ENVISIO SOLUTIONS INC.
MASTER SERVICES AGREEMENT
PLEASE READ THIS MASTER SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY . THIS AGREEMENT APPLIES TO ENVISIO SOLUTIONS INC. (“ENVISIO”) AND ANY CUSTOMER (THE “ CUSTOMER”) WHO UTILIZES ENVISIO’S SAAS STRATEGY IMPLEMENTATION SOFTWARE SERVICES DESCRIBED HEREIN (THE “SERVICE”), WHETHER OR NOT THE CUSTOMER PAYS FOR THE SERVICE.
ACCEPTING THE TERMS
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BY EXECUTING AN ORDER OR QUOTATION FORM THAT REFERENCES THIS AGREEMENT, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE CUSTOMER IS
ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY , THE CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE CUSTOMER
DOES NOT HAVE SUCH AUTHORITY , OR THE CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THE CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.PURCHASED SERVICES
1.1.Provision of Purchased Services
Envisio shall provide to the Customer the Service that is ordered by the Customer (“ Purchased Services”) on Envisio’s invoice or quotaVon form (each a “Quote”) during a SubscripVon Term (as defined below), a[ached hereto as Appendix A.
The Service is hosted on Envisio’s service provider pla ]orm, “Heroku” (owned by Salesforce.com). Heroku’s physical infrastructure is hosted and managed within Amazon’s secure data centers and uVlizes the Amazon Web Service (“AWS”) technology. The Customer further acknowledges that the Customer Data (as defined below) resides on AWS’s servers either in the USA or Canada (available on request). The Customer may access the Service, but has no right to receive a copy of the object code or source code to the Service. The Customer must have high speed Internet connec Von, and compaVble hardware and up to date ‘browser’ sobware to access the Service, none of which are Envisio’s responsibility.
1.2.SubscripGon License
Unless otherwise stated in the applicable Quote, the Purchased Services are purchased as a subscrip Von license (the “SubscripGon”) and non-transferrable to a third party. AddiVonal Users (as defined below) can be added to the SubscripVon during the SubscripVon Term at the same pricing as the underlying Subscrip Von, prorated for the porVon of that SubscripVon Term remaining, and any added SubscripVon will terminate on the same date as the underlying SubscripVons.
2.ENVISIO’S RESPONSIBILITIES
2.1.Provision of Service
Envisio will use commercially reasonable efforts to make the Service available to the Customer 24 hours per day, 7 days per week, except for planned downVme of which Envisio shall provide at least 24 hours noVce via the Service and scheduled to the extent pracVcable during the weekend hours between 6 pm Friday and 3 am Monday Pacific Time. Any unavailability caused by circumstances beyond Envisio’s reasonable control including but not limited to: the malfuncVon of equipment,
acts of God, act of government, flood, fire, earthquake, civil unrest, act of terror (collecVvely, “Force Majeure”), or the acVviVes of third parVes not under Envisio’s control (including Internet and other service providers) is not the responsibility of Envisio. Envisio will make reasonable efforts to reduce to a minimum and miVgate the effect of any Force Majeure.
2.2.Customer Data
The Customer must provide all data for use in the Purchased Services (the “Customer Data”) and Envisio is not obliged to modify or add to it. The Customer Data belongs to the Customer and it is solely responsible for the content and accuracy.
The Customer grants to Envisio all necessary licenses in and to such Customer Data solely for Envisio to provide the Service to the Customer.
Envisio will treat the Customer Data as confidenVal and will not disclose it to third parVes unless as compelled by law or unless expressly permi[ed in wriVng by the Customer. Envisio will not access the Customer Data except as necessary to address service or technical issues, at the Customer’s request.
As part of Envisio’s standard Service offering, Envisio will make daily backup copies of the Customer Data and maintain such data for a period of seven weeks.
2.3.SoNware UpGme Agreement
Envisio endeavours to provide 99.9% upVme with respect to the Purchased Services in each calendar month during the Term, excluding:
(a) any scheduled maintenance Vmes;
(b) factors outside Envisio’s reasonable control; and
(c) downVme related to the Customer’s or third party’s hardware, sobware or services.
If in any calendar month this upVme commitment is not met by Envisio and the Customer was materially impacted from a resulVng disrupVon to the Purchased Services as determined in Envisio’s sole discre Von acVng reasonably, Envisio shall provide, as the sole and exclusive remedy, a service credit equal to 25% of one month’s fee for the use of the Service (the “Credit”).
2.4.Service Level Agreement
There are several ways to get support for using Envisio, including online knowledge base, technical support, consul Vng support, and community support opVons.
The Customer Success Team technical and consulVng support is available during its regular business hours on weekdays that are not legal Canadian holidays. Regular business hours are listed below for the Vme zone in which your organizaVon is located:
>> 9:00 am EST unVl 8:00 pm EST
>> 8:00 am CST unVl 7:00 pm CST
>> 7:00 am MST unVl 6:00 pm MST
>> 6:00 am PST unVl 5:00 pm PST
The following targets will be used for response to support requests:
Severity IniGal Response ResoluGon Updates
CriGcal 1 hour Work conVnuously Every business day
High 2 hours As soon as possible Every other business day
Medium 4 hours As soon as possible Every other business day
Low Following business day Reasonable effort Weekly
Severity indicators are defined as follows:
>> Cri$cal - Envisio is down and no workaround is available. >> High - Use of Envisio is impaired but instances are up and running. No workaround is available. >> Medium - A funcVon of Envisio has failed, but Envisio is sVll useable. Support is aware of the issue. >> Low - Envisio funcVonality is not impaired. This priority also includes feature, informaVon, documentaVon, how-to, and enhancement requests.
Updates will conVnue unVl the issue is resolved or there is a workaround in place. We aim to resolve all issues expediVously, but when an issue is difficult to solve and takes longer than one business day, we will provide updates on our progress according to the schedule listed above.
Canadian holidays observed in BriVsh Columbia include: New Year's Day (January 1), Family Day (third Monday in February), Good Friday (Friday before Easter), Easter Monday, Victoria Day (Monday before May 25), Canada Day (July 1), Bri Vsh Columbia Day (first Monday in August), Labour Day (first Monday in September), NaVonal Day for Truth and ReconciliaVon (September 30), Thanksgiving (second Monday in October), Remembrance Day (November 11), and Christmas Day (December 25). Envisio offices close for the enVre week for the Christmas holiday.
2.5.Credit Request
In order to receive the Credit, the Customer must provide su fficient evidence to support the Credit and email [email protected] within 5 days of the end of the applicable calendar month. If the Customer is past due or in default with respect to any payments owed to Envisio under this Agreement, the Customer is not eligible to receive the Credit.
3.CUSTOMER’S USE OF THE SERVICE
3.1.Authorized Users
The Customer agrees to maintain authorized users based on the number of user accounts (“Accounts”) purchased under the SubscripVon as stated in the Quote. Only the Customer or persons or enVVes that have access to an Account through a username and password for the Account (each a “User” and collecVvely, the “Users”) may use the Account. If the number of Users exceeds the Accounts purchased, Envisio will noVfy the Customer’s Administrator (as defined in SecVon 3.2 below) via email of the overage and the Customer will have 5 business days following delivery of such email to make any changes necessary to address the overage. Following that 5 business days period, if the overage remains Envisio will invoice the Customer for the addiVonal Accounts required to address the overage at the same fee as the exisVng Accounts subscribed for under the SubscripVon, prorated for the duraVon of the SubscripVon Term remaining and the Customer will pay the invoice according to the terms outlined in SecVon 5.4 below.
3.2.Email and NoGces
At the Vme of ordering the Service from Envisio, the Customer shall iden Vfy the administrator(s) responsible for the Accounts (each an “Administrator”). The Customer agrees to provide Envisio with the Administrator’s contact informaVon including e-mail address. By providing the Administrator’s e-mail address, the Customer agrees to receive all required noVces electronically to the Administrator’s e-mail address.
The Administrator shall be responsible on behalf of the Customer for managing the Accounts, maintaining all User informaVon, and the Purchased Services used by the Customer. It is the Customer’s sole responsibility to noVfy Envisio if the Customer changes or intends to change its Administrator(s).
3.3.Users: Passwords, Access and NoGficaGons
It is the Customer’s responsibility to change and maintain its Users’ records in Envisio to secure access to the Account. The Customer is also solely responsible for ensuring the confidenVality and secrecy of each User’s login. The Customer agrees not to disclose its Users’ login informaVon to any third party and will prevent its employees and personnel from sharing User’s login informaVon amongst themselves. The Customer will be responsible for all electronic communicaVons generated through the Service, including, but not limited to, Account registraVon and noVces. The Customer is only enVtled to access and use the Service and the Account for lawful purposes.
Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly noVfy Envisio of such unauthorized access or loss/theb of any of its Users’ login informaVon.
3.4.RestricGons
The Customer is responsible for all acVviVes conducted under its User accounts and ensuring their Users’ compliance with this Agreement.
The Customer shall not:
(a)permit concurrent use of a single User account, or Vme-sharing of the Service; (b)post or transmit any Customer Data that contains viruses, worms, Vme bombs, Trojan horses or any other contaminaVng, corrupVng or destrucVve features, or use the Service in an irresponsible manner that interferes with the proper working and normal operaVon of the Service, or detrimentally interferes with personal informaVon or property of another;
(c)copy, modify, create a derivaVve work of, reverse engineer, reverse assemble, disassemble, decompile or otherwise a[empt to extract the source code or modify the Service in any manner or form; or (d)transfer, sell, lease, rent or assign, in any way, all or a porVon of, the Account and/or the Service to any third party (other than Users in accordance with SecVon 3.1).
This SecVon shall survive any terminaVon or expiraVon of this Agreement.
4.INTELLECTUAL PROPERTY
The Customer acknowledges that Envisio retains all right, Vtle and interest in and to the Service and all sobware, materials, formats, interfaces, informaVon, data, content and Envisio’s proprietary informaVon and technology used by Provider or provided to Customer in connecVon with the Service (the “Envisio Technology”), and that the Envisio Technology is protected by intellectual property rights owned by or licensed to Envisio. Other than as expressly set forth in this
Agreement, no license or other rights in the Envisio Technology are granted to the Customer, and all such rights are hereby expressly reserved by Envisio.
The Customer must not, without Envisio’s express wri [en consent, use any of Envisio’s trademarks, service marks, copyrighted materials, or other intellectual property.
The Customer acknowledges that any ideas, suggesVons, concepts, processes or techniques that it provides to Envisio related to the Service or Envisio’s business (the “Feedback”) shall become Envisio’s property without any compensaVon or other consideraVon payable to the Customer by Envisio, and the Customer does so of its own free will and voliVon. Envisio may or may not, in its sole discreVon, use or incorporate the Feedback, in whatever form or derivaVve that Envisio may decide, into the Service, documentaVon, business or other products. The Customer hereby assigns all rights on a worldwide, exclusive basis in perpetuity to Envisio in any Feedback and, as applicable, waives any moral rights to the Feedback.
This SecVon shall survive any terminaVon or expiraVon of this Agreement.
5.PURCHASED SERVICES AND PAYMENT
5.1.Term of Agreement
This Agreement is effecVve between the Customer and Envisio as of the date of the Customer’s acceptance of this Agreement (the “Contract EffecGve Date”) and conVnues unVl the SubscripVon Terms with respect to each SubscripVon subscribed for by the Customer hereunder has expired or been terminated.
5.2.Term of SubscripGons and Renewal
The term of each SubscripVon (the “SubscripGon Term”) shall be as set out in the applicable Quote, a[ached hereto as Appendix A. Unless otherwise set out in the applicable Quote, each SubscripVon shall renew upon the wri[en consent of both parVes for one year, unless either party gives the other noVce of non-renewal at least 30 days before the end of the SubscripVon Term. The per-unit pricing during renewal will increase by 10% per annum, unless otherwise agreed to by the parVes.
5.3.Service Fees
The Customer shall pay Envisio the fees speci fied on the Quote (the “Fees”). Fees are based on Purchased Services comprising of subscripVon fees and implementaVon fees and are non-refundable. Purchased Services cannot be decreased during the SubscripVon Term. This SecVon shall survive any terminaVon or expiraVon of this Agreement.
5.4.Invoicing and Payment
Billing for the Purchased Services will be in advance on an annual (twelve months) basis. Unless otherwise stated in the Quote, invoiced charges are due net 30 days from the invoice date (the “ Due Date”). The Customer is responsible for providing complete and accurate billing and contact informaVon to Envisio and noVfying Envisio of any changes to such informaVon. Overdue invoices will incur a 2% per month interest charge. If the Customer fails to pay the invoice within the Due Date, Envisio may, at its sole discreVon, declare the Account delinquent (a “Delinquent Account”). This SecVon shall survive any terminaVon or expiraVon of this Agreement.
5.5.Applicable Taxes
Envisio shall charge the Customer, and the Customer shall pay to Envisio, all applicable taxes, including any retroacVve taxes on past Fees or charges (whether already paid or not) in cases where Envisio is under a legal obligaVon to collect such tax from the Customer. The Customer shall be responsible for any and all other taxes that the Customer is under a legal obligaVon to pay. This SecVon shall survive any terminaVon or expiraVon of this Agreement.
6.TERMINATION AND SUSPENSION
6.1.Envisio’s Right to Suspend the Account
Envisio reserves the right to suspend the Customer’s Account and access to and use of the Service under the following condiVons:
●the Account becomes a Delinquent Account; or
●Envisio reasonably concludes that the Account is being used to engage in denial service a [acks, spamming, or illegal acVvity, and/or use of the Account is causing immediate, material and/or ongoing harm to Envisio and others.
In the extraordinary event that Envisio suspends the Customer’s access to the Service, Envisio will use commercially reasonable efforts to limit the suspension to the o ffending porVon of the Service and resolve the issues causing the suspension of the Service.
6.2.TerminaGon for Cause/ExpiraGon
Either party (the “Complaining Party”) may immediately terminate this Agreement and all Quotes issued hereunder in the event the other party (the “Breaching Party”) commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of wri[en noVce from the Complaining Party.
Such noVce by the Complaining Party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the Breaching Party an opportunity to cure such alleged breach and shall be sent to the Breaching Party in accordance with the noVce requirements set out in SecVon 10.8 below.
Upon terminaVon or expiraVon of this Agreement, Customer shall have no rights to conVnue use of the Service. If this Agreement is terminated by Customer for any reason other than a terminaVon expressly permi[ed by this Agreement, then Envisio shall be enVtled to all of the Fees due under this Agreement for the enVre Term. If this Agreement is terminated as a result of Envisio’s breach of this Agreement, then Customer shall be enVtled to a refund of the pro rata porVon of any subscripVon fees paid by Customer to Envisio under this Agreement for the terminated porVon of the Term.
6.3.TerminaGon for Convenience
Customer may terminate this Agreement without cause by giving sixty (60) days advance wri [en noVce to Envisio of its elecVon to terminate this Agreement pursuant to this provision. In the event of such terminaVon, Customer agrees to pay a SaaS Recovery Amount equivalent to 50% of the SubscripVon Fees for the remainder of the IniVal Term of the Agreement.
6.4.Handling of Customer Data Upon TerminaGon
EffecVve upon cancellaVon of the Account, Envisio may deacVvate the Account and be enVtled to delete the Account and the Customer Data from the Service on the date the SubscripVon Term expires. The Customer further agrees that Envisio shall not be liable to the Customer nor to any third party for any terminaVon of the Customer’s access to the Service or deleVon of the Customer Data, provided that Envisio is in compliance with the terms of this Sec Von 6.3. It is the responsibility of the Customer to obtain a full data export, screen captures and download all necessary reports and any other Customer data, should the Customer wish to keep the data.
7.PRICE AND SERVICE CHANGES
7.1.SoNware SubscripGon Fees
Envisio reserves the right to amend the Fees and the nature of the Service offered to the Customer from Vme to Vme and in its sole discreVon, provided however that Envisio shall not decrease the level of Service or increase the SubscripVon fees by more than 10% per annum per SubscripVon unVl the end of the SubscripVon Term in effect for the Customer. Envisio shall give the Customer noVce of any such changes in the Fees and the Service 60 days in advance of the expira Von of the relevant SubscripVon Term. If the change in Fees is not acceptable to the Customer, the Customer’s sole and exclusive remedy shall be to cancel the applicable Subscrip Von by providing Envisio with wri [en noVce of cancellaVon to [email protected] at least 30 days before to the expira Von of the relevant SubscripVon Term. ConVnuing to use the applicable Service aber the end of the SubscripVon Term consVtutes the Customer’s acceptance of all changes in Fees.
7.2.Professional Services Fees
Envisio shall provide the professional service as defined in the Scope of Work (“SOW”), Appendix B, in a professional manner, consistent with industry standards. Unless otherwise agreed upon by both parVes, or as the result of a delay on the part of Envisio, the obligaVon to provide professional services to the Customer expires the earlier of:
1) compleVon of the services described in the SOW
2) 12 months from the effecVve date of the relevant Quote AddiVonal Professional Services required as a result of add-on feature purchases or as a result of implementa Von delays outside Envisio’s control will be charged at our then current rate, currently set at $225 per hour.
7.3.Travel Costs
Unless noted otherwise, this quotaVon does not include any travel, lodging, or on-site expenses. If such travel is required and subsequently authorized, Envisio’s standard travel and per diem rates shall apply. Envisio must receive pre-approval from Customer prior to incurring travel costs. Air Travel, Rental Car (with associated fuel and parking costs), and Lodging costs shall be reimbursed at cost. Envisio is not responsible for unpredictable (including Commercial Airline Travel) delays which may increase travel cost.
8.WARRANTIES
8.1.Our WarranGes
Envisio warrants that (a) the Service will achieve in all material respects the func Vonality described in the applicable technical documentaVon for the Service that is provided from Vme to Vme by Envisio to the Customer (the “ Help DocumentaGon”), and (b) Envisio will not materially decrease the func Vonality of the Service subscribed for under a
SubscripVon during the applicable SubscripVon Term. The Customer’s sole and exclusive remedy for Envisio’s breach of this warranty shall be that Envisio be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the funcVonality as described in the Help Documenta Von and, if Envisio is unable to restore such funcVonality, the Customer shall be enVtled to terminate this Agreement and receive a pro-rata refund of the subscripVon fees paid under this Agreement for the SubscripVon for the terminated porVon of the SubscripVon Term.
8.2.Disclaimer of Warranty
THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY ENVISIO TO THE CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND EXCEPT AS EXPRESSLY SET OUT HEREIN. ENVISIO HEREBY DISCLAIMS ALL 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 , INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING,
PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
FOR THE PURPOSES OF THIS SECTION 8.2, “ENVISIO” INCLUDES ENVISIO’S DIVISIONS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, PARENT COMPANIES AND THEIR (INCLUDING ENVISIO’S) EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS,
MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, AFFILIATES, RESELLERS, THIRD PARTY PROVIDERS, MERCHANTS, LICENSORS AND THE LIKE.
This SecVon shall survive any terminaVon or expiraVon of this Agreement.
9.LIMITATION AND EXCLUSION OF LIABILITY
9.1.LimitaGon of Liability
(a)IN NO EVENT SHALL EITHER PARTY BE LIABLE TO 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.
(b)IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE CUSTOMER TO ENVISIO IN THE 12 MONTHS PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE.
(c)THE PROVISIONS OF SECTION 9.1(A) AND 9.1(B) SHALL NOT APPLY TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES FROM:
I. A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; OR II. CLAIMS FOR FEES OWED TO ENVISIO UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN THEIR COLLECTION.
THE CUSTOMER SHALL MAKE NO CLAIM, COMPLAINT, OR PROCEEDING AGAINST ENVISIO FOR ANY OR ALL PORTIONS OF
THE SERVICES THAT MAY REQUIRE THE DOWNLOADING OF WEB SITE COOKIES FOR THE CUSTOMER TO ACCESS SUCH PORTIONS OF THE ACCOUNT.
FOR THE PURPOSES OF THIS SECTION 9.1, “PARTY” INCLUDES EACH PARTY’S DIVISIONS, SUBSIDIARIES, AFFILIATES,
SUCCESSORS, PARENT COMPANIES AND THEIR EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES,
CONSULTANTS, CONTRACTORS, AGENTS, AFFILIATES, RESELLERS, THIRD PARTY PROVIDERS, MERCHANTS, LICENSORS AND THE LIKE.
This SecVon shall survive any terminaVon or expiraVon of this Agreement.
10.GENERAL
10.1.InterpretaGon of this Agreement
The term “including,” wherever used in any provision of this Agreement, means “including but without limi Vng the generality of any descripVon preceding or succeeding such term.” Any rule of construcVon to the effect that any ambiguity is to be resolved against the drabing party shall not be applicable in the construcVon or interpretaVon of this Agreement.
The division of this Agreement into secVons/paragraphs, and the inserVon of headings/capVons, are for the convenience of reference only and shall not affect the construcVon or interpretaVon of this Agreement or be deemed a part of this Agreement.
10.2.Inurement
The rights and liabiliVes of both the Customer and Envisio (collecVvely, the “ParVes”) under this Agreement shall bind and inure to the benefit of the ParVes’ respecVve successors, executors, and administrators, as the case may be.
10.3.Assignment
Neither party may assign this Agreement without wri[en consent of the other, except that Envisio may assign without consent to a related enVty or the successor of all or substanVally all of the assignor’s business or assets to which this Agreement relates. This Agreement does not create any joint venture, partnership, agency, or employment rela Vonship between the parVes, although Envisio reserves the right to name Customer as a user of the Service.
10.4.Governing Law
This Agreement and any other agreement for the Services shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. The United NaVons ConvenVon on Contracts for the InternaVonal Sale of Goods will not apply to this Agreement.
10.5.Dispute ResoluGon
In the event of any dispute arising out of or rela Vng to and/or in connecVon with this Agreement, the ParVes’ project managers shall use every reasonable effort to resolve such dispute in good faith within 10 Business Days. If the project managers have failed to resolve the dispute within such Vme frame, then the dispute shall be escalated to the next escalaVon level. At each escalaVon level, the designated execuVves shall negoVate in good faith in an effort to resolve the dispute. For the purposes of this Agreement, a “Business Day” means a day other than a Saturday, Sunday, or statutory holiday in BriVsh Columbia.
Escalation Level Envisio
Management Level
Customer
Management Level
Period of
Resolution Efforts
First Level Project Manager Project Manager 10 Business Days
10.6.Severability
If any provision or porVon of this Agreement is found by a court of competent jurisdic Von to be unenforceable for any reason, the remainder of this Agreement shall conVnue in full force and effect.
10.7.Independent Contractors
Nothing in this Agreement shall be construed as creaVng a partnership or relaVonship of employer and employee, principal and agent, partnership or joint venture between the parVes. Each party will be deemed an independent contractor at all Vmes and shall have no right or authority to assume or create any obligaVon on behalf of the other party, except as may be expressly provided herein.
The Customer must not, in any way, misrepresent the Customer’s relaVonship with Envisio, a[empt to pass itself off as Envisio, or claim that the Customer is Envisio.
10.8.InjuncGon
The Customer acknowledges and agrees that money damages are not an adequate remedy for any breach or threatened breach related to Envisio’s rights or the Customer’s use of the Service beyond the rights granted to Customer in this Agreement. The Customer therefore agrees that in addiVon to other remedies available hereunder, by law or otherwise, Envisio shall be enVtled to an injuncVon against any such breach by the Customer.
10.9. CooperaGve Statement
Other government organizaVons and educaVonal or health care insVtuVons may elect to parVcipate in this Agreement (piggyback) at their discreVon, provided Envisio also agrees to do so.
10.10.NoGces
NoGce to Customer
Any noVce to the Customer from Envisio will be sent to the e-mail address of the Administrator, or provided in wri Vng, registered postal service (postage prepaid), or by pre-paid commercial courier delivered to the Customer at the mailing address specified on their Account.
NoGce to Company
Any and all noVces to Envisio from the Customer must be given by in wri Vng, e-mail, first class postal service (postage prepaid), or by pre-paid commercial courier delivered to Envisio at:
Envisio SoluVons Inc.
300-15300 Croydon Drive
Surrey, BC V3Z 0Z5
Second Level VP , Customer Success Assistant City Manager 10 Business Days Third Level CRO City Manager 10 Business Days
Tel: 888-371-4800
email: [email protected]
10.11.Complete Agreement
This Agreement consVtutes the complete understanding and agreement between the Customer and Envisio. Except when expressly agreed to the contrary in signed wriVng by an authorized representaVve of Envisio, this Agreement supersede any other wri[en (including digiVzed/computerized) agreement, oral agreement, and/or agreement by conduct. This Agreement or any other specific agreement for the Service between Envisio and the Customer shall each be exclusively between Envisio and the Customer only and shall not confer any rights in any third party.
This SecVon 10 shall survive any terminaVon or expiraVon of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized representaVves of each Party hereto as of the EffecVve Date.
For Envisio SoluGons Inc.
_____________________________________
Print Name: ___________________________
Title: _________________________________
Date: ________________________________
For Salinas, CA
_____________________________________
Print Name: ______________________
Title: ____________________________
Date: ________________________________