Welcome to Rise Vision. Rise Vision Incorporated (“we,” “our,” or “us”) provides easy-to-use cloud digital signage software (the “Software”) along with training and support (the “Software Services”) (which is governed by our ‘Terms of Service’) for our customers (“you,” or “your”). We also provide digital signage hardware (the “Hardware”) along with maintenance and support (“Hardware Services”) to complement your experience using our cloud digital signage (which is governed by the terms and conditions set forth in these Rise Vision Hardware Terms of Service). Each of you and us is referred to herein individually as a “Party” and collectively as the “Parties.”
By accepting a quote, purchase order, or otherwise using our Hardware (the earliest date of which is the “Effective Date”), you agree to these Rise Vision Hardware Terms of Service (together with any order forms, quotes, as amended from time to time, collectively the “Hardware Terms of Service”). If you do not agree with these Hardware Terms of Service, you may not use our Hardware or Hardware Services.
By accepting this Agreement, you represent to us that you have the legal capacity to do so. If you are entering into this Agreement for a business entity, you represent to us that you have legal authority to bind that entity and that the entity is validly organized and existing under the laws of its state of formation.
1. HARDWARE AND HARDWARE SERVICES
1.1 Hardware Rental. We hereby rent to you, and you agree to rent from us, the Hardware as identified in the quote or purchase order, which may be presented to you electronically, including through our website (“Quote”). The Hardware we provide may be new or reconditioned.
1.2 Hardware Services. If you have a problem with the Hardware that we cannot resolve remotely, we will ship you a replacement at our expense. You agree to return affected Hardware to us within five (5) business days from the time we provide you a return shipping label. We will also provide remote support for the Hardware, Monday through Friday, from 9AM to 6PM (ET), excluding holidays. You can contact us using any of the contact methods published in ‘How do I contact support’.
2. YOUR OBLIGATIONS
2.1 You assume any risk of loss or damage to the Hardware until the Hardware is returned to us in accordance with the terms of these Hardware Terms of Service.
2.2 You are responsible for providing a reliable network connection to applicable Hardware and ensuring the ‘network requirements’ are satisfied.
2.3 You will promptly report to us any technical issues with respect to the Hardware, and work with our support team to perform basic troubleshooting to resolve the issue.
2.4 You are responsible for the installation of Hardware at the sites where such products will be installed in accordance with these Hardware Terms of Service.
2.5 You will comply with all laws, rules, and regulations applicable to your use of our Hardware and Hardware Services.
2.6 You will comply with all policies set forth by your organization applicable to your use of our Hardware and Hardware Services.
2.7 You are not permitted to install and/or uninstall software, or tamper with the Hardware operating system in any way without our approval.
2.8 You will use the Hardware in accordance with any instruction manuals or guidelines made available by us from time to time at: https://help.risevision.com/hc/en-us.
3. RETURN OF HARDWARE
3.1 Return Procedure. It is your responsibility to return the Hardware at the end of the Term (as defined in Section 5). You must contact us to receive a shipping label for the return of the Hardware and complete the return by mail within thirty (30) business days after the shipping label has been provided to you (the “Return Window”). Any Hardware that is not received within the Return Window will be charged to you at our standard market prices.
3.2 End of Support. Manufacturers may declare “end of life,” “end of service,” “end of support,” “manufacture discontinue” or similar designation (“End of Support”) for certain supported hardware. For Hardware subject to End of Support, we will continue to provide the contracted hardware under a good faith effort but make no guarantees that we would be able to do so. At our option, upon End of Support in respect of a particular Hardware product, we will replace it by new or reconditioned hardware at our expense in order to ensure compatibility.
4. BILLING AND PAYMENT
4.1 Price. The price for the Hardware is defined in the Quote that we provide you.
4.2 Billing. You will pay us the sum of all fees as defined in the Quote in advance, prior to delivery of the Hardware (“Due Date”). You will pay us the sum of all fees for each renewal period no later than thirty (30) days after the subscription renewal (“Renewal Due Date”).
4.3 Damaged Hardware Fees. If you do not return the Hardware to us in the same condition that it was provided to you, except for reasonable wear and tear, we may charge you for the cost of repairing or replacing the affected Hardware and you agree to pay these fees. For the purposes of these Hardware Terms of Service, “reasonable wear and tear” means only the normal deterioration of the Hardware caused by ordinary, reasonable and proper use of the Hardware as determined by us in our sole discretion.
4.4 Taxes. You agree to pay for all applicable taxes, duties, tariffs, assessments, export and import fees or similar on the transactions in connection with these Hardware Terms of Service (“Taxes”). You will provide any information we reasonably request to determine whether we are obligated to collect value-added tax (“VAT”) and sales tax from you, including but not limited to VAT identification number. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
4.5 Tax Exemption. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.
4.6 Invoice Disputes. To the extent that you dispute any portion of an invoice, you will notify us in writing and provide detailed documentation supporting your dispute within thirty (30) days of the invoice date or your right to any billing adjustment will be waived. In the event of a billing dispute, you will pay all undisputed amounts by the Due Date, the Renewal Due Date and/or any date otherwise specified by us. If a billing dispute is resolved in your favor and you have withheld the disputed amount, no penalties will apply. If the dispute is resolved against you, and you withheld the disputed amount, you will pay such withheld amount. A dispute may not be based upon a claim that all or a portion of the charges for the Hardware were incurred by unauthorized users. You remain solely responsible for all use of Hardware ordered or billed to your account pursuant hereto, for determining who is authorized to use its service, and for promptly notifying us of any unauthorized use. In the event of nonpayment, we reserve the right to assign the late balance to a collection agency and you agree to reimburse us for all expenses related to our collection efforts, including, but not limited to reasonable attorneys’ fees.
5. TERM AND TERMINATION
5.1 Term. These Hardware Terms of Service will go into effect on the Effective Date and continue for the period specified in the Quote (“Initial Subscription”).
5.2 Renewal. Unless otherwise set out in a Quote, these Hardware Terms of Service will automatically renew for successive subscription periods of the same duration on the anniversary of the Effective Date unless terminated by you or us (each, a “Renewal Period”, together with the Initial Subscription, the “Term”). Each Renewal Period will be governed in accordance with the terms and conditions set out in these Hardware Terms of Service except fees, which may be updated by us, at our discretion, upon reasonable notice to you prior to the beginning of each Renewal Period.
5.3 Termination Rights. You or we may terminate these Hardware Terms of Service upon 30 days’ written notice for any reason.
5.4 Effect of Termination. In the event of termination of these Hardware Terms of Services, we will not provide a refund for any prepaid amounts.
6. OWNERSHIP
6.1 Ownership. All right, title and interest in and to the Hardware, the Hardware Services and any information or materials provided or made accessible to you by us under these Hardware Terms of Service, and all intellectual property rights therein will remain with us (or our third party suppliers and licensors, if applicable). All rights not expressly granted by us to you under these Hardware Terms of Service are reserved. You will not and will not permit any levy, lien, security interest, hypothec, pledge or encumbrance to attach to the Hardware.
7. DEFAULT; SUSPENSION OF SERVICE
7.1 Default
7.1.1 You are in default of these Hardware Terms of Service if you (a) fail to cure any monetary breach within five (5) business days of receiving notice of the breach from us; (b) fail to cure any non-monetary breach of any terms of the Hardware Terms of Service within thirty (30) days of receiving written notice of the breach from us; or (c) file or initiate proceedings or you have proceedings filed or initiated against you, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event will be a “Default”).
7.1.2 In the event of a Default, we may suspend offering Hardware, Hardware Services, Software or Software Services to you until you remedy the Default, or we may terminate these Hardware Terms of Service, the ‘Terms of Service’, any or all of the Hardware or Hardware Services being provided hereunder, and/or any of the Software or Software Services provided under the ‘Terms of Service’. We are not responsible for damages that may result due to suspension or termination of Hardware, Hardware Services, Software, or Software Services. We may at our sole option and with prior notice to you, but without any obligation, cure a non-monetary breach at your expense at any point and invoice you for the same. These remedies are in addition to and not a substitute for all other remedies contained in these Hardware Terms of Service or available to you at law or in equity.
7.2 Discontinuation of Service
7.2.1 By You. In the event you decide not to use the Hardware prior to the end of the Term, you will remain responsible for payment of all invoices for Hardware and Hardware Services furnished during the Term. Upon completion of the Term, you must return all Hardware in accordance with Section 3.
7.2.2 By Us. In addition to any other of our rights hereunder (including for termination of the Hardware Terms of Service or Quote), we may discontinue affected Hardware promptly following written notice and without incurring any liability, in the event of a change in law or other governing regulatory body, that results in a material change in these Hardware Terms of Service or impairs our ability to perform our obligations hereunder. In addition, we may discontinue Hardware or Hardware Services immediately and without notice to you, without incurring any liability thereof in the event of using the Hardware in a way that violates applicable law. Upon completion of the Term, you must return all Hardware in accordance with Section 3.
7.2.3 No Refunds. In the event of a discontinuation by you or us, we will not provide any refunds of any prepaid amounts.
8. CONFIDENTIALITY
8.1 Confidential Information. Each Party will treat the information received from the other Party that is designated as confidential or otherwise so identified, and/or any information that by its form, nature, content, or mode of transmission would to a reasonable recipient be deemed confidential or proprietary (“Confidential Information”) as and not disclose or use such Confidential Information except in the performance of these Hardware Terms of Service. Each Party agrees to use the same degree of care that it maintains with regard to its own information of similar or like importance. Neither Party will use or disclose the other Party’s Confidential Information, except as permitted in this Section 8. Or for the purpose of performing obligations under the Hardware Terms of Service. The confidentiality obligations of each Party under the Hardware Terms of Service will survive any expiration or termination of the Hardware Terms of Service or of any order. Upon termination of the Hardware Terms of Service, each Party will cease all use of the other Party’s Confidential Information and will promptly return, or at the other Party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that Party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a Party will certify in writing its compliance in this Section 8. We designate the Hardware, the Hardware Services, all information relating to the Hardware and Hardware Services, and the financial terms of these Hardware Terms of Service as Confidential Information. Both Parties will: (i) restrict disclosure of Confidential Information to employees and agents solely on a “need to know” basis; (ii) advise employees and agents of their confidentiality obligations; (iii) protect the Confidential Information of the disclosing Party in the manner the disclosing Party would protect such information; (iv) notify the other of any unauthorized possession or use of that Party’s Confidential Information as soon as practicable after receiving notice of same; and (v) if either Party is legally compelled in any litigation, administrative, or similar proceeding to disclose the other Party’s Confidential Information, such Party will immediately notify the other Party and reasonably cooperate with the other Party to seek a protective order for such Confidential Information, at the other Party’s expense. Notwithstanding the foregoing, neither Party will be obligated to preserve the confidentiality of any information which: (i) was previously known; (ii) is a matter of public knowledge; (iii) was or is independently developed by the recipient; (iv) is released for disclosure with written consent; (v) is received from a third-party to whom the information was disclosed without restriction; or (vi) disclosed by the non-receiving party to other persons without similar restriction.
9. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
9.1 General Disclaimer. YOU ACKNOWLEDGE THAT THE DISCLAIMER AND LIMITATION OF LIABILITY IN THESE HARDWARE TERMS OF SERVICE REFLECT A FAIR APPORTIONMENT OF LIABILITY. THE HARDWARE AND ALL SERVICES AND OBLIGATIONS PERFORMED BY US IN CONNECTION WITH THESE HARDWARE TERMS OF SERVICE, INCLUDING THE HARDWARE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE HARDWARE AND HARDWARE SERVICES WHETHER EXPRESS, IMPLIED OR COLLATERAL OR WHETHER ARISING BY STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OF TRADE, INCLUDING: (I) THAT THE HARDWARE AND HARDWARE SERVICES WILL BE MERCHANTABLE, OF MERCHANTABLE QUALITY OR FIT FOR A PARTICULAR PURPOSE; (II) THAT THE HARDWARE AND HARDWARE SERVICES WILL BE ACCURATE, COMPLETE, CURRENT, RELIABLE, OR TIMELY; (III) THAT THE HARDWARE AND HARDWARE SERVICES WILL BE AVAILABLE OR OPERATION OF THE HARDWARE AND HARDWARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (IV) THAT DEFECTS OR ERRORS IN THE HARDWARE OR HARDWARE SERVICES (BE THEY HUMAN OR COMPUTER ERROR(S)) WILL BE CORRECTED; (V) THAT THE HARDWARE OR HARDWARE SERVICES WILL BE FREE FROM VIRUSES OR HARMFUL COMPONENTS; (VI) THAT COMMUNICATIONS TO OR FROM THE HARDWARE OR HARDWARE SERVICES WILL BE SECURE OR NOT INTERCEPTED; AND (VII) ANY AND ALL WARRANTIES, OBLIGATIONS, AND CONDITIONS ARISING OTHERWISE. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE HARDWARE AND HARDWARE SERVICES IS ENTIRELY AT YOUR OWN RISK.
9.2 Limitation of Liability. IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE HARDWARE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE HARDWARE AND HARDWARE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE HARDWARE TERMS OF SERVICE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL OUR THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE HARDWARE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OF YOUR USERS FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE HARDWARE TERMS OF SERVICE, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
9.3 Indemnification. You will indemnify, defend and hold harmless Rise Vision Incorporated and its officers, directors, employees and agents from and against any and all losses suffered or incurred by us directly or indirectly arising from or in connection with or relating to: (i) any death or injury of any kind, of any person to the extent caused by any use or misuse of the Hardware or Hardware Services while in your possession or control; (ii) any claim resulting from any use of the Hardware or Hardware Services contrary to these Hardware Terms of Service or any guidelines and manuals made available by us to you from time to time; or (iii) your use or storage of any Hardware or Hardware Services. You will fully cooperate with us in the defense of any claim defended by you pursuant to its indemnification obligations under these Hardware Terms of Service and will not settle any such claim without our prior written consent.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Choice of Law. These Hardware Terms of Service will be governed by the laws of Ontario, Canada. Any claim with respect to the Hardware Terms of Service must be brought within one (1) year after the cause of action arises. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any arbitration hearing will be held in Toronto, Ontario, Canada before one (1) arbitrator.
10.2 Injunctive Relief. Either Party may, at its option and at any time during the dispute resolution process, seek injunctive relief in any court of competent jurisdiction (including but not limited to preliminary injunctive relief). The Parties acknowledge that each of them has a vital interest in enjoining any violation of confidentiality obligations, including unauthorized use of the Hardware or Hardware Services, because damages would not adequately compensate a party for any infringements of that party’s intellectual property rights.
11. ASSIGNMENT AND SUBCONTRACTING
11.1 Assignment. You may not assign, transfer, or delegate (including via merger, acquisition, reorganization, or transfer of 51% or more of the ownership interests or assets of a company or person) any interest, obligation, or right under these Hardware Terms of Service without our prior written consent. We may assign, transfer or delegate any interest, obligation or right under these Hardware Terms of Service without your consent.
11.2 Subcontracting. We may, at our own discretion, subcontract work to be performed under the Hardware Terms of Service but will retain responsibility for such work.
12. GENERAL
12.1 Compliance. The Hardware, Hardware Services and any technical information provided under the Hardware Terms of Service are subject to the export laws and regulations of the United States. By agreeing to the Hardware Terms of Service, you represent that you are not a resident or citizen of any country currently embargoed by the United States.
12.2 Force Majeure. Neither we nor you will be responsible for a failure to perform due to causes beyond our or your control, including strikes, riots, terrorism, earthquakes, epidemics, wars, theft, fires, floods, weather, acts of God, or strikes that make it impossible or commercially impractical to perform.
12.3 Amendments. We may unilaterally amend the Hardware Terms of Service, in whole or in part (each, an “Amendment”), by giving you prior notice of such Amendment or posting notice of such Amendment on the website. Unless otherwise indicated by us, any such Amendment will become effective as of the date the notice of such Amendment is provided to you or is posted on the website (whichever is the earlier).
12.4 Independent Contractors. The Hardware Terms of Service do not create any agency, employment, partnership, joint venture, or other joint relationship. Both Parties are independent contractors. Neither Party has any authority to bind the other.
12.5 Severability. If any provision of these Hardware Terms of Service is determined to be unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidation will not render these Hardware Terms of Service unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
12.6 No Waiver. The failure of either Party to assert any of its rights under the Hardware Terms of Service, including, but not limited to, the right to terminate the Hardware Terms of Service in the event of breach or default by the other Party, will not be deemed to constitute a waiver by that Party of its right thereafter to enforce each and every provision of the Hardware Terms of Service in accordance with their terms.
12.7 Non-exclusivity. Nothing in the Hardware Terms of Service will prevent or restrict either Party from entering into agreements for the provision of products and services of the same or similar nature as those provided under the Hardware Terms of Service with any third party.
12.8 Entire Agreement. The terms and conditions set forth in these Hardware Terms of Service will apply to all attachments and Quotes unless otherwise specifically stated. The Hardware Terms of Service, including all attachments, constitutes the entire understanding of the Parties with respect to the subject matter thereof and will supersede all previous and contemporaneous communications, representations, or understandings, either oral or written, between the Parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the Parties.
12.9 No Third Party Beneficiaries. The representations, warranties, covenants and agreements of the Parties set forth herein are not intended for, nor will they be for the benefit of or enforceable by, any third party or person not a Party hereto.
12.10 Survival. The following Sections, together with any other provision of these Hardware Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Hardware Terms of Service, will survive expiration or termination of these Hardware Terms of Service for any reason: Section 3 (Return of Hardware), Section 4 (Billing and Payment), Section 6 (Ownership), Section 8 (Confidentiality), Section 9 (Disclaimer; Limitation of Liability; Indemnification), Section 11 (Assignment and Subcontracting), Section 12 (General) and this Section 12.10 (Survival).