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”). Client and iWave each are individually referred to herein as a “Party” and collectively, the “Parties”.
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.
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, or any information that is otherwise included within the applicable definition of personally identifiable information and such other analogous definitions under any applicable law.
“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 (except as set forth in Section 11.4), non-sublicensable right to use the Products 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 solely for the purpose of interpreting, enhancing, modifying, and using the Client Data to create Reports for you pursuant to this Agreement that provide prospect intelligence and strategies for your fundraising purposes.
2.3 Use of Reports. iWave grants you, and your employees, agents, independent contractors and other authorized representatives that are hired by you, a limited, perpetual, nonrevocable, exclusive, non-transferable (except as set forth in Section 11.4), non-sublicensable right to use, reproduce, and prepare derivative works of the Reports solely for your Internal Business Purposes. If you are a consultant specializing in fundraising and charitable giving services, you may use the Reports for Internal Business Purposes on behalf of your clients. 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 and the right to re-name or re-brand Products. 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 in writing.
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 shall use commercially reasonable efforts to maintain the confidentiality of passwords, and iWave has no liability with regard to the use of such passwords by third parties as a result of your breach of this Section 3.3. 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 permit a third party to use any of your account details at any time, and you will notify iWave at firstname.lastname@example.org 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 licenses Third Party Data for use in its Products and may be obligated to comply with certain restrictions and requirements associated with such use of data. iWave uses reasonable best efforts to ensure the use and incorporation of Third Party Data in the Products does not violate such restrictions and requirements. You shall provide iWave with notice of all actions, claims, losses or damages arising out of the use of the Products that, to your knowledge, relate to Third Party Data. iWave will be responsible for forwarding any such notice to the Third Party Data Provider, as applicable. Third Party Data Providers are intended third party beneficiaries of this Agreement and therefore the benefit of all limitations of liability that apply to iWave hereunder also apply to Third Party Data Providers.
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 located at support.www.iwave.com, or by logging in to your iWave 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,
- 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 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 applicable 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 in advance, 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 advance prior to exercising its 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 60 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. iWave may increase or adjust the basis for calculating your Subscription Fees by notifying you three months prior to the commencement of your next Subscription Period. Such changes or new fees will become effective at the commencement of your next Subscription Period. Subscription Fees are calculated based on the total number of Users that may simultaneously access or use the System, the number of screening credits (“Screens”) available for use, and optional add-on components or features (“Add-Ons”). Increases in Subscription Fees based on the number of Users, Screens and/or Add-Ons 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, Screens and/or Add-Ons will be effective at the commencement of the next Subscription Period. Upon renewal of an Order, recurring Screens will be reset to the original amount but will expire after one year or at the end of the Subscription Period, whichever is sooner. One-time Screens do not expire or reset at the end of a Subscription Period but do expire upon termination of this Agreement. Any introductory, promotional or incentive Subscription Fees are only available for the then-current Subscription Period. For further details and examples on which Screens expire, reset, or are available for the Term of this Agreement, and for questions regarding Subscription Fee increases or decreases please see the iWave support documentation at www.iwave.com/resources/ or contact iWave at email@example.com.
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, international banking fees, membership, overdraft, insufficient funds, and over-the-credit-limit fees. Except as otherwise expressly set forth in this Agreement, 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 accounts.receivable@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. If you are exempt from sales tax, proof of such exemption must be provided to iWave within 20 days after the date of the applicable invoice.
5.6 Effect of Nonpayment. In the event that your account is 10 days or more overdue, in addition to any of its other rights or remedies, iWave may suspend your access to the System until such invoice is paid in full. iWave may at any time choose to refer unpaid invoices to a collection agency. You will indemnify iWave for all legal fees, court costs and any other expenses incurred by iWave in the collection of unpaid invoices. 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, iWave may use, reproduce, analyze, publicize, or otherwise exploit Scrubbed Data in any way, in its sole discretion in order to maintain, provide and improve the Products. 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. For the avoidance of doubt, and unless excepted pursuant to the previous sentence, as between the Parties, the Client Data shall be considered the Confidential Information of the Client and the Documentation, iWave Data, and Third-Party Data shall be considered the Confidential Information of iWave.
7.2 Nondisclosure; Destruction or Return. 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 or as otherwise expressly required under this Agreement. 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 prior to any disclosure pursuant to the preceding sentence, including in connection with 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. Subject to Section 10.5, within 30 days following the expiration or termination of this Agreement for any reason, or sooner upon the request of the Discloser, Recipient shall promptly return to the Discloser or destroy all Confidential Information; in either case, any and all copies of Confidential Information will be destroyed. Upon request of the Discloser, Recipient will provide a written affidavit certifying that all Confidential Information has been returned or destroyed in compliance with this Section 7.2.
7.3 Injunction. Recipient agrees that breach of Section 7.2 may 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 seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4 Retention of Rights. Except as expressly set forth in this Agreement, 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. In addition to iWave’s representations about iWave Data in Article 6, iWave represents that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement, (b) it has obtained all permissions, releases, rights or licenses required to grant the rights provided in and perform its obligations under this Agreement; and (c) it is the owner of the System and of each component thereof (including the Products and Reports generated using 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 Reports, 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 Section 8.1(d), iWave, at its own expense, will promptly take the following actions: (a) secure for you the right to continue using the System and applicable Products and Reports; (b) replace or modify the System or applicable Products or Reports to make them non-infringing; or (c) terminate the infringing features of the System or applicable Products 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 and iWave’s indemnification obligations hereunder, 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.
8.4 No Implied Warranties. Except to the extent set forth in Section 8.1 above, you accept 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 any implied warranty arising from statute or otherwise. Without limiting the generality of the foregoing, iWave does not represent that the Products or System are or will be error-free or will meet your fundraising requirements. You understand and accept that processing and transmission of electronic communications is essential to your use of the Products and System and that collection and transmission of Client Data will involve 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 other electronic means, electronic communications may be accessed by unauthorized parties. Although iWave uses administrative, physical and technical safeguards and makes commercially reasonable efforts to avoid delay, loss, alteration or interception of Client Data, except as expressly set forth in this Agreement, iWave is not responsible for any delay, loss, alteration or interception of Client Data resulting from networks that are not owned, operated and controlled by iWave and your use or reliance on the Products and the System is at your own risk.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 iWave Indemnification. iWave will indemnify and hold harmless you and your officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any third party claim, suit or proceeding arising out of or related to: (a) iWave’s breach of any of its representations, warranties, obligations, or covenants set forth in this Agreement; and (b) 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. iWave’s obligations set forth in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at iWave’s expense and payment of judgments. Client 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.
9.2 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) your breach of any of your representations, warranties, obligations, or covenants set forth in this Agreement; (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 intellectual property, privacy, or confidentiality rights caused by material or content (including Client Data) uploaded to the System through your account; and (d) claims that use of the Products through your account harasses, defames, or defrauds a third party or violates any applicable provincial, state or federal law or restriction on electronic advertising or solicitation. Your obligations set forth in the preceding sentence include retention and payment of reasonable legal fees 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. Except for: (i) a breach by either Party of the obligations identified in Articles 4, 6 and 7, (ii) damages which arise from either Party’s gross negligence or willful misconduct, (iii) damages which arise from either Party’s noncompliance with applicable laws and regulations, or (iv) indemnification obligations pursuant to Sections 9.1 and 9.2 above, (a) 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, and (b) the aggregate liability of one Party to the other for damages under this Agreement, regardless of the form of the action (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”). Subject to the remaining Sections in this Article 10, 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 60 days advance notice before the end of a Subscription Period, by contacting iWave through the phone numbers located at support.www.iwave.com, or through the “Contact Us” tab on www.iwave.com. 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, if you are promptly notified of same. iWave will not be liable to you or any third party for such termination or suspension. 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 or expires (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 machine-readable format of iWave’s choosing, acting reasonably. Subject to the following sentence, Client Data shall remain in the System’s production environment for 30 days after you are no longer an active client of iWave, then will be archived for 30 days, then will be permanently deleted. Summary level User data shall be retained indefinitely in iWave’s customer relations management software, but search information based on Client Data shall be deleted in accordance with the foregoing. 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 2.3 (Use of Reports), 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 the 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 support@iWave.com, and such notices will be deemed received 24 hours after they are sent. Either Party may update its email contact for notice purposes by providing notice pursuant to this Section 11.2.
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 the assigning Party’s assets. Any purported assignment of this Agreement in violation of this Section 11.4 shall be null and void.
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. If 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. Unless otherwise directed or required by you, iWave may identify you as a client of iWave and use your name and/or logo in iWave marketing materials. 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 claim against the other Party. Any dispute arising out of or related to this Agreement shall first be subject to good faith discussions and negotiations between authorized representatives (“Representatives”) of each Party. Disputes that are not able to be resolved between the Representatives within 30 days of first notification to the other Party that there is a dispute, will be submitted to mandatory, binding arbitration administered by Conflict Resolution Services in Charlottetown, Prince Edward Island (or an equivalent organization), with the Parties sharing equally the costs of arbitration. Arbitration will proceed according to standard commercial arbitration rules. This Section 11.13 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 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. 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. This Section 11.13 does not apply to Disputes involving unpaid invoices, for which iWave may pursue any dispute resolution process it chooses, including civil claims or referrals to collection agencies.