Welcome to OVA INC. (“OVA”) and to our platform for collaboration and 3D content creation across organizations called StellarX. Our turnkey solutions are optimized for StellarX, providing complete freedom and scalability for your projects. StellarX is the best authoring sandbox for VR/AR/XR projects, making you independent after the delivery with complete and unlimited access to your project’s content, scenario nodes, and more (the “Platform”).
Scalable content deployments and a variety of pre-built templates and use cases increase portability and reduce overall costs and time to completion for any given project, regardless of size. Up until now, StellarX has proven to deliver the best Return on Investment (ROI) for training and education projects, design and prototyping, as well as for being a great remote collaboration tool.
These Terms of Service constitute a License Agreement (the “Agreement”) between OVA and you, governing your access to and use of the Service. Please read this Agreement carefully; your opportunity to use the StellarX software and the Platform (collectively, the “Software”) has certain restrictions. The Software is made available to you as a hosted service pursuant to this Agreement (the “Service”).
By clicking “I AGREE” below, and (based on whether you are licensing the “Essential” free version of the Service or a the more full-use such as “Pro” or “Enterprise”, making any required payment of the license fees, you expressly acknowledge that you are a party to this Agreement and agree to be bound by it. This Agreement applies to your license to the Software, which includes any related materials provided by OVA, including third-party components and materials (collectively, the “Materials”). (i) If you are employed by, an agent or independent contractor (under written agreement) for or otherwise represent or have been authorized by a company or other legal entity or organization, including an academic organization or government agency (collectively, and “Organization”) to access or use the Service and/or the Software, (ii) if you are using it on any device or computer supplied to you or paid for by such Organization, (iii) if your use of the Service has been paid for by your Organization or you have been reimbursed by your Organization, (iv) if you signed up for the Service using your Organization’s email domain or address, (v) if you have used the Service on its behalf (i.e., other than using it personally on your own behalf from an email address that is not the Organization’s on your own device or computer and fully paid for by you as an individual), or (vi) if you invite other users in the Organization to use the Service or enter a virtual space with you, then in all of these cases the term “you” also includes such Organization and you are acting on its behalf. You hereby represent and warrant to OVA that you are authorized to act on such Organization’s behalf in accepting the terms of this Agreement, and you have made sure that you have the necessary authority to enter into this Agreement on its behalf. You hereby represent and warrant that you are not subscribing for the service as an individual or as a consumer (as such expression is defined in the Consumer Protection Act (Québec). The Organization is the Customer of the Service and you are a user, and are bound to respect obligations and restrictions applicable to Users. Individuals authorized by a Customer to use the Service in accordance with this Agreement are authorized users (the “User(s)”).
The expression “Service” also includes any documentation, user guides, upgrades, updates, supplements, third-party materials and components, Internet-based services, support services or any other services provided by, for or on behalf of OVA in connection with use of the Software. Any OVA terms and conditions that appear in or on, or accompany, any OVA Software, Materials, items or services also apply and bind you in connection with your use of and access to the Service.
By agreeing to use the Service below, and using it, you accept these Terms of Service. If you do not accept them, or if you are acting on behalf of an Organization but you are not authorized to bind the Organization on whose behalf you are subscribing to the Service, do not download or use the Software or Service. You as an individual also represent that you are 16 or older, otherwise you are not permitted to enter into this Agreement and should not use the Service.
1. THE BASIC LICENSE
For the Term and subject to Customer payment obligations, and except as otherwise set forth in this Agreement or the applicable Online Order Form, OVA hereby grants to Customer (and the Users whom Customer enable access to the Services) the non-exclusive, non-assignable, non-sublicensable, limited right to access and use the Service that Customer ordered, including anything further developed by OVA and delivered to Customer as part of the Service, solely for Customer internal business operations and subject to the terms of this Agreement and the Online Order Form. Customer agree to provide OVA with all information, access and cooperation reasonably necessary to enable OVA to provide the Services and Customer will perform the actions identified in the applicable Online Order Form as Customer responsibilities
Without limiting the foregoing, the license granted hereunder allows the Customer to: (I) create an immersive Space that’s totally yours, (ii) use Service to simulate industry-specific environments that are relevant to your field or to make the inaccessible more accessible, (iii) collaborate with others in real-time from anywhere at anytime in shared Spaces via your avatar, (iv) interact with others, learn together, train as a team, prototype and visualize, or offer remote assistance, (v) bring your content to life with Virtual, Augmented, and Mixed Reality, (vi) visualize data in a spatial context to make the numbers more meaningful, review and annotate design prototypes as a team, experiment with new concepts in a safe environment, and showcase or demonstrate ideas at a scale, (vii) augment your team with hands-on training scenarios, replicate high-risk environments that are otherwise difficult to access, onboard new employees with learning experiences, and offer step-by-step guidance or instructions to help others overcome challenging tasks, or (viii) track performance, collect biometric data, and analyze results to help individuals improve and work better as a team. Immersive collaboration reduces the need to travel, which is better for the environment.
The Software is licensed to you for your use during the Term, but not sold to you. However, you have the right to download and use the Service on your preferred computers and devices, provided that all use of the Service is by you, that is, your own use and not use by any other person. You have no right to sublicense it to others, nor to assign any rights granted to you by this Agreement or to give your login credentials to any other person.
2. SCOPE OF USE
Your license to the Service gives you the right to use and sample the Service during the Term, subject to the limits that apply to the particular license you obtain, as may be indicated in your subscription form or in a notification from OVA, as OVA is constantly enhancing functionality. OVA will use commercially reasonable efforts to provide you with online notice, or notice to your account, in the event it imposes or modifies technical or numerical limitations on use or makes available new features. This Agreement covers all version of the Software, and may cover new options released in the future. OVA reserves the right to apply technical and/or numerical limitations on use of the features it now makes available and will make available in the Service, which may vary by the version of license to the Service that you obtain. Such limitations are listed in the plan you subscribed to as part of your online order form.
Customer do not acquire under this Agreement any right or license to use the Services, including the Software, in excess of the scope and duration of the Services stated in the applicable Online Order Form. Upon expiration of the Term, or termination of this Agreement or the applicable Order Form, Customer right to access and use the Services will terminate.
3. CUSTOMER ACCOUNTS AND USER ACCESS
Customer may permit Users to use the Services for this purpose and Customer is responsible for Users’ compliance with this Agreement and any applicable Online Order Form. Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames and passwords. Customer further hereby acknowledge Customer shall remain liable for all acts and omissions of Users. Usage is limited to the limitations stated in the Online Order Form.
You will need to set up your account on OVA’s website at https://www.ova.ai/profile/login. Customer may only permit Users it has authorized to use the Service; provided that (i) the number of Users does not exceed any limit that you agreed to on the online order form; and (ii) Customer must ensure that each User complies with all applicable terms and conditions of this Agreement (including applicable privacy policies, acceptable use policies and other general terms and conditions), and is fully and directly responsible to OVA for any act or omission by each User in connection with their use of the Service, whether such User is an employee, contractor or agent of Customer.
4. TERM OF LICENSE
The license granted to you, which is a subscription license, runs indefinitely for the “Essential” free version of the Service, and runs for term set forth in your online order form for any other version of the Software, including the “Pro”, the “Enterprise” and the “Academic”, normally one (1) year (the “Term”). The “Pro”, the “Enterprise” and the “Academic” license will renew automatically for additional periods of one (1) year upon your payment of the renewal invoice, unless either party informs the other party at least thirty (30) days prior to the then current initial Term or renewal term that it does not wish to renew the Term. The initial Term and any renewal term constitute the Term. Upon expiration of the Term if you still intend to use the Service, you agree to install and use only the “Essential” free version of the Service (if made available by OVA), or at OVA’s email request, to delete, uninstall or otherwise remove the Software from any computer, mobile phone or other storage device where it has been downloaded, stored, installed or used.
5. PAYMENT OBLIGATIONS
When you purchase the “Pro”, the “Enterprise” or the “Academic” version of the Service, the fees are specified at checkout in the order form, and such fees are paid in advance. Payment obligations are non cancelable and the fees are non refundable unless otherwise indicated in this Agreement. All fees stated are exclusive of applicable taxes and charges of any nature, such as sales taxes, duties, value-added taxes, excise taxes, use or withholding taxes that may be assessed by any jurisdiction (the “Taxes”). Customer is responsible for paying all Taxes assessed on its purchase or renewal of a license. In the event that your jurisdiction imposes income tax withholding on your purchase or renewal of a license or any other similar applicable Taxes, you must gross up your payment to OVA so that it yields us the amount of fees stated in the online order form and inform OVA in writing by sending an email to email@example.com.
6. RESTRICTIONS ON USE AND DISCLOSURE; CONFIDENTIALITY; NON-DISPARAGEMENT
When you access or use any of OVA Software or Materials, you agree that you will not copy, reverse engineer, decompile or disassemble the Software or any portion thereof, nor attempt any activities not expressly permitted by this Agreement. Further, you understand and agree that the Software is and will remain at all time the confidential information and property of OVA. Accordingly, you agree not to disclose the Software nor any information about the Software, in whole or in part, to any third party without the prior express written consent of OVA. In particular, you will not disclose to any third party or disseminate to the public, publish on the internet or elsewhere, comment or blog in any medium about the Software, including without limitation your experience in using this version of the Software, any bugs or problems in or with the Software, any tests run on the Software or results of such tests, or any Feedback concerning the Software or Service without documented permission from OVA. In addition, you agree not to disclose to any third party any information you acquire in the course of using or testing the Service, about the Software or OVA.
OVA or its licensors retain all ownership and Intellectual Property Rights to the Services, including OVA’s technology, and derivative works thereof, and, except as otherwise specified in an Online Order Form, to anything developed or delivered by or on behalf of OVA under this Agreement. Subject to the limited rights expressly granted hereunder, OVA reserves all rights, title and interest in and to the Service, and any documentation delivered to the Customer, including all related Intellectual Property Rights. For the purpose hereof, “Intellectual Property Rights” shall mean all rights existing from time to, including common law, beneficial and equitable, and registered rights, to patents, inventions, copyright, moral and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in trade secrets and confidential information, and any other proprietary and intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Any rights that you acquire in such Service, Software and/or Materials, other than the license rights granted by this Agreement, are hereby assigned to OVA, including all intellectual property rights that You may have or acquire anywhere in the world (including moral rights, to the maximum extent permitted by applicable law), and any other rights you may have pertaining to the Service provided by or made accessible by Spatial. You will not attempt to register any Intellectual Property Rights anywhere in the world.
8. CUSTOMER CONTENT
As between Customer and OVA, all content created by the Customer using the Software and all content not otherwise provided by or made accessible by OVA to Customer and used by the Customer in a Space with the Service (the “Customer Content”), will remain the sole and exclusive property of Customer. Subject to the terms of this Agreement, Customer grants to OVA a limited non-exclusive, worldwide, royalty-free, sub licensable, assignable (but only to OVA’s service provides bound by confidentiality provisions) license to collect, use, copy, distribute and create derivative works, Customer Content for the sole purpose of providing the Services. Customer is responsible for the accuracy, quality and legality of Customer Content and the means by which Customer acquired Customer Content.
Customer grants to OVA a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, sub licensable, assignable license to: (i) use Customer Content to create aggregate, anonymized data sets; and (ii) compile statistical and other information related to Customer performance, operation and use of the Services, and use such information in aggregate form, for security and operations management, to create statistical analyses, improve and enhance the Service, and for research and development purposes, provided however, that such uses will not incorporate Customer Content or Confidential Information in a form that could serve to identify Customer or Users.
Customer will collect and maintain all personal information contained in the Customer Content in compliance with applicable data privacy and protection laws. Customer will maintain reasonable security standards for its Users’ use of the Service. Customer will not integrate personal information as part of the Customer Content.
OVA shall have a non-exclusive, royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into its Services any Customer input or feedback. OVA shall have no obligation to make Customer input or feedback an improvement. Customer shall have no obligation to provide customer input or feedback.
9. OVA’S OBLIGATIONS
During the Term, OVA will make the Service available to Customer in accordance with the documentation provided to Customer, the information available on OVA’s website and pursuant to the terms of this Agreement. OVA will use the Customer Data only to provide the Services to Customer, as well as to prevent or address service or technical problems pursuant to the terms of this Agreement.
We use great efforts to ensure that the Services operate materially in accordance with our online Help documentation and other documentation. We will use commercially reasonable efforts to provide support services adequate to four needs for the “Essential” free version of the Service, and for the “Pro”, the “Enterprise” or the “Academic”, to ensure that the Service will be available to you 24/7 excluding planned or emergency downtime. We will try to keep you informed of any necessary downtime.
10. CONFIDENTIAL INFORMATION
For purposes of this Agreement, Confidential Information includes innovations, any information, knowledge or data of either party which the other party and its employees may access or receive relating to the Service, Software, Materials, Customer Content, code, computer programs, accounting methods, marketing techniques, customer names, negotiated customer fee information, financial information, marketing plans, product plans, product or services roadmaps, business strategies, forecasts, personnel information, customer lists, trade secrets and any other non-public technical or business information, whether in writing or given to the recipient orally, which the recipient knows or has reason to know that discloser would like to treat as confidential for any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. The Service, Software and any non-public documentation shall remain the Confidential Information of OVA at all times. Any non-public Customer Content remains Your Confidential Information or that of Your Organization. Neither party as the recipient shall disclose any Confidential Information of the disclosing party without the prior written consent of the disclosing party, and neither party shall use any Confidential Information of the disclosing party except with respect to You as recipient, to properly use the license granted under this Agreement, or with respect to Spatial as recipient, to provide any necessary Service and other services, or assist Your use of the license You have obtained under this Agreement.
All Confidential Information of the discloser shall be protected from disclosure by the recipient using the standard of care recipient uses with its most valuable confidential information, and at least a commercially reasonable standard of care; and (ii) no Confidential Information of the discloser shall be used for any purpose other than that for which it has been disclosed, and shall not be used for the benefit of recipient or any third party except as permitted by the license to use the Service and/or by this Agreement. Confidential Information does not include information that: (a) is in the public domain through no fault of the recipient; (b) was known to recipient prior to disclosure by the discloser without breach of an obligation to discloser, as can be demonstrated by documentary evidence; (c) was disclosed to recipient by a third party not known by recipient to be under a confidentiality obligation to discloser; (d) was independently developed by recipient without use of Confidential Information of discloser. If required by law or court or governmental order, recipient can disclose Confidential Information of discloser, but recipient first shall give discloser the opportunity to oppose or limit such disclosure, and shall never disclose more than recipient is required to disclose.
11. NO WARRANTIES
OVA warrants that it will perform (i) the Service in all material respects as described in the documentation provided to Customer and in the applicable Online Order Form(s), and (ii) any professional services in a professional manner using personnel that have the necessary knowledge, experience and skills to perform and deliver the professional services, as the case may be. If the Services provided to Customer were not performed as warranted above, Customer must promptly provide written notice to OVA that describes the deficiency in the Services.
NOTWITHSTANDING THE FOREGOING, OVA DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT OVA WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT OR CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY OVA, AND (C) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGES THAT OVA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. OVA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. OVA IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER CONTENT, CUSTOMER APPLICATIONS OR THIRD PARTY CONTENT. OVA DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT. TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES SET OUT HEREIN ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER RENOUNCES TO ANY RIGHT AND/OR CLAIM TO THE REGULATORY COMPLIANCE OF THE SERVICES, AND REPRESENTS AND WARRANTS HAVING CONDUCTED ALL NECESSARY DUE DILIGENCE ON RELEVANT ETHICAL AND/OR PROFESSIONAL OBLIGATIONS AND OTHER APPLICABLE LAW PRIOR TO ENTERING INTO THIS AGREEMENT.
FOR ANY BREACH OF WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND OVA’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF OVA CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY TERMINATE THE DEFICIENT SERVICES AND OVA WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT WERE PRE-PAID TO OVA FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
12. LIMITATION OF LIABILITY
Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, DATA USE, BUSINESS OR GOODWILL, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE OTHER PARTY HAD BEEN PREVIOUSLY ADVISED OR THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT IS DEEMED A DIRECT DAMAGE.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) BODILY OR MORAL INJURY, (II) INTENTIONAL FAULT, GROSS RECKLESSNESS, GROSS CARELESSNESS OR GROSS NEGLIGENCE, OR (III) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (A) OVA’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR AN ORDER DOCUMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO OVA FOR THE SERVICES UNDER THE ORDER FORM THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM OVA UNDER SUCH ORDER FORM (THE “GENERAL LIABILITY CAP”); (B) EXCEPT FOR OVA’S BREACH OF ITS CONFIDENTIALITY, SECURITY, PRIVACY OR DATA PROTECTION OBLIGATIONS UNDER THIS AGREEMENT, WHERE OVA’S MAXIMUM LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, TWO (2) TIMES THE GENERAL LIABILITY CAP. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Intellectual Property Indemnity. Subject to the terms of this Section 13, if a third party makes a claim against either Customer or OVA (“Indemnified Party” which may refer to Customer or OVA depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, including OVA’s technology, Customer Content, hardware, or material (collectively, “Material”) furnished by either Customer or OVA (“Indemnifying Party” which may refer to Customer or OVA depending on which party provided the Material) and used by the Indemnified Party infringes the third party’s Intellectual Property Rights existing from time to time in Canada and in the United States of America, the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, will defend the Indemnified Party against the claim and indemnify and hold the Indemnified Party harmless against any Losses relating to such Claim. The term “Material” defined above does not include third party technology and third party content.
Indemnification Procedures. The Indemnified Party will promptly notify the Indemnifying Party of any claim for which the Indemnified Party seeks indemnification and provide reasonable assistance to the Indemnifying Party with respect to handling the claim. The Indemnified Party’s failure to provide timely notice or reasonable assistance will relieve the Indemnifying Party of its indemnification obligations to the extent that the Indemnifying Party has been actually and materially prejudiced by such failure. The Indemnifying Party will have the sole right to defend, make decisions relative to the defense, negotiate and settle any claim provided that the Indemnifying Party obtains the prior written approval of the Indemnified Party, which approval will not be unreasonably withheld, before entering into any settlement of a claim or ceasing to defend against a claim if such settlement or cessation would cause injunctive or other relief to be imposed against the Indemnified Party or would prejudice any intellectual property interest of the Indemnified Party. The Indemnified Party will be entitled to participate in the defense of a claim and to employ legal representation at its own expense to assist in the handling of a claim. The Indemnifying Party shall have the right to reimbursement of its legal fees and expenses from any monetary award relating to any counter-claim or cross-claim asserted by the Indemnified Party as part of the defense of the claim up to the full amount of the monetary award.
Anticipated Breach. If OVA reasonably believes or it is determined that any of its Material may have violated a third party’s Intellectual Property Rights existing from time to time in Canada and in the United States of America, OVA may choose, at its sole option, to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a right to allow for continued use of the Material by Customer. If neither of the foregoing options is reasonably available to OVA, then the Agreement may be terminated at either party’s option and OVA sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid fees for the applicable Material that was to be provided after the effective date of termination.
Exclusions. The Indemnifying Party will not indemnify the Indemnified Party if the Indemnified Party (a) alters the Material or uses it outside the scope of use identified in the Indemnifying Party’s user or program documentation or User documentation, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Indemnified Party, or (c) continues to use the applicable Material after the Indemnifying party instructs the Indemnified Party to stop using that Material. The Indemnifying Party will not indemnify the Indemnified Party to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Indemnifying Party. OVA will not indemnify Customer for any portion of an infringement claim that is based upon the combination of any Material with any products or services not provided by OVA. OVA will not indemnify Customer to the extent that an infringement claim is based on third party technology, third party content or any Material from a third party or other external source that is accessible to Customer within or from the Services. OVA will not indemnify Customer for infringement caused by Customer actions against any third party if the Services as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any third party Intellectual Property Rights. OVA will not indemnify Customer for any claims known to Customer at the time Services rights are obtained.
Exclusive Remedy. This Section 13 provide the parties’ exclusive remedies and the Indemnifying Party’s sole obligations for all third party claims related to the subject matter in this Agreement.
Either party can terminate this Agreement for breach by the other party, by giving written notice to the other party and a 30-day period to cure the breach, if the breach is capable of cure. You can terminate your subscription license at any time for convenience also, but such termination of the Service shall not affect your requirement to pay for the entire subscription license Term. If you validly terminate the Agreement for breach by OVA, you are only entitled to a pro-rated refund of pre-paid fees covering any time period subsequent to the termination date.
Export applicable law of Canada, the United States and any other relevant local export applicable applies to the Service, to the extent applicable to a party. Customer agrees that such export applicable law governs Customer use of the Service provided under this Agreement, and Customer agrees to comply with all such export applicable law. Customer agrees that no data, information, software programs and/or materials resulting from Service (or direct product thereof) will be exported, directly or indirectly, in violation of such export applicable law, or will be used for any purpose prohibited by such export applicable law.
16. FORCE MAJEURE
Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event (except for Customer’s payment obligations) will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, the party not affected by such Force Majeure Event may terminate this Agreement without cost or penalty by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
17. APPLICABLE LAW
This Agreement shall be governed by and construed under the laws of the Province of Quebec. Each party hereto irrevocably waives any objection on the grounds of venue, forum non conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the exclusive jurisdiction of the courts of the Province of Quebec.
18. MODIFICATION OF THE TERMS
It is possible that these Terms of Service will be expanded or modified as OVA’s business evolves. We will use commercially reasonable efforts to give you notice of any material changes, either to the email address associated with your OVA account, or through the Service. We also suggest that you review these Terms of Service from time to time to remain current with each party’s rights and obligations. Your continued use of the Service after such a modification constitutes your acceptance of the modified Terms to the maximum extent permitted by applicable law. Without limiting the foregoing, OVA may change the Service and any of the Terms of Service, including the fees payable for the Service. OVA will give you notice of any change in the fees payable in writing, at least thirty (30) days before the effective date, using a reasonable method to bring this change to your attention, such as posting it on OVA’s website, by including it on or with your bill or sending it to you by email. This notice will clearly identify the proposed change and the effective date. If you want to refuse the change, your only remedy is to cancel the Service. if the change increase your obligation or reduces OVA’s, you may then cancel your subscription without penalty, but notifying OVA up to thirty (30) days after the effective date of the change.
19. ENTIRE AGREEMENT
You agree that this Agreement sets forth the entire Agreement and understanding between you and OVA concerning the Service, Software and Materials and your license to use them, and this Agreement supersedes all prior and contemporaneous communications, written or oral, concerning the Service, Software and Materials and is intended to be a complete and exclusive statement of the terms of your Agreement with OVA. You acknowledge that you have not relied upon any representation whatsoever of OVA which is not contained in this Agreement. Any waiver by OVA of any breach or default by you of any of the terms or conditions of this Agreement will not be considered as a continuing waiver or a waiver of any prior, subsequent or different breach. OVA shall have the ongoing, unfettered right to assign this Agreement to any current or future OVA affiliated company or third party, whether by merger, acquisition, reorganization, sale of substantially all assets or equity, or by operation of law, without your consent and without notice. Any assignment or attempted assignment by you of this Agreement in whole or in part, or of any of the rights granted herein, without the prior written consent of OVA, shall be void. You hereby represent that you are at least 16 years old, and fully authorized to do so and bind your Organization to this Agreement.