REEL IN MOTION TERMS OF USE

PLEASE READ THIS AGREEMENT BEFORE USING REEL IN MOTION’S SERVICES. BY ACCESSING OR USING REEL IN MOTION, YOU (“THE CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE REEL IN MOTION. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR REEL IN MOTION, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.

This Terms of Use (“Agreement”) is entered into between Customer and REEL IN MOTION INC. (“REEL IN MOTION”), each a “Party” and collectively the “Parties”. REEL IN MOTION and the Customer agree that the following terms and conditions will apply to the services provided under this Agreement and any Order (as defined below) placed thereunder. The parties hereby agree to the following terms:

ARTICLE 1

DEFINITIONS

1.1.“Account Administrator” has the meaning set out in Section 2.3.
1.2.“Affiliate” has the meaning set out in Section 2.4.
1.3. “Applicable Law” means any legislation, regulations, by-laws or other statements having the force of law, enacted, passed or otherwise implemented by any level of government, or delegated body thereof, having jurisdiction over either Party now in force or in force after the execution of this Agreement and includes, without limitation, privacy law.
1.4. “Reel in Motion” is a software-as-a-service collaboration platform for the entertainment and media industry, that allows for viewing, controlling, and managing creative production details, including but not limited to any film, television, visual effects, animation or game workflow.
1.5. “Reel in Motion Suspension” has the meaning set out in Section 4.5.
1.6. “Authorized Users” shall mean those Authorized employees of Customer (and consultants, contractors and agents of Customer approved in writing by REEL IN MOTION) to whom REEL IN MOTION has authorized to access Reel in Motion and/or has provided access credentials to Reel in Motion in order to perform their job functions for Customer.
1.7. “Beta Version has the meaning set out in Section 5.2.
1.8. “Confidential Information” has the meaning set out in Section 12.1. Mtl#: 10385261.12
1.9. “Customer Data” has the meaning set out in Section 9.1(a).
1.10. “Customer Intellectual Property” means (i) any copyright, patent, trade secret, industrial design, trademark owned by Customer (including all improvements, derivative works, adaptation, suggestions, comments and observations made by either Party in respect of same) or other intellectual property or proprietary right recognized in Canada, (ii) Customer Data and (iii) Customer Confidential Information.
1.11. “deliverables” means deliverables provided by REEL IN MOTION as part of the Professional Services.
1.12. “Discloser” has the meaning set out in Section 12.1.
1.13. “Documentation” has the meaning set out in Section 4.4.
1.14. “End Users” means the individuals that will be granted access to and/or whose End User Information will be managed by Reel in Motion.
1.15. “End User Data” means the identify data for an End User that is used for the purpose of providing single sign-on, managing passwords or certifying user access.
1.16. “License Type” has the meaning set forth in Section 4.2.
1.17. “Order Form” means the online order form, check-out interface or any related documents for ordering Subscriptions, Support Services, and Professional Services referencing this agreement, which may include a statement of work describing any specific Professional Services to be provided to the Customer and the particulars thereof.
1.18. “Professional Services” means services other than Subscription(s) that REEL IN MOTION performs or provides, including the development and delivery of Deliverables, specified on an applicable Order Form. Professional Services are purchased by Customer on a project basis.
1.19. “Recipient” has the meaning set out in Section 12.1.
1.20. “REEL IN MOTION Intellectual Property” means (i) any copyright, patent, trade secret, industrial design, trademark owned by REEL IN MOTION (including all improvements, derivative works, adaptation, suggestions, comments and observations made by either Party in respect of same) or other intellectual property or proprietary right recognized in Canada or the United States, (ii) REEL IN MOTION Methodologies, (iii) REEL IN MOTION’s Confidential Information and (iv) the Reel in Motion.
1.21. “REEL IN MOTION Methodologies” means any methods, processes, knowledge, know- how or expertise, as well as any related data processes, business rules, models or algorithms, of REEL IN MOTION.
1.22. “Services” means the Subscription Services, Support Services and Professional Services, collectively.
1.23. “Software” means the object code version of any software to which Customer is provided access as part of the Services, including any updates or new versions as granted by REEL IN MOTION in its sole discretion. Tor#: 10385261.13
1.24. “Subscription Term” means the initial subscription term for Reel in Motion, as specified in the applicable Order Form, together with all subsequent renewals thereof.
1.25. “Statement of Work” or “SOW” specifies the Professional Services to be performed or provided by REEL IN MOTION.
1.26. “Subscription Services” means the subscription of Reel in Motion as set forth in an Order Form. Subscriptions are purchased by Customer for the period of time and subject to such other specifications as set out in the Order Form.
1.27. “Support Services” means any support services purchased by Customer and as set forth in an Order Form.
1.28. “Trial Period” has the meaning set out in Section 5.1.
1.29. “Trial Product” has the meaning set out in Section 5.1.
1.30. “Third Party Components” has the meaning set out in Section 4.6. Capitalized terms not listed above have the meaning set forth in the Agreement. Other definitions provided elsewhere in the Agreement.

ARTICLE 2

GENERAL TERMS

2.1. Any access and use rights granted to the Services by REEL IN MOTION are expressly conditioned upon Customer’s compliance with the terms of this Agreement. Customer may order Services through one or more Order Forms issued by Customer and accepted by REEL IN MOTION. The provisions of this Agreement will apply to all such Order Forms whether or not this Agreement is referenced in the Order Form.
2.2. Customer is responsible for creating and maintaining Authorized User accounts and for all use under such accounts, and for ensuring that those accounts are protected with passwords to prevent unauthorized use.
2.3. Each Party shall appoint a contact person for each Order Form, as specified in such Order Form, who will be the other Party’s principal contact to resolve issues related to the applicable Services. Either Party may change its contact person by providing notice thereof to the other Party. Customer shall designate one person to be responsible for administering its account and all its Authorized Users (such person, the “Account Administrator”).
2.4. If a Customer Affiliate desires additional Services, such Customer Affiliate may purchase additional Services by entering into an Order Form pursuant to the terms of this Agreement with REEL IN MOTION for the Services. In such event, Customer’s Affiliate shall be bound by all of the terms and conditions applicable to Customer under this Agreement and any Order Form and entitled to all rights and protections afforded Customer under this Agreement and any Order Form. Any such Affiliate of Customer may execute an Order Form directly. In this Agreement, the term “Affiliate” shall mean all entities controlling, controlled by or under common control with Customer, as the case may be. If any Order Form is executed by an Affiliate of Customer as aforesaid, a default by such Affiliate thereunder shall constitute a default by Customer hereunder. Tor#: 10385261.14
2.5. REEL IN MOTION may update or change this Agreement from time to time and recommends that Customer reviews the Agreement on a regular basis. Customer understands and agrees that its continued use of the Services after the Agreement has changed constitutes its acceptance of the Agreement as revised.
2.6. REEL IN MOTION will use commercially reasonable efforts to ensure that the Subscription Services will be available, excluding when the Subscription Services are unavailable due to (a) required system maintenance as determined by REEL IN MOTION and (b) causes outside of the reasonable control of REEL IN MOTION that could not have been avoided by its exercise of due care, including any outages caused by: (i) the Internet in general; (ii) a Customer-caused event; (iii) any Force Majeure Event or (iv) any third-party service providers or hosting services.

ARTICLE 3

USE OF THE SUBSCRIPTION SERVICES

3.1. Customer’s use of Reel in Motion shall be subject to the terms and conditions of this Agreement and the licenses from third party licensors, if applicable.
3.2. As between REEL IN MOTION and Customer, the REEL IN MOTION Methodologies, Reel in Motion and supporting materials, and all worldwide intellectual property rights therein, are the sole and exclusive property of REEL IN MOTION and, if applicable, its licensors. Customer shall have no right or interest in or to the Software, Reel in Motion or rights to use the REEL IN MOTION Methodologies, except as provided in this Agreement. Customer acknowledges that it is being provided a grant to access and use to Reel in Motion on a subscription basis. The REEL IN MOTION Methodologies and Reel in Motion contain Confidential Information (as defined herein) of REEL IN MOTION, and Customer agrees to keep the REEL IN MOTION Methodologies and Reel in Motion in confidence and to take all reasonable precautions to ensure that no unauthorized persons (including REEL IN MOTION competitors) have access to the REEL IN MOTION Methodologies and Reel in Motion.
3.3. As long as Customer is not in default of any of the terms or conditions of this Agreement, Customer may access and use the REEL IN MOTION Methodologies and Reel in Motion as provided herein. Such access and use shall be restricted to the limitations designated on the applicable Order Form.

ARTICLE 4

PLATFORM: GRANT; ACCESS RIGHTS

4.1. Upon the terms and subject to the conditions in this Agreement, REEL IN MOTION hereby grants to Customer a non-exclusive, non-transferable (except pursuant to the Assignment Section), non-sublicensable, limited right to access and use Reel in Motion solely within (a) the restrictions set forth in this Agreement, (b) the limitations and applicable Subscription Term(s), each as set forth in the applicable Order Form, and (c) the use defined herein that Customer subscribed to from, and is granted by, REEL IN MOTION. Access and use of Reel in Motion shall be limited to the Authorized User(s) and the number of End Users listed in the applicable Order Form, as applicable. Customer shall not make Reel in Motion available to any other person other than End Users.
4.2. The Order Form will indicate the license type (“License Type”). Your License Type will determine additional features and restrictions Customer has, as described in the applicable Order Form. Tor#: 10385261.15
4.3. Upon the terms and subject to the conditions in this Agreement, REEL IN MOTION hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited license to use the REEL IN MOTION Methodologies and the Documentation (as defined below) during the Term solely for Customer’s internal business purposes in connection with its access and use of Reel in Motion, and subject to any other limitations set out in the applicable Order Form.
4.4. Except as otherwise permitted herein, Customer agrees: (i) to access and use the Software only as part of Reel in Motion for bona fide Customer projects; (ii) to access and use Reel in Motion only for business use as may be further defined in the Order Form and subject to any additional restrictions specified in the Order Form, and not for providing services that are similar to or competitive with Reel in Motion or the Professional Services; (iii) not to reproduce, modify or attempt to modify Reel in Motion or any component thereof; (iv) to preserve all copyright and trade secret notices in Reel in Motion and documentation provided with Reel in Motion that REEL IN MOTION makes available, generally, to subscribers (“Documentation”); (v) not to disclose the REEL IN MOTION Methodologies, the Software or Documentation to any third parties; (vi) not to permit parties other than its Authorized Users and End Users to access Reel in Motion; (vii) not to attempt to decompile, disassemble, decode, adapt, reverse engineer or otherwise attempt to derive or gain access to any software component of Reel in Motion in any respect; (viii) not to rent, lease, distribute, sell, or create derivative works of Reel in Motion; (ix) not use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties; (x) not to use the REEL IN MOTION Methodologies or Reel in Motion in order to develop a competing offering to Reel in Motion or the Professional Services, as applicable, (xi) tamper with the security of Reel in Motion. Customer acknowledges that it is responsible for all acts and omissions of its Authorized Users and End Users and the security of all access credentials for Reel in Motion.
4.5. Notwithstanding anything to the contrary in this Agreement, REEL IN MOTION may, in its reasonable discretion, terminate or suspend Customer’s, any Authorized User’s or any End User’s access to all or any portion of Reel in Motion if: (i) REEL IN MOTION reasonably determines that (A) there is a threat to, or attack on, any of the REEL IN MOTION Intellectual Property; (B) Customer’s, any Authorized User’s or any End User’s use of the REEL IN MOTION Intellectual Property disrupts or poses a security risk to the REEL IN MOTION Intellectual Property or to any other customer or vendor of REEL IN MOTION; (C) Customer, any Authorized User or any End User is using the REEL IN MOTION intellectual property for fraudulent or illegal activities, or in contravention of the terms of this Agreement; (D) subject to Applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) REEL IN MOTION’s provision of Reel in Motion to Customer, any Authorized User or any End User is prohibited by Applicable Law or (ii) any vendor of REEL IN MOTION has suspended or terminated REEL IN MOTION’s access to or use of any third-party services or products required to enable Customer to access Reel in Motion. Where REEL IN MOTION chooses to suspend such access upon the events listed in (A) to (E) (any such suspension, an “Reel in Motion Suspension”). REEL IN MOTION shall use commercially reasonable efforts to provide written notice of any Reel in Motion Suspension to Customer and to provide updates regarding resumption of access, in REEL IN MOTION’s sole discretion, to Reel in Motion following any Reel in Motion Suspension. REEL IN MOTION shall use commercially reasonable efforts to resume providing access to Reel in Motion as soon as reasonably possible after the event giving rise to Reel in Motion Suspension is cured. REEL IN MOTION will have no liability for any damage, liabilities, losses (including any loss of data or profits, or interruption of service), or any other consequences that Customer, any Authorized User or any End User may incur as a result of any such termination or suspension. Tor#: 10385261.16
4.6. Reel in Motion may contain or otherwise make use of software, code, content, data, documentation, or other materials, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components and Customer agrees to be bound by, and shall comply with, the provisions of such license terms. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the license terms that accompany any Third Party Components.

ARTICLE 5

BETA VERSIONS; TRIAL LICENSES

5.1. If REEL IN MOTION provides Customer with a trial or evaluation license to Reel in Motion (the “Trial Products”), Customer agrees to use the Trial Products solely for evaluation purposes, for a thirty (30) day evaluation period unless a different period is otherwise agreed to in writing by REEL IN MOTION(the “Trial Period”). If Customer desires to continue its use of the Trial Products beyond the Trial Period, Customer shall contact REEL IN MOTION to acquire a license to, or subscription for, the Trial Products for the applicable fee.
5.2. If REEL IN MOTION and Customer mutually agree in writing, Customer may receive beta, preview or other pre-release versions of software or features from REEL IN MOTION (“Beta Versions”). Beta Versions may not have been tested or debugged and are experimental, and any documentation may be in draft form. REEL IN MOTION may change or discontinue Beta Versions at any time without notice.
5.3. IN ADDITION TO ANY DISCLAIMERS IN SECTION 12.7, ANY TRIAL PRODUCTS AND BETA VERSIONS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. REEL IN MOTION SHALL NOT HAVE ANY LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS OR BETA VERSIONS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY. REEL IN MOTION does not provide support or maintenance for Trial Products or Beta Versions. REEL IN MOTION disclaims all warranties, indemnities, and all other liabilities for Trial Products and Beta Use. Trial Products and Beta Versions may be subject to reduced or different security, compliance and privacy commitments. The following Sections of this Agreement shall not apply to Trial Products or Beta Versions: 7.1, 7.2, 12.3. 12.6, and 16.1.

ARTICLE 6

LICENSES TO DELIVERABLES; SERVICE RESTRICTIONS

6.1. Effective upon the Parties’ execution of an applicable Order Form that identifies the delivery of Professional Services, REEL IN MOTION hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to the Assignment section below), revocable, worldwide license to use the Deliverables, as applicable, for Customer’s internal business purposes.
6.2. Notwithstanding anything herein to the contrary, Customer shall not: (a) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit or violates this Agreement or an Order Form; (b) access or use any of REEL IN MOTION’s Intellectual Property except as provided herein; (c) reverse engineer, interfere with, or disrupt the integrity or performance of the Services; (d) perform vulnerability tests, network scans, penetration tests, or other investigative techniques on REEL IN MOTION Services (e) if Customer is an academic institution purchasing an academic license, permit use of the Services by individuals other than students, staff, or faculty of Tor#: 10385261.17 Customer, or use the Services for other than academic or research purposes (e.g., Customer shall not use the Services for commercial purposes, including on behalf of other entities for compensation); (f) use the Services in violation of Applicable Law; or (g) use the Services to (1) send irrelevant or inappropriate messages to third parties (e.g., “spam”), (2) upload, send, or store malicious code, including software or content that condones, contains, or links to warez, cracks, hacks, their associated utilities, or other piracy-related information, whether for educational purposes or not, (3) collect sensitive personal information, (4) upload binary files or executable code, or (5) upload content that (A) infringes, misappropriates, or otherwise violates any third party’s intellectual property right, (B) aggravates, harasses, threatens, defames, or abuses REEL IN MOTION or third parties (including content that is racist or otherwise extremely offensive to others), (C) contains or contains links to nudity, pornography, obscene content, sex, profanity, or foul language (except in pursuit of valid research purposes), (D) exploits images of children under 18 years of age, or (E) contains links to third-party services.

ARTICLE 7

SUPPORT AND MAINTENANCE

7.1. During the term of the applicable Order Form (the “Order Term”) and on the condition that Customer has paid all fees due and owing to REEL IN MOTION and is otherwise in material compliance with the terms of this Agreement, REEL IN MOTION shall provide the support and maintenance services to Customer set forth in Section 7.2.
7.2. REEL IN MOTION shall comply with the service levels and make reasonable, good faith efforts to correct errors, as outlined in Exhibit B. Customer shall provide REEL IN MOTION with information as REEL IN MOTION reasonably requests to enable REEL IN MOTION to verify and reproduce the reported error. Certain REEL IN MOTION employees or contractors may need to access Customer Data (as defined below) to provide the Services. Customer hereby consents to such access where necessary to provide the Services, which access may include downloading a copy of Customer Data so long as necessary and thereafter deleting such copy. Online support materials for the Subscription Services will be included with the Subscription Services.

ARTICLE 8

FEES

8.1. Customer shall pay to REEL IN MOTION the fees as specified in the Order Form provided by REEL IN MOTION. The fees payable in consideration for access to, and use of, the Subscription Services and Support Services shall be due and payable as set out in the Order Form (“Subscription Fees”). Subscription Fees shall be payable in the currency specified in the Order Form. The Subscription Fee may be changed by REEL IN MOTION, at the start of any renewal Subscription Term. Customer may upgrade its subscription plan level, increase its number of Authorized Users or add ancillary services effective at any time during a Subscription Term, and any incremental Subscription Fees associated with such upgrade or increase will be charged on a prorated basis for the then remaining Subscription Term. Upon renewal, Customer’s Subscription Fees will reflect any such upgrades and any increases contemplated herein.
8.2. Customer shall also be responsible for paying all taxes applicable with respect to the transactions contemplated by this Agreement, except taxes based on REEL IN MOTION’s net income. In addition to REEL IN MOTION’s termination rights set forth above, REEL IN MOTION may suspend access to Reel in Motion and its performance under this and any other agreement with Customer if Customer fails to comply with any part of its payment obligation. Tor#: 10385261.18
8.3. Customer shall reimburse REEL IN MOTION for all reasonable costs incurred by REEL IN MOTION in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and, if such failure continues for sixty (60) days or more, REEL IN MOTION may suspend Customer’s and its Authorized Users’ access to any portion or all of the System until such amounts are paid in full.

ARTICLE 9

OWNERSHIP OF INTELLECTUAL PROPERTY

9.1. Customer is the exclusive owner of all Customer Intellectual Property and any Deliverables unless otherwise expressed in the applicable Order Form. REEL IN MOTION agrees that it shall not use or incorporate Customer Intellectual Property (and all tangible and intangible embodiments or derivative works thereof) into any of REEL IN MOTION’s other products or services except as expressly permitted in Section 9.2.
9.2. As between the Parties, REEL IN MOTION exclusively owns all right, title, and interest in and to Reel in Motion, the Deliverables subject to Section 9.1, and in all copies, improvements, enhancements, modifications, and derivative works of such Reel in Motion and Deliverables including, without limitation, all rights to patent, copyright, trade secret, and trademark, except and to the extent such improvements, enhancements, modifications, or derivative works use, reference, or incorporate Customer Intellectual Property. REEL IN MOTION’s logo and the product names associated with the Services are trademarks of REEL IN MOTION (or its licensors, where applicable) and no right or license is granted to Customer to use them.
9.3. If Customer or any of its employees, consultants, contractors, or agents sends or transmits any communications or materials to REEL IN MOTION by mail, email, telephone, or otherwise, suggesting or recommending changes to the REEL IN MOTION intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), REEL IN MOTION is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to REEL IN MOTION on Customer’s behalf, and on behalf of its employees, consultants, contractors and/or agents, all right, title, and interest in, and REEL IN MOTION is free to use, without any attribution or compensation to any Party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although REEL IN MOTION is not required to use any Feedback.
9.4. Except to the limited extent required for Customer to access and use Reel in Motion pursuant to the express grants in Sections 4.1,4.2, 5.1, and 5.2 and use the Deliverable pursuant to Section 6.1, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any of REEL IN MOTION’s existing or future intellectual property. All rights not expressly granted by REEL IN MOTION under this Agreement are reserved by REEL IN MOTION.

ARTICLE 10

CUSTOMER DATA

10.1. Customer acknowledges that REEL IN MOTION must have access to and use of Customer Data for Reel in Motion to function as documented, subject to the following terms: (a) Tor#: 10385261.1 Customer Data: For purposes hereof, “Customer Data” shall mean all data or other information in any medium submitted to Reel in Motion by or on behalf of9 Customer. As between REEL IN MOTION and Customer, all Customer Data shall remain the sole property of Customer. (b)Privacy Policy. Data The Privacy Policy set forth at www.reelinmotion.com/ privacy-policy/ is incorporated by reference in to this Agreement. (c)Subscription Use: Customer grants to REEL IN MOTION a non-exclusive, royalty-free, license to use, modify, copy, process, display and prepare derivative works of the Customer Data for purposes of REEL IN MOTION performing its obligations under this Agreement and improving the Services. (d)Aggregate Data Use: REEL IN MOTION may create aggregated data or insights from Customer Data that does not identify Customer, any site or any aspect of the operations of Customer, and any site. Such aggregate-level data may include data analysis across multiple REEL IN MOTION customers and may be used for any lawful purposes, to develop benchmarks, measures and standards for the benefit of other REEL IN MOTION customers or publication in REEL IN MOTION reports. Upon creation, as between REEL IN MOTION and Customer, REEL IN MOTION shall own all right, title and interest in and to all such aggregated data or insights. (e)End User Data. End User Data shall be processed in accordance with the Privacy Policy.
10.2. Customer shall ensure that its connection to, and access and use of, Reel in Motion and the Maintenance Services, including, without limitation, the medium containing any data or other information provided to Reel in Motion, including Customer Data, (i) does not include, and (ii) that any method of transmitting such Customer Data will not introduce, any program, routine, subroutine, or data (including without limitation malicious software or malware, viruses, worms, and “trojan horses”) which may disrupt the proper operation of Reel in Motion or any part thereof or any hardware or software used by REEL IN MOTION in connection therewith, or which, upon the occurrence of any event, the passage of time, or the taking of or failure to take any action, will cause Reel in Motion or any part thereof to be destroyed, damaged or rendered inoperable. Further, until such time as the applicable Customer Data is transmitted to, or accessed or received by REEL IN MOTION in an approved format, Customer shall be responsible for all Customer Data submitted to Reel in Motion.
10.3. Either Party shall, without undue delay after discovery thereof, notify the other Party of: (a) any loss, unauthorized disclosure, or unauthorized use of data; or (b) any access, acquisition or misappropriation of data by third parties; or (c) any other disclosure of data in violation of this Agreement (collectively, “Security Breach”). In the event of a Security Breach, each Party shall take such steps as are necessary to: (1) promptly mitigate the effects of such Security Breach and prevent a recurrence thereof; and (2) comply with Applicable Laws relating to such Security Breach.

ARTICLE 11

TERM AND TERMINATION

11.1. The term of this Agreement will commence upon the Effective Date and shall remain in effect until terminated in accordance with Section 11.2 and 11.3 below. The term of each Reel in Motion subscription for which Customer has subscribed shall commence upon the first day on which REEL IN MOTION provides access to Reel in Motion in a production environment to Customer pursuant to the applicable Order Form (each, a “Go-Live Date”) and shall continue for the initial Subscription Term set forth in the Order Form, and subject to Tor#: 10385261.110 successive automatic renewal periods, including renewal conditions, as set forth in the Order Form.
11.2. Termination; Changes (a)Either Party may immediately terminate this Agreement or any Order Form for cause upon notice if the other Party: (a) materially breaches this Agreement and such breach is not cured within 30 days after the breaching Party receives notice thereof from the other Party (or 10 days in the case of payment breach); (b) becomes insolvent, acknowledges insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy; or (c) Parties fail to agree to fees payable by Customer under Section 11.3. (b)REEL IN MOTION may terminate this Agreement or any Order Form at any time for any reason or no reason by providing the Customer advance written notice thereof. (c)REEL IN MOTION reserves the right to modify, suspend or stop the Services (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to Customer. Without limiting the foregoing, REEL IN MOTION may provide notice of any such changes to the Services by posting them on its websites and/or via the Services. Customer agrees that REEL IN MOTION shall not be liable to Customer or any third party for any modification or cessation of the Services. Customer acknowledges that REEL IN MOTION has no express or implied obligation to provide, or continue to provide, the Services, or any part thereof, now or in the future.
11.3. Except as otherwise specified, obligations for Professional Services expire automatically upon (a) fulfillment of the last milestone as stated in the applicable Order Form; (b) the termination of the applicable Order Form in accordance with the terms thereof; or (c) the termination or expiration of Customer’s Subscription Services.
11.4. Following any termination of this Agreement or an Order Form, REEL IN MOTION shall discontinue providing the applicable Services, and Customer shall cease using such Services. Within 30 days after the end of the Subscription Term or termination of this Agreement or an Order Form, (a) Customer shall pay to REEL IN MOTION all outstanding fees payable as of the effective date of termination, and (b) REEL IN MOTION shall refund any pro-rated unused fees prepaid by Customer if Customer terminates this Agreement for cause or pursuant to a Force Majeure Event (defined below). If this Agreement is terminated for cause, each Order Form in effect will also terminate.
11.5. Upon the termination of all Subscription Services, REEL IN MOTION shall delete Customer Data within thirty (30) days. Credentials issued to End-Users nor will encryption keys be impacted.
11.6. No cancellation, expiration, or termination will affect Customer’s obligation to pay all fees that may have become due before such cancellation, expiration or termination, or entitle Customer to any refund, subject to Section 11.4(b) and Section 12.4.
11.7. Each party’s obligation under Section 10.3, Section 11.5, Section 14, Section 15 to Section 16 will survive the termination of this Agreement for a period of two years. Each Tor#: 10385261.111 party’s obligations related to Confidential Information shall survive the termination of this Agreement as set out in Section 13.2.

ARTICLE 12

REPRESENTATIONS AND WARRANTIES

12.1. Each of Customer’s and REEL IN MOTION’s signatory to the Agreement and/or Order Form, as the case may be, represents and warrants that he or she has the power and full and legal authority to accept and bind Customer and REEL IN MOTION, as the case may be, to the terms of this Agreement. Each Party shall comply with Applicable Laws.
12.2. Customer represents and warrants that (i) it has obtained all necessary rights, releases, consents and permissions to provide all Customer Data to REEL IN MOTION and to grant the rights granted to REEL IN MOTION in this Agreement and (ii) Customer Data and its transfer to and use by REEL IN MOTION as authorized by Customer under this Agreement do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.
12.3. REEL IN MOTION warrants that Reel in Motion will perform substantially in accordance with the specifications set forth in the Documentation during the Subscription Term. REEL IN MOTION does not make any representations or guarantees regarding uptime or availability of Reel in Motion unless specifically identified in Exhibit B. In the event of a breach of this warranty for Reel in Motion sole obligation and Customer’s exclusive remedy, shall be, at REEL IN MOTION’s option, correction of the substantial nonconformity within a reasonable time, or termination of this Agreement and payment to Customer of a refund to the extent specified in the Order Form.
12.4. REEL IN MOTION its suppliers and licensors provide no warranty or remedy for any Third Party Component; such Third Party Components are provided “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS,” and to the fullest extent permitted by law, without warranty of any kind.
12.5. The above warranty is made subject to Customer’s proper use of Reel in Motion for the purpose Reel in Motion was intended. The warranty does not cover any part of Reel in Motion which: (i) has been misused, subject to unauthorized use, or modified by a party other than REEL IN MOTION; or (ii) has a defect which resulted from acts or omissions of persons other than REEL IN MOTION or from products, material, or software not provided by REEL IN MOTION.
12.6. REEL IN MOTION warrants that the Professional Services and Support will be performed to the standard of a reasonable worker consistent with generally accepted industry standards. The sole obligation of REEL IN MOTION, and Customer’s exclusive remedy, with respect to this warranty is to re-perform any non-conforming Services or, at REEL IN MOTION’s sole option, to refund the fees for the applicable non-conforming Services.
12.7. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, REEL IN MOTION MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO T H E P L AT F O R M , S O F T W A R E , D E L I V E R A B L E , R E E L I N M O T I O N METHODOLOGIES, THIRD PARTY COMPONENTS, OR ANY SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A Tor#: 10385261.112 PARTICULAR PURPOSE OR USE, TITLE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.3, REEL IN MOTION MAKES NO WARRANTY OF ANY KIND THAT THE REEL IN MOTION METHODOLOGIES, INTELLECTUAL PROPERTY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY REEL IN MOTION OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY HEREIN.

ARTICLE 13

CONFIDENTIAL INFORMATION

13.1. For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” “Confidential Information” means all information concerning each Party’s business including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, training methodologies, data, designs, and know-how; (d) business information, including methodologies, operations, planning, marketing interests, and products; and (e) the terms of any agreement between REEL IN MOTION and Customer and the discussions, negotiations and proposals related to that agreement. For greater certainty, Customer acknowledges that Reel in Motion Methodologies and Documentation are Confidential Information and contain trade secrets of REEL IN MOTION. “Residuals” means information that is retained in the unaided memories of Recipient’s employees, agents, or contractors as permitted herein who have had access to the Discloser’s Confidential Information. Memory is unaided if the employee or contractor has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
13.2. Unless clearly intended to be confidential or generally considered to be confidential in the applicable industry, Confidential Information disclosed to the other party must be clearly identified. Written Confidential Information must be clearly marked in a conspicuous place with an appropriate legend identifying the information as confidential. The Recipient does not have an obligation to protect Confidential Information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient. If Confidential Information is required to be produced by law, court order, or governmental authority, the Recipient must immediately notify the Discloser of that obligation. The Recipient will use the Confidential Information to perform its obligations hereunder. Confidential Information may not be disclosed to any third party without the written consent of the Discloser. At the Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to the Discloser or destroyed by the Recipient. At the request of the Discloser, the Recipient will certifying in writing that any Confidential Information not returned to the Discloser has been destroyed. The Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that this right to Residuals does not represent a license under Tor#: 10385261.113 any intellectual property and/or proprietary rights of disclosing party. The obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.
13.3. Because money damages may not be a sufficient remedy for any breach of the obligations in this Section 13, REEL IN MOTION is entitled to seek specific injunctive relief as a remedy for any such breach.

ARTICLE 14

LIMITATION OF LIABILITY

14.1. NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST DATA, OR LOSS OF SERVICE, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTIONS 15 AND 16 BELOW, (II) EACH PARTY’S RECKLESS OR WILLFUL MISCONDUCT, GROSS NEGLIGENCE AND/OR FRAUD, AND (III) CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO REEL IN MOTION DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM; AND CUSTOMER ACKNOWLEDGES THAT THE ABOVE REFERENCED FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT REEL IN MOTION WOULD NOT ENTER INTO THIS AGREEMENT ON THE TERMS HEREOF WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
14.3. Customer understands that the results obtained from Customer’s use of, or access to, Reel in Motion are solely dependent on Customer’s inputs into, and appropriate operation of, Reel in Motion by Customer. Customer agrees to thoroughly test and verify the results obtained from its use of, or access to, Reel in Motion. Customer acknowledges that REEL IN MOTION shall have no liability to Customer or any third parties arising or based on Customer’s use of, or access to, the Services, including but not limited to any claims, suits, actions or proceedings (i) related to any activity for which Customer elects to use the Services, (ii) any content submitted by Customer to the Services, or (iii) arising from Customer’s use of results generated from Customer’s use of the Services (collectively, “Third Party Claims”). It is intended that all claims, liabilities, damages, costs and expenses, including, without limitation, attorneys’ fees (collectively, “Damages”), relating to or arising out of any Third Party Claim, the Services or their use has resulted in personal injury shall be covered by insurance carried by the Customer.
14.4. Customer acknowledges and agrees that the Services are offered as-is with no warranty or guarantee of use or suitability for any application. The Services are limited to the features described in the accompanying written documentation. Customer acknowledges and agrees to exercise its own independent judgment to confirm the suitability of the Services for particular application or use which may include making or obtaining an Tor#: 10385261.114 assessment regarding the suitability or performance of the Services or intended application or use, including to assess information security, data governance, functionality, software architecture and implementation. Customer assumes and accepts all risks related to the use of the Services and any use of the same.

ARTICLE 15

CUSTOMER INDEMNIFICATION OF REEL IN MOTION

15.1. Customer shall, at its own expense, indemnify, hold harmless and defend REEL IN MOTION and its affiliates, and their respective employees, directors, officers, and agents, from and against any Third Party Claims and any Damages or costs (including reasonable attorney’s fees) incurred by REEL IN MOTION in defending itself against any such Third Party Claims. REEL IN MOTION agrees to give Customer prompt notice of any such Third Party Claims, cooperate with Customer in responding to such claims (at Customer’s expense), and permit Customer to control the defense or settlement of such Third Party Claims so far as such Third Party Claims may be compromised or settled without prejudice to any rights or interests of REEL IN MOTION including but not limited to an admission of fault on the part of REEL IN MOTION.

ARTICLE 16

REEL INMOTION INDEMNIFICATION OF CUSTOMER

16.1. REEL IN MOTION shall, at its own expense, indemnify, hold harmless, and defend any claims, suits, actions or proceedings brought against Customer based on any third party claim or allegation that Customer’s use of the Software or Deliverables, or any part thereof, constitutes infringement of any third party intellectual property rights; provided, that Customer gives REEL IN MOTION prompt notice of any such claims, cooperates with REEL IN MOTION in responding to such claims, and permits REEL IN MOTION to control the defense or settlement of such claims. If any assets or deliverable becomes or, in REEL IN MOTION’s opinion is likely to become, the subject of such an infringement claim or action, REEL IN MOTION may, at its option: (a) procure, at no cost to Customer, the right for Customer to continue using assets or deliverables; (b) replace or modify assets or deliverables to render it non-infringing, provided there is no material loss of functionality or (c) if, in REEL IN MOTION’s reasonable opinion, neither (a) nor (b) above is commercially feasible, terminate this Agreement and refund any prepaid fees to Customer. The foregoing states REEL IN MOTION’s sole obligation and Customer’s exclusive remedy in the event any such claim or action is commenced or is likely to be commenced. Notwithstanding the foregoing provisions of this Section 16 , REEL IN MOTION shall have no liability or obligation related to infringement claims arising in whole or in part from (1) designs, specifications, enhancements, or modifications not created by or for REEL IN MOTION; or (2) the combination of assets or deliverable or any part thereof with other equipment, software or products not supplied by REEL IN MOTION if such infringement would not have occurred but for such combination. THE FOREGOING SETS FORTH CUSTOMER’S SOLE REMEDIES AND REEL IN MOTION’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM OR ANY DELIVERABLE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

ARTICLE 17

GENERAL

17.1. This Agreement, any Order Form, and all claims arising out of or related thereto will be governed by the laws of Canada and the Province of Ontario, without reference to rules Tor#: 10385261.115 governing choice of law. Except for the right of either party to apply to any court for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute that arises between the Parties concerning this Agreement or any Order Form, forum and venue will be laid exclusively in the state and federal courts located nearest to Calgary, Alberta and such courts shall have exclusive jurisdiction over any dispute concerning this Agreement or any Order Form. The Parties hereby consent to the personal jurisdiction of such courts and expressly waive all defenses of lack of personal jurisdiction and forum non-conveniens and agree that process may be served on either Party in a manner authorized by Applicable Law or court rule. The Parties hereby expressly disclaim the application of the Uniform Computer Information Transaction Act and the United Nations Convention on the International Sale of Goods to this Agreement or any Order Form.
17.2. Neither Party shall be liable for any failure nor delay in performance under this Agreement or any Order Form, except for payments, to the extent said failures or delays are proximately caused by acts of God or other causes beyond that party’s reasonable control and occurring without its fault or negligence (including, without limitation, any pandemic, epidemic or outbreak) (“Force Majeure Event”). Strikes, lock-outs and other labor related disputes shall not be regarded as an event beyond a party’s reasonable control. The Parties will meet and confer in good faith to determine the best solution to limit the consequences of any force majeure event. Notwithstanding the foregoing, to the extent that a Party’s performance hereunder is delayed by a force majeure event for more than one (1) month, the other Party may immediately terminate this Agreement upon written notice to the Party whose performance is so delayed.
17.3. This Agreement, Privacy Policy, the attached Exhibits, and each Order Form executed hereunder, constitute the entire agreement between the Parties concerning the subject matter hereof and thereof and supersede all written or oral prior agreements or understandings with respect thereto, including any proposals, price quotes, click-wrap agreements, purchase order terms and conditions or non-disclosure agreements. All Exhibits and Order Forms are hereby incorporated into this Agreement as if set forth herein in full. If the terms of this Agreement conflict with the terms of any Exhibit, Order Form, or other document binding and applicable to the Parties, the terms of this Agreement control unless expressly stated otherwise. This Agreement or any Order Form may be executed by the Parties electronically and in counterparts, each of which shall be an original, and all of which together shall constitute one and the same instrument.
17.4. This Agreement, the attached Exhibits, and each Order Form have been prepared and written in English. Any non-English translation thereof is provided for convenience only and is not valid or legally binding.
17.5. The Parties intend this Agreement and each Order Form to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Unless the context requires otherwise, as used herein, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation,” (b) the word “or” is not exclusive, and (c) the words “herein,” “hereof,” “hereto,” “hereunder,” and similar words refer to this Agreement as a whole.
17.6. Upon execution of this Agreement, REEL IN MOTION may identify Customer as a customer of REEL IN MOTION on its website as well as within any written and/or electronic marketing material relating to REEL IN MOTION’s products and/or services. Customer shall not publish or disclose to any third party any opinions relating to, or test Tor#: 10385261.116 results, benchmarking or comparative study involving Reel in Motion without the prior written consent of REEL IN MOTION.
17.7. If any one or more of the provisions of this Agreement or any Order Form is held invalid, illegal, or unenforceable, such invalid, illegal, or unenforceable provision will be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained herein or therein will not in any way be affected or impaired.
17.8. Neither Party’s failure to enforce strict performance of any provision of this Agreement or any Order Form will constitute a waiver of a right to subsequently enforce such a provision. No written waiver will constitute, or be construed as, a waiver of any other obligation or condition of this Agreement or any Order Form.
17.9. REEL IN MOTION may assign this Agreement or any Order Form, by operation of law or otherwise, upon reasonable notice to Customer. Customer may assign this Agreement or any Order Form, by operation of law or otherwise, with the prior written consent (not to be unreasonably withheld or delayed) of REEL IN MOTION.
17.10. Neither this Agreement nor any Order Form will be construed to create an agency, franchise, representative, joint venture, employment relationship, or partnership between the Parties. The Parties are and remain independent contractors. Neither Party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other.
17.11. Except as expressly set forth herein or in any Order Form, the rights and remedies provided hereunder are cumulative and are in addition to and not in substitution for any other rights and remedies available at law, in equity or otherwise.
17.12. Each Party shall cause all notices it delivers to the other Party hereunder and under each Order Form to be in writing and sent (a) by a delivery service with provisions for a receipt, to the physical address listed on the signature page hereto; or (b) by email to support@reelinmotion.com for notices going to REEL IN MOTION, or to the email address listed for Customer in the applicable Order Form for notices going to Customer. Except as otherwise provided herein, any notice or other communication is effective only (1) upon receipt (or rejection) by the receiving Party and (2) if the Party giving notice has complied with the requirements of this Section.
17.13. Except as otherwise set forth herein, this Agreement is for the sole benefit of the Parties and their permitted successors and assigns, and nothing herein is intended to or should confer upon any other individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.