Terms & Conditions

1 Definitions. For the purposes of these Terms and Conditions (the “Conditions”), the following words have the following meanings:

1.1 “Affiliate” means a Party’s directors, officers, employees, shareholders, agents, independent contractors or other entity that has a material interest in a Party;

1.2 “Panevo” means Panevo Services Limited and Panevo Energy Limited, corporations incorporated pursuant to the laws of British Columbia, with a registered office at 1383 W 8th Ave, Vancouver, BC, V6H 3W4, Canada;

1.3 “Client” means the Party or Parties (either directly or through a nominee authorized to act on behalf of the Party or Parties) entering into the Contract with Panevo;

1.4 “Confidential Information” means all information exchanged by the Parties, including the fact that discussions are taking place, and including all information which relates to the business, affairs, properties, assets, trading practices, Services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either Party, and includes Client Data as defined below.

1.5 “Contract” means the Proposal issued by Panevo to the Client, the Conditions and any attached schedules and appendices, as either may be modified in writing by Panevo and the Client under Condition 19;

1.6 “Default” means any breach of the obligations of either Party or any default, act, omission, negligence or statement of either Party, its employees, contractors, agents or sub-contractors in connection with or in relation to the subject matter of this Contract and in respect of which such Party is liable to the other;

1.7 “Force Majeure” has the meaning set out in Condition 7;

1.8 “Intellectual Property Rights” means patents, inventions, trademarks, service marks, logos, design rights (whether registerable or not), applications for any of the above rights, copyright, Software, database rights, domain names, source codes, know how, trade or business names, moral rights or other similar rights or obligations whether registerable or not in any country including but not limited to Canada;

1.9 “Law” means any applicable Law, statute, bylaw, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body;

1.10 “Month” means calendar month;

1.11 “Party” means Panevo or the Client, as indicated by context; “Parties” means Panevo and the Client;

1.12 “Price” means the price exclusive of taxes, payable by the Client to Panevo as set out in the Proposal for the performance of the Services and its obligations under this Contract;

1.13 “Project” means the tasks stated in the Proposal and all additional tasks performed by Panevo in connection with Services;

1.14 “Proposal” means the document(s) issued by Panevo to Client, including any assumptions, conditions and limitations relating to the Project, in which Panevo describes, and offers to perform Services;

1.15 “Services” means any work performed or to be performed by Panevo for the Client under the Contract, and may include supply of or access to Software as part of an automatically-renewing subscription, as set out in the Proposal;

1.16 “Site” means any site(s) upon which Services may be conducted or in relation to which Services may be performed and;

1.17 “Subscription Period” means the length of time covered by a Software subscription, as described in the Proposal. At the expiration of the Subscription Period the Software subscription Services will automatically renew for an additional time period of the same length, unless the Contract is terminated as described herein.

1.18 “GST” means general sales tax, or any similar tax imposed on or in relation to the supply of goods and or services.

1.19 “Software” means Panevo’s ioTORQ Software as a Service.

1.20 “Authorized Users” means Client’s employees, consultants, contractors, agents, suppliers, or other third parties who are authorized by the Client to access and use the Software and who have been supplied access credentials for such purpose.

1.21 “Third Party Offerings” means computer programs, applications, services or hardware, including but not limited to production data systems or data gateways, that are not part of the Software, but that instead interoperate or integrate with the Software.

1.22 “Client Data” means all of Client’s representation of information encoded in a format that allows it to be processed by computer, stored, processed, transmitted, and displayed by the Software.

1.23 “Documentation” means any set of written or electronic documents, images, video, text, or sounds specifying the functionalities of the Software or Service provided or made available by Panevo to the Client in the applicable Software help center(s), which may be unilaterally supplemented or otherwise modified by Panevo from time to time, and excluding any documentation in “community moderated” forums or knowledge base(s).

2 Interpretation. Words in the singular also include the plural and vice versa. Clause headings are for convenience only and shall not limit the meaning or construction of the Conditions. Any reference to a Clause means a clause of the Conditions. Any reference to a specific item as included within a general category shall not exclude items of a broader or similar nature, unless otherwise expressly stated. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a party includes its personal representatives, successors or permitted assigns. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or reenacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. A reference to writing or written includes faxes and e-mails.

3 Proposal and Acceptance. This Proposal constitutes an offer by Panevo to provide Services in accordance with these Conditions. The Proposal is firm for a period of thirty days from the Proposal date, or such other period stated in the Proposal, after which Panevo may withdraw or modify the Proposal. The Contract shall come into existence on the date the Client issues a written acceptance of this Proposal. In the absence of such written acceptance, the Proposal shall be deemed to be accepted subject to these Conditions upon the Client knowingly accepting Panevo’s Services in accordance with the Proposal. Unless expressly provided in the Proposal the fees, costs and time schedules stated in the Proposal are Panevo’s estimated probable cost and time for the specified Services and are not a guaranteed maximum price for performing the Services. Panevo is not obliged to make any variation to the scope of works under the Proposal unless the Client requests the variation in writing and/or Panevo provides written or electronic confirmation of any change requested to the Services. Panevo will advise the Client if a material change to the nature, time, or extent of Services is required or advisable. Panevo reserves the right to subcontract or assign certain services to be performed by a third-party as outlined and agreed in the Proposal.

4 Standard of Care.

4.1 In performing the Services, Panevo shall exercise that degree of care and skill that is reasonably and ordinarily expected of an environmental consulting professional, performing services of a similar complexity and type as the Services at the same time and place.

4.2 Panevo shall use all reasonable endeavours to meet any performance dates specified in this Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

5 Right of Access to Client’s Premises. Where the Services are to be performed on the Client’s Premises, the Client shall grant Panevo reasonable access to the Site.

6 Invoices and Payment.

6.1 Except as otherwise specified in the Proposal, the Client must pay each invoice submitted by Panevo: (i) within thirty days of the invoice date; and (ii) in full and in cleared funds to a bank account set out by Panevo on the relevant invoice,

6.2 Time for payment shall be of the essence.

6.3 All fees quoted are exclusive of any taxes applicable to Panevo’s supply of the Services, which shall be added to the fees, at the applicable tax rate. Panevo may provide its invoices, these Conditions, contracts, and Proposals electronically to the Client. Unless the Parties agree otherwise, all payments by the Client to Panevo shall be made in Canadian Dollars.

6.4 The Client is not entitled to make any deduction or withhold any sum from the fees payable to Panevo by way of setoff. Notwithstanding any facts and circumstances surrounding the Contract, the Client must pay Panevo for Services rendered, regardless of whether Services are intended in whole or in part to benefit a third party and any assignment of the Contract must be in writing and executed by Panevo.

6.5 Unpaid balances are subject to interest at the rate of three percent (3%) per Month or the maximum amount permissible under applicable Law, whichever is less, starting thirty days from the invoice date. Payments received will be applied first to any accrued interest, with the balance of the payment then applied to any unpaid fees. If any invoice is not paid within thirty days of the invoice date, Panevo by giving 2 days written notice may suspend its supply of the Services without liability until all past due accounts (including fees and accrued interest) have been paid. The Client must reimburse Panevo for any collection and legal costs incurred by Panevo in legal proceedings instituted for recovery of legally enforceable debts owed by the Client to Panevo.

7 Force Majeure and Emergencies.

7.1 A “Force Majeure” shall mean an unforeseen event occurring prior to the completion of Services and causing interruption of the Services, so long as the event is beyond the reasonable control of either Party, such as fire, flood, earthquake, strike, riot, war, kidnapping, terrorism, threat of terrorism and any resulting security measures, act of God, changes in applicable Law or regulations of any governmental authority, or the presence of hazardous materials or waste of a nature or in locations, quantities, concentrations or conditions which could not reasonably have been expected by Panevo.

7.2 If a Force Majeure occurs, Panevo may discontinue or delay the Services, if necessary in Panevo’s reasonable opinion.

7.3 Either Party may terminate the Contract if the Services are delayed due to a Force Majeure event for 90 days or more.

7.4 If Panevo determines that the health or safety of its personnel or any subcontractor’s personnel or the environment or property of the Client or others is or may be at risk in performing a Project, such circumstances shall also constitute a Force Majeure and Panevo shall have the right to take whatever measures it deems necessary to prevent any threatened damage, injury or loss and recover the reasonable and actual costs of such measures from the Client.

8 Client Responsibilities.

8.1 The Client must ensure that the terms of the Proposal are complete and accurate. The Client must provide all reasonable assistance required by Panevo in connection with the Services, including any assistance specified in the Proposal. The Client must provide (or procure that third parties provide) Panevo with all information related to the Project in the Client’s possession, custody or control reasonably required by Panevo. Panevo is entitled to rely, without independent investigation or inquiry, on the accuracy and completeness of any information provided by, on behalf of or at the request of the Client or any governmental authority to Panevo or anyone providing services for Panevo relating to the Services. The Client must review all Proposals, designs, schematics, drawings, specifications, reports, and other required Project deliverables prepared by Panevo for the Client for the accuracy and completeness of factual information provided by or on behalf of the Client and must make available to Panevo any further information within the Client’s possession that may affect the accuracy or completeness of Panevo’s report.

8.2 If Panevo’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Client or failure by the Client to perform any relevant obligation (Client Default):

8.2.1 Panevo shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Panevo’s performance of any of its obligations;

8.2.2 Panevo shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Panevo’s failure or delay to perform any of its obligations as set out in the Contract; and

8.2.3 The Client shall reimburse Panevo on written demand for any costs or losses sustained or incurred by Panevo arising directly or indirectly from the Client Default.

9 Insurance. Panevo has and will maintain during the supply of the Services policies of insurance for the following types of coverage, along with the associated minimum aggregate limits of liability: (i) general liability equivalent to $5,000,000 Canadian Dollars; (ii) professional liability, errors and omissions equivalent to $2,000,000 Canadian Dollars; and (iii) cyber related liability equivalent to $1,000,000 Canadian Dollars.

10 Intellectual Property Rights. Other than to the extent expressly set out in the Proposal, Panevo retains ownership rights in all work products conceived, developed, or made by Panevo and its Affiliates in the performance of Services. Panevo grants the Client a nonexclusive, non-assignable, irrevocable, royalty-free license to use such work product for the purposes specified in or implied by the Proposal. Client acknowledges and agrees that Panevo retains all ownership rights in technical information, inventions, discoveries, improvements, and copyrightable material, made or conceived by Panevo prior to its commencing performance of Services or developed by Panevo outside the scope of Services. For clarity, Panevo owns and retains all rights, title, and interest in the Software and related trademarks, iterations, algorithms, and related methodologies, and owns and retains all Documentation.

11 Limitation of Liability.

11.1 To the extent permissible under applicable Law, in no event shall the Client and its Affiliates or Panevo and its Affiliates, be liable to the other or anyone claiming by, through or under them, including insurers, for any lost, delayed, or diminished profits, revenues, production, business, use or opportunities, or any incidental, special, indirect, or economic losses, wasted costs, diminution of value or consequential damages, of any kind or nature whatsoever, however caused.

11.2 To the extent permissible under applicable Law, the aggregate liability of Panevo and its Affiliates in connection with Services (whether under contract, tort including negligence or under any other Law) to Client and its Affiliates and/or anyone claiming through or under them, will not exceed the lower amount of either the Price, less any third-party costs incurred by Panevo, or $2,000,000 Canadian Dollars.

11.3 To the extent permitted by Law all implied warranties and conditions are excluded and no representation, warranty, condition, or other term express or implied as to the quality or nature of Services is given or accepted by Panevo other than as set out in Condition 4.

11.4 The provisions of this Clause 11: (i) apply to the fullest extent allowed by applicable Law irrespective of whether liability of Panevo or Client or their Affiliates is claimed or found to be based in contract (including breach of warranty or contract), tort (including negligence or negligent misrepresentation), strict liability, or otherwise; and, (ii) survive the completion of Services or the expiration, cancellation, or termination of this Contract.

11.5 Client acknowledges and agrees that the limits on Panevo’s and its Affiliate’s liability in this Clause 11 are agreed by reference to the Price, the financial resources of Panevo, the nature and extent of the Services and the availability of professional indemnity insurance on reasonable commercial terms. Accordingly, Client acknowledges and agrees that the provisions of this Clause 11 satisfy any requirement of reasonableness under any Law applicable to the Contract and any claims relating to or arising in connection with the Contract.

11.6 Notwithstanding the above provisions, nothing in the Conditions shall in any way be deemed to exclude or restrict either Party’s liability for fraud or gross negligence.

12 Termination. The Client may not terminate this Contract prior to the completion of the Services, or prior to the completion of the Subscription Period for Software, unless the Client receives the consent of Panevo, or as described herein. If the Services include the provision of Software, the Contract may be terminated by the Client as of date of renewal for the Subscription Period, so long as written notice of termination is given by the client not less than 30 days prior to the date of renewal. This Contract may be terminated immediately by Panevo in the event of a breach by the Client of a material obligation under the Contract. If the Contract is terminated in any circumstances, the Client shall pay, in accordance with the terms of Clause 6, all outstanding payments for Services accrued up to the date of termination and reasonable costs incurred by Panevo as a result of such termination, including demobilisation costs. Panevo shall calculate a final invoice following the effective date of termination.

13 Use of Name. Panevo may publicize the Client’s name as a Client of Panevo and use a general description of the Project in published materials or presentations, provided Panevo does not disclose any confidential information.

14 Third Parties and Reliance. Except for the Parties, any Affiliate of a Party that is specifically identified by name in the Contract, and any Panevo Affiliate that provides service relating to the Contract, no other person shall be entitled to: (i) benefit from or enforce any term of the Contract under the Contracts, or (ii) rely on Services or work product generated by or for Panevo pursuant to the Contract (“Panevo’s Work Product”). The Client indemnifies Panevo and its Affiliates from and against any claims resulting from any act or omission by Client or its Affiliates resulting in a third party relying on Panevo’s Work Product. Any third party expressly entitled under a grant of reliance made by Panevo in writing to use and or rely on Panevo’s work product and or the Services is subject to the aggregate limitations and exclusions of liability set out in the Proposal, the Contract, and the Report.

15 Confidentiality. All documents, information, and advice provided to any Party or its Affiliates (the “Receiving Party”) in the course of the Services and all Confidential Information concerning the other Party (the “Disclosing Party”) or any of the Disclosing Party’s activities or any Site shall be treated by the Receiving Party as confidential and shall not be disclosed to any third party (other than the Receiving Party’s professional advisers and Affiliates on a “need to know” basis) unless: (i) the Disclosing Party gives its prior written consent, (ii) the Receiving Party is required by Law or by any governmental authority to make the disclosure, or (iii) the document or information or advice is in the public domain (other than through fault of the Receiving Party) or was in the Receiving Party’s possession prior to the disclosure by the Disclosing Party. Notwithstanding the terms of any separate confidentiality undertaking(s) agreed between the Receiving Party and the Disclosing Party, the Receiving Party shall always be entitled to retain an archive copy of any work product produced by the Receiving Party under the Contract, provided that the Receiving Party will treat such information as confidential, as above.

16 Assignment. Either Party may assign the benefit of this Contract, subject to the other Party’s consent.

17 Governing Law and Forum. The Contract shall be governed by the Laws of the Province of British Columbia and of Canada, where applicable. Any dispute, controversy or claim arising out of or relating to the Contract including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it may be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of the arbitration shall be Vancouver, British Columbia, Canada.

18 Severability. Each of the provisions of the Conditions is distinct and severable from the others and if at any time any one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) of the Conditions shall not in any way be affected or impaired and the Parties agree that they will substitute provisions in a form as similar to the offending provision as is possible without thereby rendering them invalid, unlawful or unenforceable.

19 Miscellaneous. Upon Client’s acceptance of the Proposal, the terms of the Contract shall constitute the entire understanding between the Parties and the full and final expression of such agreement superseding all prior and contemporaneous agreements, representations or conditions, express or implied, oral or written. The Contract does not incorporate any oral or written representations or misrepresentations given by either Party. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable. A variation of the Contract, other than as contemplated by Clauses 3 and 7, is valid only if it is in writing and signed by or on behalf of each Party. Notwithstanding the foregoing, a variation to the Contract is valid if Client otherwise consents to, or knowingly accepts the benefit of, Panevo’s performing the Services under the Contract subject to the variation. The provisions of Clauses 6, 10, 11, 13 to 19 and any and all provisions of the Contract which by their nature generally would be construed as surviving a termination of the Contract, shall survive the completion of Services or the expiration, cancellation or termination of any agreement between Panevo and Client, and shall apply to the fullest extent permitted by Law. A Party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Contract shall give Notice in writing by one of the following methods of delivery, each of which for purposes of this Contract is a writing: (i) personal delivery; (ii) registered or certified mail, return receipt requested and postage prepaid; (iii) internationally recognised overnight courier, all fees prepaid; (iv) facsimile; or (v) email. Notice shall be provided to the persons identified in the Proposal, at the addresses outlined in the Proposal.

20 Software – Panevo Obligations. Unless stated otherwise in the Proposal, Panevo will provide the Software under the following criteria:

20.1 Hosting using Microsoft Azure (Canada).

20.2 Use of commercially reasonable efforts to ensure Software availability with minimal downtime 24 hours per day, 365 day per year, while allowing for:

• Planned maintenance.
• Client device or service related issues.
• Cyber attacks or force majeure related events.

20.3 Reasonable notice of any planned maintenance activities.

20.4 Periodic updates to the Software, including performance and functionality enhancements.

20.5 Guaranteed compatibility with, as a minimum, the latest versions of Microsoft or Google web browsers.

20.6 Training material provided at https://help.iotorq.com and https://help.iotorq-lean.com/.

20.7 Support available via support request submission pages located at https://help.iotorq.com/hc/en-us/requests/new and https://help.iotorq-lean.com/hc/en-us/requests/new

20.8 Classification of support requests as follows:

• High: Bug/error – A potential bug or error is preventing the Client from utilizing the software in accordance with the Proposal.
• Medium: Training – Questions regarding Software usage and Documentation.
• Low: Enhancement – Functionality not currently available within the software

20.9 Best effort to respond to support requests submitted by the Client within the following time frames:

• Within 8 business hours for issues classified as High priority.
• Within 72 hours for issues classified as Medium priority.
• Within 5 working days for issues classified as Low priority.

20.10 Remote assistance provided in-line with the above timescales dependent on the priority of the support request.

20.11 Support requests received outside of normal working hours (namely 9am to 5pm PST, Monday to Friday) will be collected, however action may not be provided until the next working day.

20.12 Panevo shall have no obligation to support:

• Data integrity issues, beyond anything specifically agreed as part of initial commissioning or on-going services, including onsite data acquisition, metering, and telemetry systems.
• Client internet or browser related issues.
• Questions related to modifications to the Software.
• General training not identified in the Proposal.
• Third-Party Offerings not identified as supported by Panevo in the Proposal.

20.13 The Software may rely on or require access to ThirdParty Offerings. Panevo has the right to export and import Client Data to and from such Third-Party Offerings for purposes of delivering the Service. Client or its Authorized Users’ use of Third-Party Offerings must at all times comply with the terms & conditions governing them. Client understands and agrees that the availability of the Software, or certain features and functions thereof, is dependent on the corresponding availability of Third-Party Offerings or specific features and functions of Third-Party Offerings. Panevo is not liable to Client or any third-party in the event that Third-Party Offerings cause any issue with the Software or any feature or function thereof. Panevo does not make any representations or warranties regarding any such Third-Party Offerings, whether or not such ThirdParty Offerings are designated by Panevo as “certified”, “approved”, “recommended”, or otherwise.

20.14 Within 30 days of Termination and upon the Client’s request, Panevo will make available a copy of the Client Data available to the Client, in a format to Panevo’s specifications.

20.15 Client Data is deemed Confidential Information of the Client and Client exclusively owns all right, title, and interest in all Client Data.

20.16 Panevo does not represent or warrant that the use of the Software will be secure, timely, uninterrupted or error-free, or operate in combination with any other hardware, system or data; or that the Software will meet Client’s requirements or expectations. The Software may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications; Panevo is not responsible for any delays, delivery failures, or other damages resulting from such problems.

21 Software – Client Obligations.

21.1 Client must not allow access to, or use of, the Software by anyone other than Authorized Users. The Client is responsible for its Authorized Users’ compliance with this Agreement and agrees that it will not:

• License, assign, sublicense, sell, resell, lease, transfer, assign, distribute or otherwise commercially exploit the Software.
• Attempt to gain unauthorized access to the Software.
• Use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Software.
• Access the software in the presence of representatives of competitive products.
• Copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software in any part thereof or otherwise attempt to discover any source code or modify the Software.
• Use the Software in any unlawful manner or violation of this Agreement.

21.2 In order for Client to receive the Support, Client must:

• Ensure reasonable availability of Client representative(s) when resolving a service-related incident or request.
• Subject to Client’s applicable security requirements, provide Panevo with access to and use of all information and systems determined necessary by Panevo to provide timely Support Services pursuant to this Agreement.
• Follow procedures and recommendations provided by Panevo in an effort to correct problems, including sending files and data requested by Panevo.
• To the best of its abilities, read, comprehend, and follow operating instructions and procedures as specified in, but not limited to, the training material and other correspondence related to the Software.

21.3 Upon Termination, Client shall:

• Return all Documentation to Panevo and delete all copies of the Documentation.
• Cease access to the Software by employees and other Authorized Users.