General Terms and Conditions

The attached documents describe the relationship between TELUS Communications Inc. (“Company”) and the customer identified below (“Customer”) (each of Company and Customer, a “Party”).
These general terms and conditions relate to the installation and use of the Application Services known as “TrafficLink Services” and are incorporated by reference into, and deemed to be a part of, the Agreement.

Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in this Section 1.

1.1 “Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, (“functionality”) whether such functionality is provided in a scheduled release which materials are designed to facilitate use of the Application Service and which are provided by Company to Customer in accordance with the terms of this Agreement.  
1.2 “Application IP” will mean the Application Service, the Application Documentation, and any and all intellectual property provided to Customer (and/or any applicable Authorized End Users) in connection with the foregoing. 
1.3 “Application Service” will mean the technology and application software set forth and described on Schedule A. 
1.4 “Authorized End User” shall mean, collectively, any individual employees, agents, or contractors of Customer accessing or using the Application Service, under the rights granted to Customer pursuant to this Agreement; and through the Web Interface, under the rights granted to Customer pursuant to this Agreement.  
1.5 “Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.  Without limiting the foregoing, for purposes of this Agreement, the Application Documentation will be deemed Confidential Information of Company.
1.6 “Customer Content” will mean the data, information and content provided by, or utilized by, Customer in connection with the Application Service.
1.7 “Web Interface” will mean the website or websites through which Customer’s Authorized End Users may access the Application Service in accordance with the terms of this Agreement.

2.1 Provision of Access.  Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Application Service during the Term, solely for use by Authorized End Users in accordance with the terms and conditions herein.  Such use shall be limited to use of the Application Service for the benefit of, or in relation to, the operation of Customer’s business.  As soon as reasonably practicable after configuration of the application Company shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Service (the “Credentials”).  Company shall also provide Customer the Application Documentation to be used by Customer in accessing and using the Application Service.  Customer acknowledges and agrees that, as between Customer and Company, Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.  Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service, and shall cause Authorized End Users to comply with such provisions. 
2.2 Usage Restrictions.  Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Application IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Company; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) use the Application Service in violation of the Service Terms published by Company at https://miovision.com/terms-and-conditions/traffic-operations; (vi) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2, except for the sublicense right expressly granted in Section 2.2.  Customer will not use any of the Application IP except in compliance with Company’s obligations to any third party with respect thereto incurred prior to the Effective Date, including without limitation complying with those terms set forth on Schedule B, provided that Company has notified Customer of such obligations.  Customer will ensure that its use of any of the Application IP complies with all applicable laws, statutes, regulations or rules, including any export and import requirements and will not use or compile any of the Application IP for the purpose of any illegal activities.  Customer will further comply with any documentation or written requirements provided by Company to Customer, and any best practices and industry specifications when using the Application Service.  Customer shall use any data warehouse functionality provided as part of the Application Service to store only that Customer Content which is necessary to take full advantage of the Application Service.  
2.3 Retained Rights; Ownership.  As between the Parties, subject to the rights granted in this Agreement, Company and its licensors retain all right, title and interest in and to the Application IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Company retains the right to use the foregoing for any purpose in Company’s sole discretion.
2.4 Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Application IP if (i) Company reasonably determines that (a) there is a threat or attack on any of the Application IP; (b) Customer’s or any Authorized End User’s use of the Application IP disrupts or poses a security risk to the Application IP or any other customer or vendor of Company; (c) Customer or any Authorized End User is/are using the Application IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; or (e) Company’s provision of the Application Service to Customer or any Authorized End User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third party services or products required to enable Customer to access the Application IP  (each such suspension, in accordance with this Section 2.4, a “Service Suspension”). Company will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices sent to Company’s registered email address) and to provide updates regarding resumption of access to the Application IP following any Service Suspension. Company will use commercially reasonable efforts to resume providing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized End User may incur as a result of a Service Suspension.  Company does not include any limits for Customer’s usage of disk storage and bandwidth in connection with the Application Service but such commitment is subject to (i) Customer complying with the terms of this Agreement; and (ii) Customer ensuring that it does not infringe the intellectual property rights of any third party.
2.5 Professional Services. From time to time, Customer may request that Company provide certain professional services to Customer, such as installation and configuration services.  Any such professional services shall be governed by the Professional Services Addendum attached hereto as Schedule C and provided in accordance with any Statement of Work (as defined therein) separately executed by the Parties thereunder.
2.6 Equipment Sale.  In exchange for the payment of such charges as may be determined by reference to Schedule A (the “Equipment Charges”), Company shall sell to the Customer the equipment, firmware, devices, hardware and other materials, excluding any intellectual property in the foregoing, identified in a Service Order (the “Equipment”).  Title to Equipment will transfer from the Company or directly from the original equipment manufacturer (“OEM”) or Company’s suppliers, as applicable, to the Customer upon Company’s receipt of the full Equipment Charges plus applicable taxes for such Equipment.  Any firmware supplied with the Equipment will be governed by any end user license agreement accompanying the Equipment.  Unless otherwise provided for in a Schedule or a Statement of Work, risk of theft, loss, vandalism, damage or destruction of Equipment will transfer from the Company, the OEM or Company supplier, as applicable, to the Customer immediately upon the shipping of the Equipment from the Company’s, the OEM’s or Company’s supplier’s facilities. The Equipment will be delivered to the Customer F.O.B. Origin.

3.1 Authorized End User Access to Services.  Subject to the terms and conditions herein, Customer may permit any Authorized End User to access and use the features and functions of the Application Service.  Customer will ensure that any such Authorized End User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Company’s Confidential Information and the Application IP as are provided by the terms hereof.
3.2 Provision of Support to Authorized End Users. Company shall provide technical support in accordance with Schedule B.  
3.3 Assistance to Company. Customer will, at its own expense, provide assistance to Company, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Company to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3. 
3.4 Data.  Customer understands that Personal Information, including the Personal Information of Authorized End Users, will be treated in accordance with the Company Privacy Commitment located at https://www.telus.com/en/about/privacy (the “TELUS Privacy Commitment”). Customer consents to the collection, use and disclosure by the Company and its agents of Customer’s personal information (whether previously collected or to be collected) for the purposes identified in the TELUS Privacy Commitment.  The TELUS Privacy Commitment may be updated from time-to-time.  Customer will obtain any and all necessary consents as may be required for the collection, use and disclosure to the Company or any Company supplier of any personal information that may be collected in connection with the provision and/or use of the Application Services. Customer will permit representatives of the Company to review Customer’s consent practices from time to time during the term of this Agreement to confirm such practices meet the requirements of this Agreement.
3.5 Customer Content.  Customer is responsible for the supply, quality, condition, and content of all data and information entered into or collected by or stored in the Application Services by anyone using the Customer's Credentials. Company acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides or otherwise permits access to Company through the Application Service and Customer grants to Company a non-exclusive license during the Term of the Agreement to use such Customer Content solely in connection with the provision of the Application Service to Customer.  Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Company, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Company or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.

4.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
4.2 Mutual Confidentiality Obligations.  Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 2.4 of the SaaS Terms, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Customer agrees that Company may collect aggregated statistical data regarding Customer’s use of the Application Service and provide such aggregated statistical data to third parties.  In no event shall Company provide to third parties specific data regarding Customer or Customer’s Authorized End Users.
4.3 Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 4.1 and 4.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. 
4.4 Aggregated Statistics. Notwithstanding anything else in this Agreement or otherwise, Company may monitor Customer’s use of the Application Service and use data and information related to such use, and Customer Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Application Service (“Aggregated Statistics”).  As between Company and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Company.  Customer acknowledges that Company will be compiling Aggregated Statistics based on Customer Content input into the Application Service and Customer agrees that Company may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.

5.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
5.2 Relationship. This Agreement does not create or imply any agency, partnership, or other joint relationship between the parties, and does not authorize either party to bind or obligate the other in any way.
5.3 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed to each Party at the address set forth on the Cover Page or addressed to such other address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notices shall be effective on the date indicated in such confirmation.  In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
5.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
5.5 Assignment; Delegation. Neither Party shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.  Notwithstanding the foregoing, Company may assign this Agreement, without consent, to any affiliate, or in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.
5.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
5.7 Severability. If any part of this Agreement is void, prohibited or unenforceable, this Agreement is to be construed as if that part had never been part of the Agreement.
5.8 Waiver.  The failure of the Customer or Company to exercise any right under this Agreement, or to insist upon strict or full performance of the obligations under this Agreement, does not constitute a waiver or relinquishment of any provision of this Agreement. To bind a party, any such waiver must be express and in writing signed by that party. The rights of the parties under this Agreement are cumulative and not alternative.
5.9 Force Majeure. Company is not responsible for the performance of, or in default of, any obligation or provision of this Agreement if delayed, hindered or prevented by labour disruptions, failure of the networks of other companies, casualties, civil disturbances, law, order of a court or other lawful authority, acts of civil or military authorities, terrorism, accidents, fires, epidemics, pandemics, natural disasters, or other catastrophes or events beyond Company’s reasonable control. 
5.10 Mediation and Arbitration.  Company and the Customer shall use mediation and arbitration to resolve disputes between them arising from or relating to the Application Services or this Agreement, whether the dispute is based in contract, tort (including negligence), statute, or otherwise. If the business representatives of the parties have not been able to resolve any such dispute, in order to proceed with the dispute a party must submit the dispute to private and confidential mediation before a single mediator. If the dispute is not resolved after mediation, in order to proceed with the dispute a party must submit the dispute to private and confidential arbitration before a single arbitrator. Mediation and any arbitration will take place in the city and province in the Customer’s billing address in the Cover Page under the rules of the ADR Institute of Canada, including its rules as to initiation and submission of a dispute to mediation and arbitration, appointment of the mediator and any arbitrator, and responsibility for the fees and expenses arising from or relating to mediation and arbitration.
An arbitration decision will be final and binding on the parties, and the parties will have no rights of appeal. The decision may be enforced by court proceedings.
This subsection does not apply to the collection of any amounts owing to Company or any injunction application, except that in the case of an injunction application, the parties shall use mediation and arbitration to resolve the dispute that led to the application. The Customer waives any right it may have to start or participate in, and agrees to opt out of, any class action against Company arising from or relating to the Application Services or this Agreement. Nothing in this subsection restricts or intends to restrict the rights or powers of any administrative authority with jurisdiction over Company or the Application Services.
5.11 Governing Law. If any provision of this Agreement is prohibited by or contravenes any CRTC order or decision, that provision applies only to the extent permitted by the order or decision. Company may change any terms and conditions of this Agreement, by giving 30 days advance notice to the Customer, to comply with any CRTC order or decision or when otherwise required by law or by a court or other lawful authority. Company and the Customer shall comply with all laws applicable to the exercise of their rights and performance of their obligations under this Agreement. This Agreement is subject to and is to be interpreted in accordance with the federal law of Canada and the laws of the province in the Customer’s billing address on the Cover Page of the Agreement, without regard to that province’s choice of law rules. Venue and jurisdiction will be in that province.
5.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
5.13 Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

This Service Terms and Conditions in this Schedule [A] apply to the TELUS Traffic Link Services as further described in subsection 1 below. TrafficLink Services are provided by TELUS Communications Inc. (“Company”).

1. Service Description:

The TELUS TrafficLink Services consists of:

1. Hardware: with variants of-
a) SmartLink, a secure communication device that allows for wireless connection from traffic controllers,
b) SmartSense, an edge computing device enabling roadside video processing using advanced computer vision and machine learning technology with native support for SDLC and
c) SmartView 360, a 360 4K video camera for monitoring and object detection
2. Software:

Cloud based software module, including the following variants:
a) TrafficLink Signal Communications & Traffic Operations, providing 4G LTE, alerts, GPS time sync, cabinet device access, access to live and historic telemetry data, access to data API, SpaT data and detector data;
b) TrafficLink Performance, providing live telemetry, travel time and automated traffic signal performance measures (ATSPM’s);
c) TrafficLink Multi-Modal Detection and Counts, providing vehicle, pedestrian, and bike detection and counts, 24x7 turning movement count (TMC) data analysis tools, live video streaming and video recall (up to 40 hours per month). 
d) TrafficLink Safety Analytics, providing proactive safety metrics, including red light running and pedestrian compliance reports to support Vision Zero initiatives, with event timestamp and video context.

2. Company Service Support:

TrafficLink Services includes access between 8:00 am and 11:00 pm Eastern to first level support via telephone (1-866-273-3423) and email (iot_coe@telus.com), and 24x7x365 access to online support portal. The Company will triage all incident reports and forward them to the appropriate Company’s support organizations.

3. Implementation:

The Company will implement the TrafficLink Services in accordance with Schedule C:  Professional Services and any Statement of Work issued under, and forming part of, this Agreement. The Company is not responsible for, and is not liable for any damages or other amounts arising from or related to, any delays in the implementation of the TrafficLink Services, or any failure to meet any date or dates in the Statement of Work, including any project date, start date, completion date, milestone date, or delivery date, whether or not any such date is described as a “proposed” or “estimated” date in the Statement of Work.

4. Use of Service:

The Customer is responsible for all hardware, software, and services (the “Customer Supplied Components” or “CSC”) necessary for use or used in conjunction with the TrafficLink Services that is not provided by the Company as a component of the TrafficLink Service.  The risk of loss of the CSC is with the Customer, whether the CSC is on Company’s or the Customer’s premises.

The Customer shall maintain the confidentiality of the Credentials and shall not provide or assign Credentials to any person other than its employees and contractors (if applicable).  The Customer shall administer the Credentials among its employees and contractors (if applicable), including the assignment of Credentials to individual employees and requesting the deactivation of Credentials for Authorized End Users who do not require access to or use of, or are not authorized to access or use, the Web Interface or Application IP.

The Customer shall establish, implement and maintain adequate security measures consistent with industry accepted best practices and standards to protect the security and confidentiality of the Application Service and content made available through the TrafficLink Services, including physical, technological and administrative measures.  The Customer will permit representatives of the Company and Company’s supplier to access the Customer account for purposes of support, administration, invoicing and to review the Customer’s security measures from time to time during the Term to confirm such measures meet the standard set forth in this section. Customer Content.

Notwithstanding anything to the contrary in the Agreement, the Company or Company’s supplier may access or disclose the Customer Content when required by law or by a court or other lawful authority.  In such cases the Company shall promptly notify the Customer before making any such disclosure, if notice is not prohibited by law, the court or other lawful authority, and the Company shall cooperate with the Customer to limit disclosure.

5. Term Commencement

A Service Order Term, as set out in the applicable Service Order for the TELUS TrafficLink Services begins on the earlier of: (a) thirty (30) days from when Customer is in receipt of the Equipment (defined in Schedule B), provided by either the Company or Company’s supplier, or (b) when the Company or Company’s supplier notifies Customer that the Service has been provisioned and is active unless otherwise agreed in the applicable Service Order.

6. Termination Charge

The termination charge payable by the Customer for termination of any TrafficLink Service prior to the end of the Term is one hundred percent (100%) of the total fixed monthly charges that would have been payable after the date of termination until the end of the Term.

Equipment Addendum

This EQUIPMENT ADDENDUM is an addendum to, and is hereby incorporated into, the TELUS TrafflicLink Corporate Customer Agreement between Company and Customer, including the SaaS Terms, General Terms and other schedules incorporated therein (collectively, the “Agreement”).

1. Equipment Warranty.

The Equipment is covered by the Company’s supplier’s warranty during the three (3) year period from the date of delivery of the Equipment to the Customer under this Agreement (the “Warranty Period”).  Provided that the Customer provides the Company with a fully documented warranty claim within the Warranty Period, the Company’s supplier will repair or replace such Equipment.  Warranty claims must be submitted within ten (10) calendars days of the date when Customer is aware of, or could reasonably have noticed the defect. In order to make a warranty claim, Customer may be required to prove that the damage did not result from (i) Customer’s failure to follow the Company’s or the Company’s supplier’s instructions for installation or use of the Equipment, (ii) alteration, modification or misuse of the Equipment in any way, (iii) the combination, operation or use of the Equipment with any materials, parts, equipment or devices not manufactured or approved by Company or Company’s supplier, (iv) attempted repair by anyone other than Company’s supplier or an agent or other facility authorized by the Company to service the Equipment, or (v) accident, abuse, negligence, the connection to an improper voltage supply, or acts of God. The Company reserves the right to charge the Customer shipping and handling on any parts or materials provided to the Customer hereunder. Company or Company’s supplier will have no responsibility with respect to cosmetic damage.  The remaining Warranty Period for any purchased Equipment the Company’s supplier replaces under warranty is deemed to be the greater of: (i) the actual remaining Warranty Period for the replaced or repaired Equipment; and (ii) ninety (90) calendar days following the completion of such replacement. REPAIR OR REPLACEMENT AS PROVIDED UNDER THIS WARRANTY IS THE EXCLUSIVE REMEDY OF THE CUSTOMER. THE COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY ON THE EQUIPMENT. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THE EQUIPMENT IS LIMITED TO THE DURATION OF THE WARRANTY PERIOD. The Company’s sole and exclusive liability arising out of any sale of Equipment to the Customer, and Customer’s sole and exclusive remedy is expressly limited, at Company’s option, to either (i) refund the purchase price paid by the Customer for the Equipment (without interest), or (ii) repair and/or replacement of the Equipment. Some jurisdictions do not allow the exclusion or limitation of certain damages, so the above limitations or exclusions may not apply to the customer.

2. Exclusions 
   CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT THE MANUFACTURER OF THE EQUIPMENT PROVIDED PURSUANT TO THIS AGREEMENT AND THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH EQUIPMENT AND COMPANY HAS NO LIABILITY FOR SUCH EQUIPMENT.

Professional Services Addendum

This PROFESSIONAL SERVICES ADDENDUM (the “Addendum”) is an addendum to, and is hereby incorporated into, the TELUS TrafficLink Corporate Customer Agreement between Company and Customer, including the SaaS Terms, General Terms and other schedules incorporated therein (collectively, the “Agreement”).

1. ADDITIONAL DEFINITIONS.  Certain capitalized terms used in this Addendum, not otherwise defined above, shall have the meanings set forth or cross-referenced below.  Capitalized terms used in this Addendum that are not otherwise defined in this Addendum have the meaning set forth in the Agreement.
1.1 “Addendum Effective Date” has the meaning set forth in Section 7.1.
1.2 “Professional Services” has the meaning set forth in Section 2.1.
1.3 “Statement of Work” has the meaning set forth in Section 2.2.

2.  PROFESSIONAL SERVICES
2.1 Professional Services. The Parties anticipate that Customer may desire to engage Company to perform certain services in connection with the access rights granted to Customer by Company under separate Schedule or Addendum to this Agreement, including, by way of example, installation, configuration and/or customization of the Equipment, Application Services or Customer’s computers or related systems.  Subject to the terms and conditions set forth in this Addendum, Company shall use commercially reasonable efforts to perform the services as set forth in Statements of Work (as defined below) separately executed by the Parties (the “Professional Services”). Company shall perform the Professional Services in a professional manner in accordance with industry standards. 
2.2 Issuance of Work Statements. Customer may request that Company perform services by delivering a written request describing the proposed Professional Services. Company shall prepare a draft work statement as an exhibit to this Addendum (each, a “Statement of Work”).  Such Statement of Work shall describe the fees, costs and expenses payable by Customer to Company in connection with the performance of such services. Customer, within five (5) business days after receipt of the proposed Work Statement, shall notify Company of its acceptance of such Work Statement. Until mutual acceptance in writing of the proposed Work Statement, Company shall have no obligation to perform the proposed Professional Services, provided that this Addendum shall remain in full force and effect in accordance with Section 7.1. Each Work Statement, regardless of whether it relates to the same subject matter as any previously executed Work Statement(s), shall become effective upon execution by authorized representatives of both Parties.  
2.3 Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Statement of Work by written request to Company specifying the desired modifications.  Company shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Work Statement.  If accepted in writing by Customer, such modifications in the Statement of Work shall be performed under the terms of this Addendum.  Modifications in any Statement of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.

3.  PERSONNEL

3.1 Suitability. Company shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Work Statement. Company may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors. 
3.2  Customer Responsibilities. Customer shall make available in a timely manner at no charge to Company all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by Company for the performance of the Professional Services.  Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to Company, office space, services and equipment (such as copiers, fax machines and modems) as Company reasonably requires to perform the Professional Services.
3.3 Non-solicitation.  Customer acknowledges and agrees that the employees and consultants of Company who perform the Professional Services are a valuable asset to Company and are difficult to replace.  Accordingly, Customer agrees that, during the Term of the Agreement, and for a period of one (1) year after the termination or expiration of this Addendum, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Company employee or consultant who performs any of the Professional Services.  Customer agrees that for each individual that Customer hires or engages in violation of this Section 3.3, Customer shall pay to Company liquidated damages equal to fifty percent (50%) of the annual cumulative value of salary and benefits paid or payable to that individual by either Customer or Company, whichever amount is greater.
4. FEES AND PAYMENTS. In consideration of the Professional Services, Customer shall pay Company at Company’s then standard hourly rates provided to Customer as well as any other fees required by the applicable Work Statement.  Company shall submit for approval by Customer a written Travel & Living expenses estimate for the initial Professional Services implementation and setup and for each Statement of Work implemented pursuant to this Agreement., Customer will reimburse Company for (i) reasonable travel and living expenses incurred by Company’s employees and contractors for travel from Company’s offices in connection with the performance of the Professional Services; (ii) reasonable international telephone charges (if applicable); that are necessary to the performance of Professional Services under this Agreement; and (iii) any other expenses for which reimbursement is contemplated in the applicable Work Statement.  Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Addendum and each applicable Work Statement.  Unless otherwise contemplated in a particular Work Statement, Company will issue invoices to Customer on a monthly basis for amounts due under this Addendum, and payment of such amounts shall be due within thirty (30) days of the date of invoice.
5.  PROPRIETARY RIGHTS. Unless otherwise expressly agreed in any particular Work Statement, ownership of all work product, developments, inventions, technology or materials provided under this Addendum shall be solely owned by Company, subject to the usage rights granted to Customer under the relevant Statement of Work.
6.  LIMITATION OF WARRANTIES AND LIABILITY. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS ADDENDUM, AND CUSTOMER ACKNOWLEDGES THAT THIS ADDENDUM IS SUBJECT TO ALL DISCLAIMERS AND LIMITATIONS OR LIABILITY SET FORTH IN THE AGREEMENT.

7. TERM; TERMINATION
7.1 Term. This Addendum shall commence on the date of execution by both Parties (the “Addendum Effective Date”) and shall remain in effect until the earlier to occur of (i) completion of all outstanding Statements of Work hereunder; or (ii) termination in accordance with Section 7.2.  Unless otherwise stated in the applicable Statement of Work, the term of each Statement of Work shall last until performance thereunder is completed.
7.2 Termination for Breach. Either Party may, at its option, terminate this Addendum in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Addendum shall terminate in the event that such cure is not made within such thirty (30)-day period.  Without limiting the foregoing, Company may immediately terminate this Addendum upon written notice in the event that Customer becomes insolvent or enters bankruptcy during the term of this Addendum.
7.3 Termination of Individual Statements of Work. Either Party may, at its sole option and for its own convenience, terminate any or all Statements of Work in effect upon fifteen (15) days’ prior written notice.  Upon such termination, the Parties shall inform each other of the extent to which performance has been completed through such date, and collect and deliver all work in process.  In the event of termination, the Parties agree to wind up their work in a commercially reasonable manner and to preserve and deliver items of value created prior to termination.  Company shall be paid for all work performed and expenses incurred through the date of termination.
7.4 Effect of Termination. In the event of termination or expiration of this Addendum, Customer shall promptly pay to Company all amounts due and outstanding. 
7.5 Survival.  The provisions of Sections 3.3, 4, 5, 6, 7.4 and 7.5 will survive the termination or expiration of this Addendum.

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