The Master Equipment & Service Subscription Agreement

THIS MASTER EQUIPMENT & SERVICE SUBSCRIPTION AGREEMENT shall become effective
 
BETWEEN:
 
PEYTEC INC., a corporation incorporated under the laws of the Province of Ontario (“Peytec”) and operating its business at:
Unit 200 – 661 University Ave., Toronto, ON, Canada, M5G1M1
- and -
UNDERSIGNED CUSTOMER, (the “Customer”) carrying on business at:
As per your account contact information declared at Peytec’s covid19ag.com website

 

BY CLICKING THE "ACCEPT" BUTTON AND/OR BY ACCESSING THE SOFTWARE OR EQUIPMENT, CUSTOMER (AS IDENTIFIED ON AN APPLICABLE ORDER) HEREBY AGREES TO BE BOUND BY THIS AGREEMENT.  YOU AGREE THAT YOU ARE AN EMPLOYEE, OFFICER OR AGENT OF CUSTOMER AND ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER IDENTIFIED IN AN APPLICABLE ORDER.  YOU HEREBY AGREE THAT YOU ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

WHEREAS Peytec is the provider of certain services, including, but not limited to, data retrieval and analytics services or other services that the Customer subscribes for or receives from or through Peytec (the “Services”) and devices, equipment and hardware used to access the Services or used in conjunction with the Services (the “Equipment”);

AND WHEREAS the Customer wishes to engage Peytec to provide the Services and Equipment;

NOW THEREFORE for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the Parties, the parties agree as follows:

ARTICLE 1: 

PROVISION OF SERVICES AND EQUIPMENT

1.1            Subject to the terms and conditions contained herein, the Service Provider hereby agrees to provide the Services and Equipment to the Customer.

ARTICLE 2

CHARGES; ACCOUNT AND PAYMENT INFORMATION

2.1            Charges will commence on the date of the initial activation of the Services or the Equipment, whichever is earlier (the “Activation Date”).

2.2            Unless otherwise specified, Peytec will bill for Services and Equipment on a monthly basis. Billing for usage-based services is in arrears, and billing for flat-rate services is in advance. Peytec may bill the Customer for a charge up to twelve months from the date the charge was incurred.

2.3            The Customer is liable for all charges to its account, regardless of who incurred them. The Customer is solely responsible for the security of any authorization codes relating to its account and the security of any equipment located at the Customer’s premises. Charges to accounts are due and payable in full, from the date of the applicable invoice or statement. Peytec invoices include, and the Customer agrees to pay, in addition to the charges for Services, any applicable taxes, any other charges imposed by law, interest on prior overdue invoices and charges for returned cheques.

2.4            Peytec reserves the right to recognize only certain individuals authorized by the Customer as the only person(s) authorized to modify, terminate or accept changes to such Customer’s account and Services.

2.5            If payment of an amount due is not received by Peytec by the required payment date specified on the Customer’s invoice, it will be considered a delinquent amount and will be subject to a late payment charge of 2.0% per month, calculated and compounded monthly on the delinquent amount (26.82% per year) from the date of the first invoice on which the delinquent amount appears until the date Peytec receive such amount in full.

2.6            If Peytec is required to initiate legal proceedings to collect any amounts due by the Customer to Peytec, the Customer will be liable for all reasonable costs incurred by Peytec in such proceedings, including legal fees and expenses, collection agency fees or payments and court costs in addition to all amounts due for Services.

2.7             Administrative charges may be levied for administration or account processing activities in connection with the Customer’s account, including as a result of the following:

(a)             collection efforts due to non-payment or having a balance over the Customer’s credit limit, including unbilled usage and pending charges, fees and adjustments;

(b)             returned or rejected payments;

(c)             change of any identifier (e.g., phone number); and

(d)             the restoration of Services.

A list of such charges is available on request, or at peytec.com, and is incorporated into this Agreement by reference.

2.8            Any questions or discrepancies regarding charges must be reported to Peytec within thirty (30) days of the date of the applicable invoice or other statement. Failure to notify Peytec within this time period will constitute acceptance of such charges.

2.9            If the Customer subscribes for Services for a committed period of time (the “Commitment Period”), the Customer will be subject to an early cancellation fee (“ECF”) for each Service. The ECF will be assessed at a rate of 90% of the original outstanding fee per terminated Service for every month remaining in the Commitment Period. Any decrease in the applicable Commitment Period may be subject to a fee, to be quoted upon the Customer’s request for such decrease.

2.10         Changes to the Customer’s account (e.g., price plan, features, or identifiers) will not take effect until after the next billing date.

2.11         When the Commitment Period has expired, or where Services are purchased without a Commitment Period, Peytec may adjust the charges for Services upon thirty (30) days prior notice to the Customer.

2.12        Interaction data overage occurs when, for a given billing cycle, the Customer exceeds their interaction data plan’s monthly or yearly allowance. The monthly or yearly allowance is indicated on the Subscription Package invoices that the Customer has purchased. In the case where a Customer exceeds their monthly or yearly data interaction allowance, extra charges will apply and is billed in the next billing cycle in addition to processing fees as follow:

Interaction Overage Tiers

Fees (USD)

1-1K

$100.00

1K-5K

$500.00

5K-10K

$1,000.00

For every additional 10K

$1,000.00

 

ARTICLE 3

DEPOSIT; CREDIT REQUIREMENTS

3.1            At the time of the Customer’s application for Services, the Customer may be required to complete and sign an application to establish financial credibility (the “Credit Application”), and Peytec will assign a credit limit and payment terms, in its sole discretion. The Customer hereby authorizes Peytec to obtain information about its credit history at any time during the provision of Services. Peytec may require a deposit or impose other payment or credit requirements (e.g., interim payments; mandatory pre-payments) on such terms as determined in Peytec’s reasonable discretion. If the Services are terminated, Peytec will apply any deposits or other payments against the outstanding final balance on the Customer’s account.

3.2            Upon notice to the Customer, Peytec may adjust the credit limit on the Customer’s account, acting reasonably. Services may be suspended upon notice to the Customer, to any and all of the Customer’s accounts, if the account balance, including unbilled usage and pending charges, fees and adjustments, exceeds this credit limit. Recurring service charges continue to apply during any suspension of Services.

ARTICLE 4

EQUIPMENT AND SOFTWARE

4.1            All Equipment installed or provided by Peytec remains property of Peytec, and the Customer agrees that it shall:

(a)             take reasonable care with the Equipment;

(b)             not sell, lease, mortgage, transfer, assign or encumber the Equipment;

(c)             not tamper with, open, alternative, or modify the Equipment or Software without prior written consent of Peytec

(d)             not re-locate the Equipment without Peytec’s knowledge and consent; and

(e)             return the Equipment as directed upon termination of the Services to which the Equipment related.

4.2            If such Equipment is lost, stolen or damaged or sold, leased, mortgaged, transferred, assigned, encumbered or not returned, the Customer shall pay Peytec the undiscounted retail value of such Equipment, together with any costs incurred by Peytec in seeking possession of such Equipment.

4.3            The Customer authorizes Peytec and its representatives to enter or have access to its premises as necessary at mutually agreed upon times to install, maintain, inspect, repair or remove the Equipment or to maintain, investigate, protect, modify or improve the operation of the Services.

4.4            Equipment and related software may have to meet certain minimum requirements and be maintained in certain ways and in certain locations in order to access the Services or for the proper operation of the Services. Such requirements may be changed from time to time at Peytec’s sole discretion. Unless otherwise specified by Peytec, the Customer is solely responsible for updating or maintaining the Equipment and software as necessary to meet such requirements, and the Customer may not be entitled to customer support from Peytec if it fails to do so.

4.5            The Customer is solely responsible for taking necessary precautions to protect its equipment, software, files and data against any risks inherent in the use of the Internet. Peytec is not responsible for any claims, losses, actions, damages, suits or proceedings relating to the Customer’s failure to take appropriate security measures when using the Services.

4.6            The installation, use, inspection, maintenance, repair and removal of the Equipment may result in service outages or potential damage to the Customer’s computer(s) or other equipment. The Customer is solely responsible for backing-up  computer files by copying them to another storage medium prior to installation of the Equipment.

4.7            The Customer must immediately notify Peytec if the Equipment is lost, stolen or destroyed. If the Customer wishes to terminate the Services, the Customer’s obligations under this Agreement, including the ECF, will continue to apply.

4.8            The Customer acknowledges that the Services may require additional equipment, software and/or services and the Customer acknowledges and agrees that it is the Customer’s sole responsibility to purchase, install, configure, secure and maintain, at its cost, (i) all such required equipment, software and services, including interconnections and network configurations (the “Customer’s System”) to enable the Customer to purchase and receive the Services; and (ii) any additional equipment, software, services, enhancements or upgrades that become available for use with the Services. Peytec will have no responsibility hereunder to correct or fix any problems or errors relating to or caused by the installation, configuration, security or modification of the Customer’s System or any of its components. Peytec shall not be responsible for charges incurred by the Customer by a third party’s illegal or fraudulent usage of the Services. The Customer is solely responsible for securing the Customer’s System to mitigate such charges.

4.9            Any software and accompanying documentation provided by Peytec to the Customer remains Peytec’s property or that of its licensors. The Customer agrees that it will take reasonable steps to protect such software or documentation from theft, loss or damage. The Customer must review and agree to the applicable end user license agreement before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all end user license agreements will terminate upon termination of this Agreement.

4.10         The Customer acknowledges and agrees that it may be necessary for Peytec to temporarily suspend Services for technical or maintenance reasons. Such a suspension of service will not be considered a service interruption.

4.11         The Customer acknowledges and agrees that the Services or access to the Services, may not function correctly, or at all, in the following circumstances:

(a)             if the Equipment fails, or is not configured correctly;

(b)             in the event of a network outage or extended power failure;

(c)             if the Equipment is tampered with; or

(d)             following suspension or termination of Services.

ARTICLE 5

PRIVACY POLICY

5.1            Peytec’s Privacy Policy, available at https://www.covid19tag.com/pages/privacy-policy is incorporate into this Agreement by reference.  

ARTICLE 6

ACCEPTABLE USE

6.1            Peytec’s Acceptable Use Policy, available at https://www.covid19tag.com/pages/acceptable-use-policy, is incorporated into this Agreement by reference.

6.2            Unless otherwise agreed upon in writing, the Customer shall not resell, transfer or share any of the Services.

ARTICLE 7

DISCLAIMER

7.1            Peytec’s disclaimer, available at https://www.covid19tag.com/pages/disclaimer, is incorporated into this Agreement by reference.

ARTICLE 8

NO WARRANTIES; LIMITATIONS ON LIABILITY

8.1            THE SERVICES, EQUIPMENT AND ANY SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. WITHOUT LIMITATION, PEYTEC DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE INTERNET, CONNECTION TO THE INTERNET, EQUIPMENT, THE SERVICES, OR ANY SOFTWARE PROVIDED BY PEYTEC OR ITS LICENSORS. THE CUSTOMER AGREES TO BEAR THE ENTIRE RISK RELATED TO USE OF THE SERVICES, EQUIPMENT AND ANY SOFTWARE AND THE AVAILABILITY, ACCURACY, RELIABILITY, TIMELINESS, QUALITY AND PERFORMANCE OF THE SERVICES, EQUIPMENT, AND ANY SOFTWARE AND THE RESULTS OBTAINED FROM USE OF THE SERVICES, EQUIPMENT AND ANY SOFTWARE. PEYTEC DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO THE CUSTOMER (WHETHER BY E-MAIL OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. PEYTEC DOES NOT MAKE EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS (INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICES, EQUIPMENT, ANY SOFTWARE OR ANY MERCHANDISE, INFORMATION OR SERVICE AVAILABLE ON THE INTERNET OR THROUGH THE SERVICES. ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ARE EXCLUDED TO THE EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PEYTEC OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8.2            Peytec’s liability to the Customer under or in connection with this Agreement, if any, shall not exceed the total monthly charges for the Service(s) connected to the incident(s) and the location(s) that gave rise to the liability. Peytec’s liability to the Customer, if any, shall be limited to direct damages and in no event shall Peytec be liable for lost profits, loss of data, economic loss, down time costs, costs of substitute goods or services, lost goodwill, loss from work stoppage, costs of overhead, loss of anticipated benefits hereunder, or any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (even if Peytec has been advised of the possibility of such damages), arising out of or in any way connected with this Agreement. These limitations apply to all causes of action, including those arising from breach of contract and tort (including negligence)

8.3            The Customer acknowledges and agrees that it is solely responsible for keeping copies of all content, software or other components of its systems and that neither Peytec nor its affiliates, licensors, suppliers or agents shall have any responsibility or liability for any such lost content, software or other components of the Customer’s systems, even if such loss is the fault of Peytec or its affiliates, licensors, suppliers or agents.

ARTICLE 9

FORCE MAJEURE

9.1            Peytec will not be liable for any delay in or failure of its performance under the Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, epidemic, pandemic, riots, or failures or delays in transportation or communications (each, a “Force Majeure Event”).  The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of the Agreement.

Article 10

FURTHER ASSURANCE

10.1         The Customer shall reasonably cooperate with Peytec to provide such further assurances as may be reasonably required to better evidence and reflect, or to show the ability to carry out the intent, purposes, and obligations of the Agreement.

ARTICLE 11

CONFIDENTIALITY

11.1         For the purposes of this Agreement, “Confidential Information” means all data and information whether in written, machine readable or other tangible form, or disclosed orally, that is of value to the disclosing Party, is not generally known to competitors of the disclosing party, and which has been communicated to the other party. Confidential Information shall include personal information (as such term is defined in the applicable Privacy Laws (as hereinafter defined)), information relative to the current or proposed business plans of the disclosing party, financial information relating thereto, telephone calling pattern information, prices, trade secrets, know-how, formulas, processes, data, network configuration and rights-of-way, drawings, proprietary information, customer lists, and any other non-public information which concerns the business and operations of the disclosing party to this Agreement. Confidential Information does not include data or information:

(a)             which is or becomes available to the public through no wrongful act of the receiving party;

(b)             which is received from a third party without restriction of confidentiality and without breach of this Agreement; or

(c)             which is independently developed by the receiving party without use of Confidential Information of the disclosing party.

11.2         The parties hereto may disclose to each other certain Confidential Information, either directly, as by verbal or written communications, or indirectly, as by permitting employees of one party to observe various operations or processes conducted by the other. These disclosures are made upon the basis of each party's agreement that, unless the other Party gives express consent, subject to the below, it will,

(a)             not disclose Confidential Information to anyone and use it solely for the purpose of carrying out its obligations under this Agreement;

(b)             promptly return to the disclosing party, upon its request, all tangible material considered Confidential Information, including all copies and notes, whether such material was made or compiled by the receiving party or furnished by the disclosing party; and

(c)             take reasonable precautions to protect from disclosure Confidential Information disclosed to it by the other.

11.3         These confidentiality obligations shall not apply to Confidential Information which is disclosed pursuant to applicable law, provided that if disclosure is requested, the party being required to disclose the Confidential Information shall provide the other Party with prompt notice of the request to enable the other Party to seek a protective order, and shall take reasonable steps to limit the amount of disclosure. Further, nothing in this section prohibits Peytec from disclosing any information to:

(a)             the Customer;

(b)             a person who, in Peytec’s reasonable judgment, is seeking the information as the Customer’s agent;

(c)             an agent retained by Peytec in the collection of the Customer’s account or to perform other administrative functions for Peytec, provided the information is required for and used only for that purpose;

(d)             an agent retained by Peytec to evaluate the Customer’s creditworthiness, provided the information is required for and is to be used only for that purpose;

(e)             a subcontractor or other person, or to an affiliate of Peytec, provided the information is to be used for the efficient and cost effective provision of Services to Customer and disclosure is made on a confidential basis with the information to be used solely for that purpose; or

(f)               satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal (including criminal) action against the Customer; provide the Services properly; ensure or enforce compliance with the Agreement or to protect Peytec, its affiliates or customers.

11.4         Express consent may be considered to be given on behalf of the Customer where the Customer provides:

(a)             written consent;

(b)             oral confirmation verified by an independent third party;

(c)             electronic confirmation through the use of a toll-free number;

(d)             electronic confirmation via the Internet;

(e)             oral consent, where an audio recording of the consent is retained by Peytec; or

(f)               consent through other methods, as long as an objective documented record of the Customer’s consent is created by the Customer or by an independent third party.

11.5         The Customer’s account information may, from time to time, be disclosed to Peytec’s agents in order to service the Customer’s account, to respond to the Customer’s questions and to promote additional products and services offered by Peytec that may interest the Customer. In addition, Peytec may use e-mail, short text messages, telemarketing and direct mail to inform the Customer about products and services from Peytec and related Peytec companies that Peytec feels may interest the Customer. If the Customer prefers to not to receive these types of communications, the Customer may contact Peytec to inform Peytec of such preferences.

11.6         In the event of a breach, or threatened breach, of any of the foregoing confidentiality provisions, the parties agree that the harm suffered by the injured party would not be compensable by monetary damages alone and, accordingly, that the injured Party shall, in addition to other available legal or equitable remedies, be entitled to seek an injunction against such breach or threatened breach.

11.7         Peytec is authorized to have access to and to make use of personal information for the term of this Agreement as is appropriate for the performance by Peytec of its obligations hereunder. However, the Customer will be the controller of its personal information for purposes of all applicable laws relating to data privacy, transborder data flow and data protection (collectively, the “Privacy Laws”), and nothing in this Agreement will restrict or limit in any way the Customer’s rights or obligations as controller of Personal Information for such purposes. Without limiting the foregoing, the Customer acknowledges and agrees that, to the best of its knowledge and belief, it has obtained all necessary authorizations and consents required under Privacy Laws to permit Peytec to process personal information in providing the Services. Personal information collected in connection with the provision of the Services may be stored and processed in or outside Canada and may be subject to the laws of other jurisdictions, as enforced by the courts, law enforcement and national security authorities of such jurisdictions.

ARTICLE 12

TERM; SUSPENSION; TERMINATION

12.1         The term of this Agreement starts on the Activation Date and shall continue until terminated in accordance with the provisions of this Agreement or applicable law.

12.2         Upon the expiry of any applicable Commitment Period, the Services shall continue to be provided by Peytec on a month-to-month basis, and the charges for such Services are subject to change to reflect Peytec’s then-current charges for such Services.

12.3         The Customer may terminate all or any part of the Services:

(a)             during the applicable Commitment Period upon no less than sixty (60) days prior written notice to Peytec and upon payment of the applicable ECF, except in respect of any Service for which a shorter notice period is required by applicable legislation or regulation in which case termination of any such Service will be effective on the later of (i) the date of the delivery of notice or (ii) any future date specified by the Customer; or

(b)             where such Services are not subject to a Commitment Period, upon no less than thirty (30) days prior written notice to Peytec, except in respect of any Service for which a shorter notice period is required by applicable legislation or regulation in which case termination of any such Service will be effective on the later of (i) the date of the delivery of notice or (ii) any future date specified by the Customer.

12.4         Peytec may terminate all or any part of the Services:

(a)             Where such Services are not subject to a Commitment Period, upon no less than thirty (30) days prior written notice to the Customer; or

(b)             Upon no less than sixty (60) days prior written notice where Peytec decides to cease offering the Services generally in the applicable area.

12.5         Applicable charges continue to apply until the end of the notice period or until the Services are no longer accessible by the Customer, whichever is later.

12.6         Peytec may restrict, block, suspend or terminate any or all of the Services without notice or liability, if:

(a)             The Customer is  in breach of this Agreement, including non-payment of charges;

(b)             The Customer does not maintain usage of the Services within the prescribed credit limit;

(c)             Peytec reasonably suspects or determines that the Customer’s account, Services or Equipment is the subject of fraudulent, unlawful or improper usage or usage that adversely affects Peytec’s operations or the use of the Services by others;

(d)             the Customer fraudulently or improperly seeks to avoid payment to Peytec;

(e)             bankruptcy or insolvency proceedings are instituted by or against the Customer;

(f)               Peytec reasonably believes that there is an emergency or extreme circumstance that would warrant such action; or

(g)             Peytec determines that the Customer is adversely affecting server performance or the integrity of the network.

12.7         If Peytec restricts, suspends, blocks or terminates the Services:

(a)             the Customer must pay any amounts owing, including applicable late payment charges; and

(b)             the Customer shall return all Equipment as directed by Peytec.

12.8         If Peytec continues to provide Services after a termination or expiration date, the Customer hereby agrees that the terms of this Agreement will apply to such Services and the Customer agrees to pay Peytec the then-current month-to-month charges for such Services.

 

 

ARTICLE 13

INTELLECTUAL PROPERTY

13.1         All trademarks, copyright, brand concepts, names, logos and designs used by Peytec are intellectual property assets, registered or otherwise, of, or used under license by, Peytec or one of its affiliates. All are recognized as valuable assets of their respective owners, and may not be displayed or used by the Customer in any manner for commercial purposes or copied in any manner for any purpose without the express prior written consent of Peytec.

ARTICLE 14

GENERAL

14.1         This Agreement, as amended from time to time, constitutes the entire agreement between the Customer and Peytec for the Services and supersedes all prior agreements, written or oral, with respect to the same subject matter. If any portion of the this Agreement is unenforceable, the remaining provisions continue in full force.

14.2         Any party’s failure to enforce strict performance of any provision of this Agreement does not constitute waiver of such provision. Neither the course of conduct between the parties nor trade practice modifies any provision of this Agreement.

14.3         Non-performance by either party of its obligations other than payment obligations will be excused to the extent that performance is rendered impossible by events beyond the reasonable control of the non-performing party provided that such party makes commercially reasonable efforts to circumvent such events.

14.4         This Agreement enures to the benefit of and is binding on the parties hereto and on their respective successors and assigns. The Customer may not assign or transfer this Agreement without Peytec’s prior written consent. Peytec may assign or transfer this Agreement or any of its rights or obligations hereunder without the Customer’s consent. The provisions of Articles 2, 8 and 11 shall survive termination of this Agreement.

14.5         This Agreement has been prepared in the English language at the express request of the parties. La présente convention a été rédigée en anglais à la demande expresse des parties.

14.6         This Agreement is governed exclusively by the laws of the province of Ontario and the parties submit to the jurisdiction of the courts of Ontario.

14.7         Any notice pursuant to this Agreement must be given to the Peytec at the address first above written, or at such other address as either party may from time to time advise.

Any notice pursuant to this Agreement must be given to the Customer at the address first above written, or at such other address as either party may from time to time advise.

Any notice so given shall be deemed to have been received on the date on which it was hand delivered, or sent by facsimile, or if sent by registered mail only (which method of service shall not be a valid form of providing notice during a postal strike), five (5) business days after the notice was sent.