsible for delivery of access to the Digital Iris Services on the T2 System
only up to and including the Point of Access, and is not responsible for any failure due to
Customer's telecommunications connections, facilities (including internal local area
networks (LAN)) or local infrastructure;
(iii) T2 will use all reasonable efforts to ensure the Digital Iris Services will be available
during the System Availability Period;
(iv) T2 will provide Customer with at least 48 hours prior electronic notice of any scheduled
System Maintenance Period;
(v) T2 shall have the right to implement updates and upgrades to any software used in
providing the Digital Iris Services, in its sole discretion;
(vi) T2 will respond to incidents that have been reported by Customer within the response
times set out in the T2 Support Services description; and
(vii) in the event of a T2 System failure, T2 will use commercially reasonable efforts to
complete data recovery requests using the most recent version of the backup data,
databases, applications and configuration pieces required to restore Customer data.
4. RESTRICTIONS ON USE OF DIGITAL IRIS SERVICES.
(a) Customer shall use the Digital Iris Services only for the parking pay stations identified in the Sales
Quote(s), and only in accordance with the Documentation and any other instructions issued by T2
from time to time. Failure to use the Services in accordance with instructions provided by T2 may
result in failure of all or any part of the Services, and/or accidental loss of data or data integrity. If
Customer does not understand the requirements for the proper use of the Digital Iris Services,
Customer must contact T2 for additional information.
(b) Customer may make copies of the Documentation solely for its own internal purposes in
conjunction with its use of the Digital Iris Services. Copyright and other proprietary rights in the
Documentation shall remain vested in T2. Customer may not remove any title, trademark,
copyright and/or restricted rights or proprietary notices or labels from, or otherwise modify the
Documentation, and all copies of the Documentation must include all such notices and labels.
(c) Customer shall restrict access to the Digital Iris Services to its employees or contractors, solely as
required for its internal business purposes. Without limiting the generality of the foregoing,
Customer may not sell, rent, loan or otherwise grant any rights in or to the Digital Iris Services, or
permit any other party to do so.
(d) Customer agrees not to:
(i) introduce any kind of malware, including but not limited to viruses, worms, Trojan
horses or other harmful code that may damage the operation of the Digital Iris Services
or the T2 System;
(ii) use the Digital Iris Services in any manner which could damage, disable, overburden or
impair any part of the T2 System, or interfere with any other customer's ability to use
the Digital Iris Services or the T2 System;
(iii) attempt to gain access to other customers’ accounts through any manner of hacking or
password mining or other means;
(iv) attempt to embed the Digital Iris Services within another website;
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(v) attempt to use such methods as SQL Injection, Cross Site Scripting, Remote File
Inclusion, Cross Site Request Forgery and any other methods not authorised by T2 to
gain access to the T2 System or the Digital Iris Services;
(vi) attempt a Denial of Service (DOS) attack of any kind;
(vii) use the Digital Iris Services or the T2 System to transmit SPAM, junk email or other
unsolicited email of any kind; or
(viii) in connection with the Services, engage in conduct that would constitute a criminal or
quasi-criminal offence, that could give rise to civil liability, intellectual property rights
infringement, or privacy rights violations, or that would otherwise violate any applicable
local, provincial, state, federal or international law, or accepted Internet protocol.
5. WIRELESS DATA SERVICES.
(a) If purchased by Customer, T2 will provide the Wireless Data Services, supplied by T2’s underlying
third party wireless data services carrier, to Customer. Customer acknowledges and agrees that
(i) Customer has no contractual relationship with the third party wireless data services carrier, (ii)
Customer is not a third party beneficiary of any agreement between T2 and the carrier, and (iii)
that the wireless data services carrier shall have no liability of any kind whatsoever to Customer,
or any party deriving rights through Customer, whether for breach of contract, warranty,
negligence, strict liability, tort, or otherwise.
(b) Customer shall use the Wireless Data Services only in connection with the Digital Iris Services and
parking pay stations identified in the Sales Quote(s).
(c) Customer agrees that it will at all times comply with and abide by all terms and conditions
established by T2 from time to time for the use of and access to the Wireless Data Services, and
acknowledges that the Wireless Data Services may be restricted or cancelled by T2 or the
underlying data services carrier if there is a reasonable suspicion of abuse or fraudulent use of the
services.
(d) Customer may not resell the Wireless Data Services to any other person.
(e) Customer has no property right in any wireless number assigned to it in connection with the
Wireless Data Services, and understands that such number can be changed.
(f) Customer will provide T2 with prompt notice of any suspected abuse or fraudulent use of the
Wireless Data Services of which it becomes aware.
6. SUPPORT SERVICES.
T2 will provide the Support Services in accordance with the Digital Iris technical services
description, as amended from time to time. Support Services are limited to those set out in the
services description, and expressly exclude any additional services required to correct any Non-
Conformities resulting from the causes described in Subsection 11(b). Any additional technical
support may be agreed by T2 on a case-by-case basis, and shall be charged on a time and
materials basis at T2’s then-standard rates therefor.
7. FEES AND PAYMENT.
(a) Customer agrees to pay to T2 the Fees plus all applicable taxes in accordance with this section.
(b) The initial annual invoice will be issued on or about the Activation Date and the first month’s Fees
will be prorated to reflect such date. Except as otherwise set out in the Sales Quote(s), T2 will
issue an annual invoice for Fees thirty (30) days in advance of each month of the anniversary of
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the initial invoice date. Payment terms are net thirty (30) days from the date of invoice and
payable to T2 as set out in the invoice.
(c) Any additional Services subscribed to by Customer will be outlined on a separate invoice issued by
T2 at the time of the Service activation. Such fees will be prorated through to the end of the
Customer’s then current billing year. All subsequent fees will appear on the Customer’s annual
invoice in accordance with section 7(b) above.
(d) T2 will increase all Fees by five percent (5%) per year on each anniversary date, which increase will
appear on the annual invoice issued by T2.
(e) Customer shall pay interest on any invoiced amounts which are unpaid after thirty (30) days at a
rate of 1.5% per month (18% per annum, effective rate) or the maximum amount allowed by law
(whichever is less), from the date such amounts become due and payable. Customer also agrees
to pay all costs incurred by T2 to collect any overdue amounts.
(f) Without limiting any other rights and remedies which T2 may have, T2 shall also have the right to
suspend or terminate any or all of the Services upon notice but without any liability to Customer
or any other party, if any Fees or other amounts owing by Customer to T2 remain unpaid after 60
days, including any charge backs for NSF checks.
(g) All Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise,
value-added and other applicable taxes, withholdings, and governmental charges (collectively,
“Taxes”). Customer shall pay all applicable Taxes, other than taxes on T2’s income. If T2 pays any
such amounts on behalf of Customer, Customer shall reimburse T2 upon presentation of proof of
payment.
8. OWNERSHIP.
(a) Customer acknowledges that T2 has developed and uses valuable technical and non-technical
information, trade secrets, know-how and the like in the supply of the Services. Customer agrees
that, except for the limited right to use the Services as set out in this Agreement, all rights, title
and interest in and to the Services, the Digital Iris software, the T2 System, Documentation, and
any other hardware, software, equipment and materials used by T2 in conjunction with the
delivery of the Services, shall remain vested in T2 or its third party suppliers.
(b) Each party recognizes and acknowledges the great value of the goodwill associated with the name
and trademarks of the other party, and the identification of the proprietary party’s goods or
services therewith. Each party agrees that it obtains no rights, title or interest of any kind in or to
any of the trademarks, tradenames, logos, service marks or other markings belonging to the other
party or its suppliers.
(c) The parties acknowledge that at all times Customer will remain the owner of its transaction data.
T2 shall not at any time use Customer’s data or disclose Customer’s data to any third parties,
except that T2 may store, back-up and archive Customer’s data.
9. CONFIDENTIALITY.
(a) Each party agrees to hold all Confidential Information of the other party in strictest confidence,
not to make use thereof other than for the performance of this Agreement, to disclose such
Confidential Information only to its Representatives who are under an obligation of confidentiality
with respect thereto and who require such information for the performance of their duties, and
not to disclose such Confidential Information to any third parties, except with the disclosing
party's prior written consent; provided, however, that the foregoing restrictions shall not apply to
Confidential Information of the other party:
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(i) that is now or hereafter in the public domain through no action or failure to act on the
part of the receiving party or its Representatives;
(ii) that was received by or was available to the receiving party from a third party without
any obligation of confidentiality to the disclosing party;
(iii) that is independently developed by or for the receiving party by persons who have not
had access to the Confidential Information of the disclosing party;
(iv) that is disclosed with the written consent of the disclosing party; or
(v) that is disclosed pursuant to the requirement of a governmental agency or is required
by operation of law, regulation or court order, provided that whenever possible prompt
notice is given by the receiving party to the disclosing party prior to such disclosure so
that the disclosing party may seek a protective order or other remedy.
(b) Each party agrees to protect and safeguard Confidential Information of the other party from loss,
theft, destruction and inadvertent disclosure using the same degree of care as it uses to protect its
own confidential information of a like nature, but in no event less than a reasonable standard of
care.
(c) Each party shall hold the other party's Confidential Information in trust for the other party and all
right, title and interest in and to such Confidential Information shall remain with the disclosing
party.
(d) Upon termination of the Services, or otherwise upon the request of a disclosing party, the
receiving party will promptly destroy all full and partial copies of the disclosing party's Confidential
Information in its possession or control, and certify such destruction in writing; provided,
however, that the receiving party may retain one (1) copy for its internal archival purposes only,
which copy shall remain subject to the obligations of confidentiality set out in this Section 9.
10. CUSTOMER LIABILITY.
(a) Customer shall be solely responsible for, and shall hold T2, its third party suppliers, and their
respective Representatives harmless from any loss, damage or liability arising in connection with:
(i) Customer’s inputs, selection and use of the Services, and all data, reports, statements
and other content transmitted, posted, received or created on the T2 System through
Customer’s account, even if transmitted, posted, received or created by a third party;
(ii) Customer’s or its Representative’s use, misuse, failure to use, or inability to use the
Wireless Data Services or any other data services required for the use of the Digital Iris
Services, including any abuse, fraudulent use or unauthorized access thereto; and
(iii) Any breach by Customer and/or its Representatives of any of the terms and conditions
of this Agreement.
11. LIMITED WARRANTY.
(a) T2 warrants to Customer that, for the duration of this Agreement, the Digital Iris Services will
substantially conform to the specifications set out in the Documentation, as revised by T2 from
time to time.
(b) The foregoing warranty shall not apply to Non-Conformities that result from any cause beyond the
reasonable control of T2 including, but not limited to:
(i) Customer's failure to:
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(A) prepare and maintain a technical environment that meets the specifications
provided by T2 from time to time,
(B) provide necessary communications mechanisms (including connections to pay
station units) as specified by T2 from time to time, or
(C) maintain pay station units in good repair in accordance with T2's
recommendations and requirements for operation, maintenance and repair;
(ii) the use of the Digital Iris Services in combination with apparatus, systems, products or
services where such combination was not provided, proposed, recommended or
approved by T2, or contemplated in the Documentation;
(iii) unauthorized modifications or repairs to any equipment supplied by T2 (including pay
station units) by Customer or any person not approved by T2; or
(iv) failures relating to Customer's computing environment including, without limitation,
electrical failure, Internet connection problems, communications problems, or data or
data input, output, integrity, storage, back-up, and other external and/or infrastructure
problems, which, as between Customer and T2, shall be deemed to be under Customer's
exclusive control and sole responsibility.
(c) T2 shall have no responsibility and provides no representations or warranties with respect to any
third party software or services, whether supplied in connection with this Agreement or
otherwise.
(d) If Customer notifies T2 in writing of a breach of the foregoing limited warranty, T2 shall, at its cost
and expense, promptly, diligently and in good faith continue to completion, using commercially
reasonable efforts accounting for the circumstances, the correction or bypassing, in T2's
reasonable discretion, of the Non-conformity within the period required under the Support
Services or such other period as may be mutually agreed by both parties depending on the nature
and severity of the Non-conformity.
12. EXCLUSION OF WARRANTIES.
(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11, THE SERVICES ARE PROVIDED "AS IS" WITHOUT
WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, T2 AND ITS THIRD PARTY SUPPLIERS HEREBY DISCLAIM ALL OTHER
REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING
UNDER STATUTE, FROM A COURSE OF DEALING, USAGE, CUSTOM OF THE TRADE OR OTHERWISE,
REGARDING THE SERVICES, THE DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY,
DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCESSIBILITY, PRIVACY
OF FILES OR SECURITY.
(b) T2 DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED
HEREUNDER WILL BE UNAFFECTED BY BUGS, VIRUSES, ERRORS OR OTHER PROGRAM
LIMITATIONS, NOR DOES T2 WARRANT THAT CUSTOMER'S USE THEREOF WILL BE
UNINTERRUPTED, ERROR-FREE OR WILL MEET ALL OF THE CUSTOMER'S REQUIREMENTS. IN
ADDITION, THE WIRELESS DATA SERVICES ARE NOT GUARANTEED AGAINST EAVESDROPPERS,
HACKERS, DENIAL OF SERVICE ATTACKS OR INTERCEPTORS AND NEITHER T2 NOR THE
UNDERLYING WIRELESS DATA SERVICES CARRIER CAN GUARANTEE THE PRIVACY OR SECURITY OF
WIRELESS TRANSMISSIONS.
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(c) THIS LIMITED WARRANTY GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS. THE CUSTOMER MAY
HAVE OTHER RIGHTS, WHICH VARY FROM LOCATION TO LOCATION, DEPENDING UPON THE
APPLICABLE LAW OF SUCH LOCATION.
13. LIMITATION OF LIABILITY AND DAMAGES.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW: T2’S, ITS THIRD PARTY SUPPLIERS’ AND THEIR
RESPECTIVE RESPRESENTATIVES’ TOTAL COLLECTIVE LIABILITY ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT, AND/OR ANY PRODUCTS OR SERVICES DELIVERED OR
FAILED TO BE DELIVERED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE ACTUAL DIRECT
DAMAGES SUFFERED BY CUSTOMER, NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY
CUSTOMER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. TOTAL AGGREGATE
LIABILITY FOR ALL CLAIMS SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES
ACTUALLY PAID BY CUSTOMER TO T2 FOR THE SERVICES DURING THE SIX MONTHS IMMEDIATELY
PRECEDING THE MOST RECENT CLAIM. IN NO EVENT WILL T2 OR ITS THIRD PARTY SUPPLIERS BE
LIABLE IN ANY WAY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR AGGRAVATED DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF USE, DATA, INCOME, BUSINESS, PROFIT, GOODWILL,
ANTICIPATED REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHERWISE.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DUE TO THE NATURE OF INTERNET
AND WIRELESS TRANSMISSIONS, CUSTOMER AGREES THAT NEITHER T2 NOR THE UNDERLYING
WIRELESS DATA SERVICES CARRIER SHALL BE LIABLE FOR ANY LOSS, COSTS OR DAMAGES OF ANY
KIND ARISING OUT OF OR IN CONNECTION WITH: ANY LACK OF PRIVACY OR SECURITY OF
WIRELESS TRANSMISSIONS; WIRELESS DATA SERVICES INTEROPERATIBILITY, ACCESS OR
INTERCONNECTIONS WITH THE T2 SYSTEM OR THE DIGITAL IRIS SERVICES; WIRELESS DATA
SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR INTERRUPTIONS; ANY INTERRUPTION OR ERROR IN
ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS; LOST OR ALTERED MESSAGES OR
TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION
OF CUSTOMER’S CONTENT, DATA, PROGRAMS CONFIDENTIAL INFORMATION OR SYSTEMS.
(c) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY
CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF
ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN
TO, OR OUGHT REASONABLY TO HAVE BEEN DISCOVERED BY, CUSTOMER.
(d) THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER
ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR
OTHERWISE, AND REGARDLESS OF WHETHER T2, ITS THIRD PARTY SUPPLIERS AND/OR THEIR
REPRESENTATIVES KNEW, OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH
DAMAGES.
(e) CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL
ELEMENTS OF THIS AGREEMENT, WITHOUT WHICH T2 WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT AND/OR AGREED TO PROVIDE THE SERVICES UNDER THE CURRENT TERMS
(INCLUDING FEES).
(f) BECAUSE THE LAWS OF SOME LOCATIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION
OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL CUSTOMERS.
14. TERMINATION.
(a) Customer may terminate one or more Services, excluding any Core Services, by sending written
notice to T2 at least sixty (60) days prior to the annual invoice date. All unpaid amounts due in
respect of the terminated Services up to and including the effective date of termination shall
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become immediately due and payable and such termination shall be effective as of the annual
invoice date.
(b) Customer may terminate this Agreement by sending written notice to T2 at least sixty (60) days
prior to the end of the then current term and such termination shall be effective on the term
expiration date. In the event of early termination of this Agreement by Customer outside of the
relevant notice period, the unpaid balance of all Fees for the remainder of the entire term shall
become immediately due and payable.
(c) Either party may terminate this Agreement if the other party breaches any of its representations
or warranties, or any other material obligation under this Agreement, and fails to remedy such
breach with thirty (30) days of receipt of notice from the non-breaching party. T2 shall also have
the right to suspend performance of all or any of the Services, without liability, pending the
rectification of any breach by Customer.
(d) Either party may terminate this Agreement, immediately upon written notice, if the other party
makes an assignment for the benefit of its creditors or becomes bankrupt or makes an application
for relief under the provisions of any statute now or hereafter in force concerning bankrupt or
insolvent debtors, or if a receiving order or receivership order is made against the other party, or
any action whatsoever, legislative or otherwise be taken to effect the winding up, dissolution,
suspension of operations or liquidation of the other party.
(e) Without limiting any other remedies available under this Agreement, at law or in equity, in the
event of the termination of this Agreement or any of the Services for any reason:
(i) T2’s obligation to provide the affected Services will terminate;
(ii) Customer must destroy any copies of the Documentation in Customer's possession in
any form and on any media, and certify to T2 in writing that it has done so;
(iii) Customer may request T2 to provide a copy of all of Customer's data in a CSV file format
at T2's standard fee therefor, as established by T2 from time to time; and
(iv) T2 may destroy, in its sole discretion, Customer's data remaining on the T2 System after
either:
(A) receiving confirmation that Customer has a copy of any remaining data;
(B) providing Customer with a copy of any remaining data pursuant to Subsection
14 (e) (v); or
(C) sixty (60) days after the expiration or termination of this Agreement, and
(v) Sections 1, 4, 7, 8, 9, 10, 11, 12, 13, 14(e), 15, 16(c) and 16(i) shall survive the expiration
or termination of this Agreement until such time as the parties may agree to the release of the
obligations contained therein.
15. DISPUTE RESOLUTION.
Dispute Resolution. In the event of any dispute arising out of this Agreement, the parties shall use
commercially reasonable efforts to negotiate a settlement in good faith satisfactory to both
parties. If they do not reach a solution within a period of sixty (60) days (or such other longer
period as the parties may agree), then either party may, on written notice to the other party, refer
the dispute for settlement by arbitration before a single arbitrator in accordance with the rules of
the American Arbitration Association. The costs of the arbitrator will be borne equally by the
parties, but they will otherwise bear their respective costs incurred in connection with the
arbitration. The parties shall select the arbitrator promptly and use commercially reasonable
efforts to conduct the arbitration hearing no later than three (3) months after the arbitrator is
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selected. The arbitrator may not award punitive or exemplary damages against either party or
any other relief in excess of the limitations set forth herein. The judgment and award of the
arbitrator will be final and binding on each party. Judgment upon the award may be entered in
any court having jurisdiction, or application may be made to such court for judicial acceptance of
the award and/or an order of enforcement as the case may be. No action, regardless of form,
arising out of or in connection with this Agreement may be brought by Customer more than
twelve (12) months after the occurrence of the event giving rise to the cause of action, regardless
of whether the Customer was aware or ought reasonably to have been aware of the event.
16. GENERAL PROVISIONS.
(a) Assignment. Customer may not assign or transfer any of its rights or obligations under this
Agreement to any person without the express prior written consent of T2.
(b) Entire Agreement. Customer acknowledges that this Agreement (including the Sales Quote(s))
comprises the entire understanding and agreement between parties regarding the Services and
supersedes all prior written and oral agreements, purchase orders, representations,
understandings, promises, descriptions or other communications between the parties regarding
the Services. T2 may change, modify, add or remove portions of this Agreement at any time. T2
will notify Customer of any changes to this Agreement by posting notice of such changes on the T2
web site (www.digitalpaytech.com), by email, or by sending notice to Customer in accordance
with subsection 16(g), below. Customer’s continued use of the Services following notice of such
change means that Customer agrees to and accepts the Agreement as amended. If Customer does
not agree to any modification of this Agreement, Customer must immediately stop using the
Services and notify T2 that it is terminating this Agreement.
(c) Injunctive Relief. Each party acknowledges and agrees that a breach of the obligations under
Section 8 (“Ownership”) and Section 9 (“Confidentiality”) would cause irreparable harm and
significant injury to the affected party that would not be adequately compensated by an award of
money damages and, in addition to any other remedy available at law or in equity, and
notwithstanding the provisions of Section 15, the affected party will be entitled to seek and obtain
temporary and permanent injunctive relief from any court of competent jurisdiction to prevent
breaches hereunder, without showing or proving any actual or threatened damage
(d) Enurement. This Agreement shall be binding upon and enure to the benefit of T2, Customer and
their respective successors and permitted assigns.
(e) Force Majeure. Neither party shall be liable for delay or failure in performance (other than the
making of payments) resulting from acts beyond the control of such party, including, but not
limited to acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike
lockout, power failures, or the inability to use or the failure of any third party telecommunications
carrier or other services, which events or conditions prevent in whole or in part the performance
by such party of its obligations hereunder or which renders the performance of such obligations
so difficult or costly as to make performance commercially unreasonable. In such event, the party
affected shall be excused from performance on a day-to-day basis to the extent of the delay, and
the other party shall likewise be excused from the performance of its obligations on a day-to-day
basis to the extent such party's obligations related to the performance are so delayed.
(f) Independent Contractors. The parties are independent contractors. Nothing herein shall be
construed to create any legal partnership, joint venture, agency or any other relationship between
the parties.
(g) Notices. All communications and notices provided for herein shall be in writing and shall be
deemed to have been given when delivered personally to the recipient, by email, or by registered
or certified mail with return receipt requested, postage prepaid, and addressed to the applicable
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signatory at the address appearing on the Sales Quote(s) or at such other address as either party
may designate by notice to the other.
(h) No Waiver. No delay or failure to take any action or exercise any rights under this Agreement
shall constitute a waiver or consent unless expressly waived or consented to in writing. A waiver
of any event does not apply to any other or subsequent event, even if in relation to the same
subject-matter.
(i) Publicity. Except as expressly permitted in Section 9 (“Confidentiality”),neither party shall issue
any press release, or otherwise publicly identify the other as a customer or supplier, in any
marketing materials or otherwise, without the express prior authorization of the other party.
(j) Severability. If any provision contained in this Agreement is found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, it shall be deemed severed from
this Agreement and the remaining provisions of this Agreement shall not be in any way affected or
impaired thereby and shall continue in full force and effect.
TERMS AND CONDITIONS OF SALE
T2 SYSTEMS CANADA INC.
1.AGREEMENT. Whenever used herein, the term “Agreement” means these Terms and Conditions of Sale. The
term “goods” includes all goods or component parts sold and services, whether manufactured by T2 or another
supplier.
2.PAYMENTS. Unless otherwise agreed by T2 in writing, all amounts payable hereunder shall be due to T2 within
thirty (30) days of invoice date. Late payments shall bear interest at the rate of 1.5% per month (18% per
annum) or the highest rate permitted by law, whichever is less. All prices shown are net, and in addition to
the price of goods, Customer shall pay all expenses including taxes, insurance, freight, carriage, and
warehousing. All amounts shall be paid by the Customer to T2 without any setoff, deduction or recoupment.
3.TAXES AND PRICING. All prices quoted are valid for ninety (90) days and are exclusive of taxes. Customer shall
pay all taxes resulting from transactions, including, without limitation, occupation, property, excise, sales, or
use taxes, but excluding any taxes based on the income of T2. The purchase price shall be subject to increase
based on T2’s established price at the date of actual shipment if shipment is delayed thirty (30) days or more
beyond the scheduled shipment date due to a customer request.
4.SHIPMENT. (a) Scheduledshipment date is an estimateonly. Onor after the scheduledshipment date, Customer
shall accept shipment upon notification by T2; or, if Customer refuses shipment, then T2 is authorized at its
option to: (i) have the goodstransportedand warehoused at Customer’s expenseandrisk, whichshall constitute
shipment to Customer, in which event T2 may declare such goods delivered and all amounts owing upon
shipment, including the additional cost of such transportation and warehousing, will be due on the regular due
date; (ii) declare the monthly installment payments to commence thirty (30) days from the date of such
transportation and warehousing if any amounts are financed by T2; or, (iii) defer shipment. (b) T2 may make
partial shipments hereunder and may invoice for each such partial shipment separately. Each partial Shipment
will be deemed to be a separate sale but a delay in delivery of any partial shipment will not relieve Customer of
its obligation to accept delivery of any remaining shipments. Should Customer dispute the content of any
shipment or partial shipment, Customer will notify T2 in writing prior to the time of deemed acceptance
specified in paragraph 7 of the reasons for such dispute and provide to T2 all necessary documentation to
substantiate any alleged discrepancy.
5.TITLE/RISK OF LOSS/INSURANCE. Title in the goods shall remain with T2 until such goods have been paid for in
full. However, such goods shall be entirely at Customer’s risk from the time they are placed in the possession of
the carrier for shipment to Customer. Customer shall ensure that the goods are insured against “all risks” from
the time the goods are placed in the possession of the carrier for shipment to Customer, and continuously
thereafter until all amounts due to T2 are paid in full. Such insurance shall be for no less than the total amount
owing to T2 with loss first payable to T2. Customer shall indemnify T2 from all loss arising out of any claims,
suits and demands by reason of the retention of title to the goods by T2 while the goods are at theCustomer’s
risk.Customer authorizes T2 to filea copy of this Agreement as a financing statement.
6.SOFTWARE. Any software purchased hereunder will be licensed and not sold and remains the exclusive property
of T2 and its suppliers.
7.ACCEPTANCE OF GOODS. Customer shall inspect or test all goods upon receipt. Customer shall be deemed to
have affected final acceptance of the goods at the earliest of: (a) the fifteenth (15th) day after the date of
shipment, unless written notice is received by T2 before such day; or, (b) the date when the goods are used or
otherwise placedin commercial operation.
8.WARRANTY. (a) T2 warrants that title to the goods sold shall be free from any encumbrance, and that the goods
will conform to the description contained on T2’s invoice. (b) SUBJECT TO APPLICABLE LAW, T2 MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, EXCEPT AS PROVIDED IN
WRITING SIGNED BY AN AUTHORIZED OFFICER OF T2, AND SPECIFICALLY EXCLUDES ALL LEGAL OR IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
9.CUSTOMER’S REMEDY. T2’s sole responsibility and liability and Customer’s exclusive remedy under this
Agreement shall be limited to the repair or replacement of goods under T2’s standard warranty policy, or, at
T2’s option, return of the goods and refund of moneys paid thereon, without interest, provided Customer is
not in default hereunder. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL T2 BE LIABLE FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR LEGAL FEES. T2’s obligation hereunder is subject
to receipt of written notice of defect (containing detailed particulars of the alleged defect) fromCustomer prior
to thetime of deemed acceptancespecifiedin paragraph7.
10.RETURNS. Returned goods may be accepted within thirty (30) days of receipt by Customer only if T2 has given
prior written consent. A charge for handling, inspection, restocking and invoicing of up to 25% of the sale price
of the returned goods shall beassessedagainst theCustomer. All returns allowed must beshippedat Customer’s
expense and must be in excellent resale condition. Goods ordered according to custom specifications may not
be returned. T2 will repair or replace faulty individual component parts under warranty at no charge to
Customer, provided Customer returns faulty parts to T2 within thirty (30)days of Customer’s receipt of repaired
or replacement parts. Customer will be responsible for all repair or replacement costswherefaulty parts arenot
returned to T2 within theapplicable timeframe
11.DELAY OR NONPERFORMANCE.T2 shall not beliablefor failure or delay in performance hereunder dueinwhole
or in part to strikes, work stoppages, fires, acts of terrorism, accidents, wars, rebellions, civil commotion, public
strife, acts of any government whether legal or otherwise, acts of public enemies, force majeure, inability to
secure or delay in securingtransportation,inability to obtainor delaysin obtaining goods, materials,or qualified
labor, or any other causes beyond T2’s reasonable control, including without limitation delays or inability to
obtain product because of the actions of T2’s suppliers.
12.DEFAULT. Customer shall be in default under this Agreement if any of the following occurs: (a) Customer refuses
to accept shipment or fails to make any payment when due; (b) Customer dies, ceases to exist, becomes insolvent
or the subject of bankruptcy, insolvency, or liquidation proceedings; (c) Customer attempts to assign its rights and
obligations under this Agreement without the prior written consent of T2; (d) any representation, warranty,
condition, or certification of Customer or any information provided by Customer in or pursuant to this Agreement
is false in any material respect when made.
13.REMEDIES UPON DEFAULT. In the event of Customer’s default: (a) T2 may, at its option, (i) take immediate
possession of the goods and remove same without notice and without legal proceedings, and/or (ii) suspend
shipments to Customer; (b) Waiver by T2 of any breach or default shall not constitute a waiver of any subsequent
breach or default; (c) T2 shall be entitled to set off any amount owed by Customer or any of Customer’s related
entities against any amount payable by T2 in connection with any unpaid monies due to Customer; (d) T2 at its
discretion and option shall be entitled to retain all money paid by Customer on account as liquidated damages;
and, (e) T2 shall have all the rights and remedies provided by law in addition to all other rights as established
herein, which rights and remedies shall becumulative.
14.CANCELLATION. Upon receipt of written notice from Customer, T2 shall cancel any orders as instructed.
Customer shall be responsible for all costs associated with the cancellation.
15.ACCEPTANCE. This Agreement shall be binding on Customer by its purchase of goods from T2 and may only be
modified in writing, signed by T2, and each of the provisions of this Agreement shall remain in effect unless and
until explicitly contradicted by the aforesaid writing. If Customer submits an order form with contrary terms or
conditions, such order form shall be considered only as confirmation of the order and shall in no way amend,
prevail over, supplement, or supersede any of the provisions of this Agreement. Customer waives any defense
to the validity or enforceability of this Agreement arising from any electronic submission of it to Customer.
Customer acknowledges and agrees that it has the ability to access each URL referencedinany quote or other
document deliveredtoit by T2.
16.GENERAL. T2 may assign its rights and obligations under this Agreement. Customer may not assign its obligations
under this Agreement to any person without T2’s prior written consent, such consent not to be unreasonably
withheld. If Customer changes its corporate status, both Customer and its successors continue to be bound by
this Agreement, and T2 reserves its rights and remedies on default. No prior representation, affirmation, or
agreement shall be enforceable unless set forth herein.
17.DISPUTE RESOLUTION/GOVERNING LAW. The validity, construction and enforcement of this Agreement shall
be settled byarbitration in Vancouver, British Columbia under the rules of the American Arbitration Association
or the provisions of the Commercial Arbitration Act of B.C. The determination of the arbitrator(s) will be binding
and the cost of arbitration will be apportioned between the parties as thearbitrator(s) deem appropriate.
18.SEVERABILITY. If, in any jurisdiction, any provision of this Agreement or its application to any party or
circumstance is restricted, prohibited, or unenforceable, such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition, or unenforceability, without invalidating the
remaining provisions of this Agreement and without affecting the validity or enforceability of such provision
in any other jurisdiction or without affecting its application to other party or circumstances.
19.INTERNATIONAL. The United Nations Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement or any goods ordered or issued under this Agreement. Each party agrees to comply
with all applicable corruption of public officials and antibribery laws and regulations.
Rev Oct. 1, 18