Last updated: 29 August 2024
This AI SMART VISION USER AGREEMENT (Agreement”) governs the use of the Smart Vision Hardware (“Hardware”) and its AI Detection software (“Software”) (collectively, “Smart Vision System” or “Smart Vision”) by any entity or business (“you” or “your”).
Panacea Aftermarket Co. and Panacea Aftermarket Corp. USA (“Paco,” “us,” “our,” or “we”) are the providers of Smart Vision.
This Agreement is a binding contract between you and Paco. Before using Smart Vision, you must accept and agree to be bound by this Agreement. BY USING SMART VISION, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
If you do not accept and agree to the terms of this Agreement, do not install, use, access or retain the Smart Vision and return Smart Vision to the seller from which you purchased it, in accordance with our Refund Policy.
Our most recent Terms of Service, Privacy Policy, Shipping Policy, Refund Policy, and the other rules, policies and terms posted on https://Paco1.com/ (“Website”) are incorporated into and apply to this Agreement, whenever applicable. In case of irreconcilable conflict, this Agreement prevails.
NOTICE OF ARBITRATION PROVISIONS. Your use of Smart Vision is subject to binding individual arbitration of any disputes which may arise, as provided in Section 14 below. Please read the arbitration provisions carefully and do not use Smart Vision if you are unwilling to arbitrate any disputes you may have with Paco as provided below.
1. YOU AND YOUR USERS.
1.1. You and your installers, operators, employees, personnel, and/or users, whether individual persons or juridical entities, that you authorized to install, access, and/or use Smart Vision (each, a “User”) may so install, access, and/or use Smart Vision To the extent provided in this Agreement.
1.2. You are responsible for identifying and ensuring that each of your User has all the necessary training, license, and experience to use your mobile equipment used with Smart Vision. Paco has no obligation to inquire about the authority of anyone using Smart Vision.
1.3. You are responsible for each of your User’s use of Smart Vision, and all activities that as a result of your User’s use of Smart Vision.
1.4. You are responsible for each of your User’s compliance with this Agreement.
2. USER DATA.
2.1. In this Agreement, “Your Data” means any and all data and information of any kind, including but not limited to, images, videos, biometrics, facial recognition, names, texts, and other content that you and your Users capture, use, disclose, submit, store, process, or process in or through Smart Vision, which may include personal information and personally identifiable information (“Personal Information”) of individual persons captured by Smart Vision.
2.2. Ownership. You and your licensors have and retain all rights, titles, and interests in and to Your Data.
2.3. You are Responsible for Your Data. You are responsible for the accuracy, legality, and quality, and for obtaining any permissions, licenses, rights, and consent necessary to use, store, transmit and disclose Your Data on Smart Vision. You warrant that:
2.3.1. Your Users are fully entitled and authorized to upload, input, transfer, and disclose Your Data on Smart Vision;
2.3.2. The use of Your Data on Smart Vision will not violate any applicable law or right of any person; and
2.3.3. The collection, use, storage, and disclosure of Your Data on Smart Vision will not violate any applicable law or right of any person, including privacy and data protection rights.
2.4. Privacy and Data Protection. You are solely responsible for:
2.4.1. Making known to all persons whose Personal Information are captured and collected by Smart Vision that their Personal Information are so captured and collected;
2.4.2. Making known your relevant privacy policies and practices to all persons whose Personal Information are contained in Your Data;
2.4.3. Obtaining any rights, permissions, or consents necessary for the lawful use of Your Data on Smart Vision, from all persons whose Personal Information are contained in Your Data;
2.4.4. Ensuring that the transfer and processing of Your Data is lawful and consistent with this Agreement and any and all applicable city, local, state, provincial and federal laws and regulations;
2.4.5. Complying with the privacy laws and regulations that apply to the collection, use, sharing and retention of Personal Information in Your Data; and
2.4.6. Ensuring that all of your Users comply with the privacy laws and regulations that apply to the collection, use, sharing and retention of Personal Information in Your Data.
2.5. Paco is not responsible for Your Data. Paco provides and hosts the Software. However, Paco does not host, and does not have access to and/or control of Your Data. The Software merely provides you with, and you are solely responsible for, your various choices and controls over Your Data. These choices may result in the access, use, disclosure, modification, or deletion of some or all of Your Data. Paco is not responsible for any loss, corruption, or hacking of any and all Your Data.
3. YOUR RESPONSIBILITIES AND OBLIGATIONS.
3.1. Instruction Manuals. When using Smart Vision, you are solely responsible for strictly complying with the most recent versions of the instructional manuals that Paco has provided together with Smart Vision and/or which are available online at DVR Instruction Manual, AI Camera Instruction Manual, and AI Camera Installation Locations on mobile equipment (“Instruction Manuals”).
3.2. Compliance. When using Smart Vision, you are responsible for complying with any and all applicable city, local, state, provincial and federal laws, regulations, industry guidelines, including data protection and privacy laws, the requirements of any statute or the requirements of any government authority relating to your use and operation of Smart Vision.
3.3. Health and Safety. You shall, in using Smart Vision, comply with all obligations, relevant legislation, regulation, by-laws, policies and standards, including all occupational health and safety laws, whether city, local, provincial, state and federal.
3.4. Emergency Procedures. You are solely responsible for providing emergency contact information and implementing emergency measures in case of any untoward events while using Smart Vision. Paco is not liable for the actions or inactions of you, your Users, or of any emergency responders or other service providers who may be contacted, or for the inability to contact any emergency responder or other service provider in any particular situation.
3.5. Maintain Connection and Equipment. You shall maintain the required wireless connectivity, telecommunications links, equipment and materials for your and your User’s use of Smart Vision, and in compliance with the Instruction Manuals.
3.6. Insurance. You will be responsible for securing all insurance coverage necessary for the use of Smart Vision. Smart Vision does not provide your insurance. The payments you made for Smart Vision are not related to the value of your mobile equipment or any property in it, or the cost of any injury to or damages suffered by you or anyone else.
4. PRODUCT DISCLAIMER.
4.1. Your Operator/Driver. You are responsible for identifying and ensuring that each of your mobile equipment operators and/or driver has all the necessary training, license, and experience to use your mobile equipment used with Smart Vision. None of the features of the Smart Vision, which has technical limitations, are intended to replace the mobile equipment operator and/or driver’s responsibility to exercise due care while operating or driving a mobile equipment.
4.2. Your Mobile Equipment. Notwithstanding any design, drawings and specifications of Smart Vision, you shall ensure such design shall be suitable, functional, safe and compatible with your mobile equipment , and any endorsement or approval required from a competent and registered professional or civil works to ensure compatibility shall be your sole responsibility. Smart Vision may not work if: your mobile equipment has been modified or tampered with, or with devices plugged into the mobile equipment; your mobile equipment is not compliant with government regulations and law; or your mobile equipment is damaged in a way that restricts services, wireless communication, or signals.
4.3. Collisions and Triggers. With respect to any collision detection or trigger functionality of the Smart Vision, Paco does not warrant or guarantee that the Smart Vision will detect and/or report all collisions (or that it will avoid any false positives). You acknowledge that Smart Vision and its outputs rely on the quality and accuracy of Your Data, amongst other factors. As a result, Paco does not warrant that Smart Vision and any output produced by Smart Vision will be suitable for the purpose intended by you and your Users.
5. OWNERSHIP.
Smart Vision is protected by copyright and other intellectual property rights. The Software is not sold, but only licensed or made available on a limited basis. Notwithstanding anything to the contrary herein, except for the rights expressly granted to you under this Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Smart Vision and any copies of the Software (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by Paco and Paco ‘s licensors. You shall not remove or attempt to remove any marks, labels or legends from the Smart Vision.
6. END-USER LICENSE AGREEMENT.
6.1. Limited License. Subject to the terms of this Agreement and your full payment for Smart Vision, Paco grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license, to use the Software for the purposes of using Smart Vision only as intended and contemplated by the Instruction Manuals provided by Paco for your internal business purposes. Paco hereby reserves any rights not expressly granted herein. No license or right to use any trademark or other intellectual property of Paco or any third-party is granted to you in connection with Smart Vision. You do not acquire any intellectual property rights in and to Smart Vision.
6.2. License Restrictions. You agree not to, and you will not permit others to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of Smart Vision or any software or documentation related to Smart Vision; (ii) modify, translate, or create derivative works based on Smart Vision; (iii) copy or use Smart Vision for any purpose other than as permitted in Section 6.1; (iv) remove, efface or obscure any proprietary notices or labels or any trademark, logo, copyright, legends, symbols or labels in Smart Vision; (v) use any portion of Smart Vision on any or with mobile equipment other than the mobile equipment that you own or control; (vi) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit Smart Vision or make it available to any third-party; (vii) flood Smart Vision with requests or otherwise overburden, disrupt or harm it; or (viii) use the Software or Smart Vision in a manner that violates any applicable laws or regulations or any provision of this Agreement or Paco’s standard published policies then in effect.
6.3. PACO SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO DENY ACCESS TO, TO SUSPEND AND/OR TO TERMINATE YOUR ACCESS TO THE SOFTWARE OR TO ANY FEATURES OR PORTIONS OF SMART VISION AT ANY TIME PACO DEEMS NECESSARY, INCLUDING FOR ANY VIOLATION BY YOU OR YOUR USERS OF THIS AGREEMENT OR Paco’S STANDARD PUBLISHED POLICIES THEN IN EFFECT.
7. FEEDBACK.
If you choose to provide any feedback, input, suggestions, recommendations, queries, troubleshooting information or other similar information about Smart Vision, or where such information is made available to Paco (whether directly or through an authorized reseller including in the course of utilizing support, maintenance or other services), Paco will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit in any manner such information at no charge.
8. THIRD-PARTY PROVIDERS.
8.1. Paco makes use of certain persons, companies, or entities that provide any service to provide Smart Vision to you (each, a “Third-Party Provider”) including authorized resellers, cloud storage and hosting services. To the extent you use the services of the Third-Party Provider in connection with your use of Smart Vision, the terms and conditions of the Third-Party Provider apply (collectively, the “Third-Party Provider Terms”). Paco accepts no responsibility or liability for any products or services provided by Third-Party Providers. You agree to read and understand the Third-Party Provider Terms.
8.2. Our Third-Party Providers are intended third-party beneficiaries of the protections of this Agreement. The disclaimers, warranties, limitations of liability and other protections of this Agreement extend to these third-party beneficiaries, to the maximum extent permitted by applicable laws.
9. WARRANTY STATEMENT.
Paco provides a warranty for Smart Vision as set forth in its Terms of Services (“Warranty Statement”). To the maximum extent permitted by applicable laws, the remedies set out in the Warranty Statement constitute your sole and exclusive remedy and Paco’s sole and exclusive obligation for any breach of the Warranty Statement.
10. DISCLAIMERS.
10.1. General Disclaimer. Except as expressly set forth in this Agreement and/or in the Warranty Statement, to the maximum extent permitted by applicable laws, Paco disclaims all representations, warranties and conditions, express or implied, including without limitation any terms, representations, warranties or conditions of merchantability, durability, fitness for a particular purpose, non-infringement, title, quiet enjoyment or quiet possession including those arising by statute or in law, or from a course of dealing or usage of trade.
10.2. Specific Disclaimers. Without limiting the generality of the foregoing, Paco cannot and does not represent, warrant or covenant that: (i) any aspect of Smart Vision will meet your business or other requirements; (ii) Smart Vision will operate or be provided without interruption; (iii) Smart Vision will be error-free, virus-free or that the results obtained from its use will be accurate, reliable or current; or (iv) any errors in Smart Vision can be corrected or found in order to be corrected. You acknowledge and agree that failure to comply with procedures specified in the Instruction Manuals, or attempting to install Smart Vision without adequate knowledge of the Smart Vision, proper installation, configuration, servicing, repair or removal procedures, or your mobile equipment, may result in damage to the Smart Vision or you mobile equipment, which may cause malfunctions of mobile equipment controls or vehicular environmental systems and result in damage or personal injury. You understand that any such activities not performed by a competent installer will be at your sole risk.
10.3. Third-Party Products. Without limiting the generality of any exclusions contained in the Warranty Statement, Paco does not endorse, and makes no representation or warranty with respect to, and assumes no responsibility, obligation or liability for, any products, software, data or services developed, manufactured and sold by an entity that is not affiliated with Paco, including, but not limited to, any products or services provided by a Third-Party Service Provider (as defined in Section 8 above), whether such products or services are fulfilled by Paco or otherwise (collectively, “Third-Party Products”).
11. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
11.1. Infringement Indemnity. Subject to the limits in Section 13 (Limitations of Liability), Paco will, at its sole cost and expense, defend and indemnify or, at Paco’s option, settle, any claim, assertion or action brought against you or your affiliates, successors or assigns to the extent that it is based on a claim (an “Infringement Claim”) that the Smart Vision which Paco has supplied to you directly or through an authorized reseller infringes any copyright, patent, trade secret or trademark of any third-party (excluding any of your affiliates) and indemnify you against damages awarded against you by a court of competent jurisdiction by final order from which no appeal is taken or after the time for appealing has expired, provided that you: (i) notify Paco promptly and within no more than ten (10) days after your receipt of notice of such claim in writing; and (ii) permit Paco to defend, compromise or settle the claim or action and provide all available information, assistance and authority to enable Paco to do so. Paco shall not be liable to reimburse you for any compromise or settlement made by you without Paco’s prior written consent, or for any legal fees or expenses incurred by you in connection with such claim.
11.2. Remedies. Should the Smart Vision or any part thereof become, or in Paco’s sole opinion is likely to become, the subject of an Infringement Claim, Paco may, at its option and expense: (i) procure, at no cost to you, the right to continue to use the part of the Smart Vision which is the subject of the Infringement Claim; (ii) replace or modify the Smart Vision or infringing part thereof with non-infringing equivalents, at no cost to you; or (iii) if none of the foregoing alternatives are reasonably practical in Paco’s sole judgment, Paco may: (A) in the case of Software, terminate such services or the licenses for such Software and refund or issue a credit for any prepaid but unused fees for such Software or services paid to Paco, if any; and/or (B) in the case of Smart Vision purchased separately, require you to return such Smart Vision and refund or issue a credit for the purchase price paid to Paco for Smart Vision returned, depreciated on a thirty-six (36) month straight line basis from the date of purchase.
11.3. Excluded Claims. Paco has no obligation or liability whatsoever in respect of any Infringement Claim that is based on any of the following (collectively, the “Excluded Claims”): (i) in the case of the Software, the use of other than the latest release and version of such Software resulting from your interference with or disabling of the automatic Software update process; (ii) the use of the Smart Vision in breach of this Agreement; (iii) Third-Party Products; (iv) the use, association or combination of any part of the Smart Vision with, or the incorporation or integration into the Smart Vision of, any Third-Party Products or other material (including your own) that is not supplied by Paco as part of the Smart Vision or expressly identified by Paco in the Instruction Manuals; (v) the use or operation of any part of Smart Vision in any manner or for any purpose other than as expressly specified in the Instruction Manuals; (vi) any modification, alteration, change, enhancement, customization or derivative work of the Smart Vision made by anyone other than Paco or its agents; or (vii) changes Paco makes to the Smart Vision to comply with your instructions or specifications; (viii) your use or alleged misuse of Your Data in the operation of the Smart Vision; (ix) for User-based mobile equipment insurance purposes, the use of the Smart Vision in association with driving, driver or mobile equipment activity or performance; or (x) any reselling or distribution of the Smart Vision.
11.4. This Section 11 (Intellectual Property Infringement Claims) (and any other section referenced herein) states Paco's entire liability and your sole and exclusive remedies with respect to any Infringement Claim.
12. INDEMNIFICATION.
12.1. You represent, covenant, and warrant that you will use Smart Vision only in compliance with this Agreement, the Instruction Manuals and Paco’s standard published policies then in effect, and any and all applicable city, local, state, provincial and federal laws and regulations, whether on (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity, or defamation).
12.2. Unless prohibited by applicable laws, you shall indemnify and hold harmless Paco, Paco‘s affiliates and each of Paco‘s respective officers, directors, employees, agents, subcontractors, successors and assigns (each an “Indemnified Party”), from and against any and all damages, liabilities, costs, losses and expenses (including reasonable legal costs and fees) arising from or related to any claim, demand, complaint or action by a third-party arising out of or incident to: (a) your breach of this Agreement including, but not limited to, any Third-Party Provider Terms; (b) installation activities described in Section 10.2 (Specific Disclaimers) of this Agreement not performed by Paco or a Paco-authorized installer; or (c) your negligence or willful misconduct.
13. LIMITATIONS OF LIABILITY. You agree that, to the maximum extent permitted by applicable law:
13.1. Liability Cap. In no event shall our liability to you hereunder or otherwise in respect of the Smart Vision exceed the amount set out in the Warranty Statement, subject to any lesser limitation of liability in any Third-Party Provider Terms.
13.2. Consequential Damages. In no event will Paco be liable for any special, incidental, indirect, or consequential losses or damages, including loss of revenue or profits, loss of data, business information or loss of use thereof, failure to realize expected profits or savings, cost of capital, loss of business opportunities, loss of goodwill or any other non-direct, pecuniary, commercial or economic loss or damage of any kind whether foreseen or unforeseen arising from or incidental to this Agreement.
13.3. Application. The foregoing limitations and exclusions of liability shall not apply to our indemnification obligations hereunder, provided, however, that in no event shall the liability to you in respect of any Infringement Claim include any portion of a damage award, agreed settlement, or other indemnifiable damage permitted hereunder that exceeds a reasonable royalty based solely on the price you paid for the Hardware. The limitations, exclusions and disclaimers in this Agreement will apply irrespective of the nature or form of the claim, cause of action, demand, or action, including breach of contract, tort (including negligence), strict liability, product liability or any other legal or equitable theory and shall apply notwithstanding the failure of the essential purpose of this Agreement or of any remedy contained herein.
13.4. Period to File. Except where prohibited by law, in no event shall any claim, action or proceeding by you related in any way to Smart Vision or this Agreement, may be instituted more than two (2) years after the claim or cause of action arose.
14. DISPUTE RESOLUTION AND ARBITRATION.
14.1. Dispute Resolution. In the event of any dispute between you and us arising out of or in connection with this Agreement, other than with respect to the termination thereof, the following dispute resolution process will apply unless you and us otherwise agree in writing:
14.1.1. You and we must initially attempt to resolve the dispute through collaborative negotiation; and
14.1.2. If the dispute cannot be resolved through collaborative negotiation within thirty (30) calendar days of the dispute arising, you and us may between ourselves agree to submit the particular matter to mediation in accordance with the laws of Ontario, Canada.
14.2. Mediation. Unless you and we agree otherwise in writing, the mediation under this section will be held in Ontario, Canada.
14.3. Arbitration.
14.3.1. You and we agree the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of Smart Vision or relating to this Agreement or any prior agreement for service with Paco or any of Paco ‘s affiliates, predecessors in interest, or Third-Party Providers or any product or service provided under or in connection with this Agreement or such a prior agreement, or any advertising for such products or services, shall be final and binding arbitration before a single arbitrator;
14.3.1.1. except for small claims court cases as described below; and
14.3.1.2. except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any patent, copyright, trademark, trade secret, privacy, or publicity rights, in which case you acknowledge that there is no adequate remedy at law and that injunctive or other appropriate relief may be sought by Paco and/or an applicable third-party either in court or from an arbitrator.
14.3.2. Either party may at any time give written notice to the other of its desire to submit such dispute to arbitration stating with reasonable particularity the subject matter of such dispute.
14.3.3. Within (5) business days after receipt of such notice, you and we shall appoint a single arbitrator with appropriate experience to determine such dispute. If you and we fail to appoint an arbitrator, either party may apply to a Judge of the Ontario Court General Division, Canada to appoint an arbitrator to determine such dispute.
14.3.4. The Ontario Arbitration Act, 1991, S.O. 1991, c.17 applies to arbitrations under this Agreement (despite any other choice of law provision). To the extent that the Ontario Arbitration Act does not supply substantive or procedural law necessary for the resolution of any disputes or claims, the laws of the Province of Ontario, Canada shall apply, except that Ontario laws concerning choice of law or conflicts shall not apply if they would cause the substantive law of another jurisdiction to apply.
14.3.5. Arbitration will be conducted by the Canadian Commercial Arbitration Centre (“CCAC”). You can get rules and fee information from the CCAC (www.ccac-adr.org).
14.3.6. The arbitration shall be conducted in English.
14.3.7. Until the arbitrator’s award is issued, each respective side shall bear their own counsel and advisor fees, and the out-of-pocket costs of the arbitrator and the arbitration shall be shared equally by you and us to such arbitration; provided, however, that the arbitrator’s award shall reallocate those fees and costs in favor of the prevailing party in the arbitrator’s award.
14.3.8. The award of the arbitrator shall be final and binding upon you and us. Judgment upon the award rendered by the arbitrator may be entered in any court.
14.3.9. Any arbitration award made after completion of an arbitration is final and binding and may be confirmed in any court of competent jurisdiction, except that in the event the arbitrator’s award for a party is $0 or against a party is in excess of $100,000 or includes an award of injunctive relief against a party, that party may request a new arbitration to be conducted by the selected arbitration organization by a three-arbitrator panel. An award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other case except to enforce the award itself.
14.4. Severability. If a court or arbitrator determines that any part of this arbitration agreement is not enforceable, the rest of this arbitration agreement shall be enforceable.
14.5. Small Claims. Paco will waive Paco‘s right to arbitrate any individual claim (as opposed to class) you bring or maintain in small claims court for so long as the matter remains an individual claim and remains in small claims court.
14.6. Class Action Waiver. Except where prohibited by law, you expressly waive the right to request or maintain any class arbitrations even if CCAC procedures or rules would permit them. In exchange for this, Paco will pay (if you ask Paco in advance) for any filing fee charged you by CCAC for one arbitration of any disputes between Paco, so long as you tried in good faith to resolve the disputes with Paco before filing for arbitration. If the arbitration proceeds past the filing, Paco will also pay (if you ask Paco at the time) any further administrative and arbitrator fees you are later charged. An arbitrator can decide later whether to allocate the fees differently if there is an award. The arbitrator may award you any fees and charges that are necessary to ensure the enforceability of this arbitration provision.
14.7. Waiver of Trial by Jury. If for some reason these arbitration requirements do not apply, or a claim proceeds in small claims court, unless prohibited by law, you and Paco agree to waive to the fullest extent permitted by law any trial by jury.
14.8. Survival. This agreement to arbitrate survives the end of the contractual relationship between you and Paco.
15. FORCE MAJEURE.
Except with respect to payment obligations, each party shall be relieved of their respective obligations hereunder and will not be liable to the other or to any third-party if the affected party is unable or fails to perform any of its obligations under this Agreement as a result of any fire, explosion, war, riot, strike, walk-out, labour dispute, flood, epidemic, pandemic, quarantine, shortage of water, power, labour, transportation facilities or necessary materials or supplies, default or failure of carriers, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, act of war or terrorism, any law, act or order of any court, board, government, state-sponsored actor or other authority, or any other cause (whether or not of the same character as the foregoing) beyond the affected party’s reasonable control, for so long as such cause prevents the affected party from so performing, provided however that the other party may terminate this Agreement if the affected party is unable to perform its obligations for a period of thirty (30) days or more, upon written notice to the other party during the time the affected party is prevented from so performing.
16. AMENDMENTS AND WAIVERS.
16.1. Paco may change the terms of this Agreement, from time to time by notifying you via Paco's website, email or other means, provided any such updates are applied generally and not to you specifically. You agree to accept, and you hereby accept, any changes in the terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on you.
16.2. If a change imposes commercially unreasonable disadvantages on you and Paco receives a written objection from you within thirty (30) days of the date when you was first notified of the change, Paco may, at its sole option and discretion: (a) reverse such change such that the immediately prior version of this Agreement shall continue to apply to you; or (b) terminate this Agreement and your use of the Smart Vision and, upon receipt of all Smart Vision, documentation and deliverables, in good working condition, subject to ordinary wear and tear, in your possession, refund to you (i) the amount paid to Paco for any Smart Vision purchased separately, depreciated on a thirty-six (36) month straight line basis, accounting for your use; and (ii) any prepaid services fees paid to Paco for time periods after the effective date of the change to which you objected in accordance with this Agreement.
16.3. Except as described in this Section 16 (Amendments and Waivers), no modification, amendment, addition to or waiver of any rights, obligations or defaults by us shall be effective unless in writing and signed by us. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.
16.4. IN SOME CIRCUMSTANCES, WE MAY PROVIDE SMART VISION TO YOU VOLUNTARILY EVEN IF YOU WOULD NOT OTHERWISE QUALIFY. THIS WILL NOT BE A WAIVER OR REQUIRE US TO DO SO AGAIN. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANYTHING RESULTING FROM OUR PROVISION AND YOUR USE OF SUCH SMART VISION.
17. ELECTRONIC COMMUNICATIONS.
When you use the Website, or send emails, text messages, and other communications to Paco, you may be communicating with Paco electronically. You consent to receiving communications from Paco electronically, such as e-mails, texts, mobile push notices, or notices and messages. You can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that Paco provides to you electronically satisfy any legal requirement that such communications be in writing.
18. TERMINATION.
18.1. Termination by Paco. Paco reserves the right to terminate this Agreement in whole or in part with or without notice if: (i) you materially breach any provision of this Agreement; (ii) Paco determines that any registration information you submitted is not true, accurate, complete or current; or (iii) if any agreements with the Third-Party Service Providers are terminated for any reason and Paco cannot procure a reasonable alternative.
18.2. Termination by You. Subject to the terms and conditions of your agreement with a Paco authorized reseller (if any), you may terminate the grant of rights to use Smart Vision by ceasing use of the same and providing notice to Paco and/or your reseller as applicable.
18.3. Effect of Termination. Upon any termination of this Agreement: (i) any and all rights granted to you under this Agreement shall immediately cease; (ii) you shall destroy, to the extent practicable, all copies of the Software in your possession or control; (iii) if so requested by Paco, you shall certify in writing that all such copies of the Software in your possession or control have been destroyed; and (iv) you shall cease all usage of the Smart Vision.
18.4. Survival. The sections of this Agreement that are by their nature intended to survive the termination of this Agreement, including but not limited to, Sections 3.2 (Compliance), 5 (Ownership), 6.2 (License Restrictions), 7 (Feedback), 10 (Disclaimers), 12 (Indemnification), 13 (Limitations of Liability), 14 (Dispute Resolution and Arbitration), 19 (Assignment), 20.1 (Entire Agreement), 20.2 (Headings), 20.5 (Severability), and 21 (Governing Law)shall so survive the termination of this Agreement. The termination of this Agreement shall not affect your payment and other obligations under any agreement with Paco or Paco’s authorized reseller.
19. ASSIGNMENT.
This Agreement and any rights granted to you under this Agreement may not be transferred or assigned by you, in whole or in part, whether voluntarily, by operation of law, or otherwise, without Paco's prior written consent and any such attempted assignment or transfer shall be null and void, except that you may assign this Agreement in its entirety to a purchaser of all or substantially all of your assets or business or in connection with a merger, amalgamation, reorganization or similar transaction without consent and upon written notice to Paco. If this Agreement is properly assigned in accordance with the foregoing, it will bind and benefit each party’s respective successors and permitted assigns. This Agreement may be assigned or novated by Paco in its sole discretion upon written notice to you.
20. MISCELLANEOUS.
20.1. Entire Agreement. This Agreement (and any other documents, including any express consent from you, incorporated herein) is the entire Agreement between you and Paco. This Agreement cancels and supersedes any prior and contemporaneous understandings and agreements between the parties with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties, oral or written, other than as expressly set forth in this Agreement and any terms expressly incorporated herein by reference.
20.2. Headings. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
20.3. Parties and Beneficiaries. Our Third-Party Providers and Paco‘s affiliates are intended beneficiaries of this Agreement. Your Users are covered by this Agreement.
20.4. Relationship. This Agreement does not create any fiduciary relationships between you and Paco, or between you and Paco’s parents, affiliates, or any of the Third-Party Providers. It does not create any relationship of principal and agent, partnership, or employer and employee, either.
20.5. Severability. To the extent that any provision of this Agreement is declared by a court or other lawful authority of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the parties will use their respective best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provision, and the remainder of this Agreement shall continue in full force and effect with respect to all other provisions.
21. GOVERNING LAW.
This Agreement will be governed by and construed under the laws of the Province of Ontario and the controlling federal laws of Canada applicable therein without giving effect to its conflict of laws principles. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the provincial and federal courts of the Province of Ontario for any dispute or claim arising out of or in connection with this Agreement or the Smart Vision and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts. The application of the United Nations Convention on Agreements for the International Sale of Goods is expressly excluded.
22. CONTACT US.
You can contact Paco at any time by calling 1-888-796-7278, by visiting the Website and selecting the “Contact Us” or “Chat” button, or by writing to us at 555 Hanlan Road Unit 5, Woodbridge, On L4L 4R8.