These Enterprise Terms of Service (the “Terms”) outline the terms and conditions under which HUMMINGBIRD DRONES INC., doing business as NOVA SOFTWARE COMPANY INC. (“Nova”), agrees to provide access and use of its Platform (defined below) to the Customer identified and defined in the Order Form referencing these Terms and executed by such parties (the “Order Form”). These Terms incorporate the Order Form by reference and are effective as of the effective date specified in the Order Form (the “Effective Date”).

1. DEFINITIONS

Capitalized terms used but not defined in these Terms will have the meanings set forth in the Order Form, and such definitions will apply hereto. Additionally, the following capitalized terms used in these Terms will have the meanings set forth below:

(a) “Agreement” means, collectively, these Terms, the Order Form, and any other applicable agreements if and as may be referenced in the Order Form (the “Other Agreements”);
(b) “Authorized Users” means the Customer’s employees and contractors, as applicable, and any other users as may be authorized by Nova from time to time;
(c) “Confidential Information” means any and all information or material disclosed (whether in writing, orally or by any other means, and whether directly or indirectly) by one party (the “Disclosing Party”) to the other party (the “Recipient”), whether before or after the Effective Date, which is or has been identified as proprietary or confidential at the time of disclosure, or which by the nature of the circumstances surrounding disclosure should in good faith be reasonably understood to be proprietary or confidential, but does not include information or material which the Recipient can demonstrate: (i) is or becomes generally available to the public other than as a result of a breach of any confidentiality obligations by the Recipient; (ii) was in Recipient's possession on a non-confidential basis prior to its being provided to the Recipient by or on behalf of the Disclosing Party; (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, which source, to the knowledge of the Recipient, is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation; or (iv) is independently developed by the Recipient without the use of the Disclosing Party's Confidential Information;
(d) “Fees” means, collectively, the Subscription Fees, the Support Service Fees, and all other fees charged by Nova to the Customer as set forth in the Order Form;
(e) “Platform” means Nova’s proprietary cloud-based mapping, data analytics and live streaming platform;
(f) “SaaS Services” means Nova’s provision of access and use of certain features of the Platform to the Customer, as set forth in the Order Form;
(g) “Services” means, collectively, the SaaS Services and the Support Services;
(h) “Subscription Fees” means the amount charged by Nova to the Customer for the SaaS Services, as set forth in the Order Form;
(i) “Support Services” means the support services that Nova may provide in connection with the SaaS Services, such as onboarding, training, onsite work, etc., if and as may be set forth in the Order Form; and
(j) “Support Service Fees” means the amount charged by Nova to the Customer for the Support Services, if and as may be set forth in the Order Form.

2. SERVICE

2.1 Services. Subject to the terms and conditions of the Agreement, and in exchange for payment of the Fees, Nova will provide the Services to the Customer as set forth in the Order Form. Nova may from time to time engage independent contractors (each a “Subcontractor”), to perform any part of its obligations under the Agreement; provided that, Nova will: (a) remain directly responsible to the Customer for the acts or omissions of each Subcontractor; and (b) ensure that each Subcontractor is bound in writing to terms equally as protective of the Customer as the terms and conditions of the Agreement.

2.2 User Account. Nova may require the Customer to create a user account for the SaaS Services (the “Account” The Customer will be responsible for maintaining the security of the Account, its logins and passwords relating thereto, and for all uses of the Account.

2.3 Use Restrictions. The Customer: (a) will only use the SaaS Services in accordance with the intended purposes for which they are provided, and not for any illegal purposes; (b) will not use the SaaS Services to develop a similar or competing product or service; (c) will not, directly or indirectly, modify, reverse assemble or reverse engineer, disassemble, decompile, or create a derivative work of, any part of the SaaS Services, or otherwise attempt to discover, modify, or use unauthorized or modified versions thereof; and (d) will not use the SaaS Services in a manner that interferes with or disrupts the integrity or performance of the SaaS Services. The Customer will cause its Authorized Users to comply with the Agreement, and will be responsible for any breach by its Authorized Users thereof.

2.4 Connections to SaaS Services. The Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like.

2.5 Changes to SaaS Services. Nova reserves the right to make technical changes, updates, or modifications to the SaaS Services at its sole discretion, at any time and from time to time, including but not limited to enhancements, improvements, or bug fixes.

3. FEES & PAYMENTS

3.1 Fees. The Customer will pay to Nova the Fees in the amounts, at the times, and according to the terms set forth in the Order Form; provided that, unless otherwise expressly set forth in the Order Form: (a) all Fees are exclusive of any and all applicable taxes, which will be invoiced and payable together with the Fees; (b) invoices under the Agreement are payable, without holdback or setoff, upon delivery; and (c) all Fees are non-refundable.

3.2 Failure of Payment. Interest will accrue on amounts past due at a rate of twelve percent (12%) per annum. Without limiting any other remedy available to Nova herein, by law or in equity, in the event that the Customer’s payment obligations are overdue and outstanding at any time, Nova may, in its sole discretion: (a) terminate the Agreement immediately with written notice to the Customer; and/or (b) suspend its obligations to the Customer relating to the Services until such time as all amounts due and owing under the Agreement are
paid in full.

3.3 Renewal Pricing. Nova may increase the Fees under the Order Form, with effect at the start of any Renewal Term (defined in Section 7.1(Term)), by no more than the annual percentage increase, if any, in the All-items Canada Consumer Price Index, as published by Statistics Canada, plus 5%, unless Nova provides the Customer with written notice of different pricing no less than sixty (60) days prior to start of the Renewal Term. For certainty, the following do not constitute Fee increases: (a) additional fees for upgrades to Services, or additional services that Customer orders; and (b) expiration of any discount or incentive programs.

4. PROPRIETARY RIGHTS

4.1 Rights Reserved. Nova is and will be the sole and exclusive owner of all right, title and interest (including any and all intellectual property rights) in and to: (a) its Platform and the Services, and all improvements, enhancements or modifications thereto; and (b) any software, applications, inventions or other technology developed by Nova in connection with the Platform and the Services. Except for the rights and licenses expressly granted in the Agreement, neither party grants to the other party any intellectual property rights under the Agreement, and all such rights, title and interests are hereby retained and reserved.

4.2 Customer Data. The Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the information and data provided to the Platform by the Customer in connection with the Services (the “Customer Data”), including email, name, and image and video data. The Customer hereby grants to Nova a non-exclusive, worldwide, royalty-free right and license to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data for the provision of the Services during the term of the Agreement. Customer will be solely responsible for the accuracy, content and legality of all Customer Data.

4.3 Platform Performance Data. Notwithstanding anything to the contrary herein, Nova will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Nova will be free (during and after the term of the Agreement) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services; and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.

5. CONFIDENTIALITY & DATA SECURITY

5.1 Obligation. The Recipient will not disclose to any person or use for any purpose the Disclosing Party’s Confidential Information, except: (a) to the extent necessary to exercise its rights or perform its obligations under the Agreement; (b) as required pursuant to an order or requirement of a court, administrative agency, or other governmental body of competent jurisdiction (in which case the Recipient will, if permitted under such order or requirement, promptly notify the Disclosing Party of the order or requirement prior to such disclosure so that the Disclosing Party may have an opportunity to seek a protective order at its cost); or (c) as otherwise authorized by the Disclosing Party in writing from time to time.

5.2 Return of Confidential Information. Subject to any requirements under applicable law, Recipient will return or irretrievably destroy the Confidential Information of the Disclosing Party within thirty (30) days after such request from the Disclosing Party, or upon any termination of the Agreement, whichever is earlier. If requested by the Disclosing Party, the Recipient will provide a statutory declaration certifying the return or destruction (as applicable) of the Disclosing Party’s Confidential information within ten (10) days thereafter.

5.3 Injunctive Relief. Each party acknowledges and agrees that should it breach its confidentiality obligations under this Section, the other party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching party may, in addition to any other remedy available in law or
equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.

5.4 Customer Data Security. The parties acknowledge that certain Customer Data may be the Customer’s Confidential Information. Nova will use commercially reasonable measures in maintaining administrative, technical, and physical safeguards with respect to its information security that are appropriate to its size and complexity, the nature and scope of its activities, the sensitivity of the Customer Data, and in light of standard industry practices with respect to data storage and transmission with cloud hosting of the Services. Nova is SOC-2, Type-2 certified. All information is encrypted in transit and at rest, and may be stored in Canada or the United States.

5.5 Local Hosting. Nova may, in its discretion and subject to any additional fees, offer the Customer the ability to host the Platform on the Customer’s own servers during the term of the Agreement, as may be expressly agreed by the parties in writing. In such event, the Customer will be responsible for all Customer Data that is stored on its servers.

6. REPRESENTATIONS & WARRANTIES

6.1 Mutual. Each party represents and warrants to the other party that: (a) it has capacity (if an individual), or full power and authority (if not an individual), to execute and deliver the Agreement and to perform its obligations hereunder; (b) if it is not an individual, it is in good standing under the laws of the jurisdiction of its address set forth herein; (c) it is not insolvent, on the eve of insolvency, or subject to any creditor proceedings; and (d) the Agreement is binding and enforceable against it in accordance with the terms of the Agreement.

6.2 Nova. Nova represents and warrants to the Customer that: (a) it will perform the Services in compliance with applicable laws and regulations; (b) it will perform the Services in a professional manner; and (c) the Services will conform in all material respects to the specifications, if any, set forth in the Order Form.

6.3 Customer. The Customer represents and warrants to Nova that it has all rights, licenses and consents necessary to provide the Customer Data to Nova for use in connection with the Services.

7. TERM & TERMINATION

7.1 Term. Unless terminated earlier pursuant to the terms and conditions of the Agreement: (a) the Agreement will commence on the Effective Date and will remain in effect for the Initial Term set forth in the Order Form; and (b) thereafter, the Agreement will be automatically renewed for additional periods of the same duration as the Initial Term (each such subsequent period, a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. Collectively, the Initial Term and any subsequent Renewal Terms will constitute the “term” of the Agreement.

7.2 Termination for Cause. Either party may terminate the Agreement immediately upon written notice if the other party: (a) fails to correct a material breach of its obligations under the Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; provided however, that a breach of Section 2.3 (Use Restrictions), Section 3 (Fees & Payment), or Section 5 (Confidentiality & Data Security) will be grounds for immediate termination of the Agreement by written notice from the notifying party; or (b) files a bankruptcy petition, has a bona fide petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party

7.3 Effect of Termination. Upon any termination of the Agreement: (a) Nova will deliver to the Customer a final statement of account and/or invoice for any accrued and outstanding Fees payable in accordance with the Agreement, and the Customer will promptly pay all such Fees to Nova; and (b) any provision of the Agreement that imposes an obligation after termination of the Agreement will survive such termination, including Sections: 3.1, 3.2, 4, 5.1 – 5.4 (inclusive), 7.3, 8 – 11 (inclusive) of these Terms.

8. INDEMNITY

Each party (the “Indemnitor”) will indemnify, defend and hold harmless the other party and their officers, directors, contractors, and employees (together, the “Indemnitees”) against and from any and all third party claims, demands, actions, causes of action, damages, losses, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under the Agreement by the Indemnitor.

9 DISCLAIMER

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, NOVA PROVIDES THE PLATFORM, THE SERVICES, AND ALL DATA AND INFORMATION THEREON “AS IS” AND DISCLAIMS ANY AND ALL GUARANTEES,REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING SAME, WHETHER IMPLIEDnOR STATUTORY, ORAL OR OTHERWISE, ARISING UNDER ANY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY CONDITIONS AND WARRANTIES WITH RESPECT TO ACCURACY, NON INTERRUPTION, NON-INFRINGEMENT, ERROR-FREE OPERATION, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

10. LIABILITY LIMITATIONS

10.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NOVA HAVE ANY LIABILITY FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS OR OTHER SIMILAR PECUNIARY LOSS) IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.2 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVA UNDER OR IN CONNECTION WITH THE AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED ALL FEES PAID BY THE CUSTOMER TO NOVA IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE FIRST EVENT GIVING RISE TO A CLAIM. FOR CERTAINTY, AND NOTWITHSTANDING THE FOREGOING: (a) THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND (b) THE FOREGOING LIMITATION WILL NOT APPLY WITH RESPECT TO GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

11. GENERAL

11.1 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement. To the extent of any conflict between these Terms, the Order Form and any Other Agreements, the following order of precedence will apply (highest to lowest): (1) these Terms; (2) the Order Form; and (3) the Other Agreements.

11.2 Governing Law. The Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties will exclusively submit to the jurisdiction of British Columbia. Notwithstanding the foregoing, each party will be entitled to seek injunctive or other equitable relief in any jurisdiction with a reasonable connection to the subject matter of the Agreement.

11.3 Assignment. The Agreement will not be assigned by either party to any other person without the prior written consent of the other party. Notwithstanding the foregoing, upon written notice to the other party, either party may assign the Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of the assets of such party, and any such assignment will not require the consent of the other party. Subject to the foregoing, the Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.

11.4 Waiver. No waiver of any provision of the Agreement will be effective unless in writing and signed by the party granting such waiver. No failure or delay by a party in exercising any right, power, or remedy under the Agreement, except as expressly provided herein, will operate as a waiver of any such right, power or remedy. A waiver of any single breach of the Agreement will not be deemed to be a waiver of any other breach previously or thereafter occurring.

11.5 Amendments. Except as otherwise expressly provided in the Agreement, no amendment of any provision of the Agreement will be effective unless it is in writing and signed by both parties.

11.6 Interpretation. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument. Unless otherwise expressly stated, all dollar amounts referred to in the Agreement are in American (USD) dollars. The word “including” or any variation thereof means “including, without limitation”. The headings used in the Agreement are for convenience of reference only and will not form part of, or affect the interpretation of, the Agreement.

11.7 Force Majeure. Except with respect to payment obligations hereunder, neither party will be in default or liable under the Agreement by reason of any failure in performance of the Agreement if such failure arises from causes beyond the reasonable control of such party, including acts of God or of the public enemy, terrorism, political unrest, governmental acts, fire, flood, failure of third party connections, epidemic, pandemic, utilities or networks, earthquake, hostile attacks, restrictions, strikes, and/or freight embargoes; provided that, notice is given to the other party without delay, and all affected obligations will be extended by such reasonable amount of time as determined by the parties in good faith.

11.8 Notices. If any notice or other communication is required or permitted to be given to a party hereunder, such notice or communication will be in writing and (a) personally delivered, or (b) transmitted by e-mail, to the applicable address provided in the Order Form, or if no such address is provided, then the last known address of such party. All such notices or other communications will be deemed to have been given and received upon confirmation of delivery.

11.9 Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.

11.10 Severability. In the event that any provision in the Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it will not affect or impair the validity of any other provisions contained in the Agreement, nor will it affect the validity or enforceability of such provisions in any
other jurisdiction or in regard to other circumstances. Any provisions found to be void or unenforceable are declared to be separate and distinct, and the remaining provisions will remain in full force and effect. To the maximum extent permitted under applicable law, any impugned provisions will be deemed to be amended so
that they accomplish their original intent as closely as possible while still remaining compliant with applicable law.