1.1 Services Description

1.1.1 Description

These Conditions shall discipline the supply of the Services to Customer for the Subscription Term. The Services are comprehensive of the support and maintenance services of the cloud infrastructure and data center and of the Software; these latter include:

• all new CMS Software releases, with detailed information on Software improvements, maintenance and upgrades performed by Paradox Engineering;
• SOC IoT services, providing 8 hours / 5 days a week incident detection by observing and monitoring technical events and/or anomalous user access behaviour on CMS cloud, with the aim to reduce the risk of unauthorized access.  

1.1.2 Data Center

• Tier III data center (DC) – guaranteed continuity during DC maintenance
• Security ISO 27001 certified
• N+1 air conditioning system redundancy
• Double, independent power distribution to ICT systems
• UPS (N topology) on each electrical distribution path
• Own generator and transformer (100% dedicated to DC)
• Redundant fiber optic connected to major communication links
• Multi-level electronic security access

1.1.3 Service Infrastructure

• Dedicated locked racks
• 1+1 network infrastructure redundancy
• N+1 virtual hosting infrastructure redundancy
• Raid 10 storage
• Daily off-site backup
• 2 independent Internet access providers, BGP, P.I. IP addressing space
• NBD HW Replacement contracts
• Automated monitoring and capacity planning

1.1.4 CMS Cloud Services

• Authentication: service that authenticates users and external applications trying to access network information and perform any operations
• Commissioning: service that manages the deployment of the configuration to the devices in the network
• Configuration: service that manages the device configuration inventory
• Data collection: service that receives and stores the data coming from the devices in the CMS managed network and provides data to other services and to users
• Device manager: service that manages the connections with the gateways, receives data and sends commands
• Front-End (API): service that provides the user interface and interacts with the users and with external application
• Network Monitor: service that stores and visualizes the status of the communication networks that connect the CMS Cloud platform to devices and gateways

During the term of the applicable Agreement that governs the provision of the Services hereunder and for 12 (twelve) consecutive months after its termination, Paradox Engineering shall keep available any historical data related to the performance of the Services as well as Customer data loaded on the Smart City CMS Cloud platform, subject however to the General Service Commitment (Section 2.1 below).

Upon the expiration of the 12 (twelve)-month term any such data and materials shall be downloaded by Paradox Engineering and shall remain available for an additional 90 (ninety)-day term, upon written request by Customer. Paradox Engineering shall be entitled to delete any such data upon expiry of the 90 (ninety)-day term and assumes no liability hereunder for any data after such term. By way of express derogation to the foregoing, network monitoring data shall be kept available only for 30 (thirty) days following termination of the applicable Agreement.

1.2 Access and Use 

These Conditions discipline the supply of the Services to Customer for the Subscription Term. Subject to full compliance with the terms and conditions of these Conditions, Paradox Engineering hereby grants Customer, during the Subscription Term and all renewal terms, a limited, revocable, non-exclusive, non-assignable and non-transferable right to access and use the Services subject to the terms agreed hereunder. Customer shall have no other rights regarding the Services and/or Paradox Engineering/MinebeaMitsumi‘s Materials, including any related Intellectual Property Rights.

Unless otherwise expressly agreed, the term of these Conditions will begin on the starting date indicated in the applicable ordering document (the “Effective Date”) and, unless earlier terminated as provided in these Conditions, shall continue for 12 (twelve) consecutive months thereafter and shall be automatically renewed on an annual basis until Customer notifies its intention to terminate the supply on the applicable expiry date with no less than 90 (ninety) days prior written notice.

1.3 Limitations of Use

The Services shall be made available for Customer’s internal business purposes only, as specified in these Conditions, through proprietary or third parties’ dedicated or shared technology, and in accordance with the Service Level Agreement. The Services can be used only by the number of authorized connected devices defined in the Agreement. Such authorized connected devices shall be entitled to access the Services for the sole purposes for which the Services are intended to be used. For the avoidance of doubt, authorized subscriptions are not equal to authorized users.

There is no limit to the number of users of CMS services; users can be Customer’s employees as well to any third-party Customer’s consultants or subcontractors subject to the terms of these Conditions. Customer shall not use the Services in any manner or for any purpose other than as expressly authorized in writing pursuant to these Conditions.

Unless otherwise expressly agreed herein, Customer shall not -directly or indirectly- be entitled to modify, distribute, make otherwise available, alter, or otherwise create derivative works of the Services and/or Paradox Engineering/MinebeaMitsumi‘s Materials.  These provisions shall survive termination of the Agreement for any reason whatsoever. 

1.4 Paradox Engineering’s IT Environment

Paradox Engineering undertakes to manage, supervise, operate, control and maintain its technology environment, including hardware availability and services, also when provided by third–parties (e.g., third–parties’ applications in use in the Services’ application environment including database servers and application servers), in connection with the provision of the Services.

1.5 Maintenance

Paradox Engineering shall inform Customer in regard to any planned maintenance activities or implementation of changes or upgrades which may materially impact the Services running by giving prior written notice. Unless otherwise expressly agreed in writing, maintenance or upgrades in relation to the Services are generally planned during Paradox Engineering’s working hours.

The description of maintenance is included in maintenance notifications. The description of software upgrades are included in the related Release Notes (RN) and User Release Notes.

1.6 Changes and Upgrades

Paradox Engineering reserves the right to implement changes and upgrades to the Services from time to time. Changes may include new features for the Services, or upgrades of a specific element of the Services. Paradox Engineering shall use reasonable efforts to notify Customer with prior notice of any material modification and of any scheduled maintenance (except for emergency maintenance) via the ticketing system. Customer’s use of the Services after the date of implementation of a change shall be construed as a tacit acceptance by Customer of the revised Services. Customer acknowledges that, when failing to accept upgrades, some functions or performances might be deteriorated or be or become unavailable and no claim whatsoever can be accepted. 

Customer may interface the Software with other third party systems or services. In such cases Customer commits to providing Paradox Engineering appropriate information and documentation related to such third party systems or services, in any case not later than 30 (thirty) days after the Software deployment.

Customer shall use reasonable efforts to notify Paradox Engineering with prior notice of any such changes or upgrades to any such third party systems or services via the ticketing systems. Customer acknowledges that, when failing to do so, some functions or performances of either Software and/or the Services might be deteriorated or be or become unavailable and no claim whatsoever can be accepted.

2.1 General Service Commitment

Paradox Engineering shall make the service available with a Monthly Uptime Percentage as specified in Section 2.1. SLA measurement shall be effective as of the date of completion of the hand-over process, including installation of all agreed gateway, nodes and sensors and formal written acceptance by Customer of the deployment of the Smart City CMS Cloud platform.

In the event the below SLA is not met in a given month, Customer shall be entitled to claim a Service Credit only as described in Section 2.3 below. Customer hereby acknowledges and agrees that the retention obligations and the SLA agreed hereunder (Section 1.1.4 and 2.2 respectively) have been calculated on the assumption that the amount of data generated or otherwise processed on a daily basis by Customer’s authorized devices hereunder remains below the threshold as specified in the table below:

Customer acknowledges and agrees that:

• the Smart CMS supports up to a maximum of 50 simultaneous active sessions (including either API and web interface). Should the above active sessions threshold be exceeded, a decrease in performance of the Smart CMS may occur and Service Levels shall not apply;
• Service Levels shall likewise not apply in case of failure by Customer to use API/MQTT connections in accordance with Paradox Engineering’s specifications;
• Upon delivery by Paradox Engineering of a Critical Software Release, Paradox Engineering reserves the right to suspend the application of Service Levels up to a maximum of 45 (forty-five) days from the release installation date. Paradox Engineering shall inform the Customer by giving written notice.

2.2 SLA (On a Monthly Basis)

• Uptime of PE Data-Center infrastructure as per Section 1.1.2 above: 99.99%
• Uptime of Software as a Service on Data-Center as per Section 1.1.4 above: 99.90%
• Response time in case of critical fault: 4 (four) working hours from receipt of Customer’s ticket via PE ticketing system. Critical faults are defined as affecting the following services: Authentication, Front-end, Device Manager. Critical faults shall be marked as such by the Customer when opening the related RT ticket; criticality will be assessed and confirmed by Paradox Engineering.

Infrastructure Uptime per month is calculated by subtracting from 100% the percentage of minutes during the month in which any of the Services, as applicable, was in the state of Unavailability. Uptime Percentage measurements exclude Unavailability resulting directly or indirectly from any SLA Exclusions under clause 2.5. Periods of less than a minute of unavailability of any services as per Section 1.1.4 will not be included in the observed Downtime/Response time.

2.3 Service Credit

• In case of up to 10% monthly SLA Downtime on Software as a Service on Data-Center: 10% monthly service fee (1/12th of total yearly CMS service fee)
• In case of up to 30% monthly SLA Downtime on Software as a Service on Data-Center: 30% monthly service fee (1/12th of total yearly CMS service fee)
• More than 30% monthly SLA Downtime on Software as a Service on Data-Center: 100% monthly service fee (1/12th of total yearly CMS service fee)

Downtime means the total minutes in the month during which the Service does not respond to a request from Supplier’s Point of Demarcation for the data center providing the Services excluding Excluded Downtime.

Service Credits shall represent Customer’s sole and exclusive remedy if case of Paradox Engineering’s failure to meet the above SLA. Service Credits are balanced yearly and shall be credited to the Customer against the first following yearly billing. Service Credits in each month shall not exceed 50% of the service fees amount due by the Customer for the related month.

2.4 Service Credit Reporting

No later than 15 (fifteen) working days after completion of each service quarter Paradox Engineering shall deliver Customer a quarterly report that shall compare the monthly Service Level Agreement requirements with actual performance measures for each reporting month during the applicable quarter. Such report will be solely delivered to Customer via Paradox Engineering’ ticketing system.

Customer must notify Paradox Engineering of any claims for any Service Credits within 10 (ten) working days from receipt of the SLA report. Claims must be solely submitted through Paradox Engineering’s ticketing system by replying to the report ticket or by opening a new ticket. Claims notified after such deadline and/or notified in any other form (including, but not limited to, email, fax, phone calls, chat messaging systems, etc.) shall not be accepted.

2.5 SLA Exclusions

The SLA does not apply to any Unavailability, suspension or termination, or any other performance issues:

• Caused by factors outside Paradox Engineering’s reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of the applicable service;
• Resulting from any actions or inactions by the Customer (including, without limitation, a refusal by Customer to receive maintenance activities, breach by Customer of the Conditions and/or Customer’s use of the Service in a manner that is inconsistent with the documentation) or by any third party;
• Resulting from Customer’s equipment, software or other technology and/or third party’s equipment, software or other technology (other than third party equipment within Supplier’s direct control);
• Resulting from Customer’s written request to delay or reschedule maintenance activities;
• Arising from Paradox Engineering suspension or termination of Customer’s rights and according to the statutory law and the Conditions;
• Related to planned maintenance activities leading to unavailability of Services and priorly communicated by Paradox Engineering to Customer;
• Related to restore times of Customer’s data, to the extent Paradox Engineering was not the root cause for the requested restoration.

3.1 Fees

Service Fees are expressed per field device and include the right of use of CMS Software and related services. Customer’s request for the supply of the Services remains always subject to Paradox Engineering’s prior approval and provided that Customer provides all information required to process the request and perform the Services hereunder.  Invoicing shall be automatic at the Effective Date and upon the date of each yearly renewal.  

Fees are calculated on a yearly basis. In case of a first activation of the Services after January 1st of a calendar year, the first yearly fee shall be calculated on a pro-quota from the Effective Date and up and until December 31st of the relevant calendar year. Service Fees shall be calculated in accordance with the then current price list or as per a special quote issued to Customer at the time of the request. The Fees are exclusive of all Taxes (including VAT, sales, use, or other equivalent taxes), governmental fees, levies, customs, and duties.  

Should Customer be obliged, on the basis of existing or future laws or acts of the competent governmental and administrative authorities, to make any deduction and/or withholding from the amount due to Supplier under this Agreement, Customer shall:  

• be entitled to pay the amount due to Supplier after applying such deduction or withholding;  
• pay to the competent authority, within the due date, the amount of such deduction or withholding; 
• send to Paradox Engineering a written confirmation of that payment to the competent authorities.  

Unless otherwise agreed in a Purchase order all sums due to Paradox Engineering under this Agreement shall be payable within 30 (thirty) calendar days from the receipt of the invoice in CHF by bank transfer to Paradox Engineering settlement account defined in the invoices.

Customer’s failure to timely perform its payment obligations hereunder shall entitle Supplier to:

• apply interest on late payments after the due date at the lesser of [1.5%] per month or the highest applicable lawful interest rate; AND
• suspend the performance of the Services under the provisions of Section 4. 

3.2 Additional expenses and charges

Any bank charges shall be borne by Customer. Customer agrees to reimburse any extra expenses (such as additional Services beyond those set forth in the Agreement) that Paradox Engineering may incur at any time and in connection with performance of this Agreement if such expenses are approved in writing by Customer in advance. 

3.3 Lack of Services’s use

Customer’s lack of use of the Services during the Subscription Term (to the extent it is not caused by Paradox Engineering’s breach hereunder or due to legitimate suspension of Services pursuant to Section 4 below) shall not prevent Customer from paying the fees agreed hereunder and shall not entitle Customer to claim a refund of the fees.  

4.1 Term

The supply of the Services shall commence on the Effective Date and continue with tacit yearly renewal, unless terminated in advance pursuant to this Section 4. 

4.2 Suspension

Paradox Engineering shall be entitled to suspend Customer’s admin access to the CMS dashboard if any of the following circumstances occur: 

• Customer is in material breach of this Agreement and failed to remedy the material breach within 10 (ten) days from receipt of Paradox Engineering’s notice to perform; OR
• if Customer breaches Section 1.3 above (Limitations of use).  

Should Customer fail to pay the Service Fees in accordance with the payment terms set forth in Section 3.1, after a grace period of 10 (ten) calendar days Paradox Engineering shall be entitled with no further notice to limit access to the CMS dashboard in read-mode only (i.e. with no admin rights) until payment is executed. After three delayed payments Paradox Engineering reserves the right to suspend the Services in accordance with this Section 4.2 until payment is executed. For the avoidance of doubt, suspension of admin access pursuant to the preceding paragraph shall not affect Services’ operation pursuant to these Conditions, including SOC IoT. Customer shall be reinstated in full access to the CMS dashboard as soon as Paradox Engineering assesses that the breach behind the suspension was duly resolved.  

4.3 Consequences of suspension

Suspension of the Services pursuant to Section 4.2 shall neither

• relieve Customer from its obligation to pay the fees agreed hereunder during the suspension term, NOR
• entitle Customer to claim any compensation for lack of Paradox Engineering’s performance of the Services during the suspension term.  

4.4 Termination

Customer shall have the right to terminate the Agreement only as expressly authorized hereunder.  

4.4.1 Express termination rights.

Either Party shall have the right to immediately terminate the Agreement if the other Party: 

• becomes insolvent;  
• fails to pay its debts or perform its obligations in the ordinary course of business as they mature;
• is declared insolvent or admits its insolvency or inability to pay its debts or perform its obligations as they mature; 
•  becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within 60 (sixty) calendar days after the institution thereof; or  
• the other Party commits a material breach of these Conditions and has failed to cure the breach within 15 (fifteen) days from receipt of the non-defaulting Party’s written notice.

4.4.2 Paradox Engineering’s termination rights.

Paradox Engineering shall have the right to unilaterally terminate the Agreement at any time by giving Customer written notice if: 

• Customer is in breach of Section 1.2, 1.3 and 5.1 above (Access, Limitations of Use and Ownership of the Services);
• Suspension of Services pursuant to Section 4.2 (Suspension) persists for more than 90 (ninety) consecutive days.

4.4.3 Customer’s termination rights.

Customer shall have the right to unilaterally terminate the Agreement at any time by giving Paradox Engineering 90 (ninety) days written notice. In such case, Customer shall not be entitled to claim any refund for the yearly fees already corresponded. 

4.5 Consequences upon Termination

4.5.1 Discontinuance of use. Return of materials.

Upon termination of these Conditions for any reason Paradox Engineering shall immediately cease performing any Services hereunder and promptly deliver to Customer all of Customer’s Confidential Information in Paradox Engineering/MinebeaMitsumi‘s possession except as may be required by regulators and auditors for such purposes;

Customer shall promptly deliver to Paradox Engineering any Materials and all of Paradox Engineering’s Confidential Information in Customer’s possession.

Paradox Engineering shall keep available for up to 90 (ninety) days following termination of this Agreement any Customer Materials and data loaded on the CMS cloud platform; within such 90-days term and upon Customer’s written request data and materials shall be downloaded and provided to Customer in a format at Paradox Engineering/MinebeaMitsumi’s discretion. Paradox Engineering assumes no liability hereunder for any Customer Materials and data after such term. 

4.5.2 No waiver.

Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a Party shall be without prejudice to any other right or remedy of such Party under this Agreement or applicable law. 

5.1 Ownership

Paradox Engineering is the sole and exclusive owner of and will acquire or retain all right, title, and interest, including all Intellectual Property rights, in and to

• the Services provided to Customer in accordance with this Agreement (including, without limitation, enhancements, modifications, and any other derivative works), AND
• Paradox Engineering Materials and Confidential Information.

Customer hereby agrees Paradox Engineering shall own all right, title and interest thereto.  

Customer shall not (directly or indirectly) sub-license, rent, lease, or otherwise make available, reverse-engineer, disassemble, attempt to obtain the source code of the Services, modify or create derivative works from the Services to create a similar service, and shall abstain from any illegal or fraudulent actions on the Services. Customer does not have any other implied rights in, or to, the Service. Any right not expressly granted to Customer hereunder remain fully vested in Paradox Engineering.  

5.2 License of Customer Materials

To the extent that Customer provides any Customer Materials, subject to the terms and conditions of this Agreement, Customer hereby grants to Paradox Engineering a limited, worldwide, non-exclusive, royalty-free, non-transferable license during the Subscription Term to use, reproduce and create derivative works of such Customer Materials solely as may be necessary to perform the Agreement and to create the Services required hereunder.

If Paradox Engineering reasonably believes any of Customer Materials is in breach of any applicable provision of law or otherwise infringes any third–party rights, Paradox Engineering shall notify Customer in writing of any such circumstance and might request Customer to remove such Materials from the Services. Failure by Customer to comply with Paradox Engineering’s request within 5 (five) Business Days from receipt of Paradox Engineering’s notice, shall entitle Paradox Engineering to remove or disable access to any such Customer Materials of otherwise suspend Customer’s admin access to the Services until the relevant Customer Materials are removed or otherwise rendered not accessible. Repeated violations of this provisions by Customer shall entitle Paradox Engineering to terminate this Agreement.

Notwithstanding the foregoing, if upon notice of termination of this Agreement there exist any Services or results of Services performed by Paradox Engineering for which Customer has not paid Paradox Engineering in full, until such time as Customer has paid Paradox Engineering in full, Customer agrees not to use such Services or results of Services. So long as payment in full has not been rendered by Customer, all such Services and results of Services remain the property (including without limitation Intellectual Property) of Paradox Engineering.

5.3 Incorporation of Paradox Engineering’s or third party Intellectual Property in the Service

Paradox Engineering has the right to utilize or incorporate its own software or libraries or any other Paradox Engineering’s Materials, and/or utilize any third-party software or libraries or any other third-party Intellectual Property Right, as a part of any Services to be delivered hereunder.

6.1 Paradox Engineering’s Warranties

Paradox Engineering represents and warrants that:  

• Paradox Engineering will provide the Services in accordance with the provisions of these Conditions and in accordance with all applicable laws and regulations;  
• the Services shall substantially conform to their description;  
• Paradox Engineering and each of Paradox Engineering’s employees who has been or will be involved with the development of the Services is fully qualified to perform the Services; and that  
• This Agreement has been duly authorized, executed and delivered by Paradox Engineering.

Paradox Engineering’s obligations herein are legal, valid and binding, and are enforceable against Paradox Engineering in accordance with the Agreement’s terms. Paradox Engineering makes no representations, extends no warranties of any kind, nor assumes any responsibility whatsoever with respect to the use of the Services by Customer other than the warranties expressly granted herein.

6.2 Exclusions

Warranties listed in 6.1 shall not apply with regard to Customer’s claims or alleged damages caused by:

• Customer’s fraud or negligence;
• use by Customer of the Services in breach of the terms and conditions of this Agreement and any other Paradox Engineering’s instructions. 

6.3 Customer’s Warranties

Customer represents and warrants that: 

• Customer is validly existing and in good standing under the laws of the jurisdiction(s) in which its principal office is located, and is duly licensed or qualified and is in good standing wherever necessary to carry on its present business and operations, and has all licenses and permits necessary to carry on its present business and operations and to enter into and perform its obligations under this Agreement;  
• This Agreement has been duly authorized, executed and delivered by Customer. Customer’s obligations herein are legal, valid and binding, and are enforceable against Customer in accordance with the Agreement’s terms; and 
• Neither the execution and delivery by Customer of this Agreement, nor the performance by Customer of its obligations hereunder, requires the consent, approval or authorization of, the giving of notice to, or the filing, registration, qualification or taking of any other action with, any third party or any state, or foreign government authority or agency. 

6.4 Disclaimer

Customer expressly acknowledges and agrees that use of the services is at customer’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy, and efforts is with customer. The services are provided “as is” and “as available”.  

Except as otherwise expressly set forth herein, Paradox Engineering makes no warranties, guarantees, or representations of any kind, express or implied, with respect to the work, services or goods provided hereunder, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose. Paradox Engineering does not make and hereby expressly disclaims any representations or warranties to any end user of the products or services sold or licensed by customer or to any other third party. Paradox Engineering does not specifically warrant that:  

• The services will meet customer’s business requirements;  
• The services will be error-free or run uninterrupted or that the results obtained from its use will be accurate or reliable; AND
• All the errors in the services can be found or corrected.  

Nothing in the foregoing restricts the effect of warranties or conditions which may be implied by law and cannot be excluded, restricted or modified notwithstanding a contractual restriction to the contrary. 

6.5 Paradox Engineering’s indemnity against third-party claims

Paradox Engineering assumes liability for, and shall defend, indemnify and hold harmless Customer, from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, costs and expenses (including without limitation reasonable legal fees and expenses) arising from claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against Customer resulting from, arising out of, or incurred with respect to:  

• the breach of any covenant or warranty made by Paradox Engineering or a material breach by Paradox Engineering of these Conditions; OR 
• the development, delivery, and/or performance of the Services by Paradox Engineering; provided, however, that Paradox Engineering shall not be required under this Section 6.5 to defend, indemnify or hold harmless any Indemnified Party for loss or liability resulting from any intentional, reckless, and/or negligent conduct, action, and/or omission of Customer.  

Customer shall: 

• promptly notify Paradox Engineering of any claim it believes is subject to the indemnity provided under this paragraph; 
• allow Paradox Engineering full control over the defense and settlement of such claim; AND
• provide Paradox Engineering full cooperation in the defense and settlement of such claim. Customer may participate in the defense of any such claim with counsel of its own choice, at its own expense.   

Should a third-party claim be raised in respect to the Services, Paradox Engineering may, at its discretion: 

• modify or replace the Services with an equivalent non-infringing service; OR
• terminate these Conditions and refund to Customer any pro-quota Fees amount that may have already been paid by Customer for the residual portion of the Services that shall not be performed due to such earlier termination under this Section 6.5. To the extent permitted under applicable Laws, the remedies granted under this Section 6.5 shall represent Paradox Engineering’s sole and exclusive remedy for any claim relating to the Services.  

6.6 CUSTOMER’s indemnity

Customer assumes liability for, and shall defend, indemnify and hold harmless Paradox Engineering and its respective officers, directors, employees, successors and assigns (referred to as Indemnified Paradox Engineering Party) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, costs and expenses (including without limitation reasonable legal fees and expenses) arising from claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against any Indemnified Paradox Engineering Party, resulting from, arising out of, or incurred with respect to the breach of any covenant or warranty made by Customer or a material breach by Customer of this Agreement. Paradox Engineering shall:  

• promptly notify Customer of any such claim; 
• allow Customer full control over the defense and settlement of such claim; and 
• provide Customer full cooperation in the defense and settlement of such claim. Paradox Engineering may participate in the defense of any such claim with counsel of its own choice, at its own expense. 

7.1 Security Measures

Paradox Engineering shall provide the Services by implementing reasonable and appropriate security measures, being it understood that Customer remains responsible for adopting adequate security measures to control access to the Login Credentials and the Services as well as protect and back-up its Customer Materials.  

7.2 Data Processing

The Parties hereby acknowledge that they have informed each other about the possible personal data processing in connection with the Services provided pursuant to these  Conditions and that they will process personal data in compliance with the applicable Laws. 

Customer remains responsible for providing adequate privacy notices and gathering all required consents for the processing of personal data. Customer hereby represents and warrants to have provided all required privacy notices and obtained any legally required consents in respect to Customer’s use, collection, disclosure, transfer and any other processing of personal data.

8.1 Permitted use of the other Party’s Confidential Information

The Parties acknowledge that by virtue of these Conditions, each Party may have access to the other Party’s Confidential Information. Each Party agrees not to make use of the other Party’s Confidential Information, except as may be permitted by these Conditions or as may be permitted in writing by the other Party. Each Party agrees that it will not make the Confidential Information of the other Party available in any form to any third party, except as may be permitted by this Agreement or as may be permitted in writing by the other Party. Each Party agrees to take all reasonable steps to ensure that Confidential Information of the other Party is not used, disclosed or distributed by its employees or agents in violation of the provisions of these Conditions. 

In performing the Services Paradox Engineering may collect, record or otherwise have access to data and/or other information or measurements (including without limitation data collected from motion sensors, noise sensors, etc) that are accessible by Customer as well. Customer acknowledges and agrees that Paradox Engineering is not obliged to keep these data refreshed or otherwise updated, nor does Paradox Engineering hereby provide any warranty on the accuracy of these data or their usability for any specific purpose including, without limitation, public safety, theft prevention and/or any other purpose not expressly contemplated hereunder. Nothing in these Conditions shall prevent Customer from using and transferring these data. 

8.2 Unauthorized disclosure

Each Party agrees that the unauthorized disclosure or use of the other Party’s Confidential Information will cause irreparable harm and significant injury to the other Party for which there will be no adequate remedy at law. Accordingly, each Party consents to the other Party seeking equitable relief in the event such Party breaches its confidentiality obligations hereunder. 

8.3 Obligation to disclose

If the receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, the receiving Party will give the disclosing Party prompt written notice to allow the disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order. The receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed. 

8.4 Survival

The provisions of this Section shall survive for a period of 3 (three) years after termination of these Conditions.

8.5 Feedback

Any feedback or suggestions that Customer may provide to Paradox Engineering in connection with the Services (including, without limitation, any information related to Service performance, bugs, suggestions and/or request for new features, hereinafter “Feedback”) shall be treated as Paradox Engineering’s Confidential Information.

To the maximum extent permitted Customer hereby assigns to Paradox Engineering at no cost all rights in the Feedback and Paradox Engineering shall be entitled to use (or not use) the Feedback at its entire discretion.

Neither party shall be liable to the other for any indirect, incidental, special, punitive or consequential damage from any claim or cause whatsoever or for direct or indirect loss of profits, revenue or goodwill, arising out of or in connection with these  conditions or the subject matter hereof, regardless of the form of action or whether or not such party has been informed of, or otherwise anticipated the possibility of such damages.

Paradox Engineering’s maximum direct liability hereunder, whether in any action in contract, tort, breach of warranty or otherwise (whether damages are awarded on single or multiple occasions), shall not exceed the amount paid by customer to supplier in connection with the services during the 12 (twelve) months immediately before the events giving rise to any dispute. These limitations shall apply even if supplier has been advised of the possibility of such damage. 

10.1 Governing Law, Jurisdiction

These Conditions shall be governed by the laws of the State of Switzerland. All and/or any disputes arising in connection with these Conditions which cannot amicably settled between the Parties within thirty (30) days from the date of notification by one Party of a dispute to the other Party shall be finally settled by arbitration by the Chamber of Commerce of Lugano, Switzerland, by arbitrators appointed in accordance with the rules of said Chamber of Commerce. The language of the proceedings, documentation and the award shall, unless otherwise agreed, be in English. 

10.2 Independent Contractors

It is expressly understood and agreed by the Parties hereto that the relationship between Paradox Engineering and Customer hereunder shall be that of independent contractors, and nothing in this Agreement shall be deemed to constitute a joint venture, partnership, agency or employer/employee arrangement between the Parties. Neither Party shall have any authority or power to bind the other Party or to contract in the name of, or make any representations or warranties, express or implied, on behalf of the other Party, or otherwise create any liability against the other Party in any way for any purpose.  

10.3 Force Majeure

Neither Party shall be liable for any delay in performing any of its obligations under this Agreement if the delay is caused

• by governmental action, laws, orders, regulations, directions or requests, OR
• as a result of events, such as war, military hostilities (whether war be declared or not), acts of public enemies, mobilization, requisition, embargo, rebellion, revolution, insurrection, usurpation of power, civil war, acts or threats of terrorism, fires, floods, acts of God or any causes beyond the reasonable control of such party having a material adverse effect on the performance of obligations hereunder (”Force Majeure”). 

The delaying party shall be entitled to a reasonable extension of time for the performance of such obligations. If and when the period of incapacity exceeds 90 (ninety) calendar days, then the Party not in delay and not claiming Force Majeure shall have right forthwith to terminate this Agreement unless the Parties first agree otherwise in writing. 

10.4 Prohibition to assign or transfer the agreement and of sub-contracting 

Except as otherwise provided in this Section, neither Party shall be entitled to assign, novate, subcontract or otherwise dispose of its rights and be released from its obligations under these Conditions without the prior written consent of the other Party. Customer shall not assign, without specific written authorization from Paradox Engineering, this agreement or any of the rights and obligations arising from these Conditions. 

Paradox Engineering reserves the right to entrust the provision of the Services, in whole or in part, to a sub-supplier with unique skills and experience. Paradox Engineering shall remain primarily liable for all Services provided and all of its other material obligations under these Conditions, regardless of whether Paradox Engineering or its subcontractor performs the Services and obligations hereunder.  

10.5 Waiver and Severability

 The failure of either Party to exercise or enforce any of its rights under these Conditions will not act as a waiver, or continuing waiver, of such rights. The invalidity or unenforceability of any term or terms of these Conditions shall not affect the validity or enforceability of the remaining terms of these Conditions.  

10.6 Problem Management and  Notices

10.6.1 Contract Representatives.

Each Party shall appoint its own contract representative (hereinafter, the “Contract Representative”) who shall act together with Contract Representative of the other Party, without prejudice to Paradox Engineering’s exclusive responsibility for the performance of the Services; the names of said Contract Representatives of both parties shall be mutually communicated prior to the commencement of the performance of the Services. 

10.6.2 Communications

Any notice, consent, approval, request, waiver, statement or other communication required or permitted to be given by any Party hereunder shall be in writing (including facsimile) and shall be given by personal delivery, certified or registered mail, postage prepaid, recognized international overnight delivery service or facsimile (or other similar writing), addressed as follows (or to such other address as either party may designate by notice given in accordance with this Section). Technical-operational and information communications may be made by email, addressed to the Contract Representative.

Notwithstanding the foregoing, Paradox Engineering also reserves the right to notify Customer any of the above notices, consents, approvals, requests, waivers, statements or other communications via the ticketing system. The Parties may change the address to which notices under these Conditions shall be sent by providing written notice to the other in the manner specified above. 

10.7 Non-solicitation of Staff

Customer undertakes that during the Term and continuing for a period of 12 (twelve) months following its expiry or termination, neither it nor its Affiliates shall employ or contract the services of any person who is or was employed or engaged by Paradox Engineering without the prior written consent of Paradox Engineering.

Customer acknowledges that Paradox Engineering provides a valuable service by identifying and assigning personnel for Customer’s work under this Agreement. Customer further acknowledges that it would receive substantial additional value, and Paradox Engineering would be deprived of the benefits of its work force, if Customer were to directly hire Paradox Engineering/MinebeaMitsumi’s personnel after they have performed work for Customer under this Agreement.

Therefore, in case of violation by Customer or its Affiliates of the terms of this paragraph, Customer shall pay Paradox Engineering, in addition to other remedies available to Paradox Engineering, the amount equal to 12 (twelve) months of the last documented gross monthly salary of each person employed or contracted in violation of this paragraph.

10.8 Entire Agreement. Order of precedence

These Conditions and documents referred herein (including schedules attached hereto, which are hereby incorporated herein) constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (whether written or oral) regarding such subject matter.  These Conditions may only be modified, or any rights under it waived, by a written document executed by both Parties. 

Each Party acknowledges that it entered into these Conditions in reliance only upon representations, warranties and promises specifically contained or incorporated in these Conditions and, except as expressly set out in these Conditions, neither Party shall have any liability to the other in respect of any other representation, warranty or promise made prior to the date of these Conditions unless it was made fraudulently. 

10.9 Authority. Construction

Each Party represents and warrants that it (and the individual(s) executing these Conditions on its behalf) has full power and authority to enter into and execute these Conditions. These Conditions shall be construed without regard to the identity of the person who drafted the various provisions hereof, and each and every provision of this Agreement shall be construed as though the Parties participated equally in the drafting of the same.   

10.10 Interpretation and Headings

The word “include” or “including” shall describe examples of the antecedent clause, and shall not be construed to limit the scope of such clause.  The headings used in these Conditions are inserted for reference purposes only and do not affect the interpretation of the terms and conditions hereof. 

10.11 Time of Essence

With regard to all dates and time periods set forth or referred to in these Conditions, time is of the essence.   

1.1 Scope of Services

Customer hereby engages Paradox Engineering to provide the Services and Paradox Engineering hereby agrees to provide Customer with the Services subject to the terms and conditions of these Conditions.  

1.2 Performance of Service

Subject to Customer’s payment of the applicable fees, Paradox Engineering agrees to perform all Services in compliance with the requirements of these Conditions, the service levels and the other requirements and specifications set forth in a Statement of Work. Should the Services to be provided under a Statement of Work not be completed notwithstanding the provision by Paradox Engineering of the agreed capacity, to the extent such failure was caused by Customer’s delays and/or Customer’s failure to perform its obligations set forth in the applicable Statement of Work, any additional capacity shall be provided by Paradox Engineering at an additional cost, subject to the then applicable service rates. 

1.3 Service Description

Customers can request the following service items, which are quoted as separate service items in the Sales Quote or Scope of Work. Such service items are described as for scope, inclusions and exclusions:

1.3.1 Solution Design

It is a highly technical engineering services aimed to identify the most suitable Paradox Engineering/MinebeaMitsumi products and their configuration to satisfy the customer’s expectations, design the network and ensure the fulfillment of project requirements. These services include the following activities, only addressed to Paradox Engineering/MinebeaMitsumi products:

• analysis of project requirements;
• definition of the network infrastructure and connectivity layout including the geographical location and interconnections between devices;
• support to the design of the proper IT infrastructure required by the entire project: hardware, data storage, operating systems, security, data connectivity;
• System configuration matching installation and operation requirements or constraints;
• “On-site survey”, usually required to measure environmental conditions and their impacts on project requirements and feasibility (will be quoted separately).

The following are excluded:

• any of the above listed activities if related or addressed to third party products, both Hardware and Software;
• design and development of any third-party devices and applications;
• network design that includes third-party devices;
• network map definition that includes third party devices;
• instructions and support on third party sensors;
• integration of third-party sensors with additional devices both from Paradox Engineering/MinebeaMitsumi and third parties;
• instructions and procedures for third party sensors lighting controllers;
• integration of third-party lighting controllers with luminaries;
• instructions and procedures for third party management platforms and applications;
• any software development activity required to integrate any third-party products (for example lighting devices, smart building sensors, other software platforms, etc.;
• any software and firmware development activity required to integrate third party products with Paradox Engineering/MinebeaMitsumi’s (for example third party lighting device, smart building sensors, external software platforms);
• in case of on-site surveys, any travel, accommodation, rental fees and in general any live-expense Paradox Engineering should anticipate for accomplishing the required services;

Whenever a design activity from a third-party company impacts or involves Paradox Engineering/MinebeaMitsumi Systems, Paradox Engineering reserves the rights to evaluate if this activity requires support from Paradox Engineering that is outside the scope indicated above and if a specific agreement outside the present scope of work is needed.

For the correct operation of the above activities, it is mandatory for the Customer to provide all the relevant material and information related to:

• Project scope and requirements including tender specifications;
• Operation and maintenance requirements;
• CMS requirements for interface to any third-party management systems;
• Maps of the area where the project needs to be deployed with the indication of where Paradox Engineering/MinebeaMitsumi devices and sensors will be positioned;
• Maps of all the possible positions where Paradox Engineering/MinebeaMitsumi gateways can be connected to the backbone network (via fiber or via 4G mobile operators) and kept powered 24 hours / 7 days;
• Any useful indication about installation constraints (like power lines not operational 24 hours or absence of fiber connectivity or degraded 4G radio coverage) that could impact the operation of Paradox Engineering/MinebeaMitsumi devices;
• Expected roll out plans and timely information about any changes;
• Sample devices and drivers representative of all models that will be installed as part of the project;
• Samples of any third-party sensor devices that may be furnished outside of this contract, and that may be installed prior to installation;
• Planned / expected final project sign off date and procedure. Remark: after 100% of the project is installed, Paradox Engineering will require a minimum 6-month window for fine tuning of the system. Each network is unique and each operating environment is also unique, hence any complex system, as advanced as it may well be, requires fine tuning based on real operating conditions which – in cases where the roll out is multi-year – this can be very different from start to finish. This will have to be accounted for in agreeing about roll out plans and project sign off.

All parties involved will be required to sign off the project scope prior to the start of any operations, to grant common understanding and respective responsibilities.

1.3.2 Project Management and Commissioning

The Project Management and Commissioning service supports the Customer in managing tasks during all project phases, from planning through execution and commissioning to sign off. All activities only refer to tasks Paradox Engineering/MinebeaMitsumi is in charge of, Paradox Engineering/MinebeaMitsumi systems, subsystems, components, and resources Paradox Engineering/MinebeaMitsumi is accountable for. It includes the following activities:

• Planning phase
  • All project management activities defining the main project tasks and their planning along the timeline of the entire project;
  • Work-breakdown structure;
  • Resource planning;
  • Scheduling;
  • Budget.

Any project related activities and their schedule planned by the Customer, a Contractor or a third-party Company must be communicated to Paradox Engineering in due time for the sake of functional project management.

• Execution phase
  • operations along the life of the project that are necessary to complete the tasks, deliver the expected results and keep the project execution under control;
  • task managements;
  • resource management;
  • communication management.
• Commissioning:
  • All activities that finalize the configuration of Paradox Engineering/MinebeaMitsumi systems so that all required functionalities are in place and work correctly;
  • support to troubleshooting and design optimization during installation (also onsite if required) – only for Paradox Engineering/MinebeaMitsumi systems, subsystems and components;
  • configuration of the CMS to manage the installed Paradox Engineering/MinebeaMitsumi Systems: for example splitting the network area into sites, define node type profiles, add user accounts and set their rights; devices configuration like for example position on maps, assignment to sites, setting the device type and assign scheduling profiles;
  • validation of the solution by performing tests on field and through the CMS;
  • training about the CMS so to hand network management activities over to the end customer.
• Sign off:
  • Support of acceptance tests for Paradox Engineering/MinebeaMitsumi systems, subsystems and components
  • Official Handover with formal written acceptance by the Customer of the deployment of the Smart City CMS Cloud platform.

The following activities are excluded:

• Any planning, execution, commissioning or sign off related activities as listed above related to third party devices, systems, subsystems, components and resources;
• Any installation activities such as handling and delivering the Systems on field, mounting, powering, cabling;
• Any costs for travel and lodging, if required (to be charged separately upon written agreement with the Customer).

For Paradox Engineering to deliver the activities above, the Customer and/or Contractors performing installations on field must provide all relevant information that Paradox Engineering Project Manager will require to allow the proper execution of Project Management & Installation & Commissioning tasks. Such information is mandatory; Paradox Engineering will not be responsible for inefficiencies or problems in case such information is not correct, not enough or not provided in due time. The Customer and/or Contractor or third-party company involved in the project are required to provide and share the planning and the schedule of their activities related to the project.

1.3.3 Training Service

The Training Service consists of a training class that lasts 2 days for a maximum of 10 participants. The 2 days can be split in two sessions upon written agreement among the parties. The training only covers Paradox Engineering/MinebeaMitsumi systems, subsystems and components and covers the following aspects:

• Characteristics and functionalities of Paradox Engineering/MinebeaMitsumi devices
• Network design guidelines for Paradox Engineering/MinebeaMitsumi mesh network
• CMS configuration
• Commissioning and Configuration of Paradox Engineering/MinebeaMitsumi devices via the CMS
• Monitoring tasks and tools via the CMS
• Management procedures via the CMS
• Troubleshooting of Paradox Engineering/MinebeaMitsumi Systems via CMS and via Gateway debug tools

Trainings are mandatory for any third party or Customer who is directly involved in the installation of Paradox Engineering/MinebeaMitsumi Systems and in Operation & Maintenance activities. The course is normally delivered at Paradox Engineering’s HQ in Novazzano (Switzerland). Different sites may be agreed in writing among Paradox Engineering and Customer in case of contingent situations preventing travels. In such cases, travel & lodging for Paradox Engineering personnel shall be invoiced separately upon written agreement with Customer.

1.3.4 Operation and Maintenance (Remote Support)

The following Level 2 and Level 3 Operation and Maintenance services for Paradox Engineering/MinebeaMitsumi systems, sub-systems and components are defined as per below:

• troubleshooting of un-expected behaviors of Paradox Engineering/MinebeaMitsumi Systems and related corrective actions whenever causes are proven to lie in Paradox Engineering/MinebeaMitsumi Systems. For example:
  • CMS microservices troubleshooting support to malfunctions on the CMS service caused by Paradox Engineering/MinebeaMitsumi software. It includes workaround procedures to restore the service to the proper working conditions in the minimum possible time and all the necessary actions to address the resolution with a new software or patch release.
  • 6LoWPAN network troubleshooting: support for wireless mesh connectivity issues caused by a malfunction in the radio protocols of Paradox Engineering/MinebeaMitsumi devices. It includes workaround procedures wherever the problem is caused by Paradox Engineering/MinebeaMitsumi and all the necessary actions to address the resolution with a new firmware or patch release.
  • Applications troubleshooting (lighting, parking, waste, other sensors): support to problems for example incorrect dimming schedule execution, wrong power measurements, on Paradox Engineering/MinebeaMitsumi devices and connected products.
• clarifications about functionalities and procedures for the following Paradox Engineering/MinebeaMitsumi Systems and subsystems:
  • CMS frontend usability: support requests related to how-to use the frontend Apps, how to read the information reported, how to correlate the information for monitoring and troubleshooting purposes;
  • CMS backend interfaces: support requests related to the usage of CMS API and MQTT interfaces;
  • commissioning of Paradox Engineering devices: support requests about how to set Paradox Engineering/MinebeaMitsumi devices via CMS or via other configuration tools as well as guidelines for proper operation and maintenance;
  • Gateway SW releases: access to detailed information about Paradox Engineering/MinebeaMitsumi Gateway software improvements and/or fixes that are relevant for the operation of the project, with maintenance and upgrades performed by Paradox Engineering;
  • Node FW releases: access to detailed information about Paradox Engineering/MinebeaMitsumi node firmware improvements and/or fixes that are relevant for the operation of the project, performed by the Customer or by a third party.
• access to PE Support Request Ticketing System (RT), where a Customer dedicated queue is generated. The RT system is the one and only point of access for the Customers to ask and receive support, which can only be requested by opening a new RT ticket.

For the avoidance of doubt, following a Support request by Customer via RT, the time dedicated by Supplier to ascertain whether a given Issue must be escalated to Level 3 or R&D teams shall be taken into account as effort spent by Supplier under any T&M quotation.

The following is excluded:

• Any troubleshooting activities requested by Customer in the absence of an ordered support service;
• Any level 1 support;
• Support for CMS malfunctions caused by third parties: for example, login problems caused by network access issues or misusage of CMS API/MQTT interfaces from a third-party application;
• Manual network optimization operations like network balancing that require the reconfiguration of devices on field to distribute the network load across the gateways. If desired, this activity can be quoted separately by adding a specific professional service package (not currently included in the Quote);
• Support for malfunctions on the wireless network connectivity that apply to third-party products;
• Support for malfunctions on devices that are connected to third-party controllers and sensors;
• Support to third party controllers, sensors, devices, systems, sub-systems and components;
• The execution of firmware upgrades of Paradox Engineering/MinebeaMitsumi Nodes and sensors (but can be quoted separately), unless either of the following occurs:
  • a new Paradox Engineering/MinebeaMitsumi Node/sensor firmware release fixes a Priority 1 or Priority 2 malfunction: in such case, the execution of the related upgrade will be performed by PE;
  • A new Paradox Engineering/MinebeaMitsumi Node/sensor firmware release provides a security improvement Paradox Engineering deems necessary for the safety of the network and its operations: in such case, the execution of the related upgrade will be performed by Paradox Engineering.

Support requests placed via email, phone, text messages or any other system different than RT will not be considered and are not subject to any SLA commitments. Support requests placed via RT for third-party products, sensors, devices, systems, sub-systems and components will be discarded.

Wherever a malfunction on the wireless mesh network affects the functionalities of Paradox Engineering/MinebeaMitsumi products but is caused by a third-party product, Paradox Engineering/MinebeaMitsumi is not responsible to provide a resolution. In such cases, Paradox Engineering/MinebeaMitsumi reserve the rights to raise claims against the third-party company.

1.3.5 Other exclusions

The following custom services are excluded:

• design integration with third party systems;
• solution customization (e.g. scripting) and any CMS customization beyond what is possible by the use of settings and functions already present when the system was delivered, or supplied as factory standard;
• advanced on field troubleshooting on issues potentially not caused by Paradox Engineering/MinebeaMitsumi products;
• network optimization operations like manual network balancing;
• network firmware and software upgrade for the entire network;
• migration from legacy software releases to newer ones;
• development and the execution of any software or firmware upgrade for third party devices;
• development of any dedicated software application to integrate, view or manage any third-party devices in the CMS.

1.4 Technical Support Access

Customer will be provided with the url and credentials to access Paradox Engineering Support Request Ticketing System (RT), where a Customer-dedicated queue will be generated. RT is the one and only point of access for the Customer to ask and receive support. Support requests via RT can be placed any time; however, the take-in-charge of a request (i.e. the first acknowledge that request has been received and assigned to a support engineer) will only be performed according to the following schedule:

• Days: business days. These exclude Saturday and Sundays, and any public holiday as specified by the local Swiss law
• Hours: 8.00 – 18.00 CET/CEST

Customer will assign a priority to support requests as listed below, thus identifying the level of severity for PE to allocate resources accordingly. If no priority is assigned, the request will get a default priority 4. The level of priority of a support request determines the associated SLA policy and the escalation matrix process.

Timely communication and responses from Customers are extremely important: after 10 (ten) business days from the last active communication from the Customer, Customer communication will be considered ceased without notice, and Paradox Engineering may, upon notice, close a support request due to inactivity by the Customer.

If a support request is not addressed in line with SLAs above, the Customer can escalate along with the following matrix:

1.5 Location

Services shall be performed by Paradox Engineering at its place of business or such other location agreed with Customer. If the Services are performed at Customer Sites, Paradox Engineering may inspect the Site(s) prior to commencement of the relevant Service and either

• notify Customer that such Customer Site(s) is adequate to allow Paradox Engineering to perform the Services in accordance with the terms of this Agreement; OR
• discuss with Customer any additional accommodation and/or facilities that it may require to perform the Services in accordance with the terms of this Agreement.

The foregoing is with no prejudice to Paradox Engineering’s right to notify Customer the necessity to carry out on-site surveys at Customer’s expense to measure environment conditions and their impacts on project requirements and feasibility. Customer understands that it may be necessary to allow Paradox Engineering or its authorized technical representatives to access the involved network environment to the maximum possible extent, and that this is functional to support and issue resolution. Customer also understands that if access is not provided as requested by Paradox Engineering, the handling and resolution of the support request may be slower or impossible. 

1.6 Designated Contacts

Each party shall identify and designate one or more individuals who will serve as the point(s) of contact between them for all aspects relating to the performance of the Services. Timely communication and responses from Customers are extremely important: after 10 (ten) business days from the last active communication from the Customer, Customer communication will be considered ceased without notice, and Paradox Engineering may, upon notice, close a support request due to inactivity by the Customer. 

2.1 Fees

In consideration of the Services, Customer shall pay Paradox Engineering the agreed Fees as detailed in a Statement of Work.  

The Fees are exclusive of all Taxes (including VAT, sales, use, or other equivalent taxes), governmental fees, levies, customs, and duties. Should Customer be obliged, on the basis of existing or future laws or acts of the competent governmental and administrative authorities, to make any deduction and/or withholding from the amount due to Supplier under this Agreement, Customer shall:  

• be entitled to pay the amount due to Paradox Engineering after applying such deduction or withholding;  
• pay to the competent authority, within the due date, the amount of such deduction or withholding;  
• send to Paradox Engineering a written confirmation of that payment to the competent authorities.  

 2.2 Payment

All sums due to Paradox Engineering shall be payable within 30 (thirty) calendar days from the receipt of the invoice in CHF by bank transfer to Paradox Engineering settlement account defined in the invoices. Customer’s failure to timely perform its payment obligations hereunder shall entitle Paradox Engineering to

• apply interest on late payments after the due date at the lesser of [1.5%] per month or the highest applicable lawful interest rate; AND
• suspend the performance of the Services. 

2.3 Additional Expenses

All bank charges are borne by Customer. Customer agrees to reimburse any extra expenses (airfares, additional Services beyond those set forth in relevant Statement of Work) that Paradox Engineering may incur at any time and in connection with performance of this Agreement if such expenses are approved in writing by Customer in advance. 

3.1 Term

The term of the Agreement shall begin on the starting date indicated in the applicable Statement of Work (the “Effective Date“) and, unless earlier terminated as provided in these Conditions, will continue through the expiry date indicated in the Statement of Work. The term may be extended by mutual written agreement of the Parties. In the event of any expiration or termination of the Agreement, the Agreement will survive and apply with respect to the provisions of these Conditions for the term specified in a Statement of Work. 

3.2 Mutual Termination

This Agreement can be terminated by mutual consent of both Parties, which shall be made in writing and signed by authorized persons on behalf of each of the Parties. 

3.3 Termination at Will

Either Party may cancel this Agreement or any Services under a Statement of Work for convenience at any time by giving a 90 (ninety) days prior written notice to the other Party. Should Customer exercise its termination rights pursuant to this Section 3.3, Customer undertakes to pay

• all outstanding fees for the Services rendered until the termination date AND
• an exit fee equal to 20 (twenty) % of the Value of the services. 

3.4 Termination for Breach

Paradox Engineering shall have the right to unilaterally terminate the Agreement at any time upon 20 (twenty) days prior written notice if: 

• Customer delays for more than 20 (twenty) calendar days in effecting any payment due to Paradox Engineering;
• Customer has infringed Paradox Engineering’s Intellectual Property Rights. 

3.5 Express Termination Rights

Either Party shall have the right to immediately terminate the Agreement in relation to the Services if the other Party: 

• becomes insolvent;  
• fails to pay its debts or perform its obligations in the ordinary course of business as they mature; 
• is declared insolvent or admits its insolvency or inability to pay its debts or perform its obligations as they mature; OR
• becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within 60 (sixty) calendar days after the institution thereof.  

3.6 Paradox Engineering’s termination rights

Paradox Engineering shall have the right to unilaterally terminate these Conditions at any time by giving Customer written notice if Customer is in breach of Section 7 (Confidentiality).  

3.7 Suspension of Services

Without prejudice to any other remedy hereunder, Paradox Engineering shall be entitled to suspend, in whole or in part, the provision of Services if

• Customer fails to abide by its obligations as specified in the Service Level Agreement,
• Paradox Engineering gives Customer written notice thereof for three times AND
• Customer fails to remedy the breach as specified in each service item. 

3.8 Consequences upon termination

3.8.1 Payment obligations and Return of Materials.

In the event of an earlier termination of these Conditions, Customer agrees to pay Paradox Engineering all fees and any other amounts due for Services performed prior to the termination date. Upon termination of this Agreement for any reason, Paradox Engineering shall immediately cease performing any Services hereunder and promptly deliver to Customer all Services materials, including all copies thereof, and all of Customer’s Confidential Information in Paradox Engineering’s possession except as may be required by regulators and auditors for such purposes.

Upon termination of this Agreement for any reason, Customer shall promptly deliver to Paradox Engineering any Paradox Engineering Materials and all of Paradox Engineering’s Confidential Information in Customer’s possession.  

3.8.2 No waiver.

Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement.

Neither Party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a Party shall be without prejudice to any other right or remedy of such Party under this Agreement or applicable law. 

3.9 Survival

Each valid and executed Statement of Work shall survive termination of this Agreement until its completion or termination under its own termination clause. As long as any Statement of Work is in force, this Agreement and its terms shall govern such Statement of Work in full. 

4.1 Ownership

Paradox Engineering is the sole and exclusive owner of and will acquire or retain all right, title, and interest, including all Intellectual Property rights, in and to

• the Services provided to Customer in accordance with this Agreement (including, without limitation, enhancements, modifications, and any other derivative works), AND
• Paradox Engineering Materials and Confidential Information. Customer hereby agrees Paradox Engineering shall own all right, title and interest thereto.  

Customer shall not (directly or indirectly) sub-license, rent, lease, or otherwise make available, reverse-engineer, disassemble, attempt to obtain the source code of the Services, modify or create derivative works from the Services to create a similar service, and shall abstain from any illegal or fraudulent actions on the Services. Customer does not have any other implied rights in, or to, the Service. Any right not expressly granted to Customer hereunder remain fully vested in Paradox Engineering.  

4.2 License of Materials

Customer hereby grants to Paradox Engineering a limited, worldwide, non-exclusive, royalty-free, non-transferable license during the Subscription Term to use, reproduce and create derivative works of such Customer Materials solely as may be necessary to perform the Agreement and to create the Services required hereunder. If Paradox Engineering reasonably believes any of Customer Materials is in breach of any applicable provision of law or otherwise infringes any third–party rights, Paradox Engineering shall notify Customer in writing of any such circumstance and might request Customer to remove such Customer Materials from the Services.

Failure by Customer to comply with Paradox Engineering’s request within 5 (five) Business Days from receipt of Paradox Engineering’s notice, shall entitle Paradox Engineering to remove or disable access to any such Customer Materials of otherwise suspend Customer’s admin access to the Services until the relevant Customer Materials are removed or otherwise rendered not accessible.

Repeated violations of this provisions by Customer shall entitle Paradox Engineering to terminate this Agreement. Notwithstanding the foregoing, if upon notice of termination of this Agreement there exist any Services or results of Services performed by Paradox Engineering for which Customer has not paid Paradox Engineering in full, until such time as Customer has paid Paradox Engineering in full, Customer agrees not to use such Services or results of Services. So long as payment in full has not been rendered by Customer, all such Services and results of Services remain the property (including without limitation Intellectual Property) of Paradox Engineering.

4.3 Incorporation of Paradox Engineering’s or third party Intellectual Property in the Service

Paradox Engineering has the right to utilize or incorporate its own software or libraries or any other Paradox Engineering Materials, and/or utilize any third-party software or libraries or any other third-party Intellectual Property Right, as a part of any Services to be delivered hereunder.

5.1 Paradox Engineering’s Warranties

Paradox Engineering represents and warrants that:  

• Paradox Engineering will provide the Services in accordance with the provisions of these Conditions and in accordance with all applicable laws and regulations;  
• the Services shall substantially conform to their description;  
• Paradox Engineering and each of Paradox Engineering’s employees who has been or will be involved with the development of the Services is fully qualified to perform the Services; and that  
•  This Agreement has been duly authorized, executed and delivered by Paradox Engineering. Paradox Engineering’s obligations herein are legal, valid and binding, and are enforceable against Paradox Engineering in accordance with the Agreement’s terms.
• Paradox Engineering makes no representations, extends no warranties of any kind, nor assumes any responsibility whatsoever with respect to the use of the Services by Customer other than the warranties expressly granted herein.

5.2 Exclusions

Warranties listed in 5.1 shall not apply with regard to Customer’s claims or alleged damages caused by:

• Customer’s fraud or negligence;
• use by Customer of the Services in breach of the terms and conditions of this Agreement and any other Paradox Engineering’s instructions. 

5.3 Customer’s Warranties

Customer represents and warrants that: 

• Customer is validly existing and in good standing under the laws of the jurisdiction(s) in which its principal office is located, and is duly licensed or qualified and is in good standing wherever necessary to carry on its present business and operations, and has all licenses and permits necessary to carry on its present business and operations and to enter into and perform its obligations under this Agreement;  
• This Agreement has been duly authorized, executed and delivered by Customer. Customer’s obligations herein are legal, valid and binding, and are enforceable against Customer in accordance with the Agreement’s terms; AND
• Neither the execution and delivery by Customer of this Agreement, nor the performance by Customer of its obligations hereunder, requires the consent, approval or authorization of, the giving of notice to, or the filing, registration, qualification or taking of any other action with, any third party or any state, or foreign government authority or agency. 

5.4 Disclaimer

Customer expressly acknowledges and agrees that use of the services is at customer’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy, and efforts is with customer. The services are provided “as is” and “as available”. Except as otherwise expressly set forth herein, supplier makes no warranties, guarantees, or representations of any kind, express or implied, with respect to the work, services or goods provided hereunder, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.

Paradox Engineering does not make and hereby expressly disclaims any representations or warranties to any end user of the products or services sold or licensed by customer or to any other third party. Supplier does not specifically warrant that:  

• The services will meet customer’s business requirements;  
• The services will be error-free or run uninterrupted or that the results obtained from its use will be accurate or reliable; AND
• All the errors in the services can be found or corrected.  

Nothing in the foregoing restricts the effect of warranties or conditions which may be implied by law and cannot be excluded, restricted or modified notwithstanding a contractual restriction to the contrary. 

5.5 Paradox Engineering’s indemnity against third-party claims

Paradox Engineering assumes liability for, and shall defend, indemnify and hold harmless Customer, from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, costs and expenses (including without limitation reasonable legal fees and expenses) arising from claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against Customer resulting from, arising out of, or incurred with respect to:  

• the breach of any covenant or warranty made by Paradox Engineering or a material breach by Paradox Engineering of these Conditions; OR
• the development, delivery, and/or performance of the Services by Paradox Engineering; provided, however, that Paradox Engineering shall not be required under this Section to defend, indemnify or hold harmless any Indemnified Party for loss or liability resulting from any intentional, reckless, and/or negligent conduct, action, and/or omission of Customer.  

Customer shall: 

• promptly notify Paradox Engineering of any claim it believes is subject to the indemnity provided under this paragraph; 
• allow Paradox Engineering full control over the defense and settlement of such claim; AND
• provide Paradox Engineering full cooperation in the defense and settlement of such claim. Customer may participate in the defense of any such claim with counsel of its own choice, at its own expense.   

For avoidance of doubt, Customer acknowledges that Paradox Engineering is providing the Services to Customer which are not intended to and may not be used, modified, improved and updated by Customer, and integrated into products, including different versions and configurations of such products, and that the Services or results of the Services may be required to be compliant with, or conform to various third-party specifications. Accordingly, Customer acknowledges and agrees that the above indemnity liabilities assumed by Paradox Engineering shall under no circumstance apply to:

• any claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against any Indemnified Party, resulting from, arising out of, or incurred with respect to the infringement or alleged infringement, by any Paradox Engineering Materials, the Services, results of the Services, or any other material used or provided by Paradox Engineering under this Agreement, of any third party patents or patent rights, including any applications therefor, and/or reissues, divisions, continuations, renewals, extensions and/or continuations-in-part thereof, under any jurisdiction, OR
• any claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against any Indemnified Party, resulting from, arising out of, or incurred with respect to the infringement or alleged infringement, by any Paradox Engineering Materials, the Services, results of the Services, or any other material used or provided by Paradox Engineering under this Agreement, of any third party Intellectual Property Rights to the extent that the subject infringement arises from CUSTOMER’s additions to, and/or modifications of, any such Paradox Engineering Materials, the Services, results of the Services, or any other material used or provided by Paradox Engineering, as the case may be.

Paradox Engineering will take every reasonable precaution to safeguard Customer’s property or Customer Materials entrusted to its custody or control for the purpose of this Agreement. Paradox Engineering is not liable for an accident loss of or accidental damage to such Customer’s property or Customer Materials.

Should a third-party claim be raised in respect to the Services, Paradox Engineering may, at its discretion: 

• modify or replace the Services with an equivalent non-infringing service; OR
• terminate these Conditions and refund to Customer any pro-quota Fees amount that may have already been paid by Customer for the residual portion of the Services that shall not be performed due to such earlier termination under this Section 5.5. To the extent permitted under applicable Laws, the remedies granted under this Section 5.5 shall represent Paradox Engineering’s sole and exclusive remedy for any claim relating to the Services.  

5.6 Customer’s indemnity

Customer assumes liability for, and shall defend, indemnify and hold harmless Paradox Engineering, and its respective officers, directors, employees, successors and assigns (hereby referred to as “Indemnified Paradox Engineering Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, costs and expenses (including without limitation reasonable legal fees and expenses) arising from claims of third parties, of whatsoever kind or nature, imposed on, incurred by or asserted against any Indemnified Paradox Engineering Party, resulting from, arising out of, or incurred with respect to the breach of any covenant or warranty made by Customer or a material breach by Customer of this Agreement. Paradox Engineering shall:  

• promptly notify Customer of any such claim; 
• allow Customer full control over the defense and settlement of such claim; AND
• provide Customer full cooperation in the defense and settlement of such claim. Paradox Engineering may participate in the defense of any such claim with counsel of its own choice, at its own expense. 

6.1 Security Measures

Paradox Engineering shall provide the Services by implementing reasonable and appropriate security measures, being it understood that Customer remains responsible for adopting adequate security measures to control access to the Login Credentials and the Services as well as protect and back-up its Customer Materials.  

6.2 Data Processing

The Parties hereby acknowledge that they have informed each other about the possible personal data processing in connection with the Services provided pursuant to these  Conditions and that they will process personal data in compliance with the applicable Laws. 

Customer remains responsible for providing adequate privacy notices and gathering all required consents for the processing of personal data. Customer hereby represents and warrants to have provided all required privacy notices and obtained any legally required consents in respect to Customer’s use, collection, disclosure, transfer and any other processing of personal data.  

7.1 Permitted use of the other Party’s Confidential Information

The Parties acknowledge that by virtue of these Conditions, each Party may have access to the other Party’s Confidential Information. Each Party agrees not to make use of the other Party’s Confidential Information, except as may be permitted by these Conditions or as may be permitted in writing by the other Party. Each Party agrees that it will not make the Confidential Information of the other Party available in any form to any third party, except as may be permitted by this Agreement or as may be permitted in writing by the other Party.

Each Party agrees to take all reasonable steps to ensure that Confidential Information of the other Party is not used, disclosed or distributed by its employees or agents in violation of the provisions of these Conditions. In performing the Services Paradox Engineering may collect, record or otherwise have access to data and/or other information or measurements (including without limitation data collected from motion sensors, noise sensors, etc) that are accessible by Customer as well. Customer acknowledges and agrees that Paradox Engineering is not obliged to keep these data refreshed or otherwise updated, nor does Paradox Engineering hereby provide any warranty on the accuracy of these data or their usability for any specific purpose including, without limitation, public safety, theft prevention and/or any other purpose not expressly contemplated hereunder. Nothing in these Conditions shall prevent Customer from using and transferring these data. 

7.2 Unauthorized disclosure

Each Party agrees that the unauthorized disclosure or use of the other Party’s Confidential Information will cause irreparable harm and significant injury to the other Party for which there will be no adequate remedy at law. Accordingly, each Party consents to the other Party seeking equitable relief in the event such Party breaches its confidentiality obligations hereunder. 

7.3 Obligation to disclose

If the receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, the receiving Party will give the disclosing Party prompt written notice to allow the disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order.

The receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed. 

7.4 Survival

The provisions of this Section shall survive for a period of 3 (three) years after termination of these Conditions. Each valid and executed Statement of Work shall survive termination of this Agreement until its completion or termination under its own termination clause. As long as any Statement of Work is in force, this Agreement and its terms shall govern such Statement of Work in full.

7.5 Feedback

Any feedback or suggestions that Customer may provide to Paradox Engineering in connection with the Services (including, without limitation, any information related to Service performance, bugs, suggestions and/or request for new features, hereinafter “Feedback”) shall be treated as Paradox Engineering’s Confidential Information. To the maximum extent permitted Customer hereby assigns to Paradox Engineering at no cost all rights in the Feedback and Paradox Engineering shall be entitled to use (or not use) the Feedback at its entire discretion.

Neither party shall be liable to the other for any indirect, incidental, special, punitive or consequential damage from any claim or cause whatsoever or for direct or indirect loss of profits, revenue or goodwill, arising out of or in connection with these  conditions or the subject matter hereof, regardless of the form of action or whether or not such party has been informed of, or otherwise anticipated the possibility of such damages.

Paradox Engineering’s maximum direct liability hereunder, whether in any action in contract, tort, breach of warranty or otherwise (whether damages are awarded on single or multiple occasions), shall not exceed the amount paid by customer to Paradox Engineering in connection with the services during the 12 (twelve) months immediately before the events giving rise to any dispute. These limitations shall apply even if supplier has been advised of the possibility of such damage.

9.1 Governing Law, Jurisdiction

These Conditions shall be governed by the laws of the State of Switzerland. All and/or any disputes arising in connection with these Conditions which cannot amicably settled between the Parties within 30 (thirty) days from the date of notification by one Party of a dispute to the other Party shall be finally settled by arbitration by the Chamber of Commerce of Lugano, Switzerland, by arbitrators appointed in accordance with the rules of said Chamber of Commerce. The language of the proceedings, documentation and the award shall, unless otherwise agreed, be in English. 

9.2 Independent Contractors

It is expressly understood and agreed by the Parties hereto that the relationship between Paradox Engineering and Customer hereunder shall be that of independent contractors, and nothing in this Agreement shall be deemed to constitute a joint venture, partnership, agency or employer/employee arrangement between the Parties. Neither Party shall have any authority or power to bind the other Party or to contract in the name of, or make any representations or warranties, express or implied, on behalf of the other Party, or otherwise create any liability against the other Party in any way for any purpose.  

9.3 Force Majeure

Neither Party shall be liable for any delay in performing any of its obligations under this Agreement if the delay is caused

• by governmental action, laws, orders, regulations, directions or requests, OR
• as a result of events, such as war, military hostilities (whether war be declared or not), acts of public enemies, mobilization, requisition, embargo, rebellion, revolution, insurrection, usurpation of power, civil war, acts or threats of terrorism, fires, floods, acts of God or any causes beyond the reasonable control of such party having a material adverse effect on the performance of obligations hereunder (”Force Majeure”). 

The delaying party shall be entitled to a reasonable extension of time for the performance of such obligations. If and when the period of incapacity exceeds 90 (ninety) calendar days, then the Party not in delay and not claiming Force Majeure shall have right forthwith to terminate this Agreement unless the Parties first agree otherwise in writing. 

9.4 Assignment, restriction on sub-contracting 

Except as otherwise provided in this Section, neither Party shall be entitled to assign, novate, subcontract or otherwise dispose of its rights and be released from its obligations under these Conditions without the prior written consent of the other Party. Paradox Engineering and Customer shall have the right to transfer, assign, subcontract and/or sublicense this Agreement and/or any of its rights and/or obligations hereunder, in whole or in part, to any of its Affiliates.

Paradox Engineering shall remain primarily liable for all Services provided and all of its other material obligations under this Agreement, regardless of whether Paradox Engineering or its subcontractor performs the Services and obligations hereunder. Costumer acknowledges and agrees that Paradox Engineering may assign any of its rights to collect and receive all payments by this Agreement to a third party on the basis of a contract of factoring. Paradox Engineering shall notify Customer in writing regarding its execution of any such factoring contract.

9.5 Waiver and Severability

The failure of either Party to exercise or enforce any of its rights under these Conditions will not act as a waiver, or continuing waiver, of such rights. The invalidity or unenforceability of any term or terms of these Conditions shall not affect the validity or enforceability of the remaining terms of these Conditions.  

9.6 Problem Management and  Notices

9.6.1 Contract Representatives.

Each Party shall appoint its own contract representative (hereinafter, the “Contract Representative”) who shall act together with Contract Representative of the other Party, without prejudice to Paradox Engineering’s exclusive responsibility for the performance of the Services; the names of said Contract Representatives of both parties shall be mutually communicated prior to the commencement of the performance of the Services. 

9.6.2 Communications

Any notice, consent, approval, request, waiver, statement or other communication required or permitted to be given by any Party hereunder shall be in writing (including facsimile) and shall be given by personal delivery, certified or registered mail, postage prepaid, recognized international overnight delivery service or facsimile (or other similar writing), addressed as follows (or to such other address as either party may designate by notice given in accordance with this Section 9. Technical-operational and information communications shall only be made via the ticketing system. The Parties may change the address to which notices under this Agreement shall be sent by providing written notice to the other as specified in 9.6.2. 

It is mandatory that any changes in the scope of the project, in the requirements, in the usage of the products and in the installed devices are properly and promptly notified to Paradox Engineering in order to evaluate and account for any impact such changes might have on the tasks for which Paradox Engineering is responsible, in the functionalities of the system and products, and/or in the operation of the project. A specific change management procedure will be agreed and signed off between Paradox Engineering, the Customer and any Contractor or third party involved. All changes will mandatory be communicated and managed along with said procedure.

9.6.3 Critical Information

Customer may only contact Paradox Engineering Support Center through RT system. Customer also agrees to provide Paradox Engineering with an escalation matrix to use in case critical information for service delivery is not made available to Paradox Engineering in due time and may hinder operations for which Paradox Engineering is responsible. For the avoidance of doubt, critical information refers to the points below and/or as described in the Customer’s Obligations related to each service:

• device Serial Number or MAC Address
• physical Site location of the product
• site contact person

9.7 Non-solicitation of Staff

Customer undertakes that during the Term and continuing for a period of 12 (twelve) months following its expiry or termination, neither it nor its Affiliates shall employ or contract the services of any person who is or was employed or engaged by Paradox Engineering without the prior written consent of Paradox Engineering. Customer acknowledges that Paradox Engineering provides a valuable service by identifying and assigning personnel for Customer’s work under this Agreement.

Customer further acknowledges that it would receive substantial additional value, and Paradox Engineering would be deprived of the benefits of its work force, if Customer were to directly hire Paradox Engineering’s personnel after they have performed work for Customer under this Agreement. Therefore, in case of violation by Customer or its Affiliates of the terms of this paragraph, Customer shall pay Paradox Engineering, in addition to other remedies available to Paradox Engineering, the amount equal to 12 (twelve) months of the last documented gross monthly salary of each person employed or contracted in violation of this paragraph.

9.8 Entire Agreement. Order of precedence

These Conditions and documents referred herein (including schedules attached hereto, which are hereby incorporated herein) constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (whether written or oral) regarding such subject matter. 

These Conditions may only be modified, or any rights under it waived, by a written document executed by both Parties. Each Party acknowledges that it entered into these Conditions in reliance only upon representations, warranties and promises specifically contained or incorporated in these Conditions and, except as expressly set out in these Conditions, neither Party shall have any liability to the other in respect of any other representation, warranty or promise made prior to the date of these Conditions unless it was made fraudulently. 

9.9 Authority. Construction

Each Party represents and warrants that it (and the individual(s) executing these Conditions on its behalf) has full power and authority to enter into and execute these Conditions.

These Conditions shall be construed without regard to the identity of the person who drafted the various provisions hereof, and each and every provision of this Agreement shall be construed as though the Parties participated equally in the drafting of the same.   

9.10 Interpretation and Headings

The word “include” or “including” shall describe examples of the antecedent clause, and shall not be construed to limit the scope of such clause. The headings used in these Conditions are inserted for reference purposes only and do not affect the interpretation of the terms and conditions hereof. 

9.11 Time of Essence

With regard to all dates and time periods set forth or referred to in these Conditions, time is of the essence.