10net™ Managed Solutions – General Terms and Conditions (USA)

Last Updated: May 2020

1.0 Introduction

1.1 This Agreement: These General Terms and Conditions govern the products and services provided by 10net. By signing an Ordering Document, Customer (identified in the Ordering Document) acknowledges and agrees to these General Terms and Conditions and all applicable Additional Terms and Policies specified in the Ordering Document or in these General Terms and Conditions. “This Agreement” means collectively the Ordering Document signed by 10net and Customer (collectively the “Parties” and each a “Party”), these General Terms and Conditions and all applicable Additional Terms and Policies.

1.2 Key Definitions:  In this Agreement:  “CMS” means the online content management solution operated by 10net;  “CMS Software” means the software procured by 10net from third parties and used by third parties to operate the CMS;  “Hardware Item” means an item of Hardware (including a Media Player, video display, power controller or other accessory) sold or otherwise provided or made available by 10net to Customer as expressly set out in an Ordering Document;  “Media Player” means a device that is designed to be used to receive and store content and display the content on a video display;  “Ordering Document” means a written proposal or order form issued by 10net and accepted and signed by Customer that expressly incorporates these General Terms and Conditions, and includes any ancillary document (e.g. a statement of work) made pursuant to the Ordering Document;  “Player Software” means a software application (such as content display software, remote monitoring and management software, anti-virus software and backup software) that is provided or otherwise made available by 10net to Customer for use by Customer on a Media Player pursuant to this Agreement, and includes copies of the software application pre-installed on a Media Player and Player Software Updates (defined in section 6.2(a));  “Products” means Hardware Items, Player Software, the CMS and CMS Documentation (defined in section 4.2);  “Representatives” means directors, officers, employees, contract workers, agents, owners, shareholders, affiliates, partners, licensors, suppliers and other representatives;  “Services” means all of the services performed by 10net for Customer pursuant to this Agreement; and  other capitalized terms are defined elsewhere in this Agreement (including the Ordering Document).

1.3 Priority of Documents:  If there is a conflict or inconsistency between any of the documents that form part of this Agreement, then a document that expressly states that it amends or revises another document takes priority over the other document, and in the absence of an express statement of amendment or revision the order of priority is as follows: these General Terms and Conditions, Additional Terms, Policies and the Ordering Document.

1.4 Changes to these General Terms and Conditions

a) General:  10net may change these General Terms and Conditions from time to time. The changed General Terms and Conditions will be effective immediately on posting on the 10net website, at 10net.net/terms-conditions-us unless the changed General Terms and Conditions expressly state otherwise. For any material changes to these Terms and Conditions, we will take reasonable steps to notify you of such changes. Any changed terms apply only from the date on which they are added to these General Terms and Conditions, and any changes to the dispute resolution provisions will not apply to disputes for which the parties have actual notice on or prior to the date of such changes.  Subject to section 1.4(b), by using any Product or Service after these General Terms and Conditions have been changed by 10net, Customer signifies Customer’s agreement to the changed General Terms and Conditions. Customer may not change, supplement or amend these General Terms and Conditions in any manner.

b) Exception:  If Customer does not agree to and accept a change to these General Terms and Conditions made by 10net pursuant to section 1.4(a), then within thirty (30) days after the effective date of the change Customer will give to 10net a notice expressly rejecting the change and in those circumstances, unless the Parties expressly agree in writing otherwise:  the change expressly rejected by Customer will not apply to or be binding on Customer; and either party for its sole convenience may terminate this Agreement on ten (10) days’ notice of termination to the other Party.

Part 1 – Products and Services

2.0 Hardware Items

2.1 Application:  Subject to section 2.7, this section 2 applies to each Hardware Item.

2.2 Purchase/Sale:  Subject to the provisions of this Agreement, Customer agrees to purchase from 10net, and 10net agrees to sell and provide to Customer, the Hardware Items specified in the Ordering Document for the applicable purchase price specified in the Ordering Document. Title to and ownership of each Hardware Item will not pass to Customer unless and until Customer pays to 10net the full purchase price for the Hardware Item and all applicable Taxes.

2.3 Delivery and Shipping:  10net will deliver each Hardware Item to Customer on the terms Ex Works (as defined in Incoterms 2010) by making the Hardware Item available for pick-up on behalf of Customer at 10net’s applicable warehouse. Unless the applicable Ordering Document expressly states otherwise, 10net (on behalf of Customer) will arrange for a reputable carrier to pick-up and ship each Hardware Item to the applicable ship-to address specified in the Ordering Document and will procure for Customer the shipping insurance (if any) expressly set out in the Ordering Document; and Customer will reimburse 10net for all costs of shipping and the shipping insurance. 10net will notify Customer of the estimated delivery date for each Hardware Item. A delivery date specified by 10net is an estimate only, and 10net will not be in breach of this Agreement as a result of any delay in the delivery of any Hardware Item or responsible or liable for any resulting damage, loss or liability. Customer is fully responsible and liable for all loss and damage to each Hardware Item after it has been picked up by the carrier. Under no circumstances will 10net be responsible or liable for any acts or omissions by a carrier, including any delays or failures by a carrier to pick-up Hardware Items from the applicable warehouse or to promptly and safely ship Hardware Items to Customer.

2.4 Inspection and Acceptance:  On delivery of a Hardware Item to the applicable ship-to address, Customer will promptly inspect and test the Hardware Item to verify that it functions, operates, performs and otherwise conforms to the requirements of this Agreement. If a Hardware Item does not function, operate, perform and otherwise conform to the requirements of this Agreement, then no later than three (3) days after the date on which the Hardware Item is delivered to the applicable ship-to address Customer will give to 10net a notice specifying details of the non-conformity (a “Non-Conformity Notice”), and in those circumstances 10net will either promptly repair or replace the Hardware Item (unless the non-conformity is due to damage to the Hardware Item (i) caused by the acts or omissions by a carrier or (ii) after it was delivered in accordance with section 2.3). Customer will be deemed to have accepted a Hardware Item unless Customer timely delivers a Non-Conformity Notice for the Hardware Item in accordance with this section 2.4.

2.5 Software:  If a Hardware Item (including a Media Player) includes any computer software, then the computer software is licensed, not sold, to Customer, as set out in this Agreement or in the documentation for the Hardware Item.

2.6 Conditional Sale:  If Customer does not pay to 10net the full purchase price and all applicable Taxes for a Hardware Item (a “Conditional Sale Item”) before 10net delivers the Conditional Sale Item to Customer in accordance with section 2.3, then notwithstanding any other provision of this Agreement and unless and until Customer pays the full purchase price and all applicable Taxes for the Conditional Sale Item to 10net:

a) General:  10net retains title to and ownership of the Conditional Sale Item. Customer is fully responsible and liable for all loss and damage to the Conditional Sale Item, except for normal wear and tear. Customer will protect the Conditional Sale Item against any and all loss and damage, and will procure and maintain full insurance against all loss and damage to the Conditional Sale Item. Customer will not sell, lease, transfer, assign, grant or otherwise dispose of any right, title or interest (including any license, lien, encumbrance, charge or security interest) in, to or associated with the Conditional Sale Item or permit any other person to take possession of the Conditional Sale Item. Without limiting the foregoing, and as security for payment of the full purchase price and all applicable Taxes for the Conditional Sale Item, Customer hereby grants, and agrees to grant, in favour of 10net a continuing security interest in the Conditional Sale Item and all proceeds therefrom.

b) Default:  If there is an Event of Default (defined below) regarding the Conditional Sale Item, then 10net (directly and through its authorized agents) may exercise any or all of the following non-exclusive remedies with respect to the Conditional Sale Item:  declare the full amount of the purchase price for the Conditional Sale Item immediately due and payable without notice or demand to Customer;  demand that Customer immediately return possession of the Conditional Sale Item to 10net, and Customer will immediately comply with the demand and deliver the Conditional Sale Item to 10net or its agents;  enter upon Customer’s premises in accordance with applicable law, with or without notice to Customer as permitted by applicable law, and take possession of the Conditional Sale Item wherever it may be located, all without the need to obtain any authorizing court order or other process of law, and sell the Conditional Sale Item with or without notice to Customer by public or private sale or other commercially reasonable manner as 10net in its discretion considers appropriate and apply the net sale proceeds (after deduction of all costs and expenses incurred in connection with the repossession and sale of the Conditional Sale Item) against amounts owing by Customer to 10net under this Agreement. In this Agreement, “Event of Default” means any of the following: (A) Customer fails or refuses to pay any amount due and owing under this Agreement within seven (7) days after receipt of a demand for payment by 10net; (B) 10net reasonably believes that Customer has breached, or is likely to breach, section 2.6(a) in respect of the Conditional Sale Item; or (C) this Agreement is terminated.

c) Other:  Customer acknowledges receipt of a copy of this Agreement. Customer hereby consents and authorizes 10net to file financing statements (including UCC-1 financing statements) with respect to this Agreement in any and all jurisdictions that 10net in its discretion considers appropriate or advisable. Customer hereby waives any notice of acceptance of this Agreement by 10net. Customer also hereby waives the right to receive a copy of any financing statement or financing change statement that may be registered in connection with this Agreement or any verification statement issued with respect to a registration, if waiver is not otherwise prohibited by law. Customer agrees that 10net may from time to time provide information regarding this Agreement, the Conditional Sale Item and the conditional sale to persons that 10net believes in good faith are entitled to the information under applicable law.

2.7 Exceptions:  If the Ordering Document expressly states that an item of hardware is purchased by Customer directly from the hardware supplier (rather than through 10net), then sections 2.2, 2.3, 2.4 and 2.6 do not apply to the Hardware Item. If the Ordering Document expressly states that a Hardware Item is being leased, not purchased, from 10net by Customer, then:  the terms of the lease will be set out in the Ordering Document or the referenced applicable Additional Terms; and  sections 2.2 and 2.6 do not apply to the Hardware Item.

3.0 Player Software

3.1 Application:  Subject to section 3.8, this section 3 applies to each copy of Player Software.

3.2 Definitions:  In this Agreement:  “Authorized Device” means the specific Media Player on which a copy of Player Software is installed by 10net for use by or on behalf of Customer; and  “Software License” means a non-exclusive, non-sublicensable, non-transferable, restricted and limited license for Customer to use a copy of Player Software, installed by 10net on an Authorized Device, in accordance with this Agreement and for the sole purpose of Customer’s internal business operations.

3.3 Licenses:  Subject to the provisions of this Agreement and Customer’s prompt payment of all applicable fees, 10net grants to Customer the number of Software Licenses specified in the Ordering Document. Each Software License applies only to the object-code (compiled, machine-readable) version of the Player Software. Each Software License is subject to the provisions of this Agreement.

3.4 General Restrictions/Requirements:  Customer will not:  use or disclose, or provide or permit access to or use of, any Player Software except as expressly permitted by this Agreement;  unless 10net expressly agrees in writing otherwise, install or use any Player Software on any device other than the Authorized Device on which 10net installs the Player Software;  copy (except to install Player Software on the applicable Authorized Device and to make one (1) copy of Player Software for non-production backup purposes only), reproduce, translate, modify, enhance or improve Player Software;  create derivative works from Player Software, or merge, embed or combine Player Software with any other software or materials;  reverse engineer, disassemble, decompile, convert into human-readable form, or otherwise attempt to access or derive the source code of Player Software;  license, sublicense, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise use, give or make available or permit the use of any Player Software or the functionality or results of use of any Player Software to or for the benefit of any person other than Customer, whether as a service bureau or otherwise, and with or without charge;  alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, technological protection measures, digital rights management tools or rights management information, or agreements on, in or in relation to any Player Software or any related Authorized Device;  transfer physical possession of Player Software (whether alone or installed on an Authorized Device) to any other person; or  permit or assist any other person to use any Player Software in a way that would constitute a breach of this Agreement if it were done by Customer. Regardless of the number of copies of Player Software received by Customer or the means or media by which Customer receives them, each copy of Player Software is subject to this Agreement. A restriction set out in this section 3.4 does not apply if and to the extent, but only to the extent, that the restriction is prohibited by applicable law.

3.5 Embedded Third Party Components:  Player Software may include computer code procured by 10net from third parties, each of which is subject to this Agreement and any applicable third party license agreements or other terms and conditions, copies of which will be included or referenced in documentation regarding the Player Software provided or made available by 10net to Customer.

3.6 Term and Termination of Software Licenses

a) Term:  The term of each Software License will commence on the date that 10net delivers the applicable Player Software (whether alone or installed on the applicable Authorized Device) to Customer. If the Ordering Document expressly specifies the duration of the term of a Software License, then the Software License will continue for the specified duration, unless terminated earlier pursuant to this Agreement. If the Ordering Document does not expressly specify the duration of the term of a Software License, then the Software License will continue until terminated pursuant to this Agreement.

b) Automatic Termination:  A Software License will terminate immediately and automatically, without notice to Customer:  if Customer is no longer lawfully entitled to retain and use the Authorized Device for which the Player Software is provided to Customer; or  on expiration or termination of this Agreement.

c) Termination on Notice:  10net in its discretion may terminate a Software License effective immediately on delivery of a termination notice to Customer if:  Customer uses the applicable Player Software in breach of this Agreement (including section 3.4) and has not remedied the breach within thirty (30) days after receipt of a default notice from 10net identifying the breach and stating 10net’s intention to terminate the Software License if the breach is not remedied within a thirty (30) day cure period; or  a third party claims or alleges that Customer’s use of the applicable Player Software infringes, misappropriates or violates the third party’s rights.

3.7 Consequences of Expiration/Termination:  On request by 10net:  on expiration or termination of a Software License, Customer will promptly, permanently delete and remove from each applicable Authorized Device all copies of Player Software installed pursuant to the Software License; and  on expiration or termination of this Agreement, Customer will promptly permanently delete and destroy all copies of the Player Software in Customer’s possession or control. On request by 10net, Customer will:  promptly deliver to 10net a certificate of compliance signed by one of Customer’s senior representatives certifying that Customer has complied with Customer’s obligations under this section 3.7; and  on request by 10net, permit 10net to inspect any and all Authorized Devices to confirm that Player Software has been properly removed.

3.8 Direct License from Supplier:  If the Ordering Document expressly states that Player Software is being licensed by Customer directly from the supplier of the Player Software (not from 10net), then:  Customer’s use of the software is governed by the applicable written license agreement between Customer and the supplier of the Player Software (a “Direct License”), not by a Software License; and  each of sections 3.3, 3.4, 3.5, 3.6, 3.7 and 8.2 does not apply to the Player Software.

4.0 The CMS

4.1 Application:  Subject to section 4.13, this section 4 applies if the Ordering Document expressly states that Customer has a Subscription to use the CMS.

4.2 Definitions:  In this Agreement:  “Acceptable Use Policy” means the 10net CMS Acceptable Use Policy (available online at 10netgroup.net/policies), as revised by 10net from time to time;  “CMS Documentation” means the user manuals and other technical documentation (including all updates) regarding the CMS that 10net provides or makes available to Customer or a CMS User from time to time pursuant to this Agreement;  “CMS User” means a specific, named individual (natural person) who is authorized by Customer to remotely access and use the CMS on Customer’s behalf;  “Customer Content” means all images, videos and other data (including instructions) transmitted to or stored in the CMS by Customer in connection with Customer’s use of the CMS pursuant to this Agreement;  “Customer Systems” means the Media Players, Authorized Devices, technologies, infrastructure, hardware, computers and other devices, software and services (including Internet connectivity) used by or on behalf of Customer in connection with the CMS;  “Data Interface” means a technology interface to the CMS that is designed by 10net to be used to exchange data between the CMS and Customer Systems; and  “Subscription” means Customer’s valid and subsisting subscription for the use of the CMS as expressly set out in the Ordering Document.

4.3 Term of Subscription:  Unless the Parties expressly agree in writing otherwise, the initial term of the Subscription will commence on the date set out in the Ordering Document and continue for the duration set out in the Ordering Document, unless terminated earlier pursuant to this Agreement. Unless the Ordering Document expressly states otherwise or the Parties expressly agree in writing otherwise, the Subscription will automatically renew for consecutive additional twelve (12) month renewal terms, unless:  the Subscription is an evaluation subscription;  the Subscription is cancelled or terminated earlier pursuant to this Agreement; or  either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the then-current initial term or renewal term of the Subscription. The Subscription will terminate immediately and automatically, without notice to Customer, on expiration or termination of this Agreement.

4.4 Permission to Use the CMS:  Subject to the provisions of this Agreement, 10net grants to Customer a non-exclusive, non-sublicensable, non-transferable, restricted and limited license during the term of the Subscription to use the applicable functionalities and services of the CMS in accordance with the details of the Subscription, the CMS Documentation and the restrictions and requirements set out in this Agreement, all for the sole purpose of delivering Customer Content to Player Software installed on Media Players so that the Customer Content may be displayed for Customer’s own business purposes. The details of the Subscription (e.g. the specific functionalities of the CMS available for use by Customer, Customer Content storage limits, data transmission limits, and the maximum number of Media Players that may be managed by the CMS) are set out in the Ordering Document.

4.5 General Restrictions/Requirements:  Customer and CMS Users will not:  use, or provide or permit use of, the CMS in any manner, by any means, or for any purpose that is not expressly permitted by this Agreement;  attempt to circumvent the ordinary navigational structure, technical delivery systems or display of the CMS or otherwise attempt to access or use the CMS by any means that is not deliberately made available for that purpose by 10net;  use the CMS in a way that damages, disrupts, compromises, degrades or interferes with the integrity, functionality, operation, performance or security of the CMS or any related computer system, network or data;  license, sublicense, grant, sell, share, transfer, assign, pledge, create an interest in, or otherwise give or make available or permit the use of the CMS to or for the benefit of any person other than Customer, whether as a service bureau or otherwise, and whether with or without charge;  alter, attempt to circumvent, destroy, obscure or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures or agreements on, in or in relation to the CMS;  reverse engineer or otherwise access or use the CMS to create a product or service that is competitive with the CMS or any other product or service offered by 10net, or a product or service using similar ideas, features or functions; or  permit, assist or encourage any other person to do any of the foregoing in this section 4.5 or to commit any act or omission that would be a breach of this Agreement if committed by Customer or an CMS User. A restriction set out in this section 4.5 does not apply if and to the extent, but only to the extent, that the restriction is prohibited by applicable law.

4.6 Acceptable Use Policy:  Customer will use, and ensure that CMS Users use, the CMS in accordance with the Acceptable Use Policy, and that all Customer Content complies with the Acceptable Use Policy. Notwithstanding any other provision of this Agreement, 10net in its discretion may refuse to permit to be uploaded to the CMS, or may immediately remove from the CMS and permanently delete and destroy, any Customer Content that 10net reasonably believes violates the Acceptable Use Policy, without any notice or liability to Customer or any other person.

4.7 Customer Content:  On request by Customer at any time during the term of the Subscription, 10net will make available for remote access download or otherwise provide to Customer a full and complete copy of all Customer Content that is then stored in the CMS. On expiration or termination of the Subscription, 10net will retain all Customer Content that is then stored in the CMS for a period of thirty (30) days (the “Data Retention Period”), and on written request (including by email) by Customer at any time during the Data Retention Period 10net will make available for remote access download or otherwise provide to Customer a full and complete copy of all retained Customer Content. After the Data Retention Period, 10net will use commercially reasonable efforts to permanently and irretrievably delete all retained Customer Content, except that 10net may retain copies of Customer Content to the extent required by applicable law or for reasonable contract administration purposes.

4.8 CMS and Data Interfaces

a) General:  As between the Parties, 10net will have sole control over the operation of the CMS (including all Data Interfaces), and except as expressly set out in this Agreement Customer will not access or use any part of the CMS without 10net’s express prior written consent in each instance.

b) Data Interface:  If 10net makes a Data Interface available for use by or on behalf of Customer, then Customer will use the Data Interface in accordance with this Agreement, the Documentation and all applicable Additional Terms and for the sole purpose of exchanging data between the CMS and the applicable Customer System to permit the use of the CMS by or on behalf of Customer in accordance with this Agreement.

c) Data Interface Keys:  Customer’s use of a Data Interface may require use of one or more valid and subsisting unique keys or codes issued or approved by 10net (a “Data Interface Key” or “Key”). Each Key is specific to Customer and may be used only by Customer. If a Key is subject to additional restrictions or requirements expressly set out in the Ordering Document or otherwise expressly agreed in writing by the Parties, then Customer will ensure that the Key is used in accordance with those restrictions and requirements. Customer will ensure that each Key remains secure and confidential at all times, and is not disclosed to or shared with any unauthorized person. Customer will immediately notify 10net if Customer knows or suspects that the security or confidentiality of a Key has been compromised. Customer is fully responsible and liable for the security of each Key and all use and misuse of each Key. 10net in its discretion may at any time disable any Key and require Customer to use a replacement Key.

d) Security/Business Continuity:  Subject to the provisions of this Agreement, 10net will use commercially reasonable efforts consistent with generally accepted industry practices designed to:  prevent the transmission of viruses and other harmful components from the CMS to a Customer System;  maintain the security of the CMS and all Customer Data stored in the CMS in accordance with applicable security requirements expressly set out in this Agreement; and  establish and maintain a business continuity/disaster recovery plan in accordance with applicable requirements expressly set out in this Agreement.

4.9 Customer Systems:  Customer acknowledges that Customer’s use of the CMS and related Services depends on the proper functioning, operation and performance of applicable Customer Systems. As between the Parties, Customer will have sole control over the operation of each Customer System. Customer will ensure that at all material times each Customer System functions, operates and performs as required for Customer to use the CMS in accordance with this Agreement and for 10net to perform related Services in accordance with this Agreement.

4.10 CMS Users:  Subject to section 4.13(a):

a) General:  Customer will use the CMS through one or more CMS Users, each of whom is duly registered with the CMS. Customer will ensure that each CMS User uses the CMS on behalf of Customer only and in accordance with all of the restrictions and requirements set out in this Agreement. Customer will designate one (1) or more (as specified in the Ordering Document) CMS Users (each an “Administrator”) to administer the use of the CMS by other CMS Users. The Subscription may limit the number of CMS Users and Administrators who may be registered at any one time.

b) Authorization/Registration:  Subject to the provisions of this Agreement, Customer will determine whether to authorize an individual to be a CMS User, or to suspend or cancel an individual’s status as a CMS User. Customer acknowledges that a CMS User’s use of the CMS presents risks of damage, loss and liability to Customer and other persons. The CMS may provide online administrative controls that an Administrator may use to authorize or terminate other CMS Users’ registration to use the CMS. Customer may submit a request, by email or telephone to 10net’s Solutions Team, requesting that 10net terminate an Administrator’s registration to use the CMS. 10net, acting reasonably, may refuse to register an individual as a CMS User, and may restrict, suspend or terminate (in whole or in part) any CMS User’s registration to use the CMS. Each CMS User will be deemed an active CMS User unless and until the CMS User’s registration to use the CMS is terminated by an Administrator, Customer or 10net in accordance with this Agreement.

c) Credentials:  Each CMS User will use valid and subsisting unique identifiers or other factors registered with or provided by the CMS or related credentialing tools used or approved by 10net (collectively “Credentials”) to access and use the CMS. Credentials are specific to the CMS User for whom they are registered or provided, and may not be shared with or transferred to any other person. Customer will ensure that each CMS User keeps the CMS User’s Credentials secure and confidential at all times, does not permit any other person to know or use the CMS User’s Credentials, and immediately notifies both Customer and 10net if the CMS User knows or suspects that the CMS User’s Credentials have become known to or used by any other person. Customer is fully responsible and liable for the security of all Credentials and all use and misuse of Credentials. 10net in its discretion may require CMS Users to verify or change Credentials from time to time.

d) Monitoring Use:  The CMS will monitor and record information about each CMS User’s registration for and use of the CMS, and 10net may use that information to operate the CMS and to provide Services to Customer, and may disclose or make that information available to Customer and Customer’s Representatives. Customer will ensure that each CMS User consents to the collection, use, disclosure and retention of information regarding the CMS User’s registration for and use of the CMS as set out in this section 4.10(d) and as otherwise permitted by applicable law.

e) Responsibility:  Customer is fully responsible and liable for all acts, omissions and liabilities by or on behalf of each Authorized User and each Authorized User’s use of Products and Services. Customer will ensure that each Authorized User fully complies with all of the requirements, restrictions and limitations set out or referenced in this Agreement regarding the use of Products and Services.

4.11 CMS Technical Support:  The Subscription includes remote (email, telephone and video) technical advice and assistance regarding Customer’s authorized use of the CMS (“CMS Technical Support”). CMS Technical Support is subject to the restrictions and requirements (including fees and expenses payable by Customer) set out in 10net’s Technical Support Policy (available online at 10netgroup.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in 10net’s Technical Support Policy. For greater certainty, CMS Technical Support does not include any of the Services referenced in sections 5 and 6.

4.12 Improvements:  10net in its discretion may change the CMS from time to time to improve the functionality, operation, performance or results of the CMS. If Customer reasonably objects to any change to the CMS, then:  within thirty (30) days after 10net makes the change, Customer will deliver to 10net a notice setting out details of Customer’s objection to the change; and  if the Parties do not satisfactorily resolve Customer’s objection within ninety (90) days after 10net receives Customer’s objection notice then either Party for its sole convenience may terminate this Agreement on thirty (30) days’ notice of termination to the other Party.

4.13 Exceptions:

a) Direct Access:  Notwithstanding any other provision in this Agreement, and unless the Ordering Document expressly states otherwise or the Parties expressly agree in writing otherwise, CMS Users will not have direct remote access to the CMS.

b) Direct License for CMS Software:  If the Ordering Document expressly states that CMS Software is being licensed by Customer directly from the supplier of the CMS Software, then notwithstanding any other provision of this Agreement, and unless the Ordering Document or Additional Terms expressly state, otherwise:  Customer’s access to and use of the CMS Software is governed by the applicable written license agreement between Customer and the supplier of the CMS Software;  Customer hereby authorizes and instructs 10net to install and use the CMS Software on behalf of Customer for the purpose of operating the CMS on behalf of and for the benefit of Customer and represents and warrants that Customer has obtained all rights, licenses, consents and permissions required for Customer to authorize 10net to install and use the CMS Software as described in this section 4.13(b); 10net is not responsible or liable for the CMS Software; and  each of sections 4.4, 4.11, 4.12, 8.2 and 11.2 does not apply to the CMS Software.

5.0 Installation Services

5.1 Application:  This section 5 applies if the Ordering Document expressly specifies that 10net will install and set up Hardware Items at Customer’s premises (collectively “Installation Services”).

5.2 Services:  Subject to the provisions of this Agreement, 10net will perform Installation Services as described in the Ordering Document and detailed in a written statement of work made by the Parties. A statement of work for Installation Services will not be valid or binding unless and until the statement of work is signed by both Parties. Installation Services may be subject to Additional Terms/Policies set out or referenced in the Ordering Document or the statement of work.

5.3 Change Management:  The description of Installation Services in the Ordering Document or statement of work may be changed (including to add or clarify specifications or requirements for the Installation Services) from time to time by a written change order signed by both Parties. A change to Installation Services will not be effective or binding unless and until it is expressly confirmed in a written change order that is either signed or otherwise expressly approved in writing by an authorized representative of each Party. In this Agreement, reference to the Ordering Document or statement of work includes all related change orders.

5.4 Delay Events

a) General:  If there is a Delay Event, then:  all schedules and timetables for Installation Services set out in the Ordering Document or statement of work will be deemed extended to accommodate the Delay Event, and on request by 10net the delayed Installation Services will be rescheduled to dates and times convenient to 10net;  Customer will pay additional fees (calculated on a time and materials basis using 10net’s standard time and materials rates) for additional time spent and work performed by 10net as a result of the Delay Event, and will reimburse 10net for additional expenses incurred as a result of the Delay Event;  on request by 10net, Customer will immediately fully pay for and take delivery of all Hardware items the installation of which is affected by the Delay Event; and  if the Delay Event causes more than 30 days’ delay in commencing or completing Installation Services, then 10net in its discretion and for its sole convenience may terminate the Installation Services effective immediately on notice of termination to Customer.

b) Definition:  In this Agreement, “Delay Event” means any of the following:  Customer fails to perform any of Customer’s tasks or obligations under this Agreement (including as set out in the Ordering Document or statement of work) in a timely manner, or otherwise causes (by act or omission) a delay in 10net’s performance of Installation Services;  Customer’s service providers or suppliers fail to promptly cooperate with and assist 10net to perform Installation Services;  Customer’s relevant sites are not properly prepared by Customer and completely ready for 10net’s efficient performance of Installation Services or otherwise not available for the Installation Services;  there is a delay in the availability or delivery of Hardware Items or other required items procured by Customer or 10net from a third party supplier;  a dependency specified in the Ordering Document or statement of work is not fulfilled in a timely manner or at all; or  an assumption specified in the Ordering Document or statement of work is incorrect or fails to occur in a timely manner or at all.

5.5 Additional Tasks:  Customer acknowledges that in the course of performing Installation Services 10net might identify additional tasks and work, such as performing required electrical work, procuring required internet connections and obtaining required permits, that might be beneficial to Customer but are not part of the Installation Services (the “Additional Tasks”). If 10net in its discretion agrees to Customer’s request that 10net perform Additional Tasks, then those Additional Tasks will be deemed part of Installation Services and expressly confirmed in a written change order signed by both Parties or otherwise expressly approved in writing by an authorized representative of each Party, and Customer will pay applicable fees for the Additional Tasks as set out or referenced in the change order and this Agreement. 

6.0 Managed Services

6.1 Hardware Warranty Assistance:  If the Ordering Document expressly specifies that 10net will provide Hardware Warranty Assistance regarding a Hardware Item, then on reasonable request by Customer during the applicable Hardware Warranty Assistance Period specified in the Ordering Document, 10net will use commercially reasonable efforts to assist Customer to claim the benefits of any warranty provided by the supplier of the Hardware Item. 10net’s obligations under this section 6.1 are subject to the restrictions and requirements (including fees and expenses payable by Customer) set out in 10net’s Hardware Warranty Assistance Policy (available online at 10netgroup.net/policies), as established and revised by 10net’s from time to time, and Customer will comply with customer’s obligations set out in 10net’s Hardware Warranty Assistance Policy.

6.2 Software Maintenance and Warranty Assistance:  If the Ordering Document expressly specifies that Customer has purchased Software Maintenance and Warranty Assistance, then during the applicable Software Maintenance and Warranty Assistance Period specified in the Ordering Document and subject to the provisions of this Agreement 10net will perform the following services (collectively “Software Maintenance and Warranty Assistance”):

a) Software Maintenance:  10net will make Player Software Updates available for download by Customer for installation and use on applicable Media Players by Customer pursuant to applicable valid and subsisting Software Licenses or Direct Licenses (as applicable). Subject to Customer’s express written consent to “Remote Software Installation Services” (which may be set out in the Ordering Document), then 10net will use commercially reasonable efforts to remotely install Player Software Updates on applicable Media Players that are configured for that service and accessible to 10net over the Internet in accordance with 10net’s Software Maintenance Policy (available online at 10netgroup.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in 10net’s Software Maintenance Policy. In this Agreement, “Player Software Update” means an update or upgrade to Player Software that the applicable software supplier makes available to 10net for distribution to Customer for use pursuant to the applicable Software License or Direct License (as applicable).

b) Warranty Assistance:  On reasonable written request by Customer during the term of the software supplier’s warranty for Player Software, 10net will use commercially reasonable efforts to assist Customer to claim the benefits of the supplier’s warranty. 10net’s obligations under this section 6.2(b) are subject to the restrictions and requirements (including fees and expenses payable by Customer) set out in 10net’s Player Software Warranty Assistance Policy (available online at 10netgroup.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in 10net’s Player Software Warranty Assistance Policy.

6.3 Creative Services:  If the Ordering Document expressly specifies that 10net will provide Creative Services, then 10net will perform a limited amount of Creative Services requested in writing by or on behalf of Customer during the term of Subscription. The amount of Creative Services performed by 10net each month is subject to the limit specified in the Ordering Document. Creative Services that are not fully consumed during a month will expire and will not carry forward to the next month. 10net’s obligations under this section 6.3 are subject to the restrictions and requirements (including fees and expenses payable by Customer) set out in 10net’s Creative Services Policy (available online at 10netgroup.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in 10net’s Creative Services Policy. In this Agreement, “Creative Services” means services to assist Customer to format and adjust pre-existing Customer Content so that it is suitable for use by the CMS and Player Software. For greater certainty, Creative Services do not include Content Management Services.

6.4 Content Management Services:  If the Ordering Document expressly specifies that 10net will provide Content Management Services, then 10net will perform a limited amount of Content Management Services requested in writing by or on behalf of Customer during the term of the Subscription. The amount of Content Management Services performed by 10net as part of the Subscription is limited to the number of Customer Content updates each month expressly specified in the Ordering Document. Content Management Services that are not fully consumed during a month will expire and will not carry forward to the next month. 10net’s obligations under this section 6.4 are subject to the restrictions and requirements (including fees and expenses payable by Customer) set out in 10net’s Content Management Services Policy (available online at 10net.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in 10net’s Content Management Services Policy. In this Agreement, “Content Management Services” means the online transmission (using the CMS) of Customer Content to designated Media Players in accordance with Customer’s written instructions. For greater certainty, Content Management Services do not include Creative Services or the creation of Customer Content.

6.5 Incident Response and Support Services:  If the Ordering Document expressly specifies that 10net will provide Incident Response and Support Services, then during the applicable Incident Response Services Period specified in the Ordering Document 10net will provide Incident Response and Support Services (defined in the Additional Terms/Policies for Incident Response and Support Services) in accordance with the Technical Support Policy (available online at10netgroup.net/policies), as established and revised by 10net from time to time, and Customer will comply with customer’s obligations set out in the applicable Additional Terms/Policies for Incident Response and Support Services. The nature and extent of the Incident Response Services will vary depending on the service tier purchased by Customer, as set out in the Ordering Document.

6.6 Other Managed Services:  If the Ordering Document expressly provides that 10net will perform other kinds of managed services in addition to the kinds of services expressly referenced in this section 6, then unless the Parties expressly agree in writing otherwise those additional managed services will be deemed Services governed by this Agreement.

7.0 Fees, Taxes and Related Matters

7.1 Fees and Expenses:  Customer will pay to 10net the fees and expenses for Products and Services specified in the Ordering Document and as otherwise set out in this Agreement and applicable Policies. For greater certainty, Customer is obligated to pay for all Products and Services set out in the Ordering Document regardless of whether or not Customer actually uses all of those Products and Services. If the fee for a particular Service is not expressly set out in this Agreement, then the fee will be calculated based on 10net’s then-current, published non-discounted time and materials rates. 10net in its discretion may change the fees for Products and Services from time to time, and the changed fee will apply to any subsequent purchase of Products and Services and any subsequent renewal term of any Subscription or any Service.

7.2 Taxes:  Fees and expenses are exclusive of all applicable federal, state, provincial or municipal sales, use, value-added, property, excise, import, foreign, withholding or other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments of any nature whatsoever now or hereafter imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto (collectively “Taxes”). Customer is solely responsible and liable for, and will pay and remit promptly, all Taxes (other than corporate income taxes payable by 10net) associated with, based on or due as a result of all amounts payable by Customer to 10net. Without limiting the foregoing in this section 7.2, Customer will pay to 10net all Taxes that 10net is required by law to collect from Customer or to pay for or on behalf of Customer to applicable governmental authorities.

7.3 Payment Terms:  Unless this Agreement (including the applicable Ordering Document) expressly states otherwise, recurring periodic fees and expenses are payable in advance by or before the applicable recurring period, and other fees and expenses are payable on performance of the applicable Service or delivery of the applicable Product. 10net in its discretion may require Customer to pay fees in advance before 10net orders Products from suppliers or begins to perform Services. If Customer selects to make recurring payments by credit card or other payment method acceptable to 10net, then 10net will charge fees, expenses and Taxes to the credit card or other payment method on the date when the fees and expenses are due and payable, and 10net will simultaneously deliver (including by email) or make available to Customer an applicable invoice or payment confirmation. In all other circumstances, 10net will issue to Customer an invoice for fees and expenses, which invoice is payable within thirty (30) days after the date of the invoice. Customer will notify 10net of any concerns regarding an invoice (including any disputed amount or other discrepancy) within seven (7) days after Customer receives the invoice. Except as expressly set out in this Agreement, payment obligations are not cancellable and advance payments are non-refundable except as expressly set out in this Agreement. Any amount due and owing by Customer to 10net will be deemed not paid by Customer unless and until immediately cleared funds have been unconditionally deposited to 10net’s designated bank account free and clear of all restrictions, except for restrictions imposed by 10net’s bank for reasons unrelated to Customer or Customer’s method of payment. All fees, expenses and applicable Taxes are payable in the currency specified in the Ordering Document. Customer is solely responsible for all fees and charges (including currency exchange fees and service fees) charged by Customer’s payment service provider. In addition to the foregoing, 10net will charge, and Customer will pay to 10net, a 3.0% administrative fee in respect of all credit card payments made by Customer. Overdue payments are subject to compound interest at a rate of 1% for each month (12% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by applicable law, all amounts payable to 10net under this Agreement are payable in full without any deduction or withholding. If Customer is prohibited by law from making a payment under this Agreement free of deductions or withholdings, then Customer will pay additional amounts to 10net as may be necessary to ensure that the actual amount received by 10net after deductions or withholdings and after payment of any additional Taxes due as a consequence of the payment of additional amounts will equal the amount that would have been received by 10net if the deductions or withholdings were not required.

Part 2 – Other Matters

8.0 Proprietary Rights

8.1 Customer Content:  As between the Parties, Customer solely owns and will retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with all Customer Content. Customer will ensure that at all times Customer has all required valid and subsisting rights, licenses and permissions to lawfully use, and authorize 10net to lawfully use, Customer Content as contemplated by this Agreement. Customer hereby grants to 10net a non-exclusive, world-wide, royalty-free license during the term of this Agreement to use (including copy, reproduce, reformat, modify, adapt, delete, enhance, host, store, backup, create derivative works from, display, transmit and distribute) Customer Content for the sole purposes of performing Services and performing 10net’s obligations and exercising 10net’s rights under this Agreement.

8.2 10net Materials:  As between the Parties, 10net solely owns and will retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with each of the following:  Player Software;  the CMS and CMS Documentation;  all Products and Services; and  all technologies, infrastructure, software (including CMS Software) and services used by or on behalf of 10net to perform or provide Products or Services. Customer will not acquire any right, title or interest (including any intellectual property rights) in, to or associated with any Player Software, the CMS or any CMS Documentation, any Product or Service, or any of the technologies, infrastructure, software (including CMS Software) or services used by or on behalf of 10net to perform or provide Products or Services. Notwithstanding any other provision of this Agreement, and for greater certainty, under no circumstances will 10net be obligated to provide, nor will Customer be entitled to receive, obtain, access or use:  any source (human readable) code for any Player Software; or  any CMS Software or any other software (whether in execution or source format), technologies, infrastructure or services used by or on behalf of 10net to provide any Product or Service.

8.3 Feedback:  Notwithstanding any other provision of this Agreement, if Customer or its Representatives give to 10net or any of 10net’s Representatives any feedback (including ideas or suggestions for enhancements or improvements) about any Product or Service or any related matter, then 10net and its suppliers and licensors and their respective successors, assigns and licensees may use and commercialize the feedback without providing any compensation to Customer or any other person, and 10net and its suppliers and licensors and their respective successors, assigns and licensees will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with all works created, enhanced or improved using or based on the feedback.

8.4 Reservation of Rights:  All rights not expressly granted by a Party under this Agreement are reserved by the Party.

9.0 Other Obligations

9.1 10net Personnel:  10net will assign knowledgeable and proficient personnel (employees, consultants and subcontractors) to perform Services. If Customer is dissatisfied with the performance of any 10net’s personnel, then Customer will promptly give 10net notice of Customer’s dissatisfaction and 10net will take commercially reasonable steps to address Customer’s reasonable concerns.

9.2 Non-Solicitation of 10net Personnel:  During the term of this Agreement and for six (6) months after the term of this Agreement, Customer will not hire any of 10net’s personnel involved in performing Services or solicit or encourage any of those individuals to terminate their employment or engagement with 10net, or attempt to do any of the foregoing or assist any other person to do so.

9.3 Reasonable Assistance/Information/Approvals:  Customer will reasonably cooperate with and assist 10net to perform Services, and will promptly perform the tasks specified in the Ordering Document and all applicable guidelines, and other reasonable tasks requested by 10net. Customer will timely provide 10net with all information reasonably requested by 10net in connection with 10net’s performance of Services. Customer acknowledges that 10net will rely on the information provided by Customer. If any information provided by Customer to 10net is inaccurate or incomplete, then Customer is solely responsible and liable for all resulting loss, damage, delays and additional fees, expenses and costs. Customer will timely provide 10net with all approvals (including approvals of work performed by of 10net and Customer’s other service providers) reasonably requested by 10net in connection with 10net’s performance of Services.

9.4 Customer’s Service Providers/Suppliers:  Customer will ensure that Customer’s service providers and suppliers promptly cooperate with and assist 10net to perform Services, including by performing the tasks set out in the Ordering Document. Without limiting the foregoing in this section 9.4, Customer will provide 10net with requested written authorizations for Customer’s services providers and suppliers to permit 10net to perform Services.

9.5 On-Site Performance:  If 10net’s personnel are required to perform work at Customer’s premises, then:  Customer will provide 10net’s personnel with unrestricted access to all relevant parts of Customer’s premises at all times during Customer’s regular business hours; reasonably requested onsite workspace, office support services and supplies; and reasonably requested use of equipment and communications facilities (including Internet access); and  10net’s personnel will comply with Customer’s relevant, commercially reasonable written security and safety policies attached to or expressly referenced (by policy name and version number or date) in the Ordering Document.

9.6 Remote Access to Customer’s Systems:  If 10net’s performance of a Service requires remote access to Customer’s information technology systems or to Media Players and video displays installed at Customer’s premises, then:  Customer will provide 10net’s personnel with remote access to all relevant parts of Customer’s information technology systems and to Media Players and video displays at all times requested by 10net; and  10net’s personnel will comply with Customer’s relevant, commercially reasonable written information technology security policies attached to or expressly referenced (by policy name and version number or date) in the Ordering Document.

9.7 Technical Requirements and Backups:  Customer is solely responsible and liable for:  procuring, provisioning, configuring, supporting, maintaining, and protecting from damage and loss, all Customer Systems and other technologies, infrastructure, equipment (including personal computers), software (including compatible Internet browser applications) and services (including Internet connectivity and power supply) necessary for Customer’s use of Products and Services (including the transmission of Customer Content and information to the CMS and from the CMS to each Media Player) used in association with Services; and  securely maintaining complete and current backup copies of all Customer Content and all data contained in Customer Systems and Customer’s other systems and devices to mitigate the risk of loss or damage to Customer Content (whether stored in the CMS or otherwise) and Customer’s data. Customer will use commercially reasonable efforts consistent with generally accepted industry practices designed to:  prevent the transmission of viruses and other harmful components from Customer Systems and devices to the CMS;  maintain the security and integrity of Customer Systems and devices and all data stored in those systems and devices; and  establish and maintain a business continuity/disaster recovery plan. Customer acknowledges that 10net encourages Customer to create and securely retain Customer’s own backups of all Customer Content as a method of mitigating risks inherent in the use of the CMS.

9.8 Customer’s Costs:  Customer is solely responsible and liable for all costs and expenses incurred by Customer and Customer’s Representatives arising from, connected with, or relating to Customer’s performance of its obligations and exercise of its rights under this Agreement.

9.9 Customer Materials/Customer Content:  If Customer provides to 10net any items or materials (including Customer Content) for 10net to use in the performance of Services (collectively “Customer Materials”), then Customer will ensure that Customer has all rights, licenses, consents and permissions required for Customer to lawfully use, and to lawfully authorize and license 10net to use, Customer Materials.

9.10 Legal Compliance:  Customer will comply with all applicable laws regarding Customer’s use of Products and Services and Customer’s performance of its obligations and exercise of its rights under this Agreement.

9.11 Audit:  Not more than once in any twelve (12) month period, 10net may inspect Customer’s relevant business records, equipment (including Media Players and relevant computer systems) and facilities, and interview Customer’s personnel, in order to verify Customer’s compliance with this Agreement, provided that the inspection and interviews will be conducted on not less than seven (7) days prior notice to Customer, during normal business hours, in a manner as not to interfere unreasonably with the operations of Customer’s business, and subject to reasonable confidentiality and security requirements. On request by 10net not more than once in any year, Customer will deliver to 10net a certificate of compliance signed by one of Customer’s senior officers providing reasonably requested details of Customer’s use of Products and Services (including details of each Authorized Device on which Player Software is used), and certifying that Customer has complied with the restrictions and requirements set out in this Agreement regarding Customer’s use of Products and Services.

9.12 Notifications:  Customer will promptly notify 10net if Customer or any CMS User:  knows of or suspects any unauthorized access to or use of the CMS, any Media Player or any Player Software; or (b) becomes aware of any complaint, claim or allegation by any other person arising from, connected with or relating to the use of the CMS, any Media Player or any Player Software by or on behalf of Customer, and on request by 10net Customer will cooperate with and assist 10net to investigate and respond to the complaint, claim or allegation (as applicable).

9.13 Indemnity:  On request by 10net, Customer will defend, indemnify and hold harmless 10net and each of 10net’s Representatives from and against any and all claims, complaints, demands, investigations, actions, suits and proceedings by any third party (each a “Third Party Claim/Proceeding”) and all resulting liabilities and obligations (including damages, administrative monetary penalties, fines, settlement payments, expenses and costs, including lawyer’s fees) arising from, connected with or relating to any of the following:  Customer’s use of any Product or Service;  10net’s use of any Customer Content in accordance with this Agreement; or  any negligence, misconduct or breach of this Agreement by or on behalf of Customer or any person for whom Customer is responsible under this Agreement or at law, except if and to the extent caused by a breach of this Agreement by 10net. If 10net requests that Customer defend and indemnify 10net or any of 10net’s Representatives in respect of a Third Party Claim/Proceeding pursuant to this section 9.13, then 10net will:  give Customer prompt notice of the Third Party Claim/Proceeding, provided that a failure to give prompt notice will only relieve Customer of Customer’s obligations under this section 9.13 if the failure to give prompt notice has caused prejudice to Customer;  permit Customer to control the defence and settlement of the Third Party Claim/Proceeding, provided that Customer will not settle the Third Party Claim/Proceeding without 10net’s express, prior written consent; and  on written request by Customer, reasonably cooperate with and assist Customer regarding the defence and settlement of the Third Party Claim/Proceeding. 10net and its Representatives retain the right to participate (with counsel of their own selection at their sole cost and expense) in the defense of and settlement negotiations relating to any Third Party Claim/Proceeding.

9.14 Subcontractors:  10net in its discretion may engage subcontractors and service providers (including providers of infrastructure or data centre services) to assist 10net to perform Services, provided that 10net is and will remain fully responsible and liable for the Services and the performance of all of 10net’s obligations under this Agreement.

10.0 Confidential Information

10.1 Confidentiality Obligation:  Both during and indefinitely after the term of this Agreement, each Party (the “Receiving Party”) will maintain the confidentiality of all non-public information, in any form and on any medium, that is disclosed or otherwise made available by or on behalf of the other Party (the “Disclosing Party”) pursuant to this Agreement (collectively the “Confidential Information”) using the same degree of care as the Receiving Party affords to its own confidential information of a similar nature that the Receiving Party desires not to be published or disclosed, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. 10net’s Confidential Information is deemed to include all non-public information about Products and Services and the financial terms of this Agreement.

10.2 Exceptions:  Information will not be considered to be the Disclosing Party’s Confidential Information to the extent, but only to the extent, that the information is:  already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party;  subsequently learned by the Receiving Party from an independent third party free of any restriction and without breach of this Agreement, an agreement with the third party or any other confidentiality obligation;  or becomes generally available to the public at large, through no wrongful act or omission by or on behalf of the Receiving Party; or  independently developed by the Receiving Party without reference to any of the Disclosing Party’s Confidential Information.

10.3 Permissible Use/Restrictions:  The Receiving Party will:  (a) use the Disclosing Party’s Confidential Information only during the term of this Agreement and only to the extent necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement;  (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel if and to the extent that the disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement; and (c) ensure that each person to whom the Receiving Party discloses the Disclosing Party’s Confidential Information under this section 10.3 complies with the restrictions and requirements set out in items (a) and (b) above.

10.4 Additional Permitted Disclosures:  Notwithstanding section 10.3, the Receiving Party may disclose the Disclosing Party’s Confidential Information:  to the extent the disclosure is required by a valid order or direction of a court or government agency of competent jurisdiction and authority or by applicable law, provided that before making the disclosure the Receiving Party gives reasonable notice (if the notice is not prohibited by applicable law) to the Disclosing Party of the potential disclosure and on request by the Disclosing Party reasonably assists the Disclosing Party to obtain a protective order preventing or limiting the potential disclosure or use of the Confidential Information; and  to the Receiving Party’s legal, accounting and tax advisors for a bona fide legal, accounting or tax purpose (as applicable) and provided that:  each advisor is subject to professional obligations of confidentiality regarding the disclosed Confidential Information; and  the Receiving Party is fully responsible and liable for each advisor’s unauthorized use or disclosure of the disclosed Confidential Information.

10.5 Return/Destruction of Confidential Information:  On expiration or termination of this Agreement or at any other time on request by the Disclosing Party, the Receiving Party will use commercially reasonable efforts to promptly permanently delete and destroy all documents and records containing the Disclosing Party’s Confidential Information in the possession or control of the Receiving Party or any person to whom the Receiving Party provided the Disclosing Party’s Confidential Information pursuant to section 10.3, except that the Receiving Party may retain documents and records containing the Disclosing Party’s Confidential Information to the extent required for legal compliance or reasonable contract administration purposes. For greater certainty, a document or record containing the Disclosing Party’s Confidential Information that is retained by the Receiving Party or any person to whom the Receiving Party provided the Confidential Information pursuant to section 10.3 will continue to be subject to all of the applicable restrictions and requirements set out in this section 10.

10.6 Disclosure to Suppliers:  Notwithstanding any other provision of this Agreement (including section 10.3), 10net may disclose information about Customer’s use of Products and Services to the independent suppliers (including suppliers of Hardware Items, Player Software and CMS Software) from whom 10net sources Products and Services.

11.0 Warranties and Disclaimers

11.1 Warranty for Services:  10net warrants that 10net will perform Services in a competent manner consistent with generally accepted reasonable standards of skill and competence in the technical services industry. If there is a breach by 10net of the foregoing warranty, then as Customer’s sole and exclusive remedy, and as 10net’s sole obligation and liability to Customer, 10net will either:  re-perform the deficient Services at no additional cost to Customer; or  terminate this Agreement as it applies to the deficient Services and refund the portion of the fees previously paid by Customer for the deficient Services.

11.2 Warranty for the CMS:  Subject to sections 4.13 and 11.4, 10net warrants that the CMS will operate and perform in substantial conformity with the CMS Documentation under normal use and circumstances. If there is a breach by 10net of the foregoing warranty, then Customer’s sole remedies and 10net’s sole obligations and liabilities to Customer are as follows, at 10net’s option:  10net will modify or correct the CMS so that it operates and performs in substantial conformity with the CMS Documentation, unless the Documentation is in error in which case 10net will modify the Documentation to accurately reflect the actual, intended operation of the CMS; or  10net will terminate the Subscription effective on fourteen (14) days’ notice of termination to Customer and refund to Customer the unused prorated portion of all fees paid in advance by Customer for the terminated Subscription. The foregoing warranty and remedies will not apply to any nonconformity caused by any of the following:  use of the CMS by or on behalf of Customer in a manner inconsistent with the CMS Documentation or in breach of this Agreement;  Customer Content, a Media Player, Player Software or CMS Software;  Customer’s breach of this Agreement; or  any other matter beyond 10net’s reasonable control.

11.3 General Disclaimer:  Except for the representations and warranties expressly set out in this Agreement, and to the maximum extent permitted by applicable law, Products and Services are provided “as is”, “as available” and “with all faults”, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representations, warranties, conditions or guarantees of or relating to accuracy, completeness, correctness, durability, fitness for a particular purpose, merchantability, non-infringement, performance, quality, results, suitability, timeliness or title, all of which are hereby disclaimed by 10net to the fullest extent permitted by applicable law. Except for the representations and warranties expressly set out in this Agreement, no oral or written information or advice given by or on behalf of 10net will create any legally binding or effective representation, warranty, condition or guarantee. Customer is solely responsible and liable for the selection and use of Products and Services to achieve intended results.

11.4 Specific Disclaimers:  Without limiting section 11.3, and notwithstanding any other provision of this Agreement:

a) Customer Content:  Customer is solely responsible and liable for, and bears all risks and liabilities related to, Customer Content, including the accuracy, quality, legality, appropriateness and intellectual property ownership or right to use of Customer Content. 10net is not responsible or liable for any Customer Content or any breach of this Agreement caused by any Customer Content.

b) Hardware/Software:  Customer acknowledges that Hardware Items, Player Software and CMS Software are sourced by 10net from independent suppliers. 10net does not make or give, and disclaims to fullest extent permitted by law, any representation, warranty, condition or guarantee of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, regarding any Hardware Item, Player Software or CMS Software. 10net is not responsible or liable for any act or omission by the supplier of any Hardware Item, Player Software or CMS Software, or any defect or deficiency in any Hardware Item, Player Software or CMS Software, or for any damage, loss or liability incurred by Customer or any other person to the extent arising from, connected with or relating to any Hardware Item, Player Software or CMS Software.

c) CMS:  Customer acknowledges that the CMS might be affected by circumstances beyond 10net’s control, might not be continuous, uninterrupted or secure, and is subject to limitations, delays and other problems inherent in the use of the internet and computer technologies. 10net is not responsible or liable for any delays, failures or any damage, loss or liability resulting from any of those problems. Customer acknowledges that security measures used by or on behalf of 10net might not protect the CMS or Customer Content stored or processed in the CMS against damage or loss or any unauthorized access, use, disclosure or deletion. Except as expressly set out in this Agreement, 10net is not responsible or liable for any unauthorized access to, or use, alteration, theft or destruction of, the CMS or any data (including Customer Content) stored or processed in the CMS, whether through accident, fraudulent means or devices, or any other method.

11.5 CMS User Misconduct/Credentials:  Customer accepts and assumes all risks of damage, loss and liability resulting from any unauthorized use of any Product or Service (including the CMS) by any CMS User or the unauthorized use or disclosure of Credentials. 10net is not required to verify the actual identity or authority of any person using Credentials, and 10net may act on any communication that is given with the use of Credentials.

12.0 Liability Exclusions/Limitations

12.1 No Liability for Hardware Item, Product Software or Customer Content:  Notwithstanding any other provision of this Agreement, and to the maximum extent permitted by law, under no circumstances and in no event will 10net or any of its Representatives (including suppliers of Product Software or CMS Software) be liable to Customer or any other person for any direct or indirect damage, loss or liability arising from, connected with, or relating to any Hardware Item, Player Software, CMS Software or Customer Content.

12. 2 Exclusions/Limitations:  Without limiting section 12.1, notwithstanding any provision of this Agreement except section 12.3, and to the maximum extent permitted by applicable law:

a) Exclusions:  the liability (if any) of each Party and its Representatives to the other Party and its Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement (including Products and Services) and the resulting relationship between the Parties is limited to direct damage suffered by the other Party only, and in no event and under no circumstances will either Party or any of its Representatives be liable to the other Party or any of its Representatives for any indirect, incidental, consequential, special, exemplary or punitive loss or damage of any nature or kind whatsoever or for any loss of data, loss of information, loss of business, loss of markets, loss of savings, loss of income, loss of profits, loss of use, loss of production or loss of goodwill, anticipated or otherwise;

b) Limitation:  without limiting section 12.2(a), in no event and under no circumstances will the total aggregate liability of either Party and its Representatives to the other Party and its Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement (including Products and Services) and the resulting relationship between the Parties ever exceed the total amount of fees for Services actually paid by Customer to 10net during the twelve (12) months immediately before the date on which the liability arose; and

c) Application:  this section 12.2 applies to liability under any theory (including contract, tort, strict liability and statutory liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the liable Party or any of its Representatives, even if other remedies are not available or do not adequately compensate for the loss or damage, even if the liable Party knows or ought to have known of the possibility of the loss or damage being incurred, and regardless of whether or not the loss or damage was foreseeable. For greater certainty, 10net’s Representatives include suppliers of Product Software and CMS Software.

12.3 Exceptions:  Section 12.2 does not apply to:  any of the obligations set out in section 9.13 or breach of those obligations; or  liability for breach of any of sections 3.4, 3.5, 3.7, 4.5, 4.6, 7, 9.2, 9.9 and 10; or  liability for breach of any of 10net’s intellectual property rights; or for fraud or misconduct that is willful and intended to cause harm to the other Party or its Representatives.

12.4 Acknowledgement:  The allocation of risk set out in this Agreement is an essential part of the bargain between the Parties, a controlling factor in setting the fees payable by Customer to 10net, and an inducement to the Parties to enter into this Agreement.

13.0 Term and Termination

13.1 Term:  The term of this Agreement will commence on the Effective Date specified in the Ordering Document and will continue until the end of earlier of the following:  if the Ordering Document expressly specifies the term of this Agreement, then the end of the specified term;  if the Ordering Document does not expressly specify the term of this Agreement, then when all required Services are performed and all required Products are delivered to Customer; or  this Agreement is terminated in accordance with this Agreement.

13.2 Termination for Uncured Breach:  Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately on delivery of a termination notice to the other Party if the other Party breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within a thirty (30) day cure period, provided that the termination notice is delivered no later than fifteen (15) days after the end of the cure period; and provided that if the non-breaching Party does not give a notice of termination to the breaching Party within the fifteen (15) day notice period, and if the breach is continuing, then the non-breaching Party may give a further default notice in respect of the breach and this section 13.2 will apply in respect of that further default notice.

13.3 Other Termination:  Notwithstanding any other provision of this Agreement:  either Party may terminate this Agreement effective immediately on notice of termination to the other Party if the other Party becomes insolvent, commits an act of bankruptcy, is the subject of a proceeding in bankruptcy, receivership or an arrangement with creditors, makes an assignment for the benefit of creditors, takes any step or proceeding available for the benefit of insolvent debtors, or takes or is subject to any step or proceeding for liquidation, dissolution or winding up, or the appointment of a trustee, receiver or liquidator; and  10net may terminate this Agreement on ninety (90) days’ notice of termination to Customer if 10net in its discretion decides to cease making the CMS generally commercially available.

13.4 Consequences of Expiration/Termination:  On expiration or termination of this Agreement for any reason whatsoever:  each Party will promptly perform its obligations arising on expiration or termination of this Agreement as set out in this Agreement;  Customer’s Subscription to use the CMS (if any) and all Software Licenses will terminate immediately and automatically, without any notice to Customer;  Customer will promptly pay to 10net all fees and expenses for Services performed and Products provided before the expiration or termination of this Agreement; and  each Party will remain fully responsible and liable for all of the Party’s obligations and liabilities arising prior to the expiration or termination of this Agreement.

13.5 Suspension:  10net may suspend the provision of any or all Products and the performance of any or all Services effective immediately on notice to Customer on occurrence of any of the following events (each a “Suspension Event”):  10net reasonably believes that Customer has breached this Agreement and failed to cure the breach within fourteen (14) days after Customer’s receipt of notice of the breach from 10net;  10net reasonably believes that the confidentiality, integrity, availability, functionality, operation, performance, results, reliability or security of the CMS might have been damaged, disrupted, compromised or degraded, or to prevent a risk of damage, disruption, compromise or degradation to the confidentiality, integrity, availability, functionality, operation, performance, results, reliability or security of the CMS;  10net’s right or license to lawfully use any infrastructure, technologies (including software), products, services or data provided by or obtained from any third party required for provision of any Product or Service is disputed, suspended or terminated for any reason;  a third party claims or alleges that the creation or use of any Customer Content or the use of any Product or Service in accordance with this Agreement infringes, misappropriates or violates the third party’s right; or  10net reasonably believes that the suspension is required by applicable law or is reasonably necessary to prevent or mitigate an imminent risk of harm, loss, damage or liability. To the extent reasonably practicable, 10net will give Customer reasonable prior notice of any suspension pursuant to this section 13.5. If 10net suspends the provision of any Product or the performance of any Service due to the occurrence of a Suspension Event, then:  the Parties will reasonably cooperate and assist each other to resolve (if practicable) the Suspension Event; and  10net will reinstate the provision of the Product or the performance of the Service promptly after the Suspension Event is resolved to 10net’s reasonable satisfaction. For greater certainty, any suspension under this section 13.5 will not be a breach of this Agreement by 10net, entitle Customer to a refund or suspension of fee payment obligations, or give rise to any liability by 10net to Customer or any other person.

13.6 Survival:  Notwithstanding any other provision of this Agreement, each of sections 2.2, 2.3, 2.5, 2.6, 3.4, 3.5, 3.6, 4.5, 4.7, 4.10(e), 7, 8, 9.2, 9.8, 9.13, 10, 11.3, 11.4, 11.5, 12, 13.4, 13.6 and 14 of these General Terms and Conditions, and all other provisions necessary to the interpretation or enforcement of those sections, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding on the Parties as applicable.

14.0 General

14.1 Governing Law:  This Agreement, the subject matter of this Agreement (including Products and Services) and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods and excluding all rules of private international law or the conflict of laws that would lead to the application of the laws of any other jurisdiction.

14.2 Disputes:  All disputes, controversies and claims between the Parties arising under, out of, in connection with, or in relation to this Agreement or the subject matter of this Agreement (including Products and Services) will be referred to and finally resolved by confidential binding arbitration administered by JAMS. The number of arbitrators will be one. The place of arbitration will be Seattle, Washington. The language of the arbitration will be the English language. If JAMS is not operative, then the arbitration will proceed ad hoc and be governed by the Arbitration Act (Washington). Any award rendered in an arbitration is final and binding, and judgment on the award may be entered in any court having jurisdiction for the enforcement of the award. Notwithstanding the foregoing in this section 14.2, either Party may seek preliminary or temporary injunctive relief and other remedies from the courts of the State of Washington sitting in Seattle, Washington to avoid irreparable harm or to preserve the status quo, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all of those matters and any other matter that is not properly subject to arbitration. Each Party irrevocably waives all rights to trial by jury. Washington law shall apply to any such arbitration without regard to conflict of laws principles.

14.3 Notices:  Except as expressly set out in this Agreement, all notices to be given under this Agreement will be in writing and will be delivered by hand/courier or email to a Party to the attention of its “Legal Department” at the Party’s addresses set out on the Ordering Document or below in section 14.10 or at other addresses for notice specified by the Party in a notice delivered to the other Party pursuant to this section 14.3. Each Party will promptly acknowledge receipt of all notices delivered by the other Party in accordance with this section 14.3. A notice delivered by hand/courier will be deemed delivered when it is received. A notice delivered by email will be deemed delivered on the next business day (at the place of delivery) following the date of transmittal and acknowledgement of receipt by the recipient (not an automated acknowledgement). For greater certainty, this section 14.3 does not apply to operational communications regarding the Parties’ day-to-day performance of their obligations under this Agreement.

14.4 Force Majeure:  Notwithstanding any other provision of this Agreement, a Party will not be liable for any delay in performing or failure to perform any of the Party’s obligations (other than payment obligations) under this Agreement if and to the extent performance is delayed or prevented due to a cause or circumstance that is beyond the Party’s reasonable control, and any delay or failure of that kind will be deemed not a breach of this Agreement by the Party and the time for the Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

14.5 Publicity:  10net may reference Customer (using Customer’s trademark or logo) as one of 10net’s customers in 10net’s advertising, marketing and promotional materials and 10net’s published lists and directories of customers.

14.6 Miscellaneous:  The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. Time is of the essence of all payment obligations under this Agreement. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. Except as expressly set out in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which the Party may be entitled under this Agreement or at law, and each Party may pursue any and all of the Party’s rights and remedies concurrently, consecutively and alternatively. If a Party’s consent is required under this Agreement, then the Party in its discretion and for its sole convenience may withhold or refuse the consent unless this Agreement expressly states otherwise. This Agreement will ensure to the benefit of and will be binding on each Party and its successors and permitted assigns. Customer will not transfer or assign this Agreement or any of Customer’s rights under this Agreement without 10net’s express, prior written consent. 10net may transfer and assign this Agreement without Customer’s consent. Each Party will execute any further documents and do any further acts or things that may be necessary to lawfully implement and carry out the intent of this Agreement. If a document that is part of this Agreement or relates to this Agreement requires the signature of both Parties, then the document may be signed (including by electronic signature) and delivered (including by facsimile transmission or by email in PDF or similar format) in counterparts, and each signed and delivered counterpart will be deemed an original, and both counterparts will together constitute one and the same document. The Parties have expressly requested and required that this Agreement and all related documents be written in the English language.

14.7 Interpretation:  In this Agreement:  a reference to “this Agreement” refers to this Agreement as a whole, and not just to the particular provision in which those words appear;  headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions;  words importing the singular number only include the plural, and vice versa;  reference to a day, quarter or year means a calendar day, calendar quarter or calendar year, unless expressly stated otherwise;  reference in a document that forms part of this Agreement to a section by number only is a reference to the appropriate section in the document in which the reference is made;  a reference to currency is to the lawful money of Canada, unless expressly stated otherwise;  “discretion” means a person’s sole, absolute and unfettered discretion;  “including” or “includes” means including or includes (as applicable) without limitation or restriction;  “in writing”, “written” or similar terms includes email, unless expressly stated otherwise;  “law” includes common law, equity, statutes and regulations enacted or amended from time to time, and a reference to a specific statute includes all regulations issued or made under the statute and all amendments to, or replacements of, the statute or any regulation issued or made under the statute in force from time to time; and  “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity.

14.8 Amendment:  Except as otherwise provided in Section 1.4, this Agreement may not be amended except by a written document that expressly states that it is an amendment to this Agreement and is signed by both Parties or their respective successors or permitted assigns. Purchase orders and other documents issued by Customer and accepted by 10net in connection with this Agreement are for administrative convenience only, and the terms and conditions contained in those documents are of no force or effect and do not in any way amend this Agreement.

14.9 Entire Agreement:  This Agreement sets out the complete agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of this Agreement other than as expressly set out or referenced in this Agreement.

14.10 Address for Notices:  10net’s address for notices is 2429 SE 11th Ave. Portland, OR 97214.

_________________________________________________________________