TERMS AND CONDITIONS OF THE CONTRACT

BETWEEN: TENSIO STRUCTURE INC. (« TENSIO »)

AND: THE CUSTOMER

PREAMBLE

WHEREAS Tensio is a company offering technological solutions enabling Customers to monitor their infrastructures and thus optimize their maintenance and diagnose their level of performance;
WHEREAS Tensio agrees to provide the equipment and services to the Customer in accordance with the terms and conditions hereinafter set forth.

IN CONSIDERATION OF THE FOREGOING, the parties agree as follows:

1. DEFINITIONS

Unless otherwise indicated in the text or if inconsistent therewith, words and expressions beginning with a capital letter in this contract shall be interpreted as follows:

“Alert” means the signal sent to the Customer on the Web Application when the weight on the Infrastructure reaches a critical level according to the Alert Levels established by the Customer.
“Alert Level” means the level at which an Alert will be sent to the Customer. The Alert Level is established by the Customer based on the Engineering Analysis.
“Contract” means these terms and conditions and the Quotation, any documentation ancillary or subordinate thereto, and any amendments thereto which may be made from time to time by the parties.
“Data” means all data and information collected by the Sensors.
“Engineer” means any engineer who is a member of the Ordre des ingénieurs du Québec.
“Engineering Analysis” means the analysis performed by an Engineer to establish the maximum capacity of the Customer's Infrastructures, the risk areas of the Infrastructures, the positioning of the Sensors and the link to determine the actual load based on the Sensor signals.
“Equipment” means the Sensors, transmitters, gateways and all the materials required for their installation, it being understood that the transmitter and gateways may be reconditioned.
“Infrastructure” means the structure on which the Equipment is installed.
“Intellectual Property” means any and all intellectual property rights in connection with the Web Application and the Data obtained using the Equipment, including copyrights, inventions or patents, trademarks, industrial designs and the right to file applications for registration of the foregoing or any other rights of a similar nature in any jurisdiction.
“Quotation” means the personalized proposal made by Tensio and accepted by the Customer, containing in particular the pricing specific to each project.
“Sensors” means the receivers measuring the deformations of the Infrastructure when subjected to any loading.
“Service” means the services offered to Customer hereunder.
“Term” means the remainder of the Initial Term of the Contract or, as the case may be, the remainder of any Extension Period.
“Web Application” means the platform, including the interface, on which the Customer can configure his Alert options and consult the Data collected by the Sensors.

2. PURPOSE OF THE CONTRACT

Subject to the consideration, terms and conditions of the Contract, Tensio undertakes to the Customer to sell and install the Equipment and to provide access to the Web Application.

During the Term, the Customer may access and use the Web Application in accordance with the terms and conditions of this Contract.

3. TERM

This Contract is entered into for the initial term set forth in the Quotation, said term to commence as of the date of installation of the Equipment at the Customer's premises (the “Initial Term”).

Upon expiration of the Initial Term, the Contract shall be automatically renewed for successive one-year periods (an “Extension Period”), unless either party gives written notice of termination to the other party at least thirty (30) days prior to the end of the Initial Term or any Extension Period.

4. INSTALLATION AND SERVICE FEES

The Customer agrees to pay to Tensio the sale price of the Equipment, the mobilization fees, the Engineering Analysis and the installation price of the Equipment, as set forth in the Quotation (the “Installation Fee”). For greater certainty, the parties agree that the Installation Fee is payable only once at the beginning of the Initial Term, unless the Equipment becomes obsolete and the Customer wishes to change or purchase new Equipment.

The Customer shall pay Tensio for standard Access to the Web Application for the period set out in the Quotation (the “Service Fee”), all as set out in the Quotation.

The Service Fee is subject to change upon expiration of the Initial Term. If applicable, Tensio will send a notice of variation of the Service Charges to the Customer at least sixty (60) days prior to the expiration of the Initial Term.

Once the Equipment has been installed and the Installation Fee has been paid, Tensio will provide the Customer with access to the Web Application (the “Start Date”).

The Service Fee must be paid by the Customer on the Installation Date for the entire Initial Term and any Extension Period, if applicable.

5. INVOICING AND PAYMENT TERMS

The Customer agrees to pay any invoice sent by Tensio within thirty (30) days of receipt of such invoice. The Customer shall make all payments in accordance with the terms of the Quotation.

6. LATE PAYMENT

In the event of non-payment within the period specified in Article 5, compound interest of 1.5% per month (indicatively 19.56% per annum) will be calculated and added to any balance due.

7. SALES TAXES

Sales taxes (GST - PST) are added to Tensio's Installation Fee and Annual Service Fee and are detailed on the invoice that will be sent to the Customer.

8. OWNERSHIP OF EQUIPMENT

Tensio expressly reserves ownership of the Equipment until payment in full of all sums due for the Equipment under the Contract, without distinction and regardless of the date of delivery or any partial payment. The reservation of title shall apply whether or not it is indicated in any invoice, purchase order or delivery note, it being understood that the Customer shall assume all risks and perils relating to the Equipment.

The parties shall cooperate to ensure that any reservation of title or other registration to preserve Tensio's rights with respect to the Equipment is duly recorded in the appropriate public registers.

Upon full payment, the Equipment shall become the exclusive property of the Customer.

Until full and final payment of the Equipment, the Customer shall keep the Equipment free of any mortgage, prior claim, guarantee, security interest or other encumbrance whatsoever.

9. INTELLECTUAL PROPERTY

Customer acknowledges that Tensio shall be the sole owner of all right, title and interest in and to all Intellectual Property arising out of the performance of its obligations under this Contract, the Web Application and all Data collected by the Sensors (the “Customer Data”) available via the Web Application.

Tensio will make Customer Data available in a cloud hosting facility for a period of ten (10) years from the signing of the Quotation, subject to section 16.1. After this period, if the Customer wishes to retain access to the Data, the parties must come to an agreement beforehand.

The Customer acknowledges that the Web Application and its components are protected by applicable intellectual property laws.

The Customer agrees to take all reasonable steps to prevent unauthorized access to the Web Application and the Sensors, including, without limitation, by protecting its passwords and other login information.

The Customer shall immediately inform Tensio of any known or suspected unauthorized use of the Intellectual Property, including the Web Application or the Equipment, as well as of any breach of its security, and shall also do everything in its power to put an end to such breach.

Tensio grants the Customer the right to use the Data transmitted on the Web Application for the duration of this Contract for its own personal benefit only, in accordance with the terms of this Contract, or to share with an insurer or potential insurer.

The Customer acknowledges and agrees that it may not sell, market, publish or otherwise make the Reports available to third parties in any manner whatsoever, except to its insurers.

10. EQUIPMENT INSTALLATION AND MAINTENANCE

By entering into this Contract, in accordance with the terms and conditions of this Contract, and subject to the occurrence of an Event of Default, Tensio undertakes to:

deliver the Equipment to the Customer;
install the Equipment at the beginning of the Contract; and
replace the Equipment's batteries (at Tensio's expense within three years of the Start Date and at the Customer's expense thereafter).

11. CUSTOMER’S OBLIGATIONS

For the Term, the Customer undertakes, at his own expense, to:

notify Tensio in writing, prior to the installation of the Equipment, and during the Term, of any defect, problem, vice, wear, work, renovation, change, non-compliance or other situation likely to affect its Infrastructure;
adequately maintain the Infrastructure during the Term;
notify Tensio in writing and without delay of any loss, seizure, damage or any problem affecting the Equipment;
assume the cost of repairing the Equipment, removal work and installation of the old and new Equipment attributable to damage resulting in particular from movement, vandalism, breakage caused during snow removal, fire, any flooding of the building in which the Equipment is installed or a lack of caution and diligence in the use of the Equipment;
in the event of sale of the Infrastructure on which the Equipment is installed, notify the new purchaser of the existence of the Equipment and this Contract and transfer the Contract to him with the prior consent of Tensio, otherwise the Customer will remain fully responsible for the Contract, for the remaining duration of the Contract;
give Tensio, its subcontractors and its representatives free access at all times, with reasonable notice, to the Equipment for inspection purposes; and
not place on the Equipment any materials or goods which would be likely to damage the Equipment before owning the Equipment.

12. TENSIO’S OBLIGATIONS AND LIMITATION OF LIABILITY

Tensio undertakes to perform its obligations under this Contract diligently. The Customer declares and acknowledges that:

The Engineer whose services are retained for the Engineering Analysis assumes responsibility for the Engineering Analysis and acknowledges that Tensio is not responsible for it in any way;
Tensio is not an insurer and, consequently, the Services it provides to the Customer under this Contract have a limited scope and cannot, under any circumstances, incur liability beyond the value of the Services rendered during the Initial Term of the Contract;
the amounts payable to Tensio by the Customer under this Contract are in no way linked to the value of the Infrastructure or the goods located in the Customer's Infrastructure;
it is his responsibility to respect its obligations. The Customer acknowledges that a default in this regard is likely to affect and reduce the accuracy of the Equipment. He assumes all risks, damages and repercussions in the event of a default;
the Customer exempts Tensio from any liability for any loss or damage to the premises and property resulting from a malfunction or failure of the Equipment, Alerts, transmission methods, Web Application or any other Services provided by Tensio caused by misuse, by a third party not engaged by Tensio, or by an element mentioned in Article 13 or any act and gesture taken by the Customer in contravention of this Contract;
it is his responsibility to set the Alert Level, to determine the people in his organization who will receive the Alerts and to take all necessary means to avoid any damage to his property, to the property of others and to any person, in relation with the Data available via the Web Application, particularly, but not limitedly, the Alerts;
the Services provided by Tensio do not include a Data monitoring service or the management of operations made necessary by Alerts;
the information provided by the Web Application relating to the risks of collapse is determined from the Engineering Analysis for which Tensio is not responsible;
Tensio assumes, from the representations made by the Customer, that the Infrastructure including, in particular, but not limited to, the roof covering or cladding is not subject to any assembly error;
the Customer acknowledges and accepts that hosting Data on the Web Application carries risks of unauthorized disclosure or exposure and that, by accessing and using the Web Application, the Customer assumes these risks;
Tensio makes no representation, warranty or assurance that Customer Data will not be exposed or disclosed through errors or actions of third parties;
Tensio may permanently delete its data if the Customer's account is overdue, suspended or terminated for thirty (30) days or more;
Tensio will not be responsible for any defect, malfunction, breakage resulting from repairs or modifications carried out by an unauthorized third party on the Equipment; and
Tensio cannot guarantee the reliability of the internet network. The Web Application involves wireless communications which may be affected by external interference beyond the direct control of Tensio and the software may require the use of a wireless service provider underlying which is also not under the direct control of Tensio; in this regard, Tensio has no obligation to send Alerts to Customer under this Contract if it is not functionally connected to the internet or the Sensors are not functionally connected to the internet.

13. WARRANTY

The Equipment is guaranteed by Tensio for a period of three years from the date of delivery. Damaged Equipment will be replaced by identical Equipment or, in the event of non-availability of equivalent quality equipment, it will be repaired. Labor is covered under warranty.

This warranty specifically excludes damage caused to the Equipment by:

force majeure;
bad weather;
negligent maintenance by Customer;
the spilling of toxic, corrosive or inappropriate substances;
any manipulation carried out by a person or entity other than Tensio;
vandalism;
a breakage caused during snow removal;
fire;
a lack of caution and diligence in using the Equipment; or
use not recommended by Tensio.

14. DEFAULT

The Customer will be considered in default upon the occurrence of any of the following events (an “Event of Default”):

he does not comply with any of his commitments arising from the Contract, in particular if he fails to pay the Annual Service Fee, the Installation Fee or any other payment required under this Contract and that such defect is not corrected within thirty (30) days following written notice to this effect;
he transfers his property for the benefit of his creditors, becomes bankrupt or uses or is required to use any law relating to arrangements with creditors or bankruptcy;
the Equipment, while the Customer does not own it, was removed from the space where it was installed by Tensio, without the prior written consent of the latter;
the Equipment, while the Customer does not own it, has been modified, altered, broken or moved without the intervention of Tensio;
the Customer, although he is not the owner, no longer has the Equipment in his possession;
the Customer intends or attempts to sell, assign, transfer, sublet, pledge, hypothecate or otherwise permit the granting of a privilege, real right, or other enforceable right to Tensio of any nature whatsoever, or for or against an interest granted by this Contract or in the Equipment, while the Customer is not the owner thereof, without the prior written consent of Tensio;
a statement made by the Customer in this Contract proves or becomes false over time; and
the Customer sells, assigns or transfers its rights in the Contract, in whole or in part, without having obtained the prior written authorization of Tensio.

15. FORCE MAJEURE

Neither party may be considered in default under this Contract if the performance of its obligations, in whole or in part, is delayed or prevented as a result of a force majeure situation. Force majeure means any unforeseeable and irresistible event, which the parties could not reasonably have foreseen and against which they could not protect themselves. Force majeure includes, but is not limited to, any fortuitous event, strike, partial or complete work stoppage, lockout, fire, flood, riot, intervention by civil or military authorities, compliance with regulations or orders of all governmental authorities.

16. TERMINATION

16.1 Termination by Tensio

Upon the occurrence of an Event of Default listed in Article 14 which is not corrected in a timely manner by the Customer or for any other reason deemed relevant, Tensio may, by means of written notice sent in a timely manner to Customer, terminate this Agreement, without prejudice to all of its rights and remedies provided for by law.

Without limiting the scope of the following, Tensio may:

revoke access to the Web Application;
demand immediate payment of the balance, both in interest, taxes, fees and accessories.

The use of a right or of a particular remedy by Tensio under this article does not entail the waiver by Tensio of the exercise of any other right or remedy provided for by law. In the event of repossession of the Equipment by Tensio, all payments then made by the Customer will be retained by Tensio.

Once the Contract is terminated, Tensio will allow the Customer to have access to the Data recorded on the Web Application for a period of thirty (30) days in order to give the Customer the opportunity to download and/or save their Data. Once the thirty (30) day period has expired, the Customer will no longer be able to have access to the Web Application or the Data.

16.2 Termination by Customer

The Customer may terminate this Contract at any time by giving Tensio a prior written notice of at least 30 days. If the duration of the written notice is not respected, the Customer's request for termination will be considered inadmissible.

The amount reimbursed to the Customer by Tensio varies depending on the following criteria:

Contract with a duration of one year or less: the right of termination is permitted during the first 6 months and Tensio reimburses the Customer in proportion to the number of months remaining at the time of termination (for purposes of calculating the number of months remaining at the time of termination, the number of months remaining is always rounded down);
Contract with a duration of 3 or 5 years: the right of termination is permitted at any time and Tensio reimburses 50% of the remaining term of the Contract (for purposes of calculating the number of years remaining at the time of termination, the number of years remaining is always rounded down).

17. END OF THE CONTRACT

This Contract terminates upon the expiration of its Initial Term or any Extension Period, following receipt of notice of non-renewal in accordance with Article 3 or by its termination in accordance with Article 16.

At the end of the Contract, it is understood that Tensio will send within a reasonable time a final invoice to the Customer, including, in particular, payment for all Services provided hereunder by Tensio until the end of the Contract, of all monthly payments remaining in accordance with paragraph 16.1, of any costs incurred by said termination, all in accordance with the terms provided for in Article 5.

Upon the expiration or termination of this Contract, any licenses or other rights relating to the Contract cease. The provisions relating to ownership of Data and sections 11, 12 and 18 will survive notwithstanding the expiration or termination of this Contract, it being understood and agreed that the other provisions of this Contract will also survive to the extent necessary for the performance of their essential objectives.

18. VARIOUS DISPOSITIONS

Scope. Unless the context indicates a different meaning, the masculine includes the feminine and vice versa and the singular includes the plural and vice versa. The expression “including” and its synonyms do not have the effect of limiting the scope of the foregoing.
Headings, subheadings and appendices. The titles and subtitles of the articles, paragraphs and subparagraphs have been inserted into this Contract only for ease of reading and will not be used for its interpretation.
Other documents. A party shall, without delay, do, sign and deliver or cause to be done, signed and delivered any other act, document or thing that another party may reasonably require in order to give effect to this Contract.
Notice. Any notice, consent or other communication under the terms of this Contract must be given in writing and delivered in person or by bailiff or transmitted by fax, and be addressed to the addresses appearing in the Quote. Any notice, consent or other communication so given will be deemed to have been given and received on the day it is given or transmitted (or, if such day is not a business day, the next business day) unless it is given or transmitted after 4:30 p.m., in which case it will be deemed to have been given and received on the next business day. A party may, from time to time, change its address by giving notice to each other party in accordance with this paragraph.
Partial invalidity. Each provision of this Contract forms a whole so that any determination that any of its provisions is invalid or unenforceable will not affect the validity or enforceability of the remaining provisions.
Formal notice. The debtor of an obligation under this Contract will be constituted in default to execute this obligation by the sole expiration of the time provided for its execution.
Successors and assignees. The successor in interest or authorized assignee of a party will benefit from and be bound by this Contract, in solidarity with such party.
Modification. This Contract may only be modified by a writing signed by each party.
Applicable Laws and Jurisdiction. This Contract is governed by the laws of Quebec and those of Canada applicable, without regard to the principles of conflicts of law. The parties irrevocably submit disputes arising or to arise in connection with or regarding this Contract to the Quebec courts, judicial district of Quebec.

19. MANAGEMENT AND PROTECTION OF PERSONAL INFORMATION

Any information provided by the Customer to Tensio that may be qualified as “personal information” within the meaning of Article 2 of the Act respecting the protection of personal information in the private sector will be processed in accordance with the applicable provisions of this law.

The Customer can consult Tensio's confidentiality policy at any time via the following link: https://tensio.ca/en/privacy-policy