SaaS Terms

This Subscription License Agreement (“Agreement”) is between tekVizion PVS Inc., a Texas corporation (“Licensor”), and the licensee party identified on a duly executed Order (as defined below) (“Licensee”). By downloading, installing and/or using the Software (as defined below) or by signing or submitting an Order, Licensee agrees to be bound by the terms and conditions of this Agreement. Licensee may use the Software only in compliance with this Agreement and any duly executed Order.

1.     Prices And Fees

   1.1     Prices.  Customer agrees to pay the fees for the Services specified on the applicable Order(s) (“Prices”).  If Customer orders additional Services, Customer agrees to pay tekVizion’s then-current fees for such Services.  Unless otherwise agreed to in writing by tekVizion, all Prices are exclusive of transportation and insurance costs, and all taxes including federal, state, and local use, sales, property (ad valorem), value add, withholding and similar taxes.  Customer agrees to pay such expenses and taxes (except taxes upon tekVizion’s net income).  Customer agrees to indemnify and hold harmless tekVizion for any liability for such tax, transportation, and insurance costs, as well as the collection or withholding thereof, including penalties and interest thereon.

   1.2     Terms.  All Services must be paid within thirty (30) days from the date of purchase/invoice.  All late payments shall be charged interest computed on a daily basis from the due date until it is paid in full, at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Customer is responsible for any banking fees associated with wire transfers.

   2.0     Contact Person and Additional Services.  Customer agrees that all contact with tekVizion shall be directed to tekVizion by Customer’s Primary Technical Point of Contact, as specified in the Order.  Customer acknowledges and agrees that any support, assistance, or other service, other than those expressly purchased in the Customer’s Order, shall be provided at tekVizion’s discretion and shall be subject to tekVizion’s then-current rates for such services.  Unless otherwise agreed to in writing, tekVizion will bill Customer monthly for any additional services requested by Customer and performed by tekVizion.

   2.1     Software. tekVizion’s Software as a Service (“SaaS”) may be utilized by Customer as part of Services specified in Order. The most current version of the SaaS terms can be reviewed at the hypertext link:https://www.tekvizion.com/SaaS-Terms/  tekVizion reserves the right to update the SaaS terms at any time without notice to you.

   3.0     Shipment/Date

   3.1     Shipment. Unless otherwise specified in the applicable Order, shipment of any Customer equipment to and from tekVizion shall be the sole responsibility of the Customer.  Customer agrees to pay tekVizion for any shipping costs incurred by tekVizion in connection with the shipment of any Customer equipment under this Agreement.

   3.2     Date. Unless otherwise specified in a Schedule to this Agreement, tekVizion will attempt to provide the Services in accordance with the date specified in the applicable Order, if any.  However, any such date is an estimate only based on an initial assessment of the Services, and tekVizion will not be subject to liability for failure to provide the Services on or before such date under any circumstances.

   4.0     Disclaimer

   4.1     No Liability for Customer Products.  Customer acknowledges and agrees that tekVizion shall not be liable for any failure of the Customer’s equipment or products regardless of whether such equipment or products have been integrated, tested, or certified by tekVizion.    tekVizion does not represent that its testing can or will test all aspects of product functionality. Customer alone shall ultimately and solely be responsible for the operation of its equipment and products.  tekVizion disclaims all liability for statements made by Customer to third parties regarding its products.  Customer agrees to indemnify, defend and hold harmless tekVizion and its officers, directors, employees and agents from and against any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorneys’ fees) which result from, arise in connection with or are related in any way to (i) the distribution or use of Customer’s equipment or products, whether or not such products have been tested or certified by tekVizion, (ii) any statements or representations make by Customer in connection with the testing and certification of its equipment or products hereunder, or (iii) Customer’s use of the Services.  tekVizion agrees (a) to give Customer prompt written notice of any such claim; (b) to provide reasonable cooperation in the defense and all related settlement negotiations; and (c) that Customer shall have sole control over the litigation or settlement of such claim.

   4.2     Technical Requirements.  Certain of the Services require that Customer maintain a high-speed Internet connection.  Customer acknowledges that Internet access is not provided by tekVizion under this Agreement and must be obtained by Customer from third parties.  tekVizion may elect to, in its sole discretion, require that Customer use a standard IPSec Virtual Private Network (“VPN”) for network access to tekVizion Labs.  Customer acknowledges that VPN equipment and software is not provided by tekVizion under this Agreement and must be obtained by Customer from third parties at Customer’s expense. 

   4.3     Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT TEKVIZION DOES NOT MAKE, AND HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, SUBCONTRACTORS, AND LICENSORS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NONINFRINGEMENT AND TITLE, THE WARRANTIES OF SATISFACTORY QUALITY, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TEKVIZION DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THEIR USE WILL NOT BE INTERRUPTED. 

   5.0     Limitation of Liability.  IN NO EVENT WILL TEKVIZION OR ITS SUPPLIERS, SUBCONTRACTORS OR LICENSORS BE LIABLE(A) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT TEKVIZION OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS WEREADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; (B)FOR LOSS OF, OR DAMAGE TO, RECORDS OR DATA; (C) FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS; (D) FOR ANY DAMAGES RELATED TO CUSTOMER’S FAILING OF TESTING, OR (E) FOR THIRD-PARTY CLAIMS AGAINST CUSTOMER FOR LOSSES OR . NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TEKVIZION’S TOTAL LIABILITY TO CUSTOMER, AND THAT OF ANY AND ALL OF ITS SUBCONTRACTORS, SUPPLIERS AND LICENSORS, IS LIMITED TO THE TOTAL PAYMENTS BY CUSTOMER TO TEKVIZION FOR SERVICE WHICH WAS THE SUBJECT OF THE CLAIM.

   6.0     Term.  The term of this Agreement will commence on the Effective Date and continue for one (1) year unless terminated sooner pursuant to this Section 10.4 (Termination).  This Agreement shall renew automatically for successive one (1) year terms, unless either party gives at least thirty (30) days written notice prior to the beginning of any renewal term to the other party of its intention not to renew.

   7.0     Feedback.  Any feedback or suggestions, regarding the Services, provided by Customer to tekVizion (“Suggestions”) shall be the property of tekVizion and Customer hereby assigns to tekVizion all right, title and interest worldwide in and to such Suggestions and the related intellectual property rights. 

   8.0     Use of Name. Customer agrees to be identified as a customer of tekVizion and that tekVizion may refer to Customer by name, tradename, or trademark, and may briefly describe Customer’s business in tekVizion’s customer information and marketing materials. Customer grants tekVizion a license to use Customer’s name and any of its tradenames and trademarks solely in connection with these rights.

   9.0     Password Security.  tekVizion controls access to certain Services using confidential logins and passwords.  Customer agrees that it will not share any login or password provided by tekVizion with any third parties and will not otherwise allow any third party to access tekVizion’s systems or products using Customer’s login or password.  Customer agrees that it is entirely responsible for maintaining the confidentiality of its login and password and agrees to notify tekVizion if its login or password is lost, stolen, disclosed to a third party, or otherwise may have been compromised. 

   10.0   General

   10.1   Nature of Relationship.  The relationship between the parties herein is one of independent contractor.  Nothing in this agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship between the parties.

   10.2   Scope of Services.  Customer acknowledges and agrees that tekVizion performs the Services directly for the Customer, and not for the benefit of Customer’s end users or other third parties.  Statements by tekVizion are intended to assist Customer in troubleshooting its equipment and products but are not intended to be a representation or warranty by tekVizion that the Customer’s equipment or products are safe, interoperable, merchantable, or fit for a particular purpose.  Customer agrees that it will not make statements or representations on tekVizion’s behalf, and that it will not use tekVizion’s name or trademarks in connection with the commercialization of its equipment or products.  Customer agrees that it will not direct third parties to tekVizion with inquiries regarding Customer’s equipment or products, or the results of any testing or certification performed by tekVizion.

   10.3   Authority.  Customer represents and warrants to tekVizion that it has full authority to enter into and carry out its obligations under this Agreement, and to grant the rights set forth herein, and that tekVizion’s use of any of the Customer equipment or products shall not infringe the intellectual property rights of any third party.

   10.4   Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other, provided that, (i) tekVizion shall not terminate this Agreement until its obligations under any outstanding Schedules have been satisfied, and (ii) Customer shall not terminate this Agreement until all payments specified in the Order, or any outstanding Schedules have been made.  Notwithstanding the preceding, tekVizion may immediately terminate this Agreement, in whole or in part, and any licenses or services under this Agreement if Customer fails to comply with the terms of this Agreement. The terms of this Agreement that by their nature are intended to extend beyond termination will survive termination of this Agreement for any reason.

   10.5   Conflict of Interest. The parties hereto agree that, during the Term and for a period of one (1) year following the Expiration Date, Customer, shall not on its own behalf or on behalf of any other person, partnership, association, corporation, or other entity, solicit or hire any person who is an employee of tekVizion, or in any manner attempt to induce any such person to leave the employment, unless authorized to do so in writing by such party.

   10.6   Notices.  Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by facsimile or email transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt.  Notice shall be sent to the addresses set forth on the Order or to such other address as either party may provide in writing.

   10.7   Governing Law/Limitation on Action/Attorneys’ Fees. The parties agree that this Agreement is governed by and construed in accordance with the laws of the State of Texas and by the laws of the United States, except for that body of law dealing with conflicts of law. The parties agree that venue for any dispute arising under this Agreement will lie exclusively in the state or federal courts located in Collin County, and the parties irrevocably waive any right to raise forum non conveniens or any other argument that Collin County, is not the proper venue.  The parties irrevocably consent to personal jurisdiction in the state and federal courts of the State of Texas.  The parties also agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be brought within two (2) years after such claim or cause of action arose or be forever barred.  If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the other party.

   10.8         Assignment.  Customer may not assign, voluntarily, by operation or law, in connection with a change in control, merger, or otherwise, this Agreement to any third party without the express written consent of tekVizion, which shall not be unreasonably withheld.  This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.  

   10.9         Severability. If any provision of this Agreement is held invalid, illegal, unenforceable, or in conflict with any law having jurisdiction over this Agreement, the validity, legality, and enforceability of the remaining portions or provisions hereof will not be affected or impaired.

   10.10      No Third-Party Beneficiaries.  Under no circumstances shall any third party be deemed a third-party beneficiary under this Agreement. 

   10.11      Counterparts.  By their signatures on the applicable Order, the parties hereto indicate their agreement to the terms and conditions set forth herein.  The Order may be executed in two or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same document.  Telecopy signatures shall be relied upon as original signatures in all respects.  All signed copies of the Order shall be deemed originals.

   10.12      Force Majeure.  tekVizion shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control.  These causes shall include, but shall not be limited to, acts of God, wars, riots, strikes, fires, storms, floods, earthquakes, shortages of labor or materials, labor disputes, vendor failures, transportation embargoes, acts of any government or agency thereof and judicial actions.

   10.13      Waiver.  No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.  The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. 

   10.14      Entire Agreement.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all prior proposals, agreements, negotiations, correspondence, understandings, and other communications, whether written or oral, between tekVizion and Customer.  Any additional or different terms contained in Customer’s documents, whether previously or later received by tekVizion are null and void.  There are no promises, covenants or undertakings other than those expressly set forth herein.  This Agreement may not be modified except by a writing signed by authorized representatives of tekVizion and Customer.

   10.15      Contact Us.  Should Customer have any questions concerning this Agreement, or if Customer desires to contact tekVizion for any reason, please contact the tekVizion representative serving Customer, or write: tekVizion PVS, Inc., 3701 W. Plano Pkwy #300, Plano, TX 75075.