NAVORI TERMS OF SERVICES

Latest update: 23/07/2024

These Terms of Services (the “Terms”) are between the entity identified in an Order Form or which is provided with an Activation Code by a Reseller (“Customer”; “you”) and the Navori Contracting Entity. These Terms are effective upon (i) the purchase of the Navori Software Licence through an Order Form; (ii) the acceptance of the Terms by Customer or (iii) the activation or access to the Navori Services by Customer, whichever validly comes first (the “Effective Date”). You agree and understand that these Terms are legally binding. If you disagree with these Terms, you may not use the Navori Services. (Individually a “Party”, and collectively the “Parties” under this Terms).

Notwithstanding anything to the contrary in these Terms, if you are accessing the Navori Services with an Activation Code provided by a Reseller, the financial terms set forth in your agreement with your Reseller have precedence on these Terms, and any payment or reimbursement obligation will be directly between Customer and Reseller, in accordance with such agreement. If you signed an offline variant of these Terms for use of the Navori Services, these Terms below do not apply to you, and your offline terms govern your use of the Navori Services.

1.PREAMBLE

WHEREAS Vendor owns a software and its associated documentation and offers a service including the use of its software along with hosting and maintenance.

WHEREAS Customer is intending to use Vendors’ service.

WHEREAS Vendor wishes to grant the Customer non-exclusive, non-transferable service (except transfers to Customers as expressly authorized hereunder) including some of its Programs in the Territory, and whereas the Customer wishes to accept such a License all in accordance with the terms and conditions herein contained.

NOW WHEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

This Agreement is effective between Customer and Vendor as of the date of Customer accepting this Agreement.

1. PREMABLE
   The Preamble hereof shall be deemed to be an integral part of this Agreement.

2. SCHEDULES

The following Schedule, attached hereto, form an integral part of this Agreement:

SCHEDULE A, INTERPRETATION

SCHEDULE B, SERVICE LEVEL AGREEMENT

3. PURCHASED SERVICES

Vendor shall make the Purchased Services as defined in Schedule C available to Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Vendor regarding future functionality or features.

4.USE OF THE SERVICES

1. Our Responsibilities Vendor shall: (i) provide to Customer online support for the Purchased Services at no additional charge as defined in Schedule C, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Vendor shall give at least 8 hours’ notice via the Purchased Services, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
2. Customer Responsibilities . Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Vendor promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (a) use the Services to store or transmit Malicious Code, (b) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (c) attempt to gain unauthorized access to the Services or their related systems or networks.
3. Usage Limitations Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls Customer are permitted to make against Vendor application programming interface.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

1. User Fees Customer shall pay all fees specified in all Order Forms hereunder. Fees are being quoted and payable in the currency in which the quotation was issued. Fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancellable, and fees paid are non-refundable, and (iv) the number of User Subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
   User subscription fees are based on Yearly periods that begin on the subscription start date and each monthly anniversary thereof; therefore.
2. Invoicing and Payment . Customer will provide Vendor with contact information, or with a valid purchase order or alternative document reasonably acceptable to the Vendor.
3. Overdue Charges . If any charges are not received from Customer by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) the Vendor may condition future subscription renewals and Order Forms on shorter payment terms.
4. Suspension of Service and Acceleration If any amount owing by Customer under this or any other Agreement for Services is 10 or more days overdue, the Vendor may, without limiting Vendor’s other rights and remedies, accelerate Customer unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend Our Services to Customer until such amounts are paid in full.
5. Taxes Unless otherwise stated, fees do not include any taxes, levies, duties, or similar governmental assessments of any nature. Customers are responsible for paying all Taxes associated with Customer purchases hereunder.

6. PROPRIETARY RIGHTS

1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Vendor reserves all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
2. Acknowledgement of Vendor’s Proprietary Rights . Customer hereby acknowledges that Vendor is the sole owner of all right, title and interest in and to the Products as well as any software, Program or documentation related thereto, such as all promotional, marketing and advertising materials, and any copies thereof, and all copyrights, trade secrets, patents, Trademarks and other intellectual or industrial property rights connected in any way with the Products, including, without limitation, all copyright to any foreign language derivative works such as translations of any documentation by the Customer hereby irrevocably assigns to Vendor any of Customer’s potential rights, titles and interests in any and all changes, modifications, improvements, enhancements, inventions, discoveries relevant to the Product, its development, use or commercialization if any;
3. Restrictions . Customer shall not permit any third party to create derivate works based on the Services, reverse engineer the Services, or access the Services to build a competitive product or service, or copy any features, functions, or graphics of the Services.
4. Ownership of Customer Data As between Vendor and Customer, Customer exclusively own all rights, title, and interest in and to all of Customer Data.

7. CONFIDENTIALITY

1. Definition of Confidential Information As used herein, “Confidential Information” means all confidential information disclosed by a party (” Disclosing Party”) to the other party (” Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
2. Protection of Confidential Information . Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality Agreements with the Receiving Party containing protections no less stringent than those herein.
3. Protection of Customer Data Without limiting the above, Vendor shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data.
4. Compelled Disclosure The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8. WARRANTIES AND DISCLAIMERS

1. Our Warranties The Vendor warrant that (i) the Services shall perform materially in accordance with the User Guide, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
2. Mutual Warranties Each party represents and warrants that it has the legal power to enter into this Agreement, and it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
3. Conditions for Warranty
   Any warranty of Vendor is effective only if all following conditions have been fulfilled:
   1. Customer has fully complied with all payment obligations with respect to Products and generally with all its contractual and legal obligations
   2. Customer has given written notice through Vendor support ticketing system within five (5) Business Days following discovery of the problem and has requested for action on Vendor’s part.
   3. Vendor has been given reasonable opportunity to inspect the Product and is satisfied that the Product indeed does not meet the specifications warranted.
   4. The Product was not used, maintained, modified, altered, installed, or integrated contrary to Vendor’s instructions, directives or recommendations, or contrary to current industry norms and standards; The Products were not subject to misuse, improper testing, mishandling.
4. Disclaimer EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. MUTUAL INDEMNIFICATION

1. Indemnification by Vendor The Vendor shall defend Customer against any claim, demand, suit, or proceeding (” Claim”) made or brought against Customer by a third party alleging that the use of the Services (Content data excluded) as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer shall (a) promptly give Vendor written notice of the Claim; (b) give Vendor sole control of the defence and settlement of the Claim (provided that Vendor may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provide to Vendor all reasonable assistance, at Vendor’s expense.
2. Indemnification by Customer Customer shall defend Vendor against any Claim made or brought against Vendor by a third party alleging that Customer Data, or Customer use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Vendor for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Vendor in connection with any such Claim; provided, that the Vendor (a) promptly give Customer written notice of the Claim; (b) give Customer sole control of the defence and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release Vendor of all liability); and (c) provide to Customer all reasonable assistance, at Vendor’s expense.
3. Exclusive Remedy . This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

10. LIMITATION OF LIABILITY

1. Limitation of Liability IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
2. Exclusion of Consequential and Related Damages . IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. TERM AND TERMINATION

1. Term of Agreement This Agreement commences on the Date Customer accept it and continues until all User Subscriptions granted in accordance with this Agreement have expired or been terminated.
2. Term of Purchased User Subscriptions User Subscriptions purchased by Customer (“User Subscription”) commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless the Vendor have given Customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed inflation +7% over the pricing for the relevant Services in the immediately prior subscription term unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
3. Termination for Cause A party may terminate this Agreement for cause: upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
4. Refund or Payment upon Termination . Upon any termination for cause by Customer, Vendor shall refund Customer any prepaid fees covering the remainder of the term of all Subscriptions after the effective date of termination. Upon any termination for cause by Vendor, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any pro-rated undisputed fees payable to Vendor for the period prior to the effective date of termination.
5. Return of Customer Data Upon request by Customer made within 30 days after the effective date of termination of a Purchased Services subscription, Vendor will make available to Customer for download a file of Customer Content Data in their native format. After such 30-day period, Vendor shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in Our systems or otherwise in Our possession or under Our control.

12. WHO CUSTOMER IS CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

1. General Who Customer is contracting with under this Agreement, who Customer should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where Customer are domiciled.
   

   Customer are contracting with:	Notices should be addressed to:	The governing law is:	The courts having exclusive jurisdiction are:
   Navori SA Avenue mon repos 22 1005 Lausanne Switzerland	Legal department	Switzerland	Canton de Vaud
   Navori Inc Suite 710- 1000 Sherbrooke West. H3A 3G4 Montreal Canada	Legal department	Quebec, Canada	Montreal Canada

2. Manner of Giving Notice Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon personal delivery.
3. Manner of Giving Notice Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon personal delivery.
4. Agreement to Governing Law and Jurisdiction Each party agrees to the applicable governing law above without regard to choose or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

13. GENERAL PROVISIONS

1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
2. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision fully permitted by law, and the remaining provisions of this Agreement shall remain in effect.
4. Attorney Fees. Customer shall pay on demand all Our reasonable attorney fees and other costs incurred by Vendor to collect any fees or charges due Vendor under this Agreement following Customer breach of Section 4.2 (Invoicing and Payment)
5. Assignment Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets not involving a direct competitor of the other party.

14. SCHEDULE A, INTERPRETATION

15. SCHEDULE B, SERVICE LEVEL AGREEMENT

1. PREAMBLE

   Whereas the purpose of this Agreement is to define the terms and conditions under which Vendor shall provide to Customer with hosting, maintenance, upgrades, and services for the licensed Products.

2. CONTENT OF MAINTENANCE SERVICES

1. Tier of Maintenance Services
   Vendor shall provide Tier 1 and Tier 2 maintenance to Customer.
2. Coverage Conditions
   

   	Location	Local Time	Working Days	Languages
   Asia	India	GMT – 5:30	Monday to Friday	English, Indi
   Middle East	Dubai and Riyadh	GMT + 3 and GMT +4	Sunday to Thursday	Arabic and English
   Europe	Switzerland	GMT + 1	Monday to Friday	English, French, German, Spanish and Portuguese
   North America	Canada	Eastern Standard Time	Monday to Friday	English, French
   Central South America	Mexico	Central Standard Time	Monday to Friday	Spanish, Portuguese, and English

   The Maintenance Services provided by Vendor are available during local business hours, 8:30 a.m. – 5:30 p.m., local working days, Monday to Friday, following above time zone table.

16. Maintenance Ticket Program and Electronic Assistance

The response time and resolution time of Maintenance Tickets will depend on the priority of the item(s) affected and the severity of the Defect, as set out in the following schedule:

Customer shall use the Maintenance Ticket Program assistance service provided by Vendor. The Service mentioned, herein, enables Customer to obtain assistance in identifying and finding the causes of an alleged Defect of the licensed Software and in providing the appropriate solution, corrective action or other bypass of such Defect as soon as possible.

17. Supply of New Releases of the Software

Vendor shall inform Customer as soon as they become commercially available, of the existence of New Releases of the licensed Software and deliver the Master Copy of the same to Customer as long as Customer is under a running order for maintenance and maintenance Services.

18. Response Time

Response Time and Progress Update

The above timeframes begin in effect upon Customer sending a written Services Request with all the necessary and appropriate information attached for Defect reproducibility.

19. Vendor Responsibilities:

1. Vendor shall respond to Service Requests based on assigned priority and within the timeframes provided herein.
2. Vendor shall take steps to escalate, diagnose, and resolve Defect in an appropriate and timely manner, including the allocation of a sufficient number of skilled staff and the collection of necessary information. and
3. Vendor shall maintain clear and timely communication with Customer at all times.