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360 Visibility Terms and Conditions

360 VISIBILITY INC.

INTELLECTUAL PROPERTY LICENSE AGREEMENT

THIS INTELLECTUAL PROPERTY AGREEMENT (“License”) is entered into between you (the entity that has entered into this agreement) (“Licensee”) and 360 Visibility Inc. (“360 Visibility”). This License consists of the below terms and conditions regarding Licensee’s use of the Licensed Software (defined below).   This License is effective on the date you accept it or upon your first use of the Licensed Software linking to this License.

TERMS & CONDITIONS

Definitions

Confidential Information means any and all information provided by one party (“Discloser”) to the other party (“Recipient”) pursuant to this License and specifically designated by the Discloser as “confidential” (or which should be considered confidential by the parties) relating to the research, development, products, processes, trade secrets, business plans, customer, finances, and personnel data related to the business of Discloser. Confidential Information does not include any information (i) which has become publicly known through no wrongful act of the Recipient; (ii) which the Recipient developed independently, as evidenced by appropriate documentation; or (iii) which the Recipient becomes aware of from any third party not bound by non-disclosure obligations to the Discloser and with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information will not be deemed to be within the foregoing exceptions merely because it is contained within more general information otherwise subject to such exceptions.

Copyrights means any and all copyrighted and copyrightable materials, whether or not registered, published, or containing a copyright notice, in any and all media, and further including but not limited to, any and all moral rights and corresponding rights under international agreements and conventions, Derivatives, and any and all applications for registrations, registrations, and/or renewals of any of the foregoing.

Derivative means an adaptation, enhancement, improvement, modification, revision, derivation, or translation of or to the functionality that exists in the Intellectual Property as of the date of this License.

Intellectual Property means any and all (a) Confidential Information; (b) Copyrights; (c) Patents; (d) Derivatives; (e) Technical Information; (f) Technology; and (g) any and all other intellectual property or proprietary rights relating to or arising from any or all of the foregoing.

Licensed Software means the 360 VISIBILITY developed software, in object and/or source code format, as the parties may agree, along with any documentation provided by 360 Visibility pursuant to this License. The definition of Licensed Software specifically includes all Confidential Information and Intellectual Property in or relating or referring to the Licensed Software, as well as any and all Derivatives of the Licensed Software, whether created by 360 Visibility or Licensee or both of them.

Patents means any and all patents, patentable materials, letters patent and utility models, including reissues, divisional, continuations, continuations in part, renewals, and extensions of any of the foregoing and applications therefor (and patents which may issue on such applications) in Canada & foreign nations.

Technical Information: means data and other technical information including, but not limited to: (a) engineering documentation, such as development records, production software information, algorithms, flow charts, design information, drawings, specifications and data sheets; (b) manufacturing documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards documentation, tooling and fixture drawings, process specifications and instructions; (c) quality and reliability documentation such as quality plans, specifications, instructions, procedures, test plans, test records and regulatory documentation; and (d) user manuals, on-line help, training materials, installation instructions, release notes, problem reports and resolutions, and marketing studies, which may be disclosed by the party in possession thereof without violating obligations to a third Party, and further including any and all Intellectual Property therein, or relating or referring thereto.

Technology means know-how, show-how, procedures, systems, processes, trade secrets, inventions (whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and development data; manufacturing, development and production techniques; and all other proprietary information relating thereto, and further including any and all Intellectual Property therein, or relating or referring thereto.

Trial Term means 30 days.

2.0          Software License

2.1          License Grant: 360 Visibility grants to Licensee a non-exclusive, non-sub-licensable, non-transferable, trial license to use the Licensed Software, in object and/or source code format, as the parties may agree, solely for the internal business purpose of Licensee. This License is specifically limited to the Trial Term. The License granted is on a temporary basis for use during the Trial Term. Licensee may not transfer the License granted under this agreement.

2.2          Limitations on Use by Licensee.

  1. Licensee expressly acknowledges and agrees that the Licensed Software is wholly proprietary to and owned by 360 Visibility. 360 Visibility retains all right, title, and interest in the Licensed Software, and Licensee has no rights to the Licensed Software other than as expressly set forth in this License.
  1. Other than as expressly permitted by this License, Licensee agrees not to use, publish, reproduce, sublicense, distribute, dispose of, create Derivatives of, reverse engineer, reverse compile, or disassemble the Licensed Software, use the Licensed Software for any commercial purpose, for software hosting services, or for operating as a service bureau.
  1. Licensee agrees that it will not directly or indirectly export or transmit the Licensed Software, in whole or in part, or any technical data relating thereto, to any country to which such export or transmission is restricted by any applicable Canadian or international regulation or statute, without prior written consent of 360 Visibility.
  1. Except for the limited licenses expressly granted herein, 360 Visibility will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to all of the Licensed Software, including all modifications or enhancements to any of the Licensed Software, except as otherwise provided herein. Licensee shall take any action reasonably requested by 360 Visibility to evidence, maintain, enforce or defend 360 Visibility’s Intellectual Property Rights. Licensee shall not take any action to jeopardize, encumber, limit or interfere in any manner with 360 Visibility’s, or their respective licensors’, ownership of and rights with respect to any of the Licensed Software. All rights not expressly licensed to Licensee hereunder are hereby expressly reserved by 360 Visibility. Notwithstanding the foregoing, Licensee retains all ownership rights to its data.

2.3          Audit Right. During normal business hours and at any time during which the Licensed Software is being utilized, 360 Visibility or its authorized representative shall have the right upon advance notice of three (3) days or more to audit and inspect Licensee’s utilization of such, for the sole purpose of verifying compliance with the terms of this License. All audits will be conducted in a manner that does not interfere with Licensee’s business activities. 360 Visibility shall be responsible for all costs and expenses incurred by it or its representatives in the course of such audit or inspection. If verification or self-audit reveals any unlicensed use, you must promptly order sufficient Licenses to cover your past and present use. If material unlicensed use is found, you must reimburse us for the costs we incurred in verification and acquire the necessary additional Licenses at retail license cost within 30 days.

3.0          Confidential Information

3.1          Recipient agrees to use commercially reasonable care, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information, to prevent the unauthorized use, disclosure, publication or dissemination of the Confidential Information. Recipient will provide Discloser’s Confidential Information to its employees and contractors only on a “need to know” basis, subject to the terms of this License, provided that Recipient’s employees and contractors have entered into a written Confidential and Non-Disclosure Agreement with Recipient substantially in accordance with these terms and conditions.

3.2          Recipient agrees not to use Confidential Information for its own or any third party benefit without the prior written approval of Discloser. Notwithstanding the foregoing, Recipient may disclose such Confidential Information if and to the extent required by any judicial or governmental request, requirement or order, provided that Recipient agrees to take reasonable steps to give Discloser sufficient prior written notice in order to enable Discloser to contest such request, requirement or order. Recipient will return all tangible Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon Discloser’s written request.

3.3          All Confidential Information, including any and all Derivatives thereof created by Discloser or Recipient, will be and remain the property of Discloser and no license or other rights to such Confidential Information is granted or implied. Discloser warrants only that it has the right to disclose the Confidential Information to Recipient. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.

3.4          The terms and conditions of this License will be deemed Confidential Information of both parties.

3.5          The obligation of Recipient to maintain the confidentiality of Confidential Information will survive the expiration or termination of this License for as long as the information in issue is within the definition of Confidential Information or otherwise agreed to in writing by Discloser.

4.0          Notice of Applicable Law; Exemption under Public Records Disclosure Laws

4.1          Licensee is solely responsible for advising 360 Visibility of any applicable public records disclosure or other statute, law, rule, regulation or order that does or may apply to this License, its performance by 360 Visibility or Licensee, or any product or service provided or to be provided by 360 Visibility pursuant to this License.

4.2          In the event Licensee is a government entity subject to state or federal public records disclosure law, it expressly acknowledges and agrees that all 360 Visibility Confidential Information and Intellectual Property constitutes and/or will constitute “trade secrets” as defined by the Uniform Trade Secrets Act as enacted, and/or pursuant to other applicable state or Federal law. 360 Visibility expressly claims exemption from disclosure of this License under any public records law that is or may be applicable to this License. Licensee agrees that prior to any statutorily mandatory disclosure of such 360 Visibility Confidential Information or Intellectual Property, it will promptly notify 360 Visibility of any request for disclosure so that 360 Visibility may take such action or actions it deems necessary to prevent such disclosure.

4.3          Licensee agrees to defend and indemnify 360 Visibility, and pay all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by 360 Visibility as a result of Licensee’s failure to timely provide the information required pursuant to section 5.1 above. Licensee further agrees to hold 360 Visibility harmless from, and that Licensee is solely liable for, any and all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by Licensee as a result of Licensee’s failure to timely provide 360 Visibility with the information required pursuant to section 5.1 above.

5.0          Disclaimer and Limited Liability

360 VISIBILITY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 360 VISIBILITY’S TOTAL LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THIS LICENSE EXCEED TEN DOLLARS (US$10.00).

6.0          Warranties and Representations

6.1          360 VISIBILITY LICENSES THE LICENSED SOFTWARE “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITAL OR NON-INFRINGEMENTREGARDING THE LICENSED SOFTWARE, OR ITS USE AND OPERATION.

6.2          360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OR USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

6.3          ALL THIRD-PARTY SOFTWARE INCORPORATED IN THE LICENSED SOFTWARE IS PROVIDED “AS IS”. 360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ITS USE AND OPERATION.

7.0          Indemnification

7.1          360 Visibility agrees to defend, indemnify and hold harmless Licensee against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against Licensee arising from any allegation that use of any or all of the Licensed Software, in the form and manner provided by 360 Visibility to Licensee and not (a) modified, altered, or otherwise changed by a person or entity other than 360 Visibility , or (b) a Derivative of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, infringes or otherwise violates the Intellectual Property of a third party.

7.2          360 Visibility will have no liability or obligation of indemnification for any allegation of Intellectual Property infringement where such claim or suit arises from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use or (b) any modifications, alterations, changes or Derivatives of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility. 360 Visibility will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and Licensee will provide 360 Visibility with its reasonable assistance in the defense of such claim, at the expense of 360 Visibility, provided that in no event will 360 Visibility enter into any settlement with any such third party that would bind Licensee to such third party in any manner without the express prior written consent of Licensee.

7.3          In the event that any or all of the Licensed Software is determined to infringe the Intellectual Property of a third party, by either judicial determination or agreement between 360 Visibility  and such third party, 360 Visibility will have the right, as Licensee’s sole remedy against 360 Visibility , to elect to take any of the following actions, at 360 Visibility ‘s sole discretion: (i) modify the Licensed Software to be non-infringing, (ii) obtain a license from such third party to enable Licensee to continue to use the Licensed Software, or (iii) terminate this License.

7.4          Licensee agrees to defend, indemnify and hold harmless 360 Visibility against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against 360 Visibility arising from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use, (b) any Derivatives of, or other modifications, alterations, or other changes to, the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, (c) any unauthorized use of the Licensed Software by Licensee, and/or (d) any breach of this License by Licensee. Licensee will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and 360 Visibility will provide Licensee with its reasonable assistance in the defense of such claim, at the expense of Licensee, provided that in no event will Licensee enter into any settlement with any such third party that involves the Licensed Software in any way and/or would bind Licensee to such third party in any manner, without the express prior written consent of 360 Visibility.

7.5          Notification. In the event one party seeks indemnification under this Section, it will immediately notify the other party in writing of any claim or proceeding brought against it for which it seeks indemnification hereunder.

7.6          Expiration. The provisions of this Section will survive the expiration or other termination of this License.

8.0          Term and Termination

8.1          This Licensee will commence on the date Licensee accepts it or upon Licensee’s first use of the Licensed Software and continue for the duration of the Trial Term, unless otherwise terminated pursuant to this section 8.0.

8.2          Without prejudice to any rights which it may have under this License or in law, equity or otherwise:   i) Licensee may cancel the License at any time during the Trial Term. A cancellation will be effective at the conclusion of the Trial Term.  ii) 360 Visibility has the right to terminate this License immediately if Licensee is in breach of any other term of this License.

8.3          On termination of this License for any reason or at the expiration of the Trial Term, the licenses granted to Licensee will immediately terminate and revert in full to 360 Visibility. Licensee will immediately stop any further use of the Licensed Software, uninstall it and return the Licensed Software (including all third party software provided by 360 Visibility), copies, reproductions, Derivatives (including all notes, documentation, and other work product), documentation, and other materials relating to the Licensed Software to 360 Visibility, and provide 360 Visibility  with a notarized statement of compliance with the requirements of this Section.

9.0         General

9.1         Independent Contractor. This License does not constitute and will not be construed as constituting a partnership or joint venture between 360 Visibility and Licensee. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.

9.2         Notices. All notices given pursuant to this License may be sent by certified mail, confirmed email or facsimile, hand-delivery, or any other confirmed method of delivery, to the signatories of this License, at their respective business addresses.

9.3         Assignment. Licensee may not assign any of its rights or obligations under this License without the prior written approval of 360 Visibility, which may be given or withheld at the discretion of 360 Visibility. Any assignment made in violation of this Section will be void, unenforceable, and deemed a breach of this License.

9.4         Waiver, Amendment or Modification. Any waiver, amendment or modification of this License will be effective only if made in writing and signed by the parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof in the future.

9.5         Compliance with Laws. Licensee will comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in its use of the Licensed Software, and in performing its duties, responsibilities, and obligations pursuant to this License.

9.6         Law and Venue. This License will be expressly and solely interpreted and construed in accordance with and governed by the laws of the Province of Ontario.

9.7         Entire Agreement. This License constitutes the entire agreement between the parties and supersedes all previous agreements or representations, oral or written, relating to this License.

9.8         Cost of Enforcement. Should either party institute legal action concerning this License, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.

Microsoft Azure Terms of Service

The 360 Visibility Online Service is provided in connection with Microsoft Windows Azure Services (the “Service Provider”) and its licensors including, where applicable, Microsoft. In order to receive the services, you must agree to the following terms and condition prior to activation of your account.

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF SERVICE PROVIDER’S MICROSOFT AZURE SERVICES (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

  1. General (i) This Agreement, including any and all documents incorporated herein by reference, constitutes the entire Agreement between the Customer and 360 Visibility relating to provision of Services. (ii) Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement. (iii) 360 Visibility’s failure to insist on or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision, term, condition or right of 360 Visibility contained in this Agreement. (iv) If any of the terms, conditions or provisions of this Agreement is determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, the same shall be severable from the rest of this Agreement and such determination shall not affect the remaining provisions contained in this Agreement. (v) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts of such province shall have exclusive jurisdiction to adjudicate any claim or dispute relating to this Agreement. (vi) Customer may not make any re-sale of any of the Services provided hereunder. (vii) 360 Visibility shall not be liable for any delay or failure in performance of Services due to war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, acts of God, supplier or vendor failure, or other occurrence beyond 360’s direct control.
  2. 360 Visibility (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the intellectual property rights owned by 360 Visibility.
  3. The Customer shall indemnify and hold 360 Visibility and the Service Provider, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim arising from the breach by you or your users of this Agreement, provided in any such case that 360 Visibility and the Service Provider (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release 360 Visibility and the Service Provider of all liability and such settlement does not affect 360 Visibility and the Service Provider’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
  4. SERVICE PROVIDER AND 360 VISIBILITY AND LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. SERVICE PROVIDER AND 360 VISIBILITY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY 360 VISIBILITY AND THE SERVICE PROVIDER AND ITS LICENSORS.
  5. IN NO EVENT SHALL 360 VISIBILITY OR THE SERVICE PROVIDER’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  6. 360 Visibility and the Service Provider reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, by providing notice by means of an email message to your administrator e-mail address on record in 360 Visibility’s Customer Account Contact Information, or by written communication sent by first class mail or pre-paid post to your address on record in 360 Visibility’s Customer Account Contact Information. Continued use of the Service after any such changes shall constitute your consent to such changes.
  7. This Agreement shall be governed by Ontario law and applicable Canadian federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the provincial courts located in Toronto, Ontario. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between the Customer and 360 Visibility or the Service Provider as a result of this agreement or use of the Service. The failure of 360 Visibility and the Service Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by 360 Visibility in writing. This Agreement comprises the entire agreement between the Customer and 360 Visibility and the Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

360 Visibility Online Subscription Agreement

ACCEPTANCE OF TERMS OF SERVICE

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF 360 VISIBILITY ONLINE SUBSCRIPTION SERVICES (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

The Customer agrees, without limitation or qualification, that their users will comply with 360 Visibility Online Subscription Services. The customer expressly acknowledges, and represents and warrants that it shall be fully responsible and liable for any and all violations by their End Users of this agreement, including but not limited to any unauthorized use or exploitation by End Users of the software provided by vendors. Failure to comply with the Terms of Service can lead to suspension, termination or revision to the services.

Fees & Payment

Fees The Customer shall pay 360 Visibility the fees listed with the Customers accepted Order Form. Fees for additional services added in the middle of a monthly period are prorated. We reserve the right to change prices for any Renewal Term with at least (60) days’ notice to you prior to the expiration of the immediately preceding Initial Term or Renewal Term, as applicable. All fees are payable in the currency listed within the Customers Order Form.

Payment Process All fees hereunder shall be paid by pre-authorized debit (PAD). The Customer shall complete the pre-authorized debit form and hereby authorizes 360 Visibility Inc. to electronically charge Customer’s account for payment for Services. Customer authorizes 360 Visibility to (i) make such charges as necessary for payment of current and outstanding bills and invoices; and (ii) make additional attempts to charge should the initial attempt fail.

Invoicing & Payment 360 Visibility Inc. shall invoice the Customer monthly in advance based upon estimated service usage and any optional add-ons selected by the Customer.

Overdue Payments You may dispute any fee or charge in good faith. However, if a payment is later determined to have been due, it shall be subject to a late charge equal to 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the due date until paid. In addition, you shall pay our reasonable legal fees for collecting any amounts due to 360 Visibility under this Agreement.

Suspension of Service If your account has charges which are (30) days or more overdue, we reserve the right to suspend the Service until such amounts are paid in full. We shall not charge you for suspended Services, but you are liable for all accrued liabilities and obligations. We reserve the right to impose a reconnection fee if your access to the Service is suspended and you thereafter request access to the Service.

Term and Termination

Term of Agreement This Agreement commences on the Effective Date and shall remain in effect for (3) year (“Initial Term”). This Agreement shall automatically renew for additional (1) year terms (each a ‘Renewal Term”); provided the Agreement shall not automatically renew if the Customer provide us, or 360 Visibility provides the Customer, notice of non-renewal at least (60) days prior to the end of the Initial Term or any Renewal Terms. Other than as expressly set forth herein, the Customer may not cancel the Service without 360 Visibility written consent.

Termination for Cause Notwithstanding, a party may terminate this Agreement: (a) upon 30 days’ written notice of a material breach by the other party if the breach remains uncured at the expiration of such period; and (b) if the other party becomes insolvent or the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Termination for Convenience Notwithstanding, you may terminate this Agreement at any time upon (30) days’ written notice, provided that you pay 360 Visibility an amount equal to lesser of (a) six times the Minimum Monthly Fee set forth in the Order Form, or (b) the Minimum Monthly Fee for each of the remaining months in the Initial Term or Renewal Term, as applicable.

Return of Customer Data Within (30) days following the Customers written request and payment of all amounts the Customer owe to 360 Visibility, so long as the Customer is not in breach of this Agreement, we shall provide the Customer, to the extent technically feasible without undue cost or expense, a file, in a standard format, containing Customer Data in our possession or under our control, in such form as it exists on the date of termination or expiration of this Agreement. Notwithstanding anything in this Agreement or otherwise, we shall have no obligation to maintain or provide any Customer Data more than (30) days after termination or expiration of this Agreement for any reason. Thereafter, unless legally prohibited, we shall delete all Customer Data in our possession or under our control. Furthermore, we reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data.

360 Visibility Responsibilities The Customer may designate up to (2) named “Super Users,” who shall receive unlimited online standard support including access to: (i) Online Help, Knowledge Base and Documentation, (ii) 360 Customer Care Portal and review of issues and status, (iii) e-mail issue submission, (iv) Recorded video education and training materials (v) access to 360 User Group Forums. Super Users will also receive in addition up to (2) hours per month of telephone support during standard business hours. We shall use commercially reasonable efforts to make the Service generally available 99.7% of each calendar month, except for: (a) planned downtime with at least 48 hours’ advance notice and scheduled to the extent reasonably practicable during the weekend hours from 9:00 p.m. EST Friday to 6:00 a.m. EST Monday; and (b) downtime caused by circumstances beyond our reasonable control, including acts of nature, acts of government, flood, fire, civil unrest, war, terrorism, strike or other labor problem not involving our employees, telecommunications or computer failures or delays, and network intrusions or denial of service attacks. We shall use commercially reasonable efforts to maintain the security and integrity of the Service.

The Customer Responsibilities In addition to your other obligations, you are solely responsible for: (a) determining whether the Service shall meet your needs; (b) issuing appropriate secure passwords for Users or asking us to do so on your behalf; (c) selecting and training appropriate individuals to use the Service; (d) all activities that occur under User accounts; (e) using commercially reasonable efforts to prevent unauthorized access to or use of the Service or any Content in whole or in part; (f) notifying us promptly of any actual or suspected unauthorized access/use; (g) abiding by all applicable local, state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data; (h) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (i) your “Super users” and Users completing all required training; (j) complying with our 360 Customer Care policies, as published from time-to-time, to obtain support and other services under this Agreement; (k) not impersonating another User or providing false identity information for any purpose; (l) providing, installing, and maintaining computer equipment and communications tools and access as we specify from time to time; and (m) establishing adequate backup plans if there is any Service or other malfunction. (n) Customer assumes sole responsibility for the use of all productions and services and any information entered, used and stored thereon, including, without limitation, protection of data from viruses, or any unintended modification, destruction or disclosure, and for the accuracy and integrity of the results from the use of the licensed Microsoft products. 360 Visibility Inc. assumes no responsibility for Customer’s negligence or failure to protect data from viruses, or any unintended modification, destruction, or disclosure.

Use of Customer Name

360 Visibility Inc. may use the name of the Customer and refer to the performance of 360 Visibility online services without disclosing any confidential information regarding the Customer, in marketing and publicity materials, as an indication of its experience.

Support Services

  1. Subscription Support Scope - 360 will provide break/fix web support for cloud subscription services purchased via our customer portal
  2. Microsoft Online Services Support
    1. All support for Microsoft Online Services are subject to Microsoft’s terms and conditions and service level agreements
    2. 360 may liaise with Microsoft Support on behalf of the customer to ensure prompt resolution to service issues using reasonable efforts.  At times, the Customer may be requested to work with Microsoft in providing support details including but not limited to:
      1. Diagnostic Tools/Logging data
      2. Remote Access via Support Session as deemed necessary
      3. Screenshots
  3. 360 Support Days/Hours –between the hours of 9 AM and 5 PM EST, Monday through Friday, excluding weekends and Ontario statutory holidays
  4. Standard After-hours Support - Available for critical outages only.  360 will escalate emergency support requests to Microsoft 24x7 at no charge to the customer for issues that prevent you from accessing or using your services or data, severely impact deadlines or profitability, or affect multiple users or services.  The customer will be marked as the primary contact and will work with Microsoft support representatives directly.
  5. Remote Support – 360 will, upon request by Customer and subject to Customer’s security requirements, access Customer’s system via secure internet technologies, to diagnose the source of Customer identified problems with the Software and assist in the resolution thereof
  6. Submission of Service Requests – Customer may submit service requests electronically via our web based customer care portal.  The contact information is as follows:
    1. Support Website – 360 Visibility Support
    2. Azure/Office 365/Licensing/Service Availability Support –
    3. Dynamics Business Central Extension Support -

      *For email submission, you must first register your email address with our support website
  7. 365 Monogram – 360 will provide support to ensure email signatures:
    1. Are updated at least once every 24 hours
    2. Contain accurate information
    3. Are deployed to Exchange Online for Outlook on the Web
    4. Are properly uploaded to an online storage account for use by end-users

Excluded Support Services

  1. Root cause analysis of online service disruptions
  2. Deployment of 365 Monogram email signatures to end user desktops/devices
  3. 360 will not guarantee Microsoft support response times, renumeration
  4. Microsoft online service updates, or service availability for Microsoft related services
  5. Support beyond 2 hours of effort per incident. 
  6. Application or service customizations, development, and consultative services
  7. Dynamics 365 Application Support
  8. All non-critical after hours support

 *Additional hours are available upon request

Service Levels

  1. 360 will assign a reported incident with a unique support number.  If 360 determines that the reported incident is a fault or error with the Products and is within the scope of  it will:
    1. Categorize the incident in accordance with the incident categories detailed below; and
    2. Deliver Solutions in accordance with the response times detailed below.
  2. “Solutions” are fixes or workarounds that eliminate the incident or move the incident into a lower incident category, which are ordinarily provided remotely (but may be provided onsite), and which may (or may not) include Dynamics making available to the Customer new service packs in accordance with the provisions of the license and maintenance agreement agreed between the parties.
  3. When a Solution moves an incident into a lower incident category, the response times of that lower incident category shall apply from the moment that the incident is re-categorized.
  4. Incident categories and responses:
    1. System Down (Urgent)
      1. 360 will use reasonable efforts to start work within 1 hour. 
      2. 360 will use reasonable efforts to provide a Solution within 8 hours of starting work.
    2. Business Critical 
      1. 360 will use reasonable efforts to start work within 2 hours. 
      2. 360 will use reasonable efforts to provide a Solution within 16 hours of starting work.
    3. Normal  
      1. 360 will use reasonable efforts to start work within 8 hours
      2. 360 will use reasonable efforts to provide a Solution within 40 hours of starting work.
    4. Low      
      1. 360 will use reasonable efforts to start work within 24 hours. 
      2. 360 will use reasonable efforts to provide a Solution within 80 hours of starting work.