PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
These Terms and Conditions constitute an agreement by and between iWave Information Systems Inc., a Prince Edward Island corporation (“iWave”) and the individual or the corporation, society, partnership, or other legal entity identified as such on the applicable Order Form that incorporates these Terms and Conditions (“you”, “your”, “yours” or “Client”).
YOU REPRESENT THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AGREE TO BE BOUND BY THEM, AND THAT THE PERSON SIGNING THE ORDER FORM ON YOUR BEHALF HAS THE AUTHORITY TO BIND YOU TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. In addition to any terms defined within this Agreement, the following capitalized terms have the following meanings:
“Agreement” means any Order Form(s) executed by you, these Terms and Conditions, and all policies and instructions incorporated by reference, all as may be updated from time to time.
“Client Data” means any data, information or material in electronic form submitted to the System by you, or extracted from your databases by the System.
“Documentation” means iWave’s standard manual related to use of the Products and the System, as well as any other written documentation provided to you by iWave to facilitate your use of the Products and the System under the terms of this Agreement.
“Internal Business Purposes” means purposes relating to your organization’s fundraising requirements, and not for use in marketing or sales collateral or the benefit of a third party.
“iWave Data” means the data comprising iWave’s proprietary database, which data may either be compiled and organized in a proprietary manner by iWave and incorporated into the System, but does not include Third Party Data.
“Order” means a new, renewed, or modified order for iWave Products created either electronically when you open an iWave account, or through an Order Form digitally or hand signed by your authorized representative.
“Order Form” means the form of document digitally or hand signed by you, or approved by you in electronic form, which includes your contact information, the type of Products to be provided, any special terms of service, and your method of payment.
“Personal Information” means data or information that enables the identification of a specific person, and may include prospect and donor names, mailing and email addresses, dates, donation amounts, date of birth, and any data related thereto.
“Products” means the products identified on an Order Form, and that provide the services that create your Reports.
“Report” means the prospect screening reports and charitable giving history reports produced by the Products.
“Subscription Fees” means the fees you pay to subscribe to the Products.
“Subscription Period” means the subscription period commencing on the “Subscription Start Date” identified on the Order Form, and terminating in accordance with Article 10.
“System” means iWave’s database analysis system that includes, without limitation, iWave Data, Third Party Data, iWave’s proprietary software, algorithms, formulas, methods, processes (including any enhancements, modifications, and derivative works thereto), all links to external applications or third party services, hardware (including servers), any associated offline components, and all updates thereto, that provide the Products to you over the internet.
“Term” means the total of all Subscription Periods during which you pay Subscription Fees to use the Products.
“Third Party Data” means datasets provided by third parties and licensed by iWave for use with the System.
“Third Party Data Providers” means third parties that own datasets accessed by the System.
“User” means your employee or authorized representative listed on an Order Form (or otherwise identified to iWave in writing) who uses the Products on your behalf or through your account or passwords.
2. LICENSES AND OWNERSHIP
2.1 License to use Products and Documentation. During the Term, and subject to the terms and conditions in this Agreement, iWave grants you a limited, non-exclusive, non-transferable, non-sublicensable right to use the Products and Reports solely for your Internal Business Purposes. You may reproduce and use the Documentation only as necessary to use the Products.
2.2 Client Data. You grant iWave a limited, non-exclusive, non-transferable, non-sublicensable right to use the Client Data for the purpose of interpreting, enhancing, modifying, and using the Client Data to create Reports that provide prospect intelligence and strategies for your fundraising purposes.
2.3 Use of Reports. The Reports are for the exclusive use of you and your employees, agents, independent contractors and other authorized representatives that are hired by you, to use for your Internal Business Purposes. Additional Report, Product and System use restrictions are identified in Article 4.
2.4 System Ownership. iWave retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System, all iWave Data, all linkages to external applications or third party services, and all methods, processes, algorithms and databases provided through the System, and excepting out any Third Party Data owned by Third Party Data Providers. This Agreement does not grant you any intellectual property license or rights in or to the System or any of its components. The System and its components are protected by copyright and other laws.
2.5 System Revisions. iWave may revise System features and functions at any time, including without limitation, removing certain features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, you may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. iWave reserves the right to modify content and/or data providers for the System. Modifications and/or improvements will not result in additional costs during a Subscription Period but may result in changes to Subscription Fees in the following Subscription Period.
3. THE PRODUCTS
3.1 Provision of Products. iWave shall provide you with the Products identified on an Order Form. Your use of any Product, in addition to these Terms and Conditions, may be subject to certain additional restrictions set forth on an Order Form. The form and nature of the Products may change from time to time without prior notice to you. Each change, update or modification will also be governed by this Agreement, unless otherwise stated in an Order.
3.2 Order Requirements. Each proposed Order shall be submitted to iWave through a representative having the authority to bind you, and iWave may presume that such representative has such authority. Each proposed Order will include your organization’s accurate name, email address, or other identifying information, the Product option selected by you, any transaction-specific terms and conditions, the Subscription Period for which you have subscribed to use the Products, and the Subscription Fees. No proposed Order will be considered an Order until accepted by iWave.
3.3 Passwords and Security of Account. As part of the registration process, you will be provided with an opportunity to select passwords for your account. You are responsible for maintaining the confidentiality of passwords, and iWave has no liability with regard to the use of such passwords by third parties. iWave will only discuss your account details with the primary contact listed on the Order Form. Except as expressly permitted by this Agreement, you will not allow a third party to use any of your account details at any time, and you will notify iWave at email@example.com if you have reason to believe the security of your account has been compromised. iWave reserves the right to terminate any account, which iWave reasonably determines may have been used by an unauthorized third party.
3.4 Sourcing of iWave Data. iWave uses commercially reasonable efforts to obtain the iWave Data from reliable sources, however, iWave reserves the right to substitute and replace the sources for the iWave Data, and iWave is not liable for errors, inaccuracies or incompleteness of the iWave Data included in any Product. iWave represents that the iWave Data has been collected in accordance with applicable local, provincial, state, and federal statutes and regulations.
3.5 Third Party Data Providers. iWave may be obligated to comply with certain restrictions and requirements placed upon the use of the Products by Third Party Data Providers. YOU SHALL NOT SUE ANY THIRD PARTY DATA PROVIDER FOR AN AMOUNT IN EXCESS OF ANY LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS. YOU SHALL PROVIDE IWAVE WITH NOTICE OF ALL ACTIONS, CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE USE OF THE PRODUCTS. IWAVE WILL BE RESPONSIBLE FOR FORWARDING ANY SUCH NOTICE TO THE THIRD PARTY DATA OWNER, AS APPROPRIATE. Third Party Data Providers are intended third party beneficiaries of this Agreement, and the Third Party Data Providers may, in their own name, or in iWave’s name, enforce this Agreement against you; provided, however, that you will only look to iWave and not Third Party Data Providers for performance by iWave of iWave’s obligations hereunder.
3.6 Hyperlinks and Interoperability. The System may provide links to third party software or websites that are not maintained by, or related to, iWave or the Products. Links to such software or websites are only provided as a service to you to enhance your use of the Products. iWave does not continuously monitor or review such software or websites and is not responsible for the content of such software or websites. Links to other websites are to be accessed at your own risk, and iWave makes no representation about the content, completeness or accuracy of these links or the websites linked to the System. iWave provides links as a convenience, and the inclusion of any link to a third party software or website does not necessarily imply endorsement by iWave of that software or website or any association with its operators.
3.7 Technical Support. Technical support can be accessed by contacting iWave by phone or email using the contact information at the bottom of the iWave website screen (www.iwave.com), by contacting iWave through the “Contact” tab on www.iwave.com, or by logging in to your PRO or VeriGift account and clicking “Support” to contact our client services team and to access tools and resources to support your use of iWave Products.
4. USE OF IWAVE PRODUCTS AND SYSTEM
4.1 Acceptable Use. You shall use the Reports, Products and System solely for your Internal Business Purposes. You shall not:
- use the Products or System for service bureau or time-sharing purposes or in any other way allow third parties to use the Reports, Products or System (including but not limited to reselling, relicensing or redistributing Reports or Products, in whole or in part);
- disclose or provide the Reports or Products to employees whose duties do not reasonably relate to Internal Business Purposes;
- use the Reports, Products or System to create, enhance or structure any database for resale or distribution, or to create models, analytics, derivative products or other derivative works of the Reports, Products, or System;
- use the Products or Reports as a factor in establishing an individual’s eligibility for credit or insurance for personal, family or household purposes, or for employment;
- use the Products or System to harm minors in any way;
- impersonate any person or entity, including, but not limited to, an iWave employee, account administrator, or other client or User, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- provide System passwords or other log-in information to any third party;
- manipulate identifiers in order to disguise the origin of any of your Client Data;
- use the System for illegal activities or in violation of any application law, rule or regulation;
- use the System to upload, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- use the System to upload, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System;
- modify, adapt, or hack the System, including by using any non-public iWave APIs, or otherwise attempt to gain unauthorized access to the System or its related systems or networks;
- access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or
- use data scraping tools to scrape data from the System.
4.2 Prohibition on Malicious Use. You shall not interfere with or disrupt System users with the intent to cause an excessive or disproportionate load on iWave’s or its suppliers’ infrastructure by means of distribution of unsolicited bulk emails, viruses, trojan horses, worms, or other similar harmful or deleterious programming routines. iWave reserves the right to take reasonable actions to respond to activities conducted using your account information that may cause a denial, degradation, interference or disproportionate burden on the System. iWave may suspend or terminate your account without prior notice in the event that your use of the Products and/or System pose or appear to pose an unacceptable risk to the stability, integrity, or quality of the System.
4.3 Compliance with Laws and Third Party Data Provider Requirements. Each Party shall comply will all applicable laws in its performance of this Agreement or in the exercise of its rights hereunder. You shall only use the Products and System in compliance with all applicable laws, including without limitation laws and regulations regarding telemarketing, customer solicitation (including wireless advertising and e-mail solicitation), data protection and privacy (including but not limited to the NAI Code of Conduct), laws governing the protection of personally identifiable information, and laws governed by agencies such as the Federal Communications Commission (FCC) that place restrictions on marketing activities using facsimile numbers for unsolicited marketing advertisements. iWave is obligated to comply with certain restrictions and requirements placed upon the use of the Third Party Data by the Third Party Data Providers. You shall strictly comply with all restrictions and requirements now or hereafter imposed upon iWave or its licensees by the Third Party Data Providers to the extent such restrictions and requirements are made known to you in writing, including, without limitation, the usage restrictions contained in this Agreement. In the event that legislation or governmental regulations or the Third Party Data Providers’ requirements limit or prohibit the delivery or use of any Product, or if, in iWave’s reasonable judgment, delivery or use of any Product would violate any such legislation, regulations or requirements, iWave may suspend delivery of such Products. At its option, iWave may: (i) implement an alternative method of providing the Products or (ii) terminate the applicable Order or Product and you will discontinue using such Product. If iWave terminates the Order or a Product pursuant to this Section, iWave agrees to provide you with a refund of any Subscription Fees paid in advance for any Product that has not yet been delivered to you under the applicable Order. The foregoing remedies do not apply if such noncompliance arises out of your use of the Products, or your violation of the provisions of this Agreement.
4.4 Users and Access. You are responsible and liable for your Users’ use of the Reports, Products, and System, including without limitation, the conduct of any User that is not authorized to use the Reports, Products and System, and the conduct of any User that violates the provisions of this Agreement.
4.5 Audit. iWave will not systematically monitor Client Data, but reserves the right to review, or audit, Client Data from time to time in its reasonable discretion. iWave reserves the right to (a) disable access to or delete any Client Data which it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, defamatory, fraudulent, infringing, harassing, or otherwise offensive, and (b) disable access to or delete any other Client Data under reasonable circumstances, as such circumstances are determined in good faith by iWave. iWave will notify you in a case where iWave exercises it rights under this Section 4.5.
4.6 iWave’s Remedies for Breach. If iWave suspects any breach of the requirements of this Article 4, including without limitation a breach by Users, iWave may suspend your access to the Products without advanced notice, in addition to such other remedies as iWave may have. This Agreement does not require that iWave take any action against you or any User or other third party for violating this Article 4 or this Agreement, but iWave is free to take any such action it chooses, including terminating this Agreement in accordance with Section 10.3.
5. SUBSCRIPTION FEES, BILLING AND PAYMENT
5.1 Subscription Period. Each Order Form identifies an initial Subscription Period during which this Agreement is in effect, and the Subscription Fees that apply during such Subscription Period. You will receive a notification no less than 90 days prior to the end of each Subscription Period that Subscription Fees are due if you intend to use the Products during the next Subscription Period. Unless you cancel an Order to use the Products no less than 30 days before the end of such Subscription Period in accordance with Section 10.2, iWave will invoice you for the next Subscription Period’s Subscription Fees.
5.2 Subscription Fees. Subscription Fees are identified on an Order Form. Unless otherwise stated on the Order Form, all Subscription Fees are payable in advance. You will be notified before the upcoming Subscription Period if there are any changes in Subscription Fees. Such changes or new fees will become effective upon the commencement of your next Subscription Period and will not affect the prices for Products specified on the then current Order Form. Increases in Subscription Fees based on the number of Users will be effective and invoiced at the time of the increase, or on a pro-rated basis if the change is made during a Subscription Period. Decreases in Subscription Fees based on the number of Users will be effective upon renewal of the next Subscription Period. Screening credits included with your Subscription Fees (“Credits”) expire after one year or at the end of the Subscription Period. Upon renewal of an Order, Credits will be reset to the original amount. Any introductory, promotional or incentive Subscription Fees are only available for the current Subscription Period.
5.3 Payment. Payment method is identified on an Order Form. You are solely responsible for any and all fees charged to you by your bank, or other financial institution including, but not limited to, membership, overdraft, insufficient funds, and over-the-credit-limit fees. All Subscription Fees, and any other fees or charges are non-refundable, and no credits are issued if you use the Products for only part of a Subscription Period.
5.4 Invoices. iWave may: (a) send invoices via email, or such other means as it may select from time to time; and (b) invoice you at the beginning of each Subscription Period. You may request an additional invoice or an invoice in a different format by emailing billing@iWave.com. If you do not notify iWave in writing of a billing problem or discrepancy within 20 days of the relevant invoice date, you waive any right or dispute related to such problem or discrepancy.
5.5 Taxes. All Subscription Fees are exclusive of taxes, levies, and duties, and you will be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), withholding, or similar taxes, but excluding Canada (federal or provincial) or United States (federal or state) income tax and any other taxes based solely on iWave’s income. iWave may calculate taxes based on the billing information you provide.
5.6 Effect of Nonpayment. In the event that funds are unavailable from your account and/or your account is 10 days or more overdue, in addition to any of its other rights or remedies, iWave reserves the right to terminate the applicable Order Form, these Terms and Conditions, and/or access to the Products. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
6. CLIENT DATA AND PRIVACY
6.6 Data Accuracy. iWave has no responsibility or liability for the accuracy of data uploaded to the System by Users, including without limitation Client Data.
6.7 Scrubbed Data. Notwithstanding anything to the contrary in this Agreement, in order to maintain, provide and improve the Products, iWave may use, reproduce, analyze, publicize, or otherwise exploit Scrubbed Data in any way, in its sole discretion. In the context of this section, “Scrubbed Data” means aggregated, anonymized Client Data with personally identifiable information of individuals removed..
7.1 Definition. “Confidential Information” refers to the following items that one Party to this Agreement (“Discloser”) discloses to the other Party (“Recipient”): (a) any Reports produced through the use of the Products; (b) Client Data that is made available to iWave; (b) the Documentation, whether or not marked or designated confidential; (d) any technology incorporated into or used by the System, as well as the System’s non-public features, for which iWave will be considered the Discloser; and (e) any other non-public, sensitive information disclosed by Discloser, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser.
7.2 Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to fulfill Recipient’s obligations or exercise its rights pursuant to this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
7.3 Injunction. Recipient agrees that breach of Section 7.2 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information
8. REPRESENTATIONS AND WARRANTIES
8.1 From iWave. iWave represents that it is the owner of the System and of each component thereof (including the Products), or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. iWave’s representations in the preceding sentence do not apply to use of the Products or System in combination with hardware or software not provided by iWave, or in a manner not authorized by iWave under this Agreement. In the event of a breach of the representation in this Section 8.1, iWave, at its own expense, will promptly take the following actions: (a) secure for you the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the System and refund to you any prepaid fees for such features, in proportion to the portion of the Subscription Period left after such termination. In conjunction with your right to terminate for breach where applicable, the preceding sentence states iWave’s sole obligation and liability, and your sole remedy, for breach of the representation in this Section 8.1 and for potential or actual intellectual property infringement by the System.
8.2 From Client. In addition to your representations concerning Client Data in Article 6, you represent that: (a) you have the full right and authority to enter into, execute, and perform your obligations under this Agreement, (b) you have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow iWave to perform its obligations) in connection with the use of the Products, (c) no pending or threatened claim or litigation known to you would have a material adverse impact on your ability to perform as required by this Agreement; (d) you have accurately identified yourself and you have not provided any inaccurate information about yourself to iWave; (e) you are a corporation or another legal entity authorized to do business or conduct charitable activities pursuant to applicable law, an individual with the legal capacity to enter into a contract, or the sole proprietorship of such an individual, (f) to the best of your knowledge, your use of the Products will not cause or require iWave to violate any applicable law, rule, regulation, opinion, or industry guidelines; and (g) you have provided, if required, proper notice and secured proper consent for the collection and use of the Client Data in connection with the use of the Products.
8.3 Disclaimers. Third Party Data used, processed and analyzed by the System has been obtained by iWave from sources believed to be reliable. However, because of the possibility of human or mechanical error by such sources, or by iWave, Third Party Data Providers or others, iWave and its Third Party Data Providers do not guarantee the accuracy, adequacy or completeness of any data in the System or Products, or Reports created by the Products, and are not responsible for any errors or omissions or for the results obtained from the use of such information or for any contact information being on a “do not call” or any “do not contact” list. iWave disclaims any warranty, express or implied, that the names and telephone numbers of all subscribers on “do not call” lists have been identified on or deleted from the System.
Except to the extent set forth in Section 8.1 above, CLIENT ACCEPTS THE PRODUCTS AND SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) IWAVE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU OR YOUR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; AND (b) IWAVE DOES NOT REPRESENT THAT THE SERVICES OR SYSTEM ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO YOUR USE OF THE SERVICES AND SYSTEM. YOU CONSENT TO IWAVE’S INTERCEPTION AND STORAGE OF CLIENT DATA AND OF ELECTRONIC COMMUNICATIONS TO AND FROM YOU AND YOUR USERS. SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT ARE NOT OWNED, OPERATED, OR CONTROLLED BY IWAVE. CHANGES TO CLIENT DATA MAY OCCUR IN ORDER TO CONFORM AND ADAPT CLIENT DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES. IWAVE IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT DATA. YOUR DECISION TO USE THE PRODUCTS IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES OR MADE IN RELIANCE ON ANY ORAL OR WRITTEN STATEMENTS MADE BY IWAVE REGARDING FUTURE FUNCTIONALITY OR FEATURES. TO PERFORM OUR OBLIGATIONS UNDER THIS AGREEMENT, IWAVE MAY USE INFORMATION FURNISHED BY YOU WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION, AND IWAVE IS ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION. YOUR USE OR RELIANCE ON THE PRODUCTS IS AT YOUR OWN RISK.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 iWave Indemnification. In accordance with Section 8.1, iWave agrees to indemnify you against any losses or damages finally awarded against you, and your reasonable legal costs related thereto, incurred in connection with a third party claim alleging that your use of the unaltered Product or System infringes or misappropriates any U.S. or Canadian patent, copyright, or trade secret of such third party.
9.2 Client Indemnification. You will defend, indemnify, and hold harmless iWave and iWave’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any third party claim, suit, or proceeding arising out of or related to your alleged or actual use of, misuse of, or failure to use the Products, including without limitation: (a) claims by Users; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Client Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through your account, including without limitation by Client Data; and (d) claims that use of the Products through your account harasses, defames, or defrauds a third party or violates the Canadian Anti-Spam Law (CASL), the CAN-Spam Act of 2003,or any other state or federal law or restriction on electronic advertising. Your obligations set forth in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at your expense and payment of judgments. iWave will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
9.3 Limitation of Liability. Sections 9.1 and 9.2 state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in sections 9.1 and 9.2. EXCEPT FOR A BREACH BY EITHER PARTY OF THE OBLIGATIONS IDENTIFIED IN ARTICLES 4, 6 AND 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, UNLESS SUCH DAMAGES ARE A DIRECT RESULT OF THE LIABLE PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT. SUBECT TO THE PRECEDING SENTENCE, THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE AMOUNTS PAID BY YOU TO IWAVE IN THE SIX MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
10. TERM AND TERMINATION
10.1 Term. This term of this Agreement begins on the “Subscription Start Date” (identified on your first Order Form) and will continue for the Subscription Period designated on the Order Form, including any renewals (the “Term”). If a Subscription Period is designated on the Order Form, the Term will renew automatically on the last day of each Subscription Period for an additional such period.
10.2 Termination without Cause. You may terminate this Agreement by providing no less than 30 days advance notice before the end of a Subscription Period, by contacting iWave through the phone numbers located on the bottom of the iWave website screen (www.iwave.com), or through the “Contact” tab of the iWave website. Your termination of this Agreement will be effective at the end of the Subscription Period during which iWave receives your notice. For clarity and by way of example, if iWave receives notice of termination during the second month of a new Subscription Period, termination will be effective at the end of that Subscription Period. iWave may terminate this Agreement by providing no less than 90 days advance written notice before the end of a Subscription Period, by contacting your representative identified on the Order Form
10.3 Termination with Cause. iWave may terminate or suspend your right and license to use any or all Products or terminate this Agreement in its entirety (and, accordingly, cease providing the Products to you), if you breach a material provision of this Agreement, which breach is not cured within 10 days of written notice from iWave of such breach. Notwithstanding the previous sentence, iWave may immediately terminate or suspend your use of the Product if it is used in a manner that contravenes the provisions of Article 4, or if you are using the Product in a manner that would negatively impact iWave’s business or operations. iWave will not be liable to you or any third party for such termination. Upon iWave’s suspension of your use of any Product, in whole or in part, for any reason: (i) fees will continue to accrue for any Product that you are still using but have not paid for, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Products; and (iii) all of your rights with respect to the Products will be terminated during the period of the suspension. You may terminate this Agreement if iWave is in breach of a material provision of this Agreement, which breach is not cured within 10 days of written notice from you of such breach. For clarity, iWave’s material obligations are identified in Sections 3.1, 3.3, 4.3, 6.1 and 7.2 of this Agreement.
10.4 Termination upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
10.5 Access to Client Data on Termination. In the event your access to the Products is terminated (other than by reason of your breach), iWave will make available to you a file of the Client Data if requested in writing by you within fifteen (15) days after such termination, in a format of iWave’s choosing, acting reasonably. iWave has no obligation to retain the Client Data, and will permanently delete such Client Data no later than the 30th day following termination. iWave reserves the right to withhold, remove and/or discard Client Data, without notice, for any breach, including, without limitation, your non-payment of Subscription Fees. Upon termination for cause, your right to access or use Client Data will immediately cease, and iWave will have no obligation to maintain or provide any Client Data.
10.6 Effects of Termination. Upon termination of this Agreement, your access to the Products will end, and you will destroy or return all copies of the Documentation in your possession or control. The following provisions will survive termination or expiration of this Agreement: any obligation of you to pay fees incurred before termination, Section 2.4 (System Ownership), Article 7 (Confidential Information), Section 8.3 (Disclaimers), Article 9 (Indemnification and Limitation of Liability); and any other provision of this Agreement that must survive to fulfill its essential purpose.
11.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. The Parties are not agents of each other and neither may make commitments or representations on the other’s behalf.
11.2 Notices. iWave may send notices pursuant to this Agreement to your email contact points provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to info@iWave.com, and such notices will be deemed received 24 hours after they are sent.
11.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.
11.4 Assignment & Successors. This Agreement may not be assigned by either one of the Parties by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning Party’s assets
11.5 Severability. To the extent permitted by applicable law, the Parties waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11.6 No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.7 Choice of Law and Jurisdiction: This Agreement will be governed solely by the internal laws of the Province of Prince Edward Island, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and provincial courts of Charlottetown, Prince Edward Island.
11.9 Construction. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship.
11.10 Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
11.12 Marketing. With your prior written consent, iWave may identify you as a client of iWave and use your name and/or logo in iWave marketing materials. Provided that such prior written consent has been given, you hereby grant iWave a limited, non-exclusive, non-transferable, non-sublicenseable license during the Term of this Agreement to display your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that you use the Products.
11.13 Dispute Resolution. For the purposes of this paragraph, “Dispute” is defined as any conflict between the Parties pertaining to the subject matter of this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, in which one Party has an actual or perceived conflicting right or claim to the other Party. A Dispute arising out of or related to this Agreement shall first be subject to good faith discussions between representatives of each Party that are authorized to make decisions on behalf of such Party (“Representatives”). Disputes that are not resolved between the Representatives within 30 days of first notification to the other Party that there is a dispute, will be finally resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. The Seat of Arbitration will be Charlottetown, Prince Edward Island. The language of the arbitration will be English. There shall be no appeal of the decision to the courts, and the arbitration decision will be considered Confidential Information. This paragraph does not limit either Party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after the pendency of any arbitration, and the exercise of any such remedy does not waive either Party’s right to pursue mandatory arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.