End User Agreement for Software and Services provided by iWave Information Systems Inc.
Please note that subscriptions are non-refundable. This end user license agreement (the “License Agreement”) is entered into by and between iWave Information Systems Inc. (“Licensor”) and Client. For purposes of this License Agreement, Client shall include any legal entities that control, are controlled by, or are under common control with Client.
This License Agreement and the document by which the Client orders a Subscription to access the Software (“Order Form”), or renews a Subscription (“Renewal Form”), or orders Screening Services (“Services”) contain the complete and exclusive statement of the agreement between the parties under which Licensor grants a right to access “Software” to the Client or provides services to the Client and will supersede any prior proposal, representation, or understanding between the parties. No oral or written representation that is not expressly contained in the License Agreement, Order Form or Renewal Form is binding on the Licensor.
The Software is copyrighted and licensed, not sold, to the Client. By using a user name and password to access the Software, the Client accepts and agrees to the terms of the License Agreement. A “Subscription” is the right to access the Software and Services for the period specified on the signed Order Form (“Term”).
Before you click on the “ACCEPT” button at the end of this document, carefully read the terms and conditions of this license agreement. By clicking on the “ACCEPT” button and accessing the Software, you are consenting to be bound by and are becoming a party to this license agreement. If you do not agree to all of the terms of this license agreement, click the “DO NOT ACCEPT” button and do not use the Software.
1. License Grant The Licensor grants to the Client a non-exclusive, non-transferable right of limited use of Software for a limited period of time. At the end of the Term and in the event that an additional Order Form or Renewal Form has not been executed prior to the end of the Term, this License Agreement shall automatically terminate with respect to that Order Form or Renewal Form. Each user name and password is for a single user license only. The Client agrees not to share, sell, rent or otherwise transfer this Subscription to any other person or entity without written approval from the Licensor. The Client acknowledges that a description of the Software, including the authorized number of users and total purchase price plus applicable taxes is correctly set forth on the Order Form.
2. Licensor’s Rights The Client acknowledges and agrees that the Software and the user’s manual are proprietary products of the Licensor and/or its providers and are protected under Canadian and U.S. copyright law. The Client further acknowledges and agrees that all right, title and interest in and to the Software, including associated intellectual property rights, are and shall remain with Licensor and/or its providers. This License Agreement does not convey to the Client an interest in or to the Software, but only a limited right of use as provided for in this License Agreement.
3. Unlawful Use The Client agrees that it will not use the Software for an unlawful purpose and acknowledges that the Licensor and its third-party providers forbid the Client from using the Software in any unlawful manner. The Client acknowledges that certain states have enacted laws that place restrictions upon telemarketing activities, including but not limited to permitting a telephone subscriber to give public notice that such subscriber does not wish to receive sales solicitation telephone calls. Due to the varying publication dates of such notices, the Licensor disclaims any warranty, express or implied, that the names and telephone numbers of all such subscribers have been identified on or deleted from the data supplied to the Client hereunder. Further, the Client acknowledges that the Federal Communications Commission (“FCC”) has placed restrictions upon marketing activities using facsimile numbers for unsolicited marketing advertisements. The Client agrees that any usage of facsimile numbers provided by the Licensor as part of the data will be used in strict accordance with the FCC’s rules and regulations and is solely the Client’s responsibility.
All rights not explicitly granted to the Client remain with the Licensor.
By using the Software, the Client expressly agrees that the Licensor is permitted to bill the Client or the Client’s organization a subscription fee as indicated on the signed Order Form or Renewal Form and that the Client has the authorization to sign the Order Form or Renewal Form on behalf of the Client’s organization (if applicable). The subscription fee will be billed as per the conditions on the signed Order Form or Renewal Form.
The Licensor reserves the right to modify content and/or data providers of the Software during the Term of the License Agreement. Modifications and/or improvements will not result in additional costs during the Term but may result in changes in renewal term conditions and pricing.
The Licensor shall issue a main user name to the Client and a corresponding unique password to each registered user on the Order Form or Renewal Form, who must be employees of the Client. The designation of the particular registered users may change during the term of the Client’s license but the actual number of registered users cannot change during the Term without additional costs. Additional registered users may be added during the Term at an additional cost. Please note that only registered users of Software can participate in online training and receive product support via web, email or telephone. We can only discuss account details or make user changes with the primary contact or registered users listed on the order/renewal form.
Access to the Software is restricted to registered users of the Client. A registered user is a single user operating from a single site.
Additional registered users cannot be added when:
The Licensor reserves the right to change fees and terms of this License Agreement for any renewal Term, and will give the Client prior written notice of any such changes.
The Client’s license to the Software may be temporarily suspended or wholly terminated without notice or refund, if the Licensor reasonably believes that the Client has failed to comply with any of the terms and conditions of the Order Form, the Renewal Form or the License Agreement. The Client’s license to the Software may be temporarily suspended or wholly terminated if the account is past due more than 90 days. Suspended time will not be added to the term of the agreement in this circumstance.
6. Irreparable Harm The Client further acknowledges and agrees that any use or disclosure of the Software by the Client in any manner inconsistent with the provisions of this License Agreement shall cause the Licensor to suffer irreparable harm and that a recovery of only monetary damages shall be inadequate to compensate the Licensor for the Client’s breach, and that the Licensor shall be entitled to injunctive relief, including temporary or preliminary relief. This remedy shall be in addition to any other remedies available.
7. Limitations of Liability Notwithstanding anything to the contrary in this License Agreement, in no event shall the Licensor or its third-party providers be liable for incidental, indirect, special, punitive or consequential or other damages of any kind, business interruption or lost profits, whether foreseeable or not, in connection with this License Agreement, the Software or the Client’s use of the data provided, notwithstanding any failure of essential purpose. All information is provided “as is” without warranty of any kind. In no event shall the aggregate liability of the Licensor and its third-party providers in connection with any claims arising out of or in connection with this License Agreement exceed the amounts paid by the Client to the Licensor with respect to the Software with respect to which such claims arise.
8. Governing Law This License Agreement and all claims arising out of or relating to this License Agreement or the Software, including tort claims, shall be interpreted, construed and enforced in accordance with the laws of the Province of Prince Edward Island, Canada, regardless of the laws that might govern under applicable choice-of-law provisions.
9. Costs of Litigation If any action is brought by either party to this License Agreement against the other party regarding the subject matter of the License Agreement, the prevailing party shall be entitled to recover, in addition to other relief, reasonable attorney fees and expenses of litigation.
10. Severability Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, the declaration shall have no effect on the remaining terms of this License Agreement.
11. No Waiver The failure of either party to enforce any rights granted under this License Agreement or to take action against the other party in the event of a breach of the License Agreement shall not be deemed to be a waiver by that party as to subsequent actions for breach of the License Agreement.
12. Effect of Termination Upon termination of this License Agreement for any reason all rights to use the Software granted by the Licensor to the Client pursuant to this License Agreement shall immediately terminate and the Client shall immediately cease all use of the Software. Notwithstanding any other provision of this License Agreement, Clauses 5 through 11 of this License Agreement shall survive the termination of this Agreement.
13. Database Analysis (“Screening”) Agreement (if included in Order or Renewal Form)
13.1.1 Licensor acknowledges that the data submitted to Licensor by Client (the “Data”) is to be used by Licensor for the sole purpose of enhancing the Data. Licensor certifies that from the time that Licensor receives the Data until the analysis process has been completed, no person or persons who are not employees of Licensor, or consultants working for Licensor, will have access to the Data. Licensor also certifies that once the analysis process has been completed, all Data (as so enhanced) will be removed from Licensor’s systems at the request of Client. In this case, Licensor will secure and protect the stored Data in accordance with Client ‘s policies.
13.1.2. Each party acknowledges and agrees that any and all information emanating from the other party’s business in any form that is marked confidential or reasonably should be deemed confidential, including and not limited to marketing information, prospective plans, activities of technical and other personnel, and any compilations of otherwise non-public information, including the terms of this Agreement, are confidential and proprietary information. Each party agrees that it will not, during or after the term of this Agreement, permit the duplication, use or disclosure of any such confidential and proprietary information to or by any person (other than any of its employees, agents, independent contractors or other representatives who must have such information for the performance of such party’s obligations hereunder), unless such duplication, use or disclosure is specifically authorized in writing by the other party.
13.1.3. In the event of unauthorized access to the Data, Licensor will notify Client, within two (2) business days. Licensor will provide a detailed account of the unauthorized access including Client records that were accessed and what, if any, information was viewed, removed or copied during the period from when the unauthorized access occurred until the unauthorized access ended. Unauthorized access consists of any access to the Data by employees of Licensor or consultants working for Licensor or by any other individual that violates the provisions of 13.1.1. Furthermore, Licensor acknowledges that upon unauthorized acquisition of such individually identifiable information within Licensor’s custody or control, the law may require that Licensor notify the individuals whose information was disclosed that an unauthorized access has occurred. Licensor agrees that it will not notify the individuals until Licensor first consults with Client and Client has had an opportunity to review any such notice.
13.2 Information Delivery Schedule
13.2.1. Licensor will deliver to Client the results of Licensor’s analysis of the Data not later than fifteen (15) business days from receipt of the data in the proper format.
13.3 Rights of CLIENT
13.3.1. CLIENT acknowledges that Licensor, or the data owners who provided the Information to Licensor, own the Information, and that CLIENT has no proprietary rights to the Information used by Licensor to enhance the Data.
13.3.2. CLIENT has the right to use all Information provided via Licensor’s Data analysis process without limitation.
13.3.3. CLIENT may not sell, lease, rent or otherwise provide to any other party its own Data as enhanced with the Information or any direct marketing list, model, analysis, code or report utilizing or derived from the Information, except that CLIENT may provide without charge its own Data as enhanced with the Information or any direct marketing list, model, analysis, code or report utilizing or derived from the Information to an employee, agent, independent contractor, or other representative of CLIENT providing assistance to CLIENT in connection with the marketing programs permitted under Section 13.3.2 above.
13.4 Representations and Warranties by Licensor
13.4.1. Licensor has all rights and licenses necessary to deliver the Information to CLIENT and to grant CLIENT all rights granted in this Agreement to analyze and use the Information.
13.4.2. The Information does not infringe upon or otherwise violate any copyright, trade secret, trademark, patent, invention, right of privacy, known third party rights, or non-disclosure requirements of any third party. In furtherance of these representations and CLIENT’S reliance thereon, Licensor shall indemnify and hold CLIENT , its officers, directors, agents, and employees harmless against all claims, demands, or liabilities of or to third parties arising from or in connection with Licensor’s breach of its representations or warranties hereunder. Said indemnification shall survive the expiration or termination of this Agreement.
13.4.3. Licensor will obtain the Information from sources it considers reliable and will run reasonable control checks on the Information, but will not be subject to liability for truth or accuracy of the Information conveyed or for its completeness or for errors or mistakes made by humans or machines. Licensor shall take reasonable steps to control continuing quality of the Information. Application of such quality control procedures constitutes the full extent of warranty with regard to the Information provided. CLIENT acknowledges that it may be necessary or advisable from time to time, in the ordinary course of Licensor’s business, for Licensor to add, delete, and substitute Information it makes available to its clients, including CLIENT. Licensor expressly reserves the right to revise the Information and to make changes in content. Licensor will give CLIENT written prior notification of any such changes. NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WILL APPLY TO THE INFORMATION PROVIDED EXCEPT AS SET FORTH ABOVE. These disclaimers must be conveyed to all CLIENT authorized users of the Information.
13.5.1. Subject to the following sentence, this Agreement shall be binding upon the parties, their successors and assigns. Neither this Agreement nor any interests or duties hereunder may be assigned by either party without the prior written consent of the other.
13.5.2. This Services Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Prince Edward Island, Canada, excluding its choice of law rules regardless of its place of execution. In the event of a dispute hereunder, the parties agree to submit to the exclusive jurisdiction of the province of, and federal courts sitting in, the Province of Prince Edward Island, Canada
13.5.3. No waiver of any term or condition of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition.
13.5.4. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect.
13.5.5. Neither party will be liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control. In no event will Licensor be liable for loss or damage incurred by any person or party as a result of the use of CLIENT’s software, data, or equipment, or for any incidental, indirect, special or consequential damages.
13.5.6. This Services Agreement contains the entire understanding between Licensor and CLIENT and supersedes all prior written and oral understandings relating to the subject matter hereof.