Last Updated: 10 February, 2022
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”) and Envio Systems Inc. with a principal place of business at 550 Burrard Street, Suite 2900, Vancouver , BC , V6C 0A3 (“Envio”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Definitions. As used in this Agreement:
- “Anonymized Data” means Customer Data which has been stripped of information potentially identifying Customer or which contains any Personal Information, and which has been manipulated or combined to provide generalized anonymous information that cannot be reverse-engineered to identify Customer or any other person.
- “Confidential Information” means all information regarding Envio’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that Customer knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement.
- “Customer Data” means (a) any data, information or information contained in any database, template or other similar document submitted by Customer or Users through the Service or provided by Customer or Users to Envio as part of the Service, including data that the System is configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf, and (b) all modifications, aggregations, compilations, derivative works and results created from processing (including datasets, databases, analyses, reports and visual representations) Customer Data by Envio or through the Service.
- “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Envio that describe the features, functionality or operation of the System.
- “Effective Date” means the date identified by Envio in an approved Order Form as the “Effective Date” or, if not specified in the Order Form, the date Customer first uses the Services, Documentation or any portion thereof.
- “Envio Property” means the Service, System, Anonymized Data, and all other intellectual property created, used or provided by Envio to Customer pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto.
- “Fees” is defined in Section 4.
- “Force Majeure Event” is defined in Section 12.3.
- “Hardware” means any hardware products, including without limitation Envio CUBE and Envio TRIA, sensors, energy meters made available by Envio from time to time and as specified in the Order Form.
- “Statement of Work” means, collectively, the order documents representing (a) Customer’s initial subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time), and (b) Customer’s purchase of Hardware, that, upon execution, are incorporated in and made a part of this Agreement from time to time.
- “Personal Information” has the meaning given to it under the Personal Information Protection and Electronic Documents Act (“PIPEDA”), as may be amended from time to time.
- “Service” means any online service or solution, including without limitation Envio BASE, delivered by Envio to Customer using the System, as made available by Envio from time to time and as specified in the Order Form.
- “System” means, collectively, the Website and the technology, hardware, software and systems, used by Envio and Envio’s third-party suppliers to deliver the Service to Customer in accordance with this Agreement.
- “UserID” is defined in Section 3.1.
- “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
- “Website” means, collectively, the Envio websites, including without limitation the website located at https://enviosystems.com.
- The Service. Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; and (b) cooperate with the reasonable requests of Envio, Envio hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale. Customer may order the Service under this Agreement by agreeing to and signing the Proposal and Statement of Work documentation. Only the execution of a signed proposal Statement of Work between Envio and Customer constitutes a binding contract between those parties. Customer agrees that its purchase of a subscription to the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Envio with respect to future functionality or features.
- Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Envio shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Envio will not have an obligation to provide a correction for all such nonconformities.
- System. Envio will use commercially reasonable efforts to make the System available 24 hours a day, 7 days a week, with minimal downtime. Envio does not guarantee 24×7 uptime availability of the System. Customer acknowledges that the Service and the System will be unavailable during: (i) downtime and scheduled upgrades per Section 2.4; and (ii) unavailability caused by circumstances beyond Envio’s reasonable control, including Force Majeure Events.
- System Updates and Scheduled Downtime. Envio may update any aspect of the System at any time in its sole discretion, Envio may schedule downtime for maintenance and upgrades to the System without prior notice but will use reasonable efforts to provide advance notice where practicable.
- Internet Security Disclaimer. Customer acknowledges and agrees that Envio exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Envio’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and the Customer assumes responsibility for its use of the Service over the Internet.
- Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Envio under this Agreement, Envio may suspend, terminate or limit (in Envio’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Envio from harm to its reputation or business. Envio will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Envio will restore Customer’s access to the Service when Envio determines the event has been resolved. Nothing in this Agreement will limit Envio’s right to take any action or invoke remedies, or will act as a waiver of Envio’s rights in any way with respect to any of the foregoing activities. Envio will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.7.
- Subcontractors. Customer acknowledges and agrees that Envio may retain the services of independent consultants (“Subcontractors”) from time to time to provide, or to assist Envio in providing, the Service. Any Subcontractors used by Envio to provide the Service shall remain under the direction and control of Envio, and Envio shall be fully and personally liable for all acts or omissions of the Subcontractors.
Customer’s Use of the Service.
- Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Envio for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Envio of any actual or suspected unauthorized use of the Service. Envio may require that a UserID be replaced at any time.
- Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, federal, foreign, and privacy laws, including PIPEDA, in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:
- use the Service other than as permitted by this Agreement;
use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
- use the Service to upload, collect, transmit, store, use or process, or ask Envio to obtain from third parties, any data: (i) that Customer does not have the lawful right to copy, transmit, distribute and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); or (ii) for which Customer does not have the consent or permission from the owner of any Personal Information contained therein;
- use the Service in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other Personal Information in a misleading manner or for fraudulent or misleading purposes;
- use the Service in a manner that is libelous or defamatory, harmful to minors in any way, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
- use the Service in a manner that is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Envio;
- use the Service to impersonate a Envio employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
- copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
- use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or
- interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
- Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or Personal Information. Envio may take remedial action if Customer Data violates this Section 3.3, however, Envio is under no obligation to review Customer Data for accuracy or potential liability.
- Fees, Payment and Suspension. As consideration for the subscription to the Service, Customer will pay Envio the fees (“Fees”) set forth in and in accordance with the Statement of Work. All Fees will be billed in advance on a monthly basis unless advance payment has been agreed between Customer and Envio. All Fees are due within 30 days of invoice date, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less. Customer shall reimburse Envio for all expenses (including reasonable attorneys’ fees) incurred by Envio to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Envio’s net income. Envio reserves the right (in addition to any other rights or remedies Envio may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Statement of Work are more than 30 days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
Obligation. Customer agrees (a) to hold the Confidential Information in strict confidence, (b) to limit access to the Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use the Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, Customer will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that Customer gives Envio prior written notice of such disclosure in order to permit Envio to seek confidential treatment of such information.
- Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of Customer, (b) was in Customer’s lawful possession prior to the disclosure, as shown by Customer’s competent written records, (c) is independently developed by Customer without reference to the Confidential Information, as shown by Customer’s competent written records, or (d) is lawfully disclosed to Customer by a third party without restriction on disclosure.
- System and Technology.
- Customer acknowledges that Envio retains all right, title and interest in and to the Envio Property, and that the Envio Property is protected by intellectual property rights owned by or licensed to Envio. Other than as expressly set forth in this Agreement, no license or other rights in the Envio Property are granted to the Customer, and all such rights are hereby expressly reserved by Envio. Envio shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
- Customer Data. Customer retains all right, title and interest in and to the Customer Data. Envio will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Subject to the terms and conditions of this Agreement, Customer grants to Envio a non-exclusive, perpetual, royalty-free, fully paid-up, worldwide license to copy, reproduce, modify, develop, access, collect, store and use the Customer Data (a) as necessary to provide the Service to Customer, and (b) for Envio’s business purposes, including training, enhancing, developing, creating, improving and commercializing Envio’s systems and proprietary technology, the Envio Property and Envio’s other products and services. Customer will ensure Envio’s use of any Customer Data in accordance with the terms of this Agreement will not violate the rights of any third party.
- Hardware Terms and Conditions. The following terms and conditions shall apply to the purchase and use of Hardware:
- Payment. By purchasing Hardware and subscribing to our service, Customer agrees to pay all fees and charges related to the purchase of such Hardware, including any applicable charges for taxes and shipping (the “Hardware Fees”). Customer represents and warrants to Envio that that the payment method information it provides is true and that it is authorized to use the payment method. Customer shall be responsible for all taxes associated with the Hardware purchase other than taxes based on Envio’s net income.
Cancelation and Hardware Availability. Envio reserves the right to cancel or refuse any order for Hardware for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. Envio may attempt to contact Customer if all or a portion of Customer’s order is cancelled, or if additional information is needed to complete and accept Customer’s order. In addition, Hardware that is not yet available for sale may be made available for reservation and pre-order via the Website, in which case the Hardware is not offered for sale and Customer’s placement of a reservation and/or pre-order does not create a contract for sale. By placing a pre-order for Hardware that is not yet available for sale, Customer makes an offer to Envio to purchase the Hardware subject to this Agreement. Envio will charge Customer’s credit or charge card, or any other payment method Customer provides, for the cost of the Hardware plus any applicable charges for taxes and shipping. Customer may cancel its offer to purchase Hardware at any time prior to shipment and its payment will be reimbursed. All Hardware offered are subject to availability. Prices for Hardware are subject to change without notice at any time.
No Resale; Title. Sales of Hardware are intended Customer’s use only, and purchased Hardware are not authorized for resale. Title for purchased Hardware passes to the Customer at the time of delivery by Envio to the freight carrier, but Envio and/or the freight carrier will be responsible for any Hardware loss or damage that occurs when the Hardware is in transit to Customer.
- Shipping. The shipping and delivery charges are as quoted on the Statement of Work. The estimated arrival or delivery date is not a guaranteed delivery date for an order.
- Regulatory. The Hardware is not intended for use in countries where it is not approved by the appropriate regulatory agency. Customer is responsible for complying with all applicable laws and regulations of the country for which the Hardware is destined or intended to be used. Envio is not liable or responsible if Customer does not comply with any such law.
- Term and Termination.
- Term. The term of this Agreement will commence on the Effective Date and will continue indefinitely, unless otherwise agreed to in the Statement of Work, until terminated by either party as set forth in this Section 8.
Termination. Either party may terminate this Agreement: (a) upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within 30 days after written notice of such breach; or (b) immediately upon written notice if the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
- Effect of Termination. Upon the termination of this Agreement for any reason, (a) any amounts owed to Envio under this Agreement before such termination will become immediately due and payable; and (b) Customer will return to Envio all property (including any Confidential Information) of Envio in its possession or control. Envio agrees that upon any early termination of this Agreement, Envio will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Envio) for up to 7 days after termination. Thereafter, Envio will remove all Customer Data from the System and all Customer access to or use of the System and Service will be immediately suspended. The rights and duties of the parties under Sections 4 through 7, this Section 8.3 and Sections 9 through 12 will survive the termination or expiration of this Agreement.
- Disclaimer of Warranties. – The Service, HARDWARE, and any other products and services provided by Envio to Customer are provided “as is”, “as available” with all faults and without any warranties, representations or conditions of any kind. Envio hereby disclaims all express, implied, collateral or statutory warranties, representations or conditions, whether written or oral, including any implied warranties of merchantability, title, non-infringement, security, reliability, completeness, quiet enjoyment, accuracy, quality, integration or fitness for a particular purpose. Envio does not warrant that the service or hardware will operate without interruption or be error free. Without limiting the generality of any of the foregoing, Envio expressly disclaims any representation or warranty that any data or information provided to customer in connection with Customer’s use of the Service (including alerts and recommendations) is accurate, or can or should be relied upon by Customer for any purpose whatsoever.
- Envio is not responsible for the acts or omissions of, or the failings of, any third party provider of any service, network, software or hardware, including but not limited to crowdworker platforms, internet service providers, hosting services utilized by Envio, telecommunications providers, or any software or hardware not provided by Envio. The Services are offered and controlled by Envio. Envio makes no representations that the services are appropriate or available for use in all locations. Those who access the service from jurisdictions outside Canada do so at their own volition are responsible for compliance with local law.
Indemnity. Customer agrees to indemnify, defend and hold harmless Envio and its affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost or liability (including reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement or the Service, including without limitation in relation to: (a) Customer’s use, non-use or misuse of the Service or Hardware; (b) Customer’s violation or alleged violation of this Agreement; (c) Customer’s violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein; or (d) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property rights or other rights of a third party or otherwise causes harm to a third party. Envio reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Envio and Customer agrees to cooperate with Envio’s defense of these Claims. Customer agrees to not settle any matter without the prior written consent of Envio. Envio will use reasonable efforts to notify you of any such Claims upon becoming aware of them.
Limitation of Liability. The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
Amount. Envio’s total aggregate liability from any and all claims in connection with or under this agreement is limited to the total amount of fees received by Envio under this agreement in the 12 months immediately preceding the date the cause of action first arose. for greater certainty, the existence of one or more claims under this agreement will not increase this maximum liability amount. in no event shall Envio’s suppliers have any liability arising out of or in any way connected to this agreement.
- Type. In no event shall Envio be liable to customer for any (a) special, indirect, incidental or consequential damages, (b) lost savings, profit, data, use or goodwill, (c) business interruption, even if notified in advance of such possibility, or (d) personal or property damage arising out of or in any way connected to this agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence, gross negligence, fundamental breach, breach of a fundamental term) or otherwise. in no event shall Envio be liable for procurement or costs of substitute products or services..
- No Jury Trial. Customer irrevocably and unconditionally waives any right customer may have to a trial by jury in respect of any legal action arising out of or relating to this agreement.
No Participating in Class Action. Customer agrees that, with respect to any dispute arising out of or relating to this agreement, customer hereby gives up its right to participate as a member of a class of claimants in any lawsuit including but not limited to class action lawsuits involving any such dispute.
- Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
- General Provisions.
- Publicity. Envio may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Envio to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Envio and user of the Service.
- Assignment. Customer may not assign this Agreement to a third party without Envio’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Envio may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 12.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
- Force Majeure.
- If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labour strikes and other labour disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the party shall be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non-performance.
- Choice of Law; Jurisdiction. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The parties hereby agree to attorn to the exclusive jurisdiction of the courts of the Province of Alberta. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Notwithstanding the foregoing, Envio may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Envio through injunctive relief and other equitable remedies without proof of monetary damages.
- Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Envio, by email at email@example.com or by certified mail at ; or (ii) to Customer, by email or by certified mail at the addresses set forth in Statement of Work. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
- Entire Agreement. This Agreement, including the Statement of Work, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. 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.