Terms & Conditions

Schedule A

1. Definitions

When used in this Agreement, the following terms shall have the following meanings unless the context otherwise requires:

  • “Affiliate” of a Party means any corporation or other legal entity that such Party directly or indirectly controls, is controlled by or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
  • “Anonymized Data” means data, including Client Data, which has been stripped of information potentially identifying Client or which contains any Personal Information, and which has been manipulated or combined to provide generalized anonymous information that cannot be reverse-engineered to identify Client or any other person;
  • “Client Data” means the data, information, records and files that Client (or any User) loads, transmits to or enters into the Offering, including data that the Offering is configured to obtain from the Hardware or Client’s services or systems;
  • “Verdi Property” means the Offering, Rented Hardware, Anonymized Data and all other Intellectual Property created, used or provided by Verdi to Client pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto;
  • “Confidential Information” means any and all information disclosed by either Party(“Disclosing Party”) to the other Party (“Receiving Party”) that is not public information and that is marked “confidential” or “proprietary” or which the Receiving Party knows or ought reasonably to know is regarded by the Disclosing Party as such, including oral information. All Client Data is Client’s Confidential Information. All Verdi Property is Verdi’s Confidential Information;
  • “Custom Services” means any professional services to be provided by Verdi described in an SOW, which may include implementation, customization, systems integration, API development services, or Hardware installation services;
  • “Documentation” means the then-current user manuals, handbooks, specifications or forms that describe the features, functionality or operation of the Offering and Hardware, the current version of which is made available at www.verdi.ag/docs;
  • “Hardware” means, collectively, the Purchased Hardware and Rented Hardware;
  • “Fees” has the meaning set forth in Section 7(a);
  • “Force Majeure Event” has the meaning set forth in Section 14(e);
  • “Intellectual Property” means (i) any rights provided under (1) patent law, (2)copyright law, (3) trademark law, (4) design patent or industrial design law or (5) any other statutory provision or common law principle applicable to the foregoing, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (ii) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing;
  • “Offering” means, collectively, the Service and the Platform;
  • “One-time Fees” means the one-time, up-front fees to be paid by Client to Verdi for Hardware, as set forth in the Order Form;
  • “Order Form” means, collectively, the order documents representing the purchase of Purchased Hardware, the initial subscription to the Service and Rented Hardware and any subsequent modifications to the Service and Rented Hardware subscriptions agreed to between the Parties in writing from time to time, that, upon execution, are incorporated in and made a part of this Agreement;
  • “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws;
  • “Platform” means the technology, including websites, hardware, software and systems, used by Verdi in the provision of the Service;
  • “Privacy Laws” means all applicable legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Client has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial, state, federal and international legislation;
  • “Purchased Hardware” means any hardware and other tangible goods and equipment Verdi sells to Client under the terms of this Agreement, as set forth in the Order Form;
  • “Recurring Fees” means, collectively, the Subscription Fees, the Rental Fees and the Service Fees;
  • “Rental Fees” means the recurring rental fees to be paid by Client to Verdi for the rental of the Rented Hardware;
  • “Rented Hardware” means any hardware and other tangible goods and equipment Verdi provides to Client on a subscription basis under the terms of this Agreement, as set forth in the Order Form;
  • “Service” means the online Verdi services delivered by Verdi to Client using the Platform, as made available by Verdi from time-to-time and as specified in the Order Form;
  • “Service Fees” means the recurring service fees to be paid by Client to Verdi for the support and maintenance of the Purchased Hardware and/or Rented Hardware;
  • “SOW” has the meaning set forth in Section 2(b);
  • “Subcontractors” has the meaning set forth in Section 2(h);
  • “Subscription Fees” means the recurring subscription fees to be paid by Client to Verdi for Client’s use of the Service, as set forth in the Order Form;
  • “Term” has the meaning set forth in Section 9(a); and
  • “User” has the meaning set forth in Section 5(a)

2. Subscription for Service

  1. Service. Customer may order a subscription to the Service by placing orders on an Order Form. Conditional on Client: (i) complying with the terms of this Agreement, including paying the Fees; and (ii) cooperating with the reasonable requests of Verdi, Verdi will provide the Service to Client on the terms and conditions set out in this Agreement and each applicable Order Form.
  2. Custom Services. Client’s subscription to the Services does not include any Custom Services. Client may from time to time order Custom Services under this Agreement by entering into a written statement of work between the Parties (an “SOW”) setting out, amongst other things, description of Custom Services and the Fees, payment terms, performance standards and timeline for delivery applicable to the Custom Services. Upon execution by each Party, an SOW will be incorporated by reference in to this Agreement. The terms and conditions of this Agreement will prevail over any provision in the SOW.
  3. Availability. Verdi will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, with minimal downtime. Verdi does not guarantee 24x7 uptime availability of the Platform. Client acknowledges that the Offering will be unavailable during: (i) downtime and scheduled upgrades per Section 2(d); and (ii) unavailability caused by circumstances beyond Verdi’s reasonable control, including Force Majeure Events or the unavailability of any third party Local Software.
  4. Updates and Maintenance. Verdi may update any aspect of the Offering at any time in its sole discretion, provided however that no such update will result in a material diminution of the functionality or operability of the Offering. Verdi may schedule downtime for maintenance and upgrades to the Offering without prior notice but will use reasonable efforts to provide advance notice where practicable.
  5. Privacy Policy. To the extent any Client Data contains Personal Information, it will be used, collected, stored and disclosed solely for the purposes contemplated under this Agreement and in accordance with the Privacy Policy.
  6. Internet Security Disclaimer. Client acknowledges and agrees that Verdi exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity to the Offering. Client acknowledges that the Internet is inherently risky, and Client assumes responsibility for its access to and use of the Offering over the Internet.
  7. Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Verdi under this Agreement, Verdi may suspend, terminate or limit (in Verdi’s sole discretion) Client’s access to or use of the Offering, or any part of it, without notice in order to: (i) prevent damage to, or degradation of the integrity of, the Offering, Client Data or Client’s systems; (ii) comply with any law, regulation, court order or other governmental request or order applicable to Verdi; or (iii) otherwise protect Verdi from harm to its reputation or business. Verdi will use commercially reasonable efforts to notify Client of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Verdi will restore Client’s access to the Offering when Verdi determines the event has been resolved. Nothing in this Agreement will limit Verdi’s right to take any action or invoke remedies, or will act as a waiver of Verdi’s rights in any way with respect to any of the foregoing activities. Verdi will not be responsible for any loss or damages of any kind incurred by Client as a result of any limitation, termination or suspension of the Offering under this Section 2(g).
  8. Subcontractors. Client acknowledges and agrees that Verdi may retain the services of independent consultants (“Subcontractors”) from time to time to provide, or to assist Verdi in providing, the Offering. Any Subcontractors used by Verdi to provide the Offering shall remain under the direction and control of Verdi, and Verdi shall be fully and personally liable for all acts or omissions of the Subcontractors.

3. Hardware Delivery and Use

  1. Delivery; Risk of Loss. Upon delivery of the Hardware to Client, Client assumes responsibility for risk of loss or damage to the Hardware, except in the event of loss or damage caused solely due to the acts or omissions of Verdi.
  2. Inspection and Rejection of Non-Conforming Hardware. Client will inspect the Hardware within seven days following receipt (“Inspection Period”). Client will be deemed to have accepted the Hardware unless it notifies Verdi in writing of any Non-Conforming Hardware during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Verdi. “Non-Conforming Hardware” means only the following: (a) the Hardware shipped is different than identified in the Order Form; or (b) the Hardware’s label or packaging incorrectly identifies its contents. If Client notifies Verdi of any Non-Conforming Hardware prior to expiry of the Inspection Period, Verdi will, in its sole discretion (i) replace such Non-Conforming Hardware with conforming Hardware, or (ii) credit or refund the fees for such Non-Conforming Hardware, together with any reasonable shipping and handling expenses incurred by Client in connection therewith. Client will ship, at its expense and risk of loss, the Non-Conforming Hardware to the Verdi facility specified in writing by Verdi. If Verdi exercises its option to replace Non-Conforming Hardware, Verdi will, after receiving Client’s shipment of Non-Conforming Hardware, ship the replaced Hardware to Client, at Client’s expense and risk of loss. Client acknowledges and agrees that the remedies set forth in this Section 1(a) are Client’s exclusive remedies for the delivery of Non-Conforming Hardware.
  3. Installation and Commissioning. Unless Client has ordered Custom Services from Verdi for installation services under this Agreement by entering a SOW or as otherwise agreed to between the Parties in writing, Client will be responsible for installing and commissioning the Hardware.
  4. Users. Only Client’s competent, qualified and trained Users may use the Hardware, and only in accordance with the Documentation and applicable governmental and safety regulations. Client will be solely responsible for the operation and control of the Hardware, and Client is solely responsible to operate the Hardware legally and safely at all times in accordance with the applicable Documentation. Client will be solely responsible for any damage caused to the Hardware by User’s misuse or operation of the Hardware by an unqualified or untrained User.
  5. Use of Rented Hardware. Conditional on Client complying with the provisions of this Agreement, Verdi grants to Client the right to use the Rented Hardware during the Term in accordance with the terms of this Agreement.
  6. Ownership of Rented Hardware. Verdi has and will retain exclusive title to and ownership of the Rented Hardware. In order to secure Client’s performance under this Agreement, Client and Verdi agree that a security interest in the Hardware in favour of Verdi will attach to each item of Hardware upon its delivery. Client waives notice of any action by Verdi any right to receive a copy of any financing statements or similar statements.
  7. Rented Hardware Insurance; Liens. Client is solely responsible for insurance and protection of the Rented Hardware and must have: (a) commercial general liability insurance coverage at the location where the Hardware is installed or otherwise kept and all equipment located thereon in the aggregate amount of not less than $100,000; and (b) all-risk property insurance coverage for the Rented Hardware in the amount not less than the declared value of the Rented Hardware. Client will not without the prior written consent of Verdi permit any mortgage, security interest, hypothec, pledge, lien, attachment, charge, seizure, sequestration, distress, levy, encumbrance or any other rights of others (except for encumbrances created by Verdi) on or with respect to the Rented Hardware, or cover or obscure any property notice on the Rented Hardware.

4. Intellectual Property

  1. Ownership of Client Data. Verdi expressly acknowledges and agrees that, as between Client and Verdi, Client is the owner of and has exclusive rights, title and interest in and to Client Data now and in the future on a worldwide basis, and that such information is further protected as Client’s Confidential Information. Subject to the terms and conditions of this Agreement, Client grants to Verdi a non-exclusive, perpetual, royalty-free, fully paid-up, worldwide license to copy, reproduce, modify, develop, access, collect, store and use the Client Data (i) as necessary to provide the Offering to Client, and (ii) for Verdi’s business purposes, including training, enhancing, developing, creating, improving and commercializing Verdi’s systems and proprietary technology, the Verdi Property and Verdi’s other products and services. Client will ensure Verdi’s use of any Client Data in accordance with the terms of this Agreement will not violate the rights of any third party.
  2. Freedom to Use Ideas. For clarity, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed regarding the provision of the Offering or Verdi’s Intellectual Property during the course of this Agreement by Verdi and/or Verdi personnel or Subcontractors may be used by Verdi without limitation, including by or for its customers.
  3. Retention of Rights. Except as expressly set forth in this Agreement: (i) Verdi retains all right, title, and interest in and to the Verdi Property; and (ii) Client acknowledges that nothing contained in this Agreement will constitute an assignment or transfer of the Verdi Property to Client.

5. Client Responsibilities and Restrictions

  1. User ID. Upon Client’s request, but subject to any limitations associated with Client’s subscription account, Verdi will issue a user identification and password (“User ID”) to Client for each individual who is an authorized user that Client authorized to use the Offering (each a “User”). Users may only access and use the Offering with their specific User ID. Client is responsible to ensure User IDs are not shared between individuals, and that Users retain the confidentiality of their User ID. Client is responsible for any and all activity occurring under the User IDs associated with Users. Client will promptly notify Verdi of any actual or suspected unauthorized use of the Offering. Verdi may require that a User ID be replaced at any time.
  2. Client Responsibilities and Restrictions. Client agrees that Client will not, and will not permit any person to:
    1. use the Offering other than as permitted by this Agreement;
    2. use the Offering in violation of any law, regulation or rule;
    3. copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, modify or adapt the Offering or any part thereof or otherwise attempt to discover any source code of the Offering;
    4. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering available to any third party, other than to the Users, or any use otherwise than as expressly permitted under this Agreement;
    5. use the Offering to upload, collect, transmit, store, use or process, or ask Verdi to obtain from third parties, any data: (A) that Client does not have the lawful right to copy, transmit, distribute and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Data); (B) for which Client does not have the consent or permission from the owner of any Personal Information contained therein; (C)that infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of any third party; (D) that is tortious, defamatory, obscene or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;
    6. use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, Personal Information or property of another;
    7. use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering;
    8. attempt to gain unauthorized access to the Offering or its related systems or networks;
    9. probe, scan or attempt to penetrate or ascertain the security of the Offering in any manner;
    10. use any data mining, robots or similar data gathering or extraction methods; or
    11. use or access the Offering for purposes of competitive analysis of the Offering, the development of a competing product or service or any other purpose that is to Verdi’s commercial disadvantage.
  3. Client Data. As between Verdi and Client, Client is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of the Client Data.

6. Support

Verdi will provide the following standard support services to Client:

  1. Web and Email Support. Client will have access to Verdi’s technical support portal on the Offering and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests. Verdi will endeavour to acknowledge receipt of such service requests during Verdi’s business hours within four hours of receipt.
  2. Incident Management. Verdi will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantial conform to its expected operation, provided that Verdi will not have an obligation to provide a correction for all such nonconformities.

7. Payment Terms

  1. Fees. Client will pay to Verdi the One-time Fees, Recurring Fees and any fees for Custom Services as set forth in an SOW (collectively, the “Fees”) in accordance with the payment terms set forth in this Agreement.
  2. Invoicing. Unless otherwise agreed to by the Parties in the Order Form, the One-time Fees will be billed on the Start Date (as defined in the applicable Order Form) and the Recurring Fees will be billed in advance on an annual basis. Fees for Custom Services will be billed as set forth in the applicable SOW. Client agrees to pay all invoices within 60 days of receipt. If Client in good faith believes that Verdi has billed Client incorrectly, Client must notify Verdi in writing no later than 30 days after the date of the receipt of the invoice. The Parties shall cooperate in good faith to resolve any billing concern raised by Client within 30 days after Client notifies Verdi. Verdi reserves the right to charge interest at the rate of the lesser of (i) 1.5% compounded monthly (19.56% annually), or (ii) the maximum amount allowed by law, in respect of invoiced amounts that have remained unpaid for more than 60 days from the date of receipt of such invoices except for unpaid disputed amounts.
  3. Taxes. The Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client will be responsible for self-assessment of and self-remission of any and all Taxes associated with this Agreement to the applicable collecting agency or party. In the event that Verdi pays Taxes on behalf of Client, Client will reimburse Verdi for its payment of all Taxes, fees or assessments imposed by any governmental authority upon the services provided hereunder to Client (excluding taxes based upon Verdi’s income).

8. Warranties

  1. Services. Verdi represents, warrants and covenants to Client that: (a) the Service will perform materially as described in the technical specifications set forth in the Documentation, and the sole remedy for such failure is for Verdi to use reasonable efforts to cause the Service to perform in accordance with its Documentation in accordance with Verdi’s then-current standard support and maintenance policies; and (b) it will perform the Custom Services in a diligent and businesslike manner using reasonable care and skill.
  2. Hardware.
    1. Verdi represents, warrants and covenants to Client that, for the period indicated for such Hardware in the applicable Order Form, the Hardware will substantially conform to the functional specifications contained in the Documentation and be free of material defects in materials and workmanship when used in accordance with the Documentation (the “Hardware Warranty”).
    2. In the event Verdi determines that the Hardware fails to conform with the Hardware Warranty, Verdi will, as Client’s sole remedy, repair or replace the non- conforming Hardware or defective portion thereof.
    3. Upon making a Hardware Warranty claim, Client must promptly deliver the non- conforming Hardware to the location designated by Verdi, at Client’s expense and risk of loss.
    4. The Hardware Warranty shall not apply: (1) to normal wear and tear; (2) to any consumables provided by Verdi for use as part of or in connection with the Hardware, including cables, antennae, fuses and battery packs; (3) if the Hardware is not used, maintained, installed or stored in accordance with the Documentation; (4) if Client or another person (other than Verdi or an authorized agent of Verdi) has opened, disassembled, modified or repaired the Hardware; (5) if the performance failure of the Hardware is attributable in any way to the combination of the Hardware with any another product(s) provided by Client or any third party that have not been approved by Verdi; (6) to cosmetic or other physical damage (including scratches) to the surface of the Hardware; or (7) to any software other than the firmware installed in the Hardware as provided by Verdi.
  3. Client Warranties. Client represents, warrants and covenants to Verdi that Client will comply with all Privacy Laws in its use of the Offering, including without limitation Client’s provision, disclosure, use, retention and destruction of Personal Information.
  4. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8: (I) THE OFFERING AND HARDWARE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (II) EACH PARTY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, DURABILITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE OFFERING OR HARDWARE; AND (III) VERDI DOES NOT WARRANT THAT THE OFFERING OR HARDWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND VERDI EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT’S USE OF THE OFFERING OR HARDWARE IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.

9. Term and Termination

  1. Term. The term of this Agreement will commence on the Effective Date and remain in effect until terminated in accordance with this Section 9 (the “Term”).
  2. Termination for Convenience. In the event there is no Order Form or SOW remaining in effect, either Party may terminate this Agreement immediately upon written notice to the other Party.
  3. Termination for Default. Without prejudice to any other rights or remedies which it may have, either Party may terminate this Agreement:
    1. if the other Party materially breaches this Agreement and such breach remains uncured 30 days after receiving written notice of such breach; or
    2. immediately by notice to the other Party if (1) the other Party is declared insolvent or bankrupt, (2) a petition is filed in any court to declare the other Party bankrupt or for a reorganization under bankruptcy law or similar statute and such petition is not dismissed in 60 days, or (3) a trustee in bankruptcy or a receiver or similar entity is appointed for the other Party.
  4. Termination of Order Forms and SOWs. Each Order Form and SOW will immediately terminate upon the termination of this Agreement.

10. Effect of Termination

  1. Upon any termination of this Agreement, Client will immediately cease any and all use of the Offering and Rented Hardware, in whole and in part, Client will return the Rented Hardware in same condition as originally received from Verdi, reasonable wear and tear excepted, all at Client’s expense, and all rights granted herein will revert to the granting Party and all licenses will terminate. This Section 10(a) is subject to any rights or obligations expressly surviving the termination of this Agreement.
  2. Within 30 days of any termination of this Agreement, a Receiving Party will delete or destroy all Confidential Information of the Disclosing Party which it has in its custody or control. For clarity, the foregoing does not limit the right of either Party to retain such information as required by law or as permitted under this Agreement.
  3. Sections 3, 7, 8 and 10 through 14 shall survive the termination of this Agreement.

11. Liability Limitations

  1. Limitation of Liability: EXCEPT WITH RESPECT TO (1) A PARTY’S BREACH OF SECTION 13 (CONFIDENTIALITY), (2) ANY INDEMNITY OBLIGATION OF A PARTY UNDER THIS AGREEMENT, AND/OR (3) CLAIMS FOR FEES OWING UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN COLLECTION:

    1. IN NO EVENT WILL A PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS IN AGGREGATE IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO VERDI IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT; AND
    2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.

    3. IN NO EVENT SHALL VERDI BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
  2. No Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
  3. No Participating in Class Action. CLIENT AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CLIENT HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

12. Indemnities

  1. Verdi Indemnity. Verdi will defend, indemnify and hold Client harmless from and against all third party claims, suits, demands, or actions (“Claims”), and shall indemnify Client against all costs, expenses and resulting damages awarded (including reasonable attorneys’ fees) to the extent arising from: (i) a claim that the Service or the Hardware, as provided, infringes any Intellectual Property of a third party in Canada or the United States; or (ii) any grossly negligent, willful misconduct or fraudulent action of Verdi. Notwithstanding the foregoing, Verdi shall have no liability to Client for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Client or Client’s use of the Service or the Hardware (1) after it has been modified by Client or a third party without Verdi’s prior written consent, or (2) in combination with any other service, equipment, software or process not provided by Verdi. In the event that the Service or the Hardware are held to or believed by Verdi to infringe, Verdi will have the option to: (A) replace or modify the Service or the Hardware to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (B) obtain for Client the right to continue using the Service or the Hardware; or (C) if both (A) and(B) are not reasonably practicable, terminate this Agreement and refund to Client the pro rata portion of the Recurring Fees paid to Verdi for the specific Service or Hardware not provided by Verdi after the date of termination.
  2. Client Indemnity. Client will defend, indemnify and hold Verdi harmless from and against all Claims, and shall indemnify Verdi against all costs, expenses and resulting damages awarded (including reasonable attorneys’ fees) to the extent arising from: (i) a claim that the Client Data infringes any Intellectual Property of a third party or any other third party right; or (ii) any grossly negligent, willful misconduct or fraudulent action of Client.
  3. Conditions. Any Party that is seeking to be indemnified under the provision of this Section 12 (an “Indemnified Party”) must (a) promptly notify the other Party (the “Indemnifying Party”) of any Claim, and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 12 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.

13. Confidentiality

  1. Obligation. The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in strict confidence, (ii) to limit access to the Disclosing Party’s Confidential Information to those of its employees, contractors or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (iii) not to use the Disclosing Party’s Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section 13(a) with regard to a disclosure that was in response to a valid court order, the advice of outside legal counsel that such disclosure must be made by it in order that it not commit a violation of law or requirement by a court or other governmental body, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such Confidential Information.
  2. Exceptions. The restrictions on use and disclosure of Confidential Information set forth in Section 13(a) will not apply to any Confidential Information, or portion thereof, which (i) is or becomes a part of the public domain through no act or omission of the Receiving Party, (ii) was in the Receiving Party’s lawful possession prior to the disclosure, as shown by the Receiving Party’s competent written records, (iii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s competent written records, or (iv) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure.

14. General Provisions

  1. Interpretation. In this Agreement: (i) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (ii) all usage of the word “including” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation,” throughout this Agreement; (iii) all dollar amounts are expressed in United States dollars unless expressly provided otherwise in the applicable SOW. Headings and the division of this Agreement into sections are for convenience of reference only and shall not affect the interpretation hereof.
  2. ‍Arbitration. All disputes arising out of or in connection with this Agreement, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be one. The language of the arbitration shall be English.Notwithstanding the foregoing, Verdi may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and Client agrees that this Agreement is specifically enforceable by Verdi through injunctive relief and other equitable remedies without proof of monetary damages.
  3. Governing Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
  4. No Rights. Unless otherwise expressly provided for in this Agreement, no rights or licenses to any data, information, technology, trademarks or any other item containing the Intellectual Property of a Party or any third party are granted by virtue of this Agreement.
  5. Force Majeure. If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a Party’s reasonable control, including acts of God, labor strikes and other labor disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the Party shall be excused from such performance to the extent necessary. Each Party will use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non- performance.
  6. Right to List as a Customer. Client agrees that Verdi may utilize Client’s name, logos and/or trademarks in listings of current customers Use of Client’s name, logos and/or trademarks in any other marketing materials or press announcements will be submitted to Client in advance for approval, provided that such approval will not be unreasonably withheld or delayed.
  7. Compliance with Export Regulations. Client has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals, and will indemnify and hold Verdi harmless from, and bear all expense of, complying with all foreign and domestic laws, regulations or requirements pertaining to the importation, exportation or use of the technology to be developed or provided herein. Client will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
  8. Entire Agreement. The terms and conditions of this Agreement supersede and replace all previous and contemporaneous agreements, proposals or representations related to the subject matter of this Agreement.
  9. Assignment. Neither Party shall be permitted to assign this Agreement without the consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, Verdi shall have the right to assign this Agreement to an Affiliate or in connection with a merger, amalgamation, transfer of control, reorganization or sale of all or substantially all of its assets or equity interests. Notwithstanding the foregoing, in order for any assignment to be effective, the assignee must (i) agree in writing to be bound by the terms of this Agreement, and (ii) have the financial ability to meet the contractual obligations of this Agreement.
  10. Severability; Waiver. In the event that any provisions of this Agreement shall be found to be illegal, void or unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the Agreement shall remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
  11. Relationship of Parties. The Parties are independent contractors. No agency, partnership, joint venture or employment relationship is created as a result of this Agreement, and each Party does not have any authority of any kind to bind the other in any respect whatsoever and neither Party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other Party’s name or on its behalf.
  12. No Third Party Beneficiaries; Enurement. There are no third party beneficiaries to this Agreement. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
  13. Notices. All notices, demands, consents, authorizations, approvals and other communications under this Agreement must be given in writing to the other Party at: (i) if to Client, to Client’s email or postal address set out on the first page of this Agreement; or (ii) if to Verdi, to:
    ‍
    Verdi Expeditions Inc.
    310-2285 Clark Dr
    Vancouver, BC V5N 3G9, Canada

    Attention: Arthur Chen
    Email: arthur.chen@verdiag.com

    Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (1) delivered personally, (2) sent via certified mail (return receipt requested); (3) sent via electronic mail (with confirmation of receipt), or (4) sent by recognized air courier service. A Party may change its address for notice under this Agreement by giving written notice to the other Party by the means set forth in this Section 14(m).
  14. Rights and Remedies. Except as specifically provided in this Agreement, the rights and remedies provided in this Agreement and all other rights and remedies available to either Party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.
  15. Further Assurances. Each Party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
  16. Counterparts. This Agreement may be executed by the Parties in one or more counterparts, each of which will be considered one and the same agreement, and will become effective when one or more counterparts have been signed by each Party and delivered to the other Party. This Agreement may be delivered by facsimile, email or other functionally equivalent electronic means of transmission.