CurrentWare Terms of Service
Last Updated: February 1, 2021
CurrentWare Inc., a Canadian corporation with offices at 92 Wanita Road, Mississauga, ON, L5G 1B8, Canada (“CurrentWare”, “we”, “us” or “our”) provides a technology platform (“Product”) to businesses for a fee. This Terms of Service (“Terms, EULA”) sets forth the services being purchased by the Customer (“you”, “your” or “Business”), the costs for such services, and any other relevant details.
These Terms are incorporated by reference into and made a part of any purchase, subscription, maintenance or other agreement you have entered into and govern the relationship between you and CurrentWare. All purchases are subject to acceptance by CurrentWare, in its sole discretion. The Order Form, License Agreement, Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Business, to these Terms.
“Agreement” means these Terms, including its schedules and the purchase agreement, quote or Order Form to which these Terms are attached or referenced.
“Confidential Information” means (i) any and all information disclosed by one party to the other which is marked “confidential” or “proprietary”, or similar designation or which the recipient knows or has reason to know is regarded by the disclosing party as confidential, including information shared verbally and (ii) any “Personal Information”, as defined by applicable privacy and personal information protection laws, disclosed by End Users to the Business. “Confidential Information” does not include any information that the receiving party can demonstrate: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
“Documentation” means any manuals, instructions or other documents or materials that CurrentWare provides or makes available to Business in any form or medium and which describe the functionality, components, features or requirements of the CurrentWare Services , including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Employee” means an individual or contractor who works for or provides services for the Business.
“End User” means an individual who the Business connects to the CurrentWare Service, either via web or mobile, for CurrentWare Service to be used to manage Company’s employees, customers, users etc.
“Fees” means the fees payable by Business to CurrentWare for the right to receive access to and use the CurrentWare Service and Support Services including monthly subscription fees as outlined in the Order Form.
“Initial Term” means the length of time that the Business has subscribed to the CurrentWare Service for, as outlined in the Order Form.
“Locations” are the number of regions or physical locations outlined in the Order Form for which the Business has access to use the CurrentWare Service, which may be added to/deleted from at the discretion of the Business.
”Business Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Business or an End User by or through the CurrentWare Service.
“Business Services” means the service or product provided by Business.
“CurrentWare Platform” means the proprietary technology used by CurrentWare (ie. servers, databases etc.) that collects Business Data from the Business, End Users and Employees and which also enables communication between devices as part of the CurrentWare Service and facilitates provision and receipt of the CurrentWare Service between the Business and the End User.
“CurrentWare Service” means the provision of access to the CurrentWare Platform (as modified and/or developed from time to time) to allow the Business to communicate, connect and transact with End Users. The End Users can communicate with the Business through web, mobile or SMS that are all part of the CurrentWare product offering & services. This includes the provision and solicitation of feedback for the Business, connection for purposes of facilitating referrals & introductions and general contact for purposes of marketing. Capabilities of the CurrentWare Service are described in more detail on the Website.
“Offering” has the meaning provided in Section 2.4.
“Order Form” means the order form to this Agreement.
“Renewal Term” has the meaning provided in Section 8.1.
”Resultant Data” means information, data and other content that is derived by or through the CurrentWare Service from processing Business Data and is sufficiently different from such Business Data that such Business Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Support Services” means any services and features provided by CurrentWare in support of or supplemental to the CurrentWare Service including online training, analytics, support as purchased by Business in the Order Form.
“Technology” has the meaning provided in Section 2.6.
“Term” has the meaning provided in Section 8.1.
“Website” means CurrentWare.com or such other URL as CurrentWare shall provide for the CurrentWare Service from time to time.
2. SERVICES AND RESPONSIBILITIES
2.1 Provision of CurrentWare Service. Subject to and conditional on compliance with the terms and conditions of this Agreement by Business and its End Users, during the Term, CurrentWare shall use commercially reasonable efforts to provide to Business and its End Users the CurrentWare Service described in the Order Form and this Agreement.
2.2 CurrentWare Platform Access. Subject to the terms and conditions of this Agreement, CurrentWare grants to the Business and its Employees during the Term a non-exclusive, non-transferable right to access to use the CurrentWare Platform to access and use the CurrentWare Service. The license granted herein is granted solely to the Business and not, by implication or otherwise, to any parent, subsidiary, or affiliate of the Business.
2.3 Account Access. The Business shall be provided with login details enabling direct access to its database of Business Data, analytics and reports based on the same. The Business shall have the ability to edit and add to content which is in its database and account. The Business is responsible for all activities that occur in Employee accounts and for maintaining the security and confidentiality of any login details to such accounts.
2.4 Business Responsibilities. The Business understands that any regulatory, legal or operational impacts & requirements that are required to operate the CurrentWare Service in their region, jurisdiction or industry are solely the Business’s responsibility. CurrentWare cannot, will not and is not liable in any circumstance, for any of these responsibilities. Any dispute between the End User and the Business related to their use of CurrentWare Services is the sole liability of the Business.
Business understands and agrees that some of the CurrentWare Services are intended to allow Business to send transactional and/or informational messages to Business’s own current End Users only. Should Business elect to use CurrentWare’s Services, the Business will only do so in compliance with all local, provincial, state, national and international laws, regulations and industry-specific best practices.
2.5 CurrentWare Service Responsibilities. CurrentWare shall use commercially reasonable efforts to (i) maintain the security and integrity of the CurrentWare Service and the Business Data; and (ii) make the CurrentWare Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by a force majeure event as defined in section 10.8.
2.6 Facilitation Responsibilities. In order to access the CurrentWare Service, the Business understands that they must provide their Employees with servers, hardware, software, telephone and internet services (“Technology”). The Business understands that all costs and functions relating to the Technology is solely their responsibility and CurrentWare is not and will not be deemed responsible, whether financially or otherwise, for the performance, use, theft, malfunction or loss of the Technology by the Business or their Employees.
2.7 Use Restrictions. Business shall not (and shall not allow any person to):
a) Copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or create derivative works based on the CurrentWare Service or Website or access the CurrentWare Service or Website in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions of the CurrentWare Service;
b) circumvent any user limits or other timing or use restrictions that are built into the CurrentWare Service or attempt to gain unauthorized access to parts of the CurrentWare Service or CurrentWare Platform which are not made available to Business by CurrentWare;
c) resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the CurrentWare Service (or any of its components) available to any third party without CurrentWare’s prior written consent;
d) otherwise access and use the CurrentWare Service beyond the scope of Section 2.2; or
2.8 Beta Releases and Free Access Subscriptions. CurrentWare may provide Business with certain CurrentWare Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage CurrentWare Service, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Business’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. CurrentWare may use good faith efforts in its discretion to assist Business with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, Business AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, Business FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH CurrentWare WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT Business’S SOLE RISK. CurrentWare makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. CurrentWare may terminate Business’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in CurrentWare’s sole discretion, without liability.
3 PROPRIETARY RIGHTS.
3.1 Ownership and Proprietary Rights. Except for the rights and licenses granted in this Agreement, CurrentWare owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights) in the CurrentWare Service, (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof) and the Resultant Data. Business acknowledges that CurrentWare shall have the sole right to maintain, enhance or otherwise modify the CurrentWare Service.
3.2 Branding. The CurrentWare Service shall be branded according to the requirements of CurrentWare. Business may use CurrentWare’s branding solely for purposes of marketing and providing the CurrentWare Service; provided, however, that Business shall comply with any trademark use guidelines communicated by CurrentWare to the Business. The Business shall promptly inform CurrentWare in writing of any known violation of CurrentWare’s branding. Any use of CurrentWare’s branding shall inure to the benefit of CurrentWare. Business agrees it will not use, register or otherwise appropriate any name, mark or logo which is similar to or may be confused with any of CurrentWare’s branding apart from agreed branding that incorporates the CurrentWare name.
3.3 Reservation of Rights. Except as set forth in Section 2, CurrentWare reserves all rights and grants Business no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
3.4 Publicity. All press releases and other public announcements under this Agreement shall be approved by both parties in writing prior to release, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, CurrentWare may identify the Business as a customer of CurrentWare Services through use of Businesss logo and/or written description on the CurrentWare website and within its sales and marketing materials.
4 PAYMENT TERMS AND TAXES
4.1 Payment Terms. All currency and payments are calculated in the currency as indicated on the Order Form. In consideration of the rights granted herein, Business shall pay CurrentWare the fees indicated in the Order Form.
4.2 Payment Agreement. The Business agrees to pay the Fees as outlined on the Order Form. Business authorizes CurrentWare to charge the Business for all outstanding Fees, taxes and charges and outstanding account balances due under this Agreement, and this constitutes CurrentWare’s good and sufficient authority for so doing. Business is solely responsible for all charges incurred under Business’s account by Business or Locations.
4.3 Annual License Fee. During the Initial Term the fees payable per calendar year are outlined in the Order Form.
4.4 Administrative Costs. To the extent that the Business does not fulfill its obligations under sections 4.1-4.3, resulting in non-payment or returned or rejected payments, CurrentWare may bill the Business a re-activation, re-billing or other related fees to reinstate the CurrentWare Service. All administrative charges charged to the Business must be indicated on the Order Form.
4.5 Late Charges. Payments shall be made to CurrentWare in full without set-off, counterclaim or deduction. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month.
4.6 No Deductions or Set-Offs. All amounts payable to CurrentWare under this Agreement shall be paid by Business to CurrentWare in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
5 CONFIDENTIALITY & PRIVACY
5.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information. This Article shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving party, its affiliates or its advisors according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
5.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
5.3 Compliance with Privacy Laws. Business shall comply with all privacy and personal information protection laws that are applicable to End User Personal Information if such information is provided to the Business. The Business acknowledges and agrees that any breach by the Business of its obligation to comply with all privacy and personal information protection laws would result in significant damage to CurrentWare that would not be completely compensable monetarily, and hereby agrees that CurrentWare shall be entitled to injunctive relief in a court of appropriate jurisdiction in the event of the violation or threatened violation by the Business of any privacy and/or personal information protection laws.
5.5 Notification of Security Breach. The Business shall notify CurrentWare as soon as possible of any suspected or actual breach of Business’s security of which Business becomes aware that may compromise the safeguarding of Confidential Information and/or the Business Data, including, without limitation, any unauthorized access to or entry into the Business’s premises, computer systems or databases or security incidents involving Employees.
5.6 Business Data
a) Rights in Business Data. As between the parties, Business retains all right, title and interest (including any intellectual property rights) in and to the Business Data.
b) Monitoring. Business understands and agrees that CurrentWare, and any third-party platform(s) Business uses or accesses in connection with the CurrentWare Service, may monitor and analyze Business Data submitted by Business and its End Users (including but not limited to reviews, surveys, messages, chats, etc.) to improve the CurrentWare Service or third-party platform; to improve Business’s experience using the CurrentWare Services or third-party platform; to customize and communicate informational or product offerings and promotions to Business; to ensure compliance with the acceptable use policy (including taking corrective action permitted therein); and/or to make the CurrentWare Services, or third-party platform more helpful or useful to Business and other users.
c) Security. CurrentWare agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. CurrentWare takes no responsibility and assumes no liability for any Business Data other than its express security obligations in this Section.
d) Storage. CurrentWare does not provide a cloud service and it is the Businesses sole responsibility to manage, store & secure the data generated by CurrentWare Service.
6 WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each party represents and warrants that: (a) it has all requisite power, financial capacity and authority to execute, deliver and perform its obligations under this Agreement; and (b) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of that party.
6.2 CurrentWare Warranties. CurrentWare represents and warrants that during the Term (i) it will provide the CurrentWare Service and Support Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the CurrentWare Service shall perform materially in accordance with the Documentation. For greater certainty, CurrentWare does not warrant that use of the CurrentWare Service will be error-free or uninterrupted.
6.3 Business Warranties. The Business represents and warrants to CurrentWare that: (i) any information or content submitted to CurrentWare or through the CurrentWare Platform does not infringe the intellectual property or personal rights of any third party; and (ii) Business will comply with all applicable laws and be responsible for the provision of the Business services to End Users In particular, and without limitation, Business warrants and represents that it will not use the Service in a manner that would violate any obligation with respect to CASL, CANSPAM, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999 and any other applicable federal, state, or international law and amendments thereto.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE CurrentWare PLATFORM, CurrentWare SERVICE AND SUPPORT SERVICE ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND AND CurrentWare DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF Business ABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. CurrentWare DOES NOT WARRANT THAT USE OF THE CurrentWare PLATFORM OR CurrentWare SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR WILL MEET Business OR END USERS EXPECTATIONS.
7.1 Indemnification by CurrentWare. CurrentWare shall defend and indemnify the Business against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against the Business by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against the Business for third party claims alleging that the use of the CurrentWare Service as contemplated hereunder infringes the Canadian or US patent or copyright of a third party (“IP Claims”), subject to the condition that Business (a) promptly gives written notice of any IP Claim to CurrentWare; (b) gives CurrentWare sole control of the defense and settlement of each IP Claim; and (c) provides to CurrentWare, at CurrentWare’s cost, all reasonable assistance in respect to each IP Claim.
7.2 Mitigation. If (a) CurrentWare becomes aware of an actual or potential IP Claim, or (b) the Business provides CurrentWare with notice of an actual or potential IP Claim, CurrentWare may (or in the case of an injunction against Business, shall), at CurrentWare’s sole option and determination: (I) procure for the Business the right to continue to use the CurrentWare Service; or (II) replace or modify the CurrentWare Service (or the affected components) with equivalent or better functionality so that the Business’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the CurrentWare Service and refund to the Business any pre-paid Fees for any periods after the termination of the CurrentWare Service, less any outstanding moneys owed by the Business to CurrentWare.
7.3 Exclusions. The indemnity in Section 7.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the CurrentWare Service furnished by CurrentWare with other products, software or services not provided by CurrentWare; (2) any IP Claim related to any Business Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the CurrentWare Service outside the scope of the rights granted in this Agreement.
7.4 Business Indemnity. The Business shall indemnify, defend, and hold CurrentWare (including its officers, directors, agents, and employees) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and/or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from CurrentWare by reason of any Claim arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property caused by any act, error or omission, or misconduct of the Business or its Employees; (b) violation of any law or regulation by the Business (including, without limitation, any privacy or personal information protection law or regulation); or (c) breach of any warranties or other terms in these Terms of Service or Restricted Business Policy by the Business; and (d) provision of Business’s Services or Offering. CurrentWare shall notify the Business promptly of any Claims, permit the Business to control the defense and settlement of such Claims (provided that CurrentWare may participate with counsel of its own choosing, at its own expense), and assist the Business, at Business’s expense, in defending or settling such Claims.
8 TERM AND TERMINATION
8.1 Term. Unless terminated earlier pursuant to Section 8.2 below, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term. Thereafter, the term of the Agreement will be automatically renewed on the anniversary of the Effective Date for additional renewal terms equal to the duration of the Initial Term specified in the Order Form (any such subsequent renewal terms referred to in this Agreement as 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 hereof. CurrentWare reserves the right to change fees for the CurrentWare Service upon thirty (30) days of written notice before each Renewal Term. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
8.2 Suspension of Service. CurrentWare may suspend Business’s access to the CurrentWare Service if: (i) Business’s account is overdue or (ii) Business has exceeded its Scope of Use limits. CurrentWare may also suspend Business’s access to the CurrentWare Service, remove Business Data or disable third-party products if it determines that: (a) Business has breached the provision of the Agreement or (b) suspension is necessary to prevent harm or liability to other Businesss or third parties, including any third-party payment processor, or to preserve the security, stability, availability or integrity of the CurrentWare Service. CurrentWare will have no liability for taking action as permitted above. For avoidance of doubt, Business will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, CurrentWare will cooperate with Business to restore access to the Service once it verifies that Business has resolved the condition requiring suspension.
8.3 Termination for Cause. Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Business terminates during the Agreement for any reason other than the foregoing, Business will be responsible for the fees due for the then current Term. CurrentWare may also terminate this Agreement immediately if Business breaches Sections 2.4, 2.7, 5 or 6.3, for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
8.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Business’s license rights shall terminate and it must immediately cease use of the CurrentWare Service and delete (or, at CurrentWare’s request, return) any and all copies of any CurrentWare documentation, scripts, passwords or access codes and any other CurrentWare Confidential Information in Business’s possession, custody or control and (ii) Business’s right to access any Business Data in the applicable Service will cease and unless otherwise precluded by a BAA, CurrentWare may delete any such data in its possession at any time. If CurrentWare terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Business. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5 Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 3.1, 3.3, 5-7, 8.4, 9 and 10 and any payment obligations incurred prior to the expiration or termination of this Agreement. In the event that CurrentWare is acquired, sold or re-named, the surviving or acquiring entity shall not be relieved of its obligations under this Agreement.
9 LIMITATION OF LIABILITY
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL CurrentWare OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3 IN NO EVENT SHALL CurrentWare, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO THE Business IN AGGREGATE FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE FEES PAID TO CURRENTWARE BY THE Business IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
9.3 NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10 GENERAL PROVISIONS
10.1 Assignment. This Agreement shall not be assigned or transferred by the Business, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of CurrentWare. Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any assignment in violation of this Section 10.1 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
10.2 Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
10.3 Choice of Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada excluding all conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The courts of Ontario shall have exclusive jurisdiction to resolve any dispute arising pursuant to this Agreement.
10.4 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the CurrentWare Service, the CurrentWare materials or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations.
10.5 Notices. Standard communications may be delivered by email. All formal notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the Business’s address set forth on the Order Form. CurrentWare’s address is 545 King St West, Suite #200, Toronto, Ontario, Canada, M5V 1M1. Notice shall be considered delivered and effective on the earlier of actual receipt or: (a) the day following transmission if sent by email when followed by written confirmation by registered overnight carrier or certified mail; or (b) four (4) days after posting when sent by certified mail.
10.6 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
10.8 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than forty-five (45) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
10.9 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.10 Changes to this Agreement. No changes or amendments may be made to the Agreement without the prior written consent of both CurrentWare and the Business.
10.11 Complete Understanding. This Agreement and all attachments and Schedules, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.
11. Licensed & Open Source Technologies in Use
FIREBIRD – https://www.firebirdsql.org/pdfmanual/html/qsg25-firebird-licenses.html
IACCESSIBLE2 IDL – IAccessible2 IDL Specification
Copyright (c) 2007, 2013 Linux Foundation – http://accessibility.linuxfoundation.org/a11yspecs/ia2/docs/html/_license_page.html
Copyright (c) 2006 IBM Corporation
Copyright (c) 2000, 2006 Sun Microsystems, Inc.
SQLITE – https://www.sqlite.org/copyright.html
WINDIVERT – https://reqrypt.org/windivert-faq.html#q5 <https://reqrypt.org/windivert-faq.html
WINPCAP – https://www.winpcap.org/misc/copyright.htm
ZLIB – https://www.zlib.net/zlib_license.html
TELERIK WINFORMS – https://www.telerik.com/purchase/license-agreement/winforms-dlw-
Komodia – https://url-classification.io/wiki/index.php/Terms_of_service
Advanced Installer – https://www.advancedinstaller.com/eula.html
The software and all functionality provided by the software is provided “as-is”. The licensor of the software expressly disclaims any warranties (including with regard to the performance of the software) and without limitation, express or implied warranties of merchantability, fitness for a particular purpose or non-infringement in respect of the software. The licensor of the software makes no warranty that the categorization methods of the software shall be correct or accurate in all situations or instances. End users may not agree with the software’s categorization of any internet site. The licensor of the software shall not have any liability in respect of claims that any specific internet site should be categorized differently than the categorization applied by the software. Moreover, the categorization of any internet website in one category and the later categorization of the same website in a different category shall in no event be deemed evidence that the initial categorization of a website was incorrect, and shall in no event act to impose any liability on licensor.