Scope Technologies US Inc. (“Scope AR”) MSA
Last updated: January 21, 2020
This agreement governs your acquisition and use of our products and services.
By accepting this agreement, through execution of an order form referencing this agreement or through other means, you agree to the terms of this agreement. 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 that entity and its affiliates to these terms and conditions, in which case the terms “You” “Your” and “Customer” in this agreement refer to that entity and its affiliates. If you do not have that authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use our products or services. If you are accessing our product or service as part of a free trial, your free trial is governed by Section 10 (Free Trial) below, which limits our responsibility and disclaims all warranties and liability. You may not access our products or services if You are our direct competitor, except with our prior written consent. In addition, You may not access our products or services to monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 21, 2021. It is effective between You and Scope AR as of the date You accept it.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings: “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Agreement” means this Master Subscription Agreement and online addenda hereto that are provided by Scope AR and accepted by You. “App” means the Scope AR’s downloadable mobile applications(s) specified in the applicable Order Form through which End Users can receive or access the Services. “AR” means augmented reality. “Deliverable” means any materials to be prepared by Scope AR for Customer in the course of providing the Professional Services, as expressly provided for in the applicable SOW. “Documentation” means any and all written or electronic documentation, including user manuals and/or reference materials that Scope AR generally makes available to Service subscribers. “External User” means an individual or entity who is authorized by You to use all or part of the Service as a guest or with a temporary user account for the purpose of Your providing services (other than the Services) to that individual or entity through the Services; “Fee(s)” means the fees specified in the applicable Order Form payable by You to Scope AR for the right to receive access to the Service. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. “Order Form” means an order form incorporating the terms of this Agreement and specifying the services to be provided to You by Scope AR, the form of which is set out in Schedule 1. “Professional Services” means the services to be provided by Scope AR to You as described in a SOW; “Services” means the products and services that are ordered by You under an Order Form, including associated Scope AR offline or mobile components, as described in the applicable Documentation. “SLA” means such service level agreement, if any, as may be incorporated into an Order Form. “Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties and which incorporates the terms of this Agreement; “Term” has the meaning ascribed to that term in Section 11.1. “Third Party Software” means any third-party software that the Services may require in order to function in accordance with the Documentation, details of which are set out in the Documentation. “User” means an individual who is authorized by You to use all or part of the Service who has been supplied a user account by You (or by Scope AR at Your request) for the Service. “Your Data” means all electronic data or information submitted by You and/or its Users to the Service.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and the applicable Order Form, Scope AR shall make the Services available to You, Your Users and Your External Users during the Term for the purpose of (i) allowing You to use the Services in the internal operation of Your Business, (ii) providing the Services to Users; and (iii) allowing You to use the Services to assist in your provision of your services in support of your business to Your External Users,. You shall not use the Service for any purposes other than as described in this Agreement. 2.2 License. Subject to the terms of this Agreement, the applicable Order Form, and the timely payment of the Fees, Scope AR grants to You for the Term of this Agreement a non-transferable, non-exclusive license to access and use the Services for the purposes set out in section 2.1.
- GRANT OF LICENSE
3.1 Scope AR Responsibilities. Scope AR shall: (i) use commercially reasonable efforts to maintain the security and integrity of the Service and Your Data; (ii) provide hosting and storage services for Your Data; and (iii) in addition to the terms of the applicable SLA (if any), use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Scope AR’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Scope AR employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Scope AR’s possession or reasonable control, and denial of service attacks. 3.2 Your Responsibilities. You are responsible for all activities that occur in user accounts and for its Users’, employees’, contractors’, customers’ and agents’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Scope AR promptly of any such unauthorized access or use; (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service; and (iv) separately license any required Third Party Software. 3.3 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users nor have more User accounts than specified in the applicable Order Form(s); (b) a User’s password may not be shared with any other individual;, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, Scope AR may work with You to seek to reduce its usage so that it conforms to that limit. If, notwithstanding Scope AR’s efforts, You are unable or unwilling to abide by a contractual usage limit, You will pay any invoice for excess usage in accordance with Section 4.2 (Invoicing and Payment). 3.4 Use Guidelines. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as required to provide the Service to Users as contemplated by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, harmful, dangerous, inaccurate, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks. 3.5 Incremental Services. From time to time, certain additional Scope AR or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Scope AR to You (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by You for additional fees in accordance with such mutually agreed upon terms and conditions as may be applicable to such additional functionality (such terms and conditions prevailing in the event of any inconsistency with the terms and conditions of this Agreement). 3.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors (as applicable) on its website and promotional materials, provided that it does not disparage or otherwise damage or impair the good name or reputation of the other party. 3.7 Support. Scope AR will provide either (a) at no additional charge to You, technical support to Your employees, agents and contractors in the use and operation of the Service as so specified in the applicable Order Form, provide the support as set forth in a service level agreement incorporated in such Order Form on payment of the applicable fees. 3.8 Professional Services. If Customer wishes to order Professional Services, Customer shall notify Scope ARand the parties will negotiate in good faith an applicable SOW. Upon execution of an SOW by the parties and subject to the terms and conditions set forth in Schedule 2, Scope AR will provide Professional Services (including the development of Deliverables) for Customer all as described in such SOW.
- USE OF THE SERVICES.
4.1 Fees. In consideration for the subscription to the Service or use of Professional Services purchased by You under any Order Form or SOW, You shall pay Scope AR the Fees as specified in the applicable Order Form or SOW. All amounts are payable in United States dollars unless otherwise expressly stated in the applicable Order Form or SOW. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. 4.2 Invoicing & Payment. Fees for the Service will be invoiced on an annual basis in advance, unless otherwise provided for in the applicable Order Form. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Scope AR 4.3 Overdue Payments. Any payment not received from You by the due date may accrue, at Scope AR’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. 4.4 Taxes. Unless otherwise stated, Scope AR’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on Scope AR’s net income or property. If Scope AR has the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide Scope AR with a valid tax exemption certificate authorized by the appropriate taxing authority. 4.5 Audit Rights. Scope AR shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and any other metrics regarding use, and to confirm Your compliance with this Agreement. 4.6 Suspension of Service. If Your account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Scope AR shall have the right to suspend the Service provided to You until such amounts are paid in full. 4.7 Future Functionality. You agree that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Scope AR regarding future functionality or features.
- FEES & PAYMENT.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Scope AR reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. 5.2 Restrictions. You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the App or Service; (b) circumvent any user limits or other timing or use restrictions that are built into the App or Service; (c) remove any proprietary notices, labels, or marks from the App or Service; (d) frame or mirror any content forming part of the App or Service, other than as necessary for the provision of the App or Service; (e) access the App or Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the App or Service; or (f) use all or any portion of the App or Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the App or Service could lead directly to death, personal injury, or severe physical or environmental damage. 5.3 Your Data. As between Scope AR and You, You exclusively own all rights, title and interest in and to all Your Data. Your Data is deemed Your Confidential Information under this Agreement. Scope AR shall not access Your User accounts, including Your Data, except to respond to service or technical problems or at Your request or as necessary for the operation of the Service or billing. You hereby grant Scope AR and its Affiliates a royalty-free, non-exclusive, non-transferable (except as provided in Section 12.6 (Assignment)) irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to host, copy, display, use and otherwise exploit the Customer Data to the extent reasonably required for Scope AR to perform its obligations pursuant to this Agreement. The forgoing license shall include the right for Scope AR to use and copy Your Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Scope AR shall own all Aggregated Statistics created from Your Data. 5.4 Feedback. Scope AR shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by You or Your Users relating to the operation of the Service, provided that such Feedback does not contain any of Your Data or Confidential Information. For greater certainty, Scope AR shall have no obligation to modify the Service to implement any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users.
- PROPRIETARY RIGHTS.
6.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is marked as confidential at the time of disclosure or which if disclosed orally is identified as confidential at the time of disclosure and for which a written summary, which is marked as confidential, is provided to the receiving party within thirty (30) days thereafter. Notwithstanding the foregoing, the Service and all pricing information, documentation, technology, specifications, technical information and the App and Service shall be deemed to be the Confidential Information of Scope AR. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. 6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. 6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). 6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. 6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7.1 General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. 7.2 Service Warranties. Scope AR warrants that (i) the Service will perform in material conformance for its intended purpose; and (ii) the Service will not contain or transmit to You any known Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from You or an User). Any claim for any alleged breach of this Section 7.2 must be made within sixty (60) days of the date of such alleged breach and Scope AR shall only be liable for any direct damages incurred by You within the sixty (60) days after the occurrence of such breach and which are a result of such breach. 7.3 Your Warranties. You warrant that Your Data will not contain or transmit to Scope AR (i) any Malicious Code, or (ii) any personal information that it does not have consent to disclose, and that Your Data does not infringe any third party rights in its use of the Services. 7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SCOPE AR MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Warranties & Disclaimers.
8.1 Indemnification by Scope AR. Scope AR shall, at its own expense, defend You, Your Affiliates and Your and their respective officers, directors, employees, consultants and agents (collectively, the “Customer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Customer Indemnitees alleging that the Service (excluding Your Data or any Third Party Software) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed by Scope AR in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Customer Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for the defense and indemnification to be provided by Scope AR pursuant to this Section 8, You shall: (i) provide Scope AR with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give Scope AR sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with Scope AR, at Scope AR’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This Section 8 sets forth the entire liability of Scope AR and the exclusive remedy for You for patent, copyright or other proprietary or intellectual property right infringement or misappropriation. 8.2 Discontinuance. If an IP Claim has occurred, or in Scope AR’s opinion is likely to occur, Scope AR may discontinue Your use of the applicable portion of the App and/or Service, and Scope AR may in its sole discretion terminate the Agreement upon written notice to You and pay to You a pro-rata refund of Fees that were paid in advance, if any, in respect to time periods after the date of any such termination. 8.3 Exclusions. Scope AR shall have no obligations or liabilities to any of the Customer Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the App or Service by You; (ii) any combination of the App or Service with any technology, service or data provided by anyone other than Scope AR, provided that such IP Claim would not have arisen but for such combination; or (iii) any modification of the App or Service by anyone other than Scope AR, provided that such IP Claim would not have arisen but for such combination. 8.4 Indemnification by You. You shall, at Your own expense, defend Scope AR, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the “Scope AR Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Scope AR Indemnitees arising from or relating to (i) Your provision of the Service to Users; (ii) the use of or reliance by Your Users on any information or materials created or otherwise made available via the App and Services; or (iii) Your Data (collectively, “Customer-related Claim”) and shall indemnify and hold the Scope AR Indemnitees harmless from and against any settlement amounts agreed by You in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Scope AR Indemnitees by a court of competent jurisdiction in any Customer-related Claim. As conditions for the defense and indemnification to be provided by You, Scope AR shall: (i) provide You with prompt written notice of any Customer-related Claim and copies of relevant documentation regarding any Customer-related Claim for which indemnification may be sought; (ii) give You sole control of the defense and settlement of such Customer-related Claim; (iii) cooperate fully with You, at Your expense, in the defense or settlement of such Customer-related Claim; and (iv) not settle any Customer-related Claims or admit liability in respect to any Customer-related Claims.
- Mutual Indemnification.
9.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), CLAIMS FOR NON-PAYMENT OR DEATH OR BODILY INJURY, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAYABLE BY YOU TO SCOPE AR UNDER THE AGREEMENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD. 9.2 Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL BE LIABLE TO ANY OTHER ENTITY OR PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
- Limitation of Liability.
10.1 If Scope AR makes any of its products and services available to You as part of a free trial, those products and services will be considered “Services” under this Agreement, including this Section 10, even if the products and services are not specified in an Order Form, notwithstanding the “Services” definition in Section 1 (Definitions). Any such free trial will end at the earlier of (a) the end of the free trial period, (b) the start date of any subscriptions purchased by You for such Services, or (c) termination by Scope AR in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. 10.2 Any data you enter into the Services and any customizations made to the Services by or for You during a free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial, or export such data, before the end of the trial period. 10.3 In any free trial Scope AR provides the Services “AS IS,” without any warranty, covenant, commitment or liability whatsoever, to the extent permitted by law. 10.4 Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
- Free Trial.
11.1 Term of Agreement. This Agreement commences on the date it is signed by You and continues until all subscriptions hereunder have expired or have been terminated. 11.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless Scope AR provides You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Scope AR’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. 11.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, Scope AR shall refund You any prepaid fees for any periods after the termination of the Agreement. 11.4 Outstanding Fees. Termination or expiration shall not relieve You of the obligation to pay any fees accrued or payable to Scope AR prior to the effective date of termination or expiration. 11.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 10 and Section 12. Any provisions in any Order Forms that deal with the ownership of intellectual property, or other deliverables beyond the expiry or termination of this Agreement shall also survive any expiration or termination of this Agreement.
- Term & Termination.
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 12.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 12.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Scope AR shall be addressed to the attention of the Legal Department. 12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 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. 12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 12.6 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 12.7 Governing Law. This Agreement shall be governed by the laws of the State of California, USA, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. 12.8 Venue; Waiver of Jury Trial. The state and federal courts located in San Francisco, California, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 12.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. 12.10 Export. You acknowledge and agree that the Service may be subject to export and import controls under the regulations of USA, the Canada and other countries, and You shall comply with all export and import control regulations of such countries. You shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service. 12.11 Entire Agreement. This Agreement, including all schedules, exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto or any Order Forms, the terms of such schedule, exhibit, addendum or Order Forms shall prevail. Notwithstanding any language to the contrary therein, no pre-printed terms or conditions stated in a You purchase order or in any other You order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 12.12 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
- General Provisions.
SCHEDULE 2 Professional Services Terms
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement. Scope AR is willing to provide Professional Services on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule. Such Professional Services may include without limitation: instruction and training on the use of Scope AR products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.
- All Professional Services to be performed and Deliverables to be developed by Scope AR at Customer’s request shall be described in a Statement of Work, in such form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule. In the event of a conflict between a Statement of Work and this Schedule or the Agreement, this Schedule or the Agreement, as the case may be, shall prevail.
- Scope AR’s Obligations. Scope AR shall perform Professional Services and develop Deliverables for Customer as described in any Statements of Work agreed to in writing by the parties. Scope AR shall perform such Professional Services and develop Deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. Scope AR shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing Deliverables. Customer acknowledges and agrees that Scope AR may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Scope AR in performing Professional Services and developing Deliverables under this Schedule or a Statement of Work. Scope AR personnel and/or Subcontractors shall remain under the direction and control of Scope AR. If Scope AR is performing any Professional Services or developing any Deliverables at a Customer facility, then Scope AR shall comply with all Customer facility policies, procedures and rules that have been communicated to Scope AR in writing.
- Customer Obligations. Customer shall provide timely performance of its obligations under this Schedule or any Statement of Work as required for Scope AR to perform its obligations under this Schedule or any Statement of Work. In support of such obligations, Customer shall provide sufficiently qualified personnel who are capable of completing Customer’s duties and tasks pursuant to this Schedule or any Statement of Work. Customer acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on Scope AR’s performance of the Professional Services and development of the Deliverables.
Scope AR may provide Professional Services or may develop Deliverables at Customer’s facilities or at Scope AR’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided or Deliverables are to be developed at Customer’s facilities, Customer shall provide Scope AR with access to Customer’s facilities during normal business hours and at such other times as may be reasonably requested by Scope AR to facilitate the timely performance of the Professional Services and development of the Deliverables. Customer shall also provide Scope AR personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Customer’s facilities. Customer shall designate a project management contact for the purposes of communication with Scope AR. The project management contact shall be the primary point of contact for Customer with Scope AR for matters relating to the provision of Professional Services and development of Deliverables.
- Price and Payment. Customer shall pay Scope AR the fees set forth in the Statement of Work either on a time and materials basis at Scope AR’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Customer shall reimburse Scope AR for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Scope AR in the performance of any Professional Services or development of any Deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services and development of Deliverables shall exclude all applicable Taxes.
Unless otherwise specified in the Statement of Work, Scope AR shall invoice Customer for fees for Professional Services and development of Deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.
- Term and Termination. This Schedule shall remain in effect only during the Term. Customer may terminate a Statement of Work without cause upon thirty (30) days prior written notice to Scope AR. If Customer terminates a Statement of Work for convenience, Customer shall pay Scope AR the full fee for any Professional Services performed or in the case of the development of Deliverables a pro rata portion of the full fee to reflect the amount of development effort (including all other costs for which Scope AR has the right to reimbursement) up to the effective date of termination of such Statement of Work.
Each party shall be entitled to immediately terminate this Schedule or a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
- Intellectual Property Rights. Scope AR shall own all right, title and interest and all intellectual property rights to any Deliverables created by Scope AR pursuant to this Schedule or any Statement of Work hereunder. Scope AR shall retain all right, title and interest and all intellectual property rights to any and all Scope AR proprietary information and Scope AR software. Subject to payment of the fees set forth in the applicable Statement of Work, Scope AR grants to Customer a non-exclusive, non-transferable (except as provided in Section 11.6 of the Agreement) license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set forth in Section 2 of the Agreement.
- Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of Scope AR who has been involved with, directly or indirectly, any of the Professional Services or development of any Deliverables hereunder within twelve (12) months of such employee’s last involvement with such Professional Services or Deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of Scope AR.