iGUIDE Camera Purchase Agreement
June 3, 2019
- “Documentation” means the written description of the System and all of the documents related to the System provided to you (“Customer”) by Planitar Inc. (“Planitar”), either via Planitar’s website or enclosed with or incorporated into the applicable Hardware or Software;
- “Hardware” means the camera(s) and any other tangible property forming part of the System;
- “Intellectual Property Rights” means all patents, inventions, trade-marks, service marks, registered designs, integrated circuit topographies, including applications for any of the foregoing, as well as copyrights, design rights, moral rights, know-how, confidential information, trade secrets, and any other similar rights in Canada and in any other country;
- “Software” means the computer software program(s) made available to customers by Planitar as part of the System, whether intended to be installed on Customer’s computer, tablet or other device or embedded in any Hardware; and
- “System” means the Hardware and the Software.
- Purchase and Sale. Planitar agrees to sell and Customer agrees to Purchase the System, on the terms and conditions set out in this Agreement.
- Payment Terms. The total purchase price must be paid to Planitar in full prior to the date of shipping.
- Shipping. Customer shall be liable for all costs associated with shipping the System to Customer. Title to and risk of loss or damage in the System shall pass to Customer upon delivery of the System to the carrier of the System. Planitar shall be permitted to charge for freight at a rate not exceeding the publicly quoted commercial rate of its chosen carrier. Planitar reserves the right to select the carrier, the means of transportation and the routing. At its option, Planitar may insure the full value of the System or declare the full value thereof to the carrier at the time of shipping and the associated insurance costs shall be invoiced to Customer. Customer must inspect the System upon delivery. In the event of damage, either concealed or external, Customer’s sole recourse shall be to file a claim with the carrier.
- Delay. Planitar shall not be liable in any way for any delay in shipping the System or for any other failure of performance because of unforeseen circumstances or causes beyond its control, including, without limitation, strike, war, fire, riot, accident, acts of God, hurricane, earthquake, severe weather, failure or breakdown of components necessary to completion, supplier-caused delays, inability to obtain labour, material or manufacturing facilities, or compliance with any law, regulation, embargo restrictions or order of any government body or instrumentality thereof. Performance shall be deemed suspended for the duration of any such delay. Planitar shall not be liable, under any circumstances, for any damages due to delay in delivery of the System.
- Return Policy. Customer may return, at the expense of Customer, the first System ever purchased by Customer from Planitar within 30 days of the date of the original shipment provided that the System is in the original packaging and all shipping instructions provided by Planitar are followed. For clarity: (i) no returns are possible after the 30 day period; and (ii) this Return Policy does not apply to any subsequently purchased System or any System obtained through a trade-in program. If the System is returned within this timeframe and confirmed by Planitar to be in full working condition and not to be damaged, Planitar will provide a refund based upon the original payment method and paid amount. Customer agrees that the refund will exclude the following: (i) restocking fee equal to 10% of the original System price; (ii) original shipping costs to Customer, and (iii) cost of any repairs required to restore the System to full working condition, as deemed necessary by Planitar.
- License Grant. Customer acknowledges that the System may embody certain trade-secrets, Intellectual Property Rights and proprietary information owned by Planitar (the “Property”). Planitar hereby grants and Customer hereby accepts a royalty free, perpetual, limited, personal, non-assignable, non-transferable, non-exclusive license to use the Property, under the terms and conditions of this Agreement. Any rights not expressly granted in this Agreement shall be reserved for Planitar. This Agreement does not entitle you to receive from Planitar hard-copy Documentation, technical support or telephone assistance. All Intellectual Property Rights of whatever nature associated with System shall be and remain the exclusive property of Planitar.
- Software License. Planitar hereby grants to Customer the non-exclusive right to use one or more copies of the Software provided as part of the System. Source code as well as any other information pertaining to the logic, design, or structure of the Software is specifically excluded from the license granted in this Agreement. Customer may only copy the Software for the purpose of running the Software on multiple computers that all are property of Customer or for providing the Software to Customer’s sub-contractors solely for the purpose of processing iGUIDE data for Customer. Customer shall not remove, cover, or otherwise alter any name or other identifying marks of the Software. Title to the Software shall at all times remain with Planitar. Customer acknowledges and agrees that the license to use the Software is limited to use in the operation of the System in accordance with the Documentation. Customer may not relicense or sublicense the Software to, or otherwise permit use of the Software by any third party except Customer’s sub-contractors processing iGUIDE data for Customer. Customer may use the computer programs included in the Software (the “Programs”) in object code form only. In the event that Planitar supplies an update to the Software (collectively referred to as “Updates”), such Updates shall be part of the Software and the provisions of this license shall apply to such Updates and to the Software as modified thereby. To the extent of any inconsistency between the provisions of this Agreement and the provisions of any licence agreement to which a user must agree when installing or first accessing any Program (a “Click Wrap”), the terms and conditions of the Click Wrap shall prevail.
- iGUIDE Processing and Hosting. Customer acknowledges that content generated by the System, including, without limitation, all text, floor plan data, panoramic images, photos, graphics and logos can only be processed and combined into an integrated presentation and display (an “iGUIDE”) through the use of Planitar’s iGUIDE Processing and Hosting Services (the “iGUIDE Services”). Customer agrees to exclusively use the iGUIDE Services to create its iGUIDEs and to pay all fees and observe all terms and conditions applicable to the iGUIDE Services. Customer may host its iGUIDEs through the iGUIDE Services. Hosting may be provided by third party service providers of Planitar and Planitar may change its service provider from time to time. Notwithstanding the provision of hosting services, Planitar shall have no obligation to retain any backup or archival copies of any iGUIDEs. iGUIDE floor plans are drafted by Planitar according to Planitar drafting standards. Planitar drafting standards may be updated from time to time. Planitar reserves the right to decline any requests to create or modify floor plans that fall out of the scope of Planitar drafting standards or capabilities. Each iGUIDE purchased by Customer shall be made available for Customer to download from the Planitar website for a period of 1 year from the date that the iGUIDE is first made available to the Customer unless agreed otherwise by Planitar and Customer. It is the Customer’s sole responsibility to download each iGUIDE and to maintain such backup or archives as may be required by Customer. Planitar assumes no liability for any damage to or loss of any Customer data or any iGUIDEs. The iGUIDE Services shall be subject to the terms and conditions (“Terms of Service”), to which Customer will be required to agree when first accessing the iGUIDE Services, a copy of which may be reviewed at the following URL: http://youriguide.com/terms. To the extent of any inconsistency or conflict between any of the terms or conditions found in this Agreement and any terms or conditions found in the in the Terms of Service, the Terms of Service shall prevail.
- Restrictions on Use. Customer shall not, directly or indirectly, by itself or with others: reverse engineer, decompile, disassemble or otherwise attempt to discover components, source code or underlying ideas or algorithms of the Software or Hardware; modify, translate, or create derivative works based on the System; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the System without Planitar’s written consent; remove any proprietary notices from the System; use or introduce any device, software or routine that interferes or attempts to interfere with the operation of any part of the System; permit any person outside Customer’s organization to benefit from the use or functionality of the System by any means, including a multiple user arrangement; or use the Hardware or Software in order to build a competitive product or service or copy any ideas, features, functions or graphics of the System. Notwithstanding the foregoing, it shall not be a breach of this Agreement for Customer to perform services for its client using the System.
- Warranty. Planitar warrants that, when used in accordance with the Documentation, the System shall be free from defects in materials and workmanship for one year from the date of delivery of the System to the Customer. In the event of a breach of this warranty, Customer’s exclusive remedy shall be Planitar’s repair or replacement of the deficient Hardware or Software or the deficient portions thereof, at Planitar’s option. Customer shall, upon request of Planitar, ship Product to Planitar following all shipping instructions provided by Planitar, at the expense of Customer. Return shipping from Planitar to Customer will be at the expense of Planitar. False warranty claims are cause for billing Customer for actual cost of repair parts and labour and return shipping expenses. Planitar reserves the right to use re-engineered part(s) with performance parameters substantially equivalent to the similar new part(s) in the performance of its obligations to repair to replace System components. All replaced System components become the property of Planitar. In the event of repairs or replacement of any part(s), during the warranty period, the warranty of the System shall thereafter continue only for the unexpired period of the original warranty. This warranty is extended to Customer only and shall not apply in the event of: i) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including any alterations, additions, improvements, modification or replacement of any components supplied with the Hardware), unusual physical or electrical stress or causes other than normal and intended use; ii) failure of Customer to provide and maintain a suitable environment for the System; iii) malfunctions resulting from use not approved or recommended in the Documentation or otherwise in writing by Planitar; iv) exposure of the System to dirt, sand, water including rust inside the Hardware and fire and/or shock; v) removal, tampering with or mutilation of the model No. or serial No. sticker of the Hardware; vi) damage to the System arising out of the use of any accessories other than those supplied by Planitar; or vii) any defect that is the result of physical breakage, electric connection or electrical faults external to the System. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SYSTEM AND THE RIGHTS GRANTED HEREUNDER ARE PROVIDED TO CUSTOMER WITHOUT ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. ANY STATEMENT MADE BY ANY PERSON, INCLUDING REPRESENTATIVES OF PLANITAR, WHICH ARE INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS OF THIS AGREEMENT, SHALL NOT BE BINDING UPON PLANITAR UNLESS THEY ARE REDUCED TO WRITING AND ARE SIGNED AND APPROVED BY AN AUTHORIZED OFFICER OF PLANITAR.
- Limitation of Liability. Subject to the limitations of liability set out in Section 11 above, THE LIABILITY OF PLANITAR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED IN THE CASE OF ANY CLAIM RELATED TO THE SYSTEM, THE AMOUNT PAID BY PURCHASER TO SELLER FOR THE SYSTEM. PLANITAR SHALL NOT BE LIABLE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR SIMILAR DAMAGES OR LOSSES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF CLIENTELE, SALES OR PROFITS, REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, DELICT, QUASI-DELICT, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
- General. All notices given under this Agreement shall be in writing and sent postage pre-paid to the parties at their addresses set out in this Agreement, or at a subsequent address of which the receiving party has notified the sending party in writing. This Agreement shall be governed by the laws of the Province of Ontario, without reference to its conflict of laws principles, and the laws of Canada applicable therein. The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. This Agreement will extend to and be binding upon the successors, legal representatives and permitted assigns of the parties. Customer shall not assign this Agreement without the prior written consent of Planitar and any purported assignment, without such consent, shall be void. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Wherever the context of this Agreement so requires, the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine and neuter genders. This Agreement, including all Schedules, and any information and other agreements expressly referred to or incorporated herein constitute the entire agreement between the parties for the purchase and sale of the System and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and each of which together constitute one agreement. The delivery of signed counterparts by facsimile or email transmission that includes a copy of the sending party’s signature is as effective as signing and delivering an original counterpart. Nothing in this Agreement shall be construed to create, constitute, give effect to or otherwise imply a joint venture, partnership, franchise, agency or employment relationship of any kind between the parties.