Terms of Service


vGIS Platform and vGIS Admin Portal

Last Revision Date: 2019-08-26

IMPORTANT – READ CAREFULLY

Unless superseded by a signed license agreement between you and vGIS Inc. (vGIS), vGIS is willing to provide vGIS Offerings and Services to you only if you accept all terms and conditions contained in this Agreement as the sole and final agreement of the parties regarding your acquisition of these vGIS Offerings and Services. Please read the terms and conditions carefully. You may not use the vGIS Offerings until you have agreed to the terms and conditions of the Agreement. If you do not agree to the terms and conditions as stated, you may not use or access vGIS Offerings and Services.

This Terms of Service Agreement (“Agreement“) is between you (“Customer“) and vGIS, Inc. (“vGIS”), an Ontario corporation with a place of business at 238 Dunforest Ave, Toronto, ON M2N 4J9 Canada.

vGIS may, in its discretion, make changes to the Agreements. When material changes to this Agreements are made, vGIS will provide Customer with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending Customer an email. In some cases, vGIS will notify Customer in advance, and Customer’s continued use of the Service after the changes have been made will constitute acceptance of the changes. If Customer does not wish to continue using the Service under the new version of this Agreements, Customer may terminate the Agreements by contacting vGIS representative.

1 Definitions and Documents

1.1 Definitions

Capitalized terms used but not defined within the sections of this Agreement have the meanings given in the Glossary of Terms and Definitions incorporated in Attachment-A in this Agreement under (the “Glossary of Terms and Definitions”).

1.2 Other Terms

  1. The terms defined in this Article include the plural as well as the singular and the derivatives of such terms;
  2. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, or sections;
  3. The words “include” and “including” shall not be construed as terms of limitation;
  4. Unless otherwise modified, the words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year;
  5. The word “notice” and “notification” and their derivatives means notice or notification in writing.

1.3 Contract Attachments

This Agreement includes each of the following attached exhibits:

  1. Glossary of Terms and Definitions (Attachment A);
  2. Non-Disclosure Agreement (Attachment B);
  3. Renewal Schedule (Attachment C).

2 General Grant of Rights and Restrictions

2.1 Grant of Rights

In consideration of Customer’s payment of all applicable fees and in accordance with this Agreement, vGIS:

  1. Provides Licenses and Services for use and implementation of vGIS Offerings;
  2. Grants to Customer a nonexclusive, non-transferable right to use the vGIS Offerings as set forth in the Specifications and applicable Ordering Documents.

The grants of rights in this section (i) continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement including Non-Disclosure Agreement.

2.2 Reservation of Rights

All vGIS Offerings are the copyrighted works of vGIS or its licensors. All rights not specifically granted in this Agreement are reserved.

2.3 Restrictions

The Parties further acknowledge that the grants of rights in this section (i) continue for the duration of the subscription identified in Term of Contract or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement including Attachments.

2.4 Trial and Evaluation

vGIS products acquired under a Trial or Evaluation license or subscription or under a Pilot program are intended for evaluation and testing purposes only and have a limited Term of Subscription. Any commercial use not outlined in this Agreement is strictly prohibited. If Customer does not convert to a purchased license or subscription prior to the expiration of the evaluation term, Customer may lose any Customer Content and customizations made during the evaluation term.

2.5 Consultant or Contractor Access

Customer may authorize its consultants or contractors to (i) host vGIS Offerings for Customer’s benefit and (ii) use vGIS Offerings exclusively for Customer’s benefit. Customer will be solely responsible for its consultants’ and contractors’ compliance with this Agreement and will ensure that each consultant or contractor discontinues use of the vGIS Offerings upon completion of work for Customer. Access to or use of vGIS Offerings by consultants or contractors that is not exclusively for Customer’s benefit is prohibited.

3 Software

3.1 Licence Types

vGIS licenses Software under the Device License type. Customer may install and use the Software on approved devices and the total number of devices equipped with Software may not exceed the number of licenses acquired.

3.2 Online Services

vGIS provides access to Online Services subscriptions and Web Portal under the following terms.

Named Users have unique, individual login credentials. Named Users have private access to features and add-ons of Online Services that are not publicly accessible to Anonymous Users.

Transfer of access between platforms. Customer may transfer licenses and Value-Added Applications to approved mobile devices for use in conjunction with Customer’s Online Services subscription and licenses.

Customer may not add third parties as Named Users to vGIS Web Portal and Customer’s Online Services subscription for the purpose of allowing third parties to access Customer’s Value-Added Applications.

Enable and Add new users and devices. Customer may enable Anonymous Users to access Customer’s Value-Added Applications running under Customer’s own subscription, subject to the following terms:

  1. Customer may not sell or charge for such access under subscription types that are outlines in this Agreement;
  2. Customer is responsible for all Service Credits consumed in Anonymous Users’ use of Customer’s Value-Added Applications.

3.3 Customer’s Responsibilities

Customer is solely responsible for the development and operation of Customer Content and Value-Added Applications and for its Named Users’ compliance with this Agreement. Customer and its Named Users or Anonymous Users (if applicable) are the only persons authorized to access Online Services through Customer’s subscription. Named Users’ login credentials are for designated Named Users only and may not be shared with other individuals. Customer may assign former Named Users’ login credentials to new Named Users if the former users no longer require access to Online Services.

Customer must include attribution acknowledging that its application uses vGIS Offerings, its Value-Added Applications, and Online Services, if attribution is not automatically displayed using Online Services. Customer shall acquire guidelines from vGIS for such attribution.

3.4 Modifications of Online Services by vGIS

vGIS may change Online Services and associated APIs at any time, subject to a thirty (30) notice of material changes and a hundred and eighty (180) notice for deprecations. If any modification, discontinuation, or deprecation of Online Services causes a material, adverse impact to Customer’s operations, vGIS may, at its discretion, attempt to repair, correct, or provide a workaround for Online Services. If a viable solution is not commercially reasonable, Customer may cancel its subscription to Online Services, and vGIS will issue a prorated refund.

3.5 Change and Updates Control

Implementation of Change and Updates. vGIS shall schedule and implement all Changes so as not to (i) disrupt or adversely impact the business or operations of Customer, (ii) degrade the Services then being received by them.

Testing. Prior to making any Change or using any new (e.g., not tested in or for the Customer environment) Software, or System to provide the Services that would require Customer consent, vGIS shall verify by appropriate testing that the Change or item is properly installed, operating in accordance with its specifications, performing its intended functions in a reliable manner and compatible with and capable of operating as part of the Customer environment. As requested by vGIS, Customer shall participate in such testing.

Temporary Emergency Changes and Updates. Notwithstanding the foregoing, vGIS may make temporary Changes required by an emergency, if it has been unable to contact the Customer Project Executive to obtain approval. vGIS shall document and report such emergency Changes to Customer within reasonable time frame after the Change is made.

3.6 Technology Evolution

vGIS Developed Advances. If vGIS develops or implements new or enhanced processes, services, software, tools, products or methodologies to be offered to its general customer base (collectively, “New Advances”), vGIS shall subject, with any limitations under vGIS’s other agreements, offer Customer the opportunity to access and implement such New Advances.

3.7 Azure Cloud Services Failures

System failures to Microsoft Azure cloud or other events beyond vGIS’ reasonable control may interrupt Customer’s access to Azure Cloud Services. vGIS may not be able to provide an advance notice of such interruptions.

4 Data

4.1 Permitted Uses of Data

Unless otherwise authorized in writing, Customer may only use Data with the vGIS Offerings which vGIS has provided the Services and Data.

vGIS does not acquire any rights in Customer data under this Agreement.

4.2 Use Restrictions

Customer may not act directly or authorize its customers to co=brand vGIS Data, use the vGIS Data in any unauthorized service or product, or offer vGIS Data through or on behalf of any third party.

Customer may not use or allow third parties to use vGIS Data for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party.

Certain Data licensors require vGIS to flow down additional attribution requirements and terms of use to Customer. These terms supplement and amend the terms of this Agreement.

4.3 Azure Cloud Services and Infrastructure

Storage, process, and maintenance. During the Term of this Agreement, Customer hereby grants to vGIS and its subcontractors permission to use Customer Content to support the provision of storage, process, and maintenance of Customer Data within Azure Cloud Services and vGIS Infrastructure. Such permission shall include, but not be limited to, the grant of rights and license to manipulate, publish, distribute, and implement Customer Content within the managed environment in any reasonable manner needed to support the provisions of this Agreement.

Requirements Planning. It is Customer’s responsibility to plan for and address with vGIS changes to Customer’s requirements, such as the need for additional capacity, the update of an application or dataset, or increased level of system availability.

4.4 Rights of Content

Each party shall retain title to any content made or conceived solely by its Inventors during the Term of this Agreement, including, but not limited to, such content that vGIS’ solely make or conceive while providing technical assistance pursuant to this Agreement.

4.5 Security and Privacy

vGIS will use commercially reasonable efforts to protect Customer data and ensure that vGIS Offerings will not disclose Customer data to third-parties, or transmit any malicious code to Customer.

vGIS is not responsible for data breaches or malicious code that Customer introduces to vGIS Offerings or that is introduced through third-party Content.

4.6 Customer Responsibility

Customer shall not provide Customer Content or otherwise access or use Azure Cloud Services or infrastructure in a manner that:

  1. Spams, spoofs, or phishing email; transmits junk email or offensive or defamatory material; or stalks or makes threats of physical harm;
  2. Stores or transmits any Malicious Code;
  3. Probes, scans, or tests the vulnerability of vGIS infrastructure, and Azure Cloud Services or breach any security or authentication measures used by vGIS services; or
  4. Benchmarks the availability, performance, or functionality of vGIS Services for competitive purposes.

5 Term and Duration

5.1 Initial Term

The initial Term of this Agreement shall commence as of Subscription Commencement Date. Unless an Agreement end date (“End Date”) is explicitly specified, Customer’s subscription will automatically renew at the end of the subscription period. vGIS will provide Customer with a written notice and a reminder of the Term of this Agreement four (4) weeks prior to the renewal date. If Customer does not wish to continue using the Service under the new version of this Agreements, Customer may terminate the Agreements by contacting vGIS representative. The cancellation will take effect the day after the last day of the current subscription period.

5.2 Changes

Any changes to Customer’s subscription can be deemed Subscription Downgrade or Subscription Upgrade at the sole discretion of vGIS. vGIS will contact Customer with a written notice two (2) weeks prior to the Subscription Downgrade or Subscription Upgrade effective date.

5.3 Subscription Upgrade

Changes that are deemed an Added value to the initial Terms of this Agreement are considered upgrade changes (“Subscription Upgrade”). vGIS keeps the right to identify a change as a Subscription Upgrade at this sole discretion.

Customer can request for a Subscription Upgrade at any time during the Initial Term of this Agreement. The Parties shall thereafter negotiate in good faith with respect to the terms and conditions upon which the Parties will renew this Agreement and thereafter execute the Subscription Upgrade changes. The Subscription Upgrade will take effect the day after the last day of the current subscription period. Additional fees and charges pertaining to the Subscription Upgrade will be calculated on prorated basis.

5.4 Subscription Downgrade

Changes that are deemed as Devaluation of the initial Terms of this Agreement are considered Downgrade Changes (“Subscription Downgrade”). vGIS provides Customer with two (2) timeframes during the contract for Subscription Downgrade changes (“Terms Revision Period”) which include Subscription Downgrade, change to Terms of this Agreement, or changes to the renewal term:

  1. First timeframe for change is set on January 1st of the calendar year (“First Terms Revision Period”);
  2. Second timeframe for contract change is set on July 1st of the calendar year (“Second Terms Revision Period”).

Customer shall request for a Subscription Downgrade two (2) weeks prior to the Terms Revision Period. If Customer desires to make subscription changes to this Agreement after the initial Term or any renewal Term, Customer shall provide written notice to vGIS of its desire to do during each Terms Revision Period and prior to the renewal of the contract. The Parties shall thereafter negotiate in good faith with respect to the terms and conditions upon which the Parties will renew this Agreement and thereafter execute such changes. The Subscription Downgrade will take effect the day after the last day of the current subscription period.

6 Agreement Termination

6.1 Termination for Cause

A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach 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.

6.2 Termination Without a Cause

Customer may terminate this Agreement at any time upon thirty (30) days written notice to vGIS and upon payment to vGIS of all amounts due to date pursuant to this Agreement, including reasonable expenses incurred as a direct result of the termination.

6.3 Termination Upon Customer Change of Control

vGIS may stop performing Services immediately upon written notice to Customer if a bankruptcy or insolvency proceeding or assignment for the benefit of creditors is commenced by or against Customer until the trustee cures any existing defaults and provides adequate assurance of future performance under this Agreement. This Agreement terminates upon the insolvency, liquidation, or dissolution of either party.

6.4 Termination Charges

If this Agreement is terminated by vGIS, vGIS will refund Customer any prepaid fees covering the remainder of the term after the effective date of termination.

If this Agreement is terminated by Customer in accordance with Section 6 (Agreement Termination) and subsection 6.2 (Termination without a Cause), Customer will pay any unpaid fees covering the remainder of the term of all Task Order Forms and reasonable expenses incurred as a direct result of the termination. In no event will termination relieve Customer of its obligation to pay any fees payable to vGIS for the period prior to the effective date of termination.

6.5 Termination Responsibilities

Upon any termination of a license or subscription, Customer will:

  1. Stop accessing and using the terminated vGIS Offerings;
  2. Clear any client-side data cache derived from the terminated Cloud Services; and
  3. Stop using and uninstall, remove, and destroy all copies of affected vGIS Offerings in Customer’s possession or control, including any modified or merged portions thereof, in any form.

7 Charges

7.1 General

Subscription Fees, Support Fees, Subscription Charges fees, Other Fees, updates to vGIS Offerings, and new or additional Services will be published four (4) weeks prior to the next scheduled renewal date. If Customer does not wish to continue using the Service under the new fee structure, Customer may terminate the Agreements by contacting vGIS representative.

Compensation and Expenses. vGIS will invoice Customer for the one-time setup fee upon Statement of Work execution. Thereafter, vGIS will invoice Customer according to Subscription and Support Agreement.

Customizations and out-of-scope charges. vGIS shall invoice Customer for all customizations and out-of-scope charges at the end of each calendar month. vGIS shall provide break-down of hours spent on customizations and out-of-scope activities.

Incidental Expenses. vGIS acknowledges that, except as expressly provided otherwise in this Agreement, expenses that vGIS incurs in performing the Services (including management, document reproduction and shipping, office Equipment required by vGIS Personnel, and long-distance telephone) are included in vGIS’ charges and rates set forth in this Agreement.

8 Invoicing and Payment

8.1 Invoicing and Payment

Fees. Customer is responsible for payment of all fees specified in Statement of Work or other Purchase Agreement signed by parties. Except as otherwise specified herein:

  1. Fees are based on Services and Content subscriptions purchased and not actual usage;
  2. Payment obligations are non-cancelable and fees paid are non-refundable; and
  3. Quantities of licenses and the type of subscription purchased cannot be decreased during the relevant subscription term.

Payment method. vGIS will invoice Customer in advance and otherwise in accordance with the relevant Order Form according to subsection 6.1.d (invoice schedule). Acceptable payment methods for vGIS Offerings include:

  1. Credit card;
  2. Wire transfer; and
  3. Cheques.

By providing credit card information to vGIS, Customer authorizes vGIS to charge such credit card for all purchased Services.

Payment Terms. Customer shall pay all license subscription and Support fees in advance, either annually or in accordance with any different billing frequency stated in the posted Renewal Schedule. Unless otherwise stated in the Statement of Work, invoiced charges are due next 30 days from the invoice date and will remit payment to the vGIS address stated on the invoice. Customer is responsible for providing complete and accurate billing and contact information to vGIS and notifying vGIS of any changes to such information.

Overdue Charges and Interest. If any invoiced amount is not received by vGIS by the due date, then without limiting vGIS rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) vGIS may condition future subscription renewals and Order Forms on future payment terms.

Suspension of Services and Acceleration of Payment. If any amount owing by Customer under this or any other agreement for vGIS services is 30 or more days overdue, vGIS may, without limiting its other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend vGIS services to Customer until such amounts are paid in full.

8.2 Disputed Charges

Notice of Dispute. vGIS will not exercise vGIS rights under Section 8.1 (Overdue Charges and Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

Continued Performance. Each Party agrees to continue performing its obligations under this Agreement while any dispute is being resolved unless and until such obligations are terminated by the termination or expiration of this Agreement.

9 Maintenance and Support

vGIS will provide Support and Maintenance for vGIS Offerings and Online Services in accordance with the vGIS Maintenance and Support Program, this Agreement, and supplemented Purchase of Support and Services agreement.

Maintenance services. vGIS shall maintain the Software (and its associated equipment) so that they operate substantially in accordance with the Service Levels and their specifications, including: (i) maintaining software and products in good operating condition, and (ii) performing Software maintenance in accordance with the applicable Software supplier’s documentation, recommendations and requirements.

Excluded from maintenance. Customer shall be responsible for maintaining Equipment and Software for which Customer has financial responsibility in working order. Customer shall enter into or maintain in effect commercially reasonable and appropriate maintenance agreements with applicable Third-Party (e.g., Microsoft, Apple, etc.) that are reasonably adequate to allow vGIS to provide its Services.

Hardware damages. vGIS shall not be responsible for (i) any damages inflicted to device before, during, or after Effective Date or during the term of this Agreement; (ii) breakage of the device before or during exploitation, testing; (iii) reduced performance of the vGIS software that is caused by the Customer’s equipment failure.

10 Training

Included Services. vGIS provides Training Materials for Training purposes only and for the exclusive use of the Customer and its End Users who attend the training sessions for which the Training Materials are provided.

Ownership. Each party shall retain title to any content made or provided by that party for the purposes of training.

11 Liability

11.1 Force Majeure

General. A party will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond the party’s reasonable control. Such causes may include, but are not limited to, acts of God, war, strikes, labor disputes, cyber attacks, laws, regulations, government orders, or any other force majeure event.

Duration and Notification. In the event of a force majeure event the non-performing Party shall be excused from further performance or observance of the obligation(s) that are affected for as long as such circumstances prevail and such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.

Notice. Any Party that its performance is prevented, hindered or delayed due to force majeure, shall, as quickly as practicable under the circumstances, notify the Party to whom (s)performance is and describe at a reasonable level of detail the circumstances of the force majeure event, the steps being taken to address such force majeure event.

Disaster Recovery. Upon the occurrence of a force majeure event that constitutes a disaster, both parties shall implement promptly, as appropriate, a disaster recovery plan and provide disaster recovery services.

11.2 Limitation of Liability

vGIS, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO USE OF THE SERVICES. USE OF THE SERVICES IS AT A CUSTOMER’S OWN RISK AND THAT vGIS PROVIDES THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” vGIS DOESN’T GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICES. To the extent permitted under a Customer’s local law, vGIS excludes any implied warranties, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort, and non-infringement. You may have certain rights under your local law. Nothing in this Agreement is intended to affect those rights, if they are applicable.
THE CUSTOMER acknowledges that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. vGIS does not guarantee the services will be uninterrupted, timely, secure, or error-free or that CONTENT loss won’t occur.

vGIS shall not be liable to Customer for:

  1. Personal injury or bodily harm or death incurred during performing of its responsibilities;
  2. Customer property and equipment damage incurred during the Term of this Agreement in the process of vGIS performance of its responsibilities, or as a result of use of vGIS Offerings;
  3. Breach of data security and confidentiality in addition to vGIS Offerings, due to introduction of malicious software (whether by Customer or by Third Party), hacker attacks, and any or all other forms of breach of data;
  4. vGIS is not responsible for any third-party website or Third-Party Content that appears in or is referenced by vGIS Offerings or vGIS websites, including www.vGIS.io and www.Meemim.com. Providing links to third-party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind.

11.3 No Implied Waivers

The failure of either party to enforce any provision of this Agreement is not a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

11.4 Class Action Waiver

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither Customers nor vGIS will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitration or proceedings.

11.5 Survival

All sections of this Agreement that by their terms apply after it ends will survive any termination or cancellation of this Agreement.

11.6 Assignment and Transfer

vGIS may assign this Agreement, in whole or in part, at any time without notice to the Customer. The Customer may not assign this Agreement or transfer any rights to use the Services.

11.7 No Third-Party Beneficiaries

This Agreement is solely for the Customer’s and vGIS’ benefit. It isn’t for the benefit of any other person, except for vGIS’ successors and assigns.

11.8 Waiver of Non-Competition Provision

If the Customer is a direct competitor of the Services, the Customer is allowed to access and use the Services subject to the terms and conditions of this Agreement. By doing so, the Customer agrees to waive as against vGIS, its subsidiaries and its affiliated companies (including prospectively) any competitive use, access, and bench-marking test restrictions in the terms of use governing the Customer’s service offering to the extent that the terms of use are, or purport to be, more restrictive than vGIS’ terms. If the Customer does not waive any such purported restrictions in the terms of use governing their service, the Customer is not allowed to access or use the Services, and should not do so.

11.9 Indemnification

The Customer shall defend, indemnify, and hold harmless vGIS from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from Customer’s breach of this Agreement, any of Customer’s Content, or Customer’s use or misuse of the Services. vGIS shall provide notice to Customer of any such claim, suit or demand. vGIS reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, Customer agree to cooperate with any reasonable requests assisting vGIS’ defense of such matters.

11.10 Governing Law

The Province of Ontario and the federal laws of Canada govern this Agreement without regard to its conflicts of laws provisions. Customer agrees to the exclusive jurisdiction of the Province of Ontario. vGIS does not represent that the Services are appropriate or available for use in all countries. Customer is accessing the Services on Customer’s own initiative and Customer are responsible for compliance with all applicable laws.

11.12 Copyright and Trademark Notices

All portions of the Services are Copyright © 2016 vGIS Inc. and/or its suppliers. All rights reserved.

All other trademarks are the property of their respective owners.

Attachment A – Glossary Of Definitions

This Glossary of Definitions is a part of and incorporated within the Master Agreement between Customer and vGIS.

Account Executive” shall describe the vGIS representative responsible for both the day to day relationship with Customer as well as the delivery of all Services to Customer.

Affiliate” means with respect to any Entity, any other Entity that is directly or indirectly Controls, is Controlled by or under common Control with such Entity at the time in question.

Agreement” has the meaning given in the preamble to this Agreement.

Applications Software” or “Applications” means those software application programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials, media, and on-line help documentation and tools.

Authorized Device(s)” means, unless otherwise indicated, vGIS-approved device that is designated by Customer to receive Software.

Authorized User(s)” means, unless otherwise indicated, officers, directors, employees, contractors, and agents of Customer and any other person(s) designated by Customer to receive or use the Systems or Services provided by vGIS.

Business Day(s)” means Monday through Friday, except for holidays recognized by vGIS.

Business Hours” means 9 am to 6 pm Eastern Time local time.

Calls” means problems, questions, or requests from Authorized Users submitted to vGIS by telephone.

Charges” means the amounts set forth in, or calculated pursuant to, or otherwise set forth in the Agreement as charges due to the vGIS in return for providing the Services.

Commencement Date” means date as the Parties may agree upon in writing as the date on which vGIS will assume responsibility for the performance of Services under this Agreement.

Customization” means, with respect to Software, deliverables to be designed, developed, delivered, integrated, installed and/or tested by vGIS, the technical, design and/or functional specifications set forth in third party vendor documentation, in a New Services or Project description requested and/or approved by Customer, or otherwise agreed upon in writing by the Parties.

Customer Data” means any data or information of Customer that is provided to or obtained by vGIS in connection with the negotiation and execution of this Agreement or the performance of vGIS’ obligations under this Agreement, including data and information with respect to the mapping system, GIS data, location of facilities, regulatory compliance, assets of Customer.

Customer Owned Software” means Software owned by Customer, a Customer Affiliate or an Eligible Recipient and used, operated, maintained or supported by or on behalf of vGIS under or in connection with this Agreement.

Data Center” means vGIS’ Technology Center or such other vGIS data center from which vGIS performs the Services.

Documentation” includes, but is not limited to, vGIS’ current user operating instructions, training materials, release notes and installation guides generally provided via electronic download with the Software to Customer.

Effective Date” has the meaning given in the preamble to this Agreement.

Eligible Recipients” means, collectively, and to the extent such Entity is receiving Services under this Agreement, including Customer and its legal recipient of vGIS license and services.

Entity” means a corporation, partnership, joint venture, trust, limited liability company, limited liability partnership, association or other organization or entity.

“Error” means either: (a) a failure of the Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or restriction in the use of, the Software; and/or (b) a problem requiring new procedures, clarifications, additional information and/or requests for product enhancements.

Help Desk” means the vGIS facilities, associated technologies, and vGIS Personnel who respond to Calls, provide proactive and reactive problem determination, resolution and/or tracking, and act as a single point of contact for Authorized Users in regard to the Services.

Laws” means all federal, state, provincial, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other official releases of or by any government, or any authority, department or agency thereof or self regulatory organization (“SRO”).

Level 1 Support” means support that is provided as the entry point for inquiries or problem reports from Authorized Users. If Level 1 personnel cannot resolve the inquiry or problem, the inquiry or problem is directed to the appropriate Level 2 personnel or third party for resolution.

Level 2 Support” means support that serves as a consolidation point for inquiries and problems between Level 1 and Level 3. If Level 2 personnel cannot resolve the inquiry or problem, the inquiry or problem is directed to the appropriate Level 3 personnel or third party for resolution.

Level 3 Support” means support provided by the personnel or third party that is most knowledgeable about the underlying problem or question and is utilized when efforts to resolve the problem or question by Level 1 and Level 2 Support have failed or are bypassed. Inquiries or problems are usually reported by Level 1 or Level 2 support personnel, but may be initiated directly by Authorized Users or the vGIS.

Malicious Code” means any unauthorized code.

New Services” means new services or significant changes to existing Services.

Out-of-Pocket Expenses” means reasonable, demonstrable and actual out-of-pocket expenses due and payable to a third party by vGIS for which vGIS is entitled to be reimbursed by Customer under this Agreement.

Party” or “Parties” has the meaning given in Preamble of this Agreement.

Prime Rate” means the “Prime Rate” set forth in the “Money Rates” table in The Wall Street Journal as of the applicable date of calculation.

Problem Ticket” means a ticket entered into vGIS’ Problem Ticket Tracking System in response to a Call, a Service Request or other agreed to means of accessing the Help Desk.

Service Level(s)” means, individually and collectively, the quantitative performance standards for the Services set forth in or otherwise provided for pursuant to this Agreement.

Service Request” means a request to provide Services and in the form agreed to in the Policy and Procedures Manual.

Severity Level” means Severity Level 1, Severity Level 2, or Severity Level 3, either collectively or separately.

Severity Level 1” means a system or a business outage impacting (i) performance of vGIS Offerings, (ii) immediate work stoppage that threatens current productivity of a more than five (5) Authorized Devices and no workaround exists.

Severity Level 2” means a high-impact problem where business operation of Customer while using vGIS Offerings can continue, but in an impaired fashion. The problem has productivity impact without causing immediate work stoppage (i.e., a workaround is available).

Severity Level 3” means (i) an issue requiring ultimate, but not immediate, resolution; (ii) an issue that has a limited business impact.

“Software” means all software programs and programming for which a Party is financially or operationally responsible for use as of the Effective Date, including software programs.

“Systems Software” means the operating systems Software for the Equipment and middleware that operates in conjunction with such Software.

Subscription Upgrade

“Subscription Downgrade

Terms Revision Period

“Update” means either a Software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on Customer.

“Upgrade” means a revision of the Software released by vGIS to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge.

Term” means the time and duration given in the Agreement.

“Termination Charge” means the termination charges payable by Customer upon termination pursuant to vGIS Offerings or elsewhere in this Agreement.

Third Party Contracts” means all agreements between third parties and Customer, an Eligible Recipient or vGIS (or vGIS’ Subcontractors or Affiliates) that have been or will be used to provide the Services to Customer to the extent a Party has financial or operational responsibility for such contracts under this Agreement.

Third Party Software” means all Software products (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are provided under license or lease to vGIS or Customer that have been or will be used to provide or receive the Services to the extent a Party has financial or operational responsibility for such Software.

WEB Portal” means a graphical user interface for an information system accessed by a user via the internet or an intranet.

Attachment B – Mutual Non-Disclosure Agreement

This MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”) is made effective as of December 28, 2017  (the “Effective Date”) by and between you and the company you represent or work on behalf of and vGIS Inc., 238 Dunforest Avenue, Toronto, ON M2N 4J9.

 DEFINITIONS

  1. “Affiliate” shall mean an entity that controls a party hereto, an entity that is controlled by a party hereto, or an entity controlled by another entity that controls a party hereto, provided that, for purposes of this definition, “to control” means to have direct or indirect ownership of more than fifty percent (50%) of the outstanding shares or equity of an entity.
  2. “Confidential Information” shall mean (a) know-how, trade secrets, tools, methods, methodologies, techniques, designs, specifications, computer source code, customer lists, pricing information, marketing plans, personnel information, financial information and business strategies, (b) other information that, a reasonable person would conclude, is intended to remain confidential, due to its nature or the circumstances under which it is disclosed, (c) any other non-public information that either party designates as confidential pursuant to the terms herein, and (d) any and all such information of an Affiliate or other third party (including but not limited to any licensor, licensee, or client of a party hereto) that may be disclosed or furnished to Receiving Party, or accessed by Receiving Party.
  3. “Disclosing Party” shall mean a party hereto, as well as any Affiliate of such party that discloses or furnishes Confidential Information to Receiving Party, or provides or allows Receiving Party access to Confidential Information, either directly or through another party.
  4. “Receiving Party” shall mean a party hereto, as well as any Affiliate of such party that receives or accesses Confidential Information of Disclosing Party.

 AGREEMENT

  1. In consideration of the mutual obligations herein, each of the parties may disclose to the other various Confidential Information, subject to the terms of this Agreement.
  2. Disclosing Party may designate specific materials and information as Confidential Information, except materials or information that Disclosing Party does not, in good faith, consider to be proprietary or confidential. The absence of any such designation shall not relieve Receiving Party of any obligation hereunder.
  3. Receiving Party shall maintain the secrecy and confidentiality of all Confidential Information of Disclosing Party with the same care that applies to Receiving Party’s own confidential materials and information, but in any event using reasonable care.
  4. Receiving Party may disclose Confidential Information of Disclosing Party only for purposes of the joint activity of the parties and only to the employees and contractors of Receiving Party and any Affiliate of Receiving Party who have a need to know, provided that each such employee has previously been advised of the confidential nature of such Confidential Information, and each such contractor has agreed in writing to be bound by an obligation of confidentiality no less protective of such Confidential Information than the terms herein. Each party to this Agreement shall cause each Affiliate of such party that becomes a Receiving Party hereunder to comply with the provisions of this Agreement.
  5. Nothing in this Agreement shall be construed to grant to Receiving Party any title, ownership, intellectual property right or license in the Confidential Information of Disclosing Party and Receiving Party acknowledges that it does not acquire any such title, ownership, intellectual property right or license under this Agreement. Nothing in this Agreement shall be construed as an obligation of either party to enter into a contract, subcontract or other business relationship with the other party.
  6. Receiving Party shall not publicly distribute evaluations or summaries of Confidential Information of Disclosing Party without written authorization of Disclosing Party. Any such authorization may be conditioned upon the inclusion of copyright notices or other appropriate markings in the evaluations or summaries.
  7. Receiving Party shall not use Disclosed Information to engage in any employment, consulting, or other activity that competes with the business, proposed business or business interests of Disclosing Party, copy, reproduce, reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party’s Confidential Information, use Confidential Information to enhance Receiving Party’s products, and Receiving Party will not assist any other person or entity in doing so, without Disclosing Party’s prior written consent.
  8. Receiving Party has no obligation with respect to any Confidential Information of Disclosing Party that: (a) was rightfully in Receiving Party’s possession before receipt from Disclosing Party other than through prior disclosure by Disclosing Party; or (b) is or becomes publicly available without a breach of this Agreement; or (c) is rightfully received by Receiving Party from a third party without an obligation of confidentiality; or (d) is independently developed by Receiving Party without the use of Confidential Information of Disclosing Party. Receiving Party shall have the right to disclose Confidential Information of Disclosing Party pursuant to a court order, governmental regulation or other legal requirement, provided that, prior to any such disclosure, Receiving Party gives Disclosing Party notice and a reasonable opportunity to oppose or limit disclosure.
  9. This Agreement may be terminated by either party upon thirty (30) days written notice. Termination of this Agreement for any reason shall not relieve Receiving Party of its obligations hereunder, and all obligations under Articles 3, 4, 6, 7, 8, and 9 shall survive termination of this Agreement for a period of three (3) years.
  10. Except as otherwise expressly agreed by the parties in writing, upon termination of this Agreement, Receiving Party shall (a) immediately cease using Confidential Information of Disclosing Party, (b) promptly return to Disclosing Party or, with the consent of Disclosing Party, destroy all media received from Disclosing Party that contain Confidential Information of Disclosing Party, (c) destroy all other copies of Disclosing Party’s Confidential Information in Receiving Party’s possession or control, and (d) promptly certify in writing Receiving Party’s compliance with the terms of this Article.
  11. In the event that Receiving Party breaches this Agreement, damages may not provide an adequate remedy for Disclosing Party. Therefore, the parties acknowledge that, in the event of a breach or threat of breach, Disclosing Party may be entitled to injunctive relief, in addition to any other relief available at law or in equity.
  12. This Agreement states the entire understanding of the parties with respect to the exchange and protection of Confidential Information, superseding all prior agreements with respect thereto.
  13. This Agreement is governed by the laws of the Province of Ontario without giving effect to its conflict of laws provisions and is treated in all respects as an Ontario contract.

Attachment C – Subscription Renewal Schedule

2018 – Semi-Annually

  • January 1, 2018
  • June 1, 2018

2019 – Semi-Annually

  • January 1, 2019

2020 – Annually

  • January 1, 2020

2021 – Annually

  • January 1, 2021

2022 – Annually

  • January 1, 2022