Master Subscription Agreement
HOW THIS AGREEMENT WORKS
This Agreement is a master subscription agreement under which you may order Cloud Services including Application Services, Platform Services and Infrastructure Services from time to time through the execution of a Service Order and the applicable Schedules and Attachments, signed by you and FuseForward. Upon execution of each Service Order by both parties, each such Service Order will be deemed to be incorporated by reference into and governed by this Agreement.
Pursuant to the terms of this Agreement, FuseForward will provide you with use of the Cloud Services, including a browser interface, data encryption, transmission, access and storage. Your registration for, or use of, the Cloud Services shall be deemed to be your agreement to abide by the terms of this agreement.
As used in this Agreement and in any Service Order now or hereafter associated herewith:
“Application Services” means application software and services provided by FuseForward including its portal, data analytics, business and other application software services provided via online access based on the FuseForward Technology and third party technology (available solely as part of the Application Services) developed, operated, and maintained by Fuseforward, accessible via http://login.fuseforward.cloud or another designated web site or IP address, and any ancillary online or offline products and services provided to you by FuseForward, to which you are being granted access under this Agreement, including the FuseForward Technology;
“Cloud Services” means the Application, Platform and Infrastructure Services, including the use of the accompanying embedded software, information technology infrastructure and support services, all pursuant to the terms of this Agreement and the applicable Service Order;
“Content” means the audio and visual information, documents, taxonomies, software, products and services contained or made available to you in the course of using the Cloud Services;
“Customer Data” means any data, information or material provided or submitted by you through the Cloud Services in the course of using the Cloud Services;
“Effective Date” means the earlier of the this Agreement is accepted by selecting the “I Accept” option presented on the screen after the Agreement is displayed, the date you begin to use the Cloud Services, or the signature date on a printed copy of this Agreement or a Service Order;
“FuseForward” means Fuseforward Cloud Services Ltd., a Canadian federal corporation, having its registered and records office at Suite 2300 – 925 West Georgia Street, Vancouver, BC, Canada, V6C 3L2;
“Fuseforward Technology” means all of Fuseforward’s proprietary technology (including software, hardware, products, processes, algorithms, taxonomies, user interfaces, know-how, techniques, Content, designs and other tangible or intangible technical material or information) made available to you by Fuseforward in the course of providing the Cloud Services;
“Infrastructure Services” means the network, servers both physical and virtual, operating system and monitoring software, access devices (e.g., virtual desktops, network routers, computers) and security services provided by Fuseforward including any offline products, devices and services, the embedded software and services based on Fuseforward Technology and third party technology (available solely as part of the Infrastructure Services) developed, operated and maintained by Fuseforward, that are used to provide and operate Fuseforward’s Platform and Applications services and third party services.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trade-marks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Online Order Center” means Fuseforward’s online application that allows the Subscription Administrator designated by you to, among other things, purchase additional Cloud Services;
“Platform Services” means the cloud platform including the security, application, analytics and data services provided by Fuseforward including the embedded software based on the Fuseforward Technology and third party technology (available solely as part of the Platform Services) developed, operated and maintained by Fuseforward, that are used to provide and operate Fuseforward’s Application Services and third party applications.
“Professional and Managed Services” means implementation, consulting, training, support, application management, infrastructure management and ancillary services offered by Fuseforward to you under a defined statement of work and as further detailed in a Service Order;
“Service Order” means an online or written form and its Schedules and Attachments evidencing the service subscriptions and any subsequent order forms submitted online or in written form, specifying, among other things, the number of subscriptions and types of Cloud Services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Service Order to be incorporated into and to become a part of this Agreement;
“Subscription Administrator(s)” means those Users designated by you who are authorized to purchase service subscriptions online using the Online Order Center or by executing a written Service Order and to create User accounts and otherwise administer your use of the Cloud Services;
“Subscription Term” means each of the annual periods (unless some other time period is specified in the applicable Service Order) during which the you are authorized to use the Cloud Services pursuant to a Service Order; and
“Users” means individuals who are authorized by you including but not limited to your employees, customers, representatives, consultants, contractors, agents and third parties to use the Cloud Services, for whom subscriptions to a Cloud Service have been ordered, and who have been supplied user credentials including user ids and passwords by you (or Fuseforward at your request).
2. RIGHT TO USE & RESTRICTIONS
Fuseforward hereby grants you a non-exclusive, non-transferable, worldwide right to use the Cloud Services subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Fuseforward and its licensors.
You shall not:
(i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Cloud Services or the Fuseforward Technology, including, but not limited to the Content, in any way;
(ii) modify or make derivative works based upon the Cloud Services or Fuseforward Technology, including, but not limited to, any Content;
(iii) create Internet “links” to the Cloud Services or “frame” or “mirror” any Fuseforward Technology, including, but not limited to, any Content, on any other server or wireless or Internet-based device; or
(iv) reverse engineer or access the Cloud Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Cloud Services.
Notwithstanding the foregoing, you may create Internet “links” to the Cloud Services and/or “frame” or “mirror” the Cloud Services provided the link, frame or mirror is to Cloud Services or Content specifically available as publically accessible or Content without any user login requirements;
User subscriptions cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who are no longer using the Cloud Services.
You may not access the Cloud Services if you are a direct competitor of Fuseforward, except with Fuseforward’s prior written consent. In addition, you may not access the Cloud Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not:
(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, harassing, obscene, threatening, libelous, or otherwise unlawful, objectionable or tortious material, including material harmful to children or violative of third party privacy rights;
(iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(iv) interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein;
(v) attempt to gain unauthorized access to the Cloud Services or related systems or networks; or
(vi) use the Cloud Services for illegal, unethical or inappropriate purposes.
3. YOUR RESPONSIBILITIES
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with your use of the Cloud Services, including those related to data privacy, international communications and the transmission of technical or personal data.
You and your Users are responsible for maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by the authorized User(s) and only for authorized purposes. You are entirely responsible for all activities that occur under your account and all charges incurred in connection with the use of the Services accessed using your passwords. You shall:
(i) notify Fuseforward immediately of any unauthorized use of any password or account or any other known or suspected breach of security;
(ii) report to Fuseforward immediately and use reasonable efforts to stop immediately any unpermitted copying or distribution of Fuseforward Technology, including but not limited to Content, that is known or suspected by you or your Users; and
(iii) not impersonate another Fuseforward user or provide false identity information to gain access to or use the Services.
You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Cloud Services and for paying all third party fees and access charges incurred while using the Services.
4. PRIVACY, DISCLOSURE
Fuseforward shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Fuseforward’s legal agreements and privacy policies may be viewed at http://www.Fuseforward.com/legal. Fuseforward reserves the right to modify its privacy policies in its reasonable discretion from time to time. Users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Services-related communications from Fuseforward from time to time. Users may opt out of receiving such communications at that time or at any subsequent time by changing their preferences under Personal Setup. Note that because the Cloud Services are hosted, online applications and services, Fuseforward occasionally may need to notify all Users of the Services (whether or not they have opted out as described above) of important announcements regarding the operation of the Services. You agree that Fuseforward can disclose the fact that you are a customer and the edition of the Services that you are using.
5. ACCOUNT INFORMATION AND DATA
Fuseforward does not own any data, information or material that you submit to or store via the Cloud Service in the course of using the Cloud Service (“Customer Data”). You, not Fuseforward, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
You represent and warrant that you have the express consent of subject individuals to the collection, use and disclosure of their personal information as part of the Customer Data and in connection with the Cloud Services, or that such collection, use and disclosure of personal information as part of the Customer Data, whether by you or Fuseforward on your behalf, is in compliance with applicable law. Fuseforward assumes no responsibility and shall have no liability, for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
Fuseforward may access your account and Customer Data from time to time as Fuseforward deems necessary or appropriate for purposes of performing under this Agreement, including without limitation, providing support, performing account administration and generating invoices with respect to your use of the Cloud Services.
Except as permitted in this Agreement, Fuseforward shall not, during the term of this Agreement, disclose the contents of Customer Data unless authorized by you or Fuseforward is required to do so by law or in the good faith belief that such action is necessary to:
(i) conform with applicable laws or comply with legal process served on Fuseforward;
(ii) protect and defend the rights or property of Fuseforward and its licensors; or
(iii) enforce this Agreement or establish any rights hereunder.
In the event this Agreement is terminated (other than by reason of your material breach as described in Section 13 (Termination for Cause)), Fuseforward will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Fuseforward has no obligation to retain the Customer Data, and may delete such Customer Data, at any time after the expiration of the aforementioned 30 day period.
Fuseforward reserves the right to withhold, remove and/or irretrievably delete Customer Data subject to notice for material breach, including, without limitation, your non-payment of any monies due hereunder as described in Section 13 (Termination for Cause). Upon termination for cause, your right to access or use Customer Data immediately ceases, and Fuseforward shall have no obligation to maintain or forward any Customer Data and may, in its discretion, withhold, remove or irretrievably delete such Customer Data.
6. Intellectual Property Ownership
Fuseforward alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Fuseforward Technology and all other aspects of the Cloud Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other person relating to the Cloud Services.
This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Cloud Services, including, but not limited to, the Fuseforward Technology or the Intellectual Property Rights owned by Fuseforward. The Fuseforward name, the Fuseforward logo and the product names associated with the Cloud Services are trademarks of Fuseforward or third parties, and no right or license is granted to use them.
7. THIRD PARTY INTERACTIONS
During use of the Cloud Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Cloud Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third-party. Fuseforward and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Fuseforward does not endorse any sites on the Internet that are linked through the Cloud Services. Fuseforward provides these links to you only as a matter of convenience, and in no event shall Fuseforward or its licensors be responsible for any content, products, or other materials on or available from such sites.
Fuseforward provides the Cloud Services to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
8. CHARGES AND PAYMENT OF FEES
8.1 Application Service Fees
You agree to pay all Application Service fees specified in all Service Orders hereunder. Except as otherwise specified herein or in a Service Order, (i) fees are based on the number of units purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscription units purchased cannot be decreased during the relevant subscription term stated on the Service Order.
8.2 Platform Service Fees
You agree to pay all Platform Service fees specified in all Service Orders hereunder. Except as otherwise specified herein or in a Service Order, (i) fees are based on the number of units purchased and/or usage and/or any combination thereof, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscription units purchased cannot be decreased during the relevant subscription term stated on the Service Order. Usage based fees will be billed on actual usage during a period. Where pre-payment has been provided, actual usage will be reconciled on a monthly basis.
8.3 Infrastructure Service Fees
You agree to pay all Infrastructure Service fees specified in all Service Orders hereunder. Except as otherwise specified herein or in a Service Order, (i) fees are based on the number of units purchased and/or usage and/or any combination thereof, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscription units purchased cannot be decreased during the relevant subscription term stated on the Service Order. Usage-based fees will be billed on actual usage during a period. Where pre-payment has been provided, actual usage will be reconciled on a monthly basis.
8.4 Professional and Managed Services
You agree to pay all fees and charges for all Managed and Professional Services ordered from Fuseforward in accordance with the statement of work and the Fuseforward price list fees, charges and billing terms in effect at the time such Professional and Managed Services are ordered pursuant to the applicable Service Order.
9. EXCESS DATA STORAGE FEES
Where applicable, the maximum disk storage space provided to you for your Cloud Services at no additional charge is as identified in the capacity component of the specific Cloud Service subscription offering purchased under the applicable Service Order. Fuseforward will use reasonable efforts to notify you when the average storage used per Cloud Service reaches approximately 90% of the maximum; however, any failure by Fuseforward to so notify you shall not affect your responsibility for such additional storage charges. Fuseforward reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
10. BILLING AND RENEWAL
Fuseforward charges and collects in advance for use of the Cloud Services. All invoices are due upon receipt. Fuseforward will automatically renew and bill your credit card or issue an invoice to you each year on the subsequent anniversary of the first day of the initial term (as referred to in Section 12) or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of Cloud Service subscriptions times the subscription fee in effect which will be the subscription fee in effect during the prior term, unless Fuseforward has given you at least 30 days prior written notice of a fee increase or other fee modification or new charges, which increase or other modifications or new changes shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Fuseforward’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Fuseforward’s income.
You agree to provide Fuseforward with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact to act as the Subscription Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Fuseforward reserves the right to terminate your access to the Cloud Services in addition to any other legal remedies.
Unless Fuseforward in its discretion determines otherwise:
(i) entities with headquarters and a majority of Users resident in Canada will be billed in Canadian dollars and will be subject to Canadian payment terms and pricing structures (“Canadian Customers”);
(ii) entities with headquarters and a majority of Users resident in the United States will be billed in USA dollars and will be subject to USA payment terms and pricing structures (“USA Customers”); and
(iii) all other entities will be billed in USA dollars and will be subject to Rest of World payment terms and pricing structures (“ROW Customers”).
If you believe your bill is incorrect, you must contact Fuseforward in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Fuseforward may, at its election, pledge all or any part of Fuseforward’s right to payment under this Agreement and any amounts due or to become due pursuant to this Agreement to any assignee. Upon receipt of written notice from Fuseforward of such assignment, you will promptly acknowledge receipt thereof in writing. If you are given written notice by Fuseforward of any such assignment, you agree to pay all amounts due or to become due hereunder, in accordance with the terms of this Agreement applicable to such payments, directly to the applicable assignee or to any other party designated by such assignee. Fuseforward will have no rights to any amounts paid by you to an assignee designated in writing by Fuseforward. You agree not to assert against any such assignee any set-off, defense, recoupment, claim or counterclaim that you may have against Fuseforward or any other person. You also agree to execute and deliver to Fuseforward such documentation as any such assignee shall reasonably request, including, without limitation, an acknowledgment of or consent to the assignment and reaffirmation with respect to your agreement to make payments directly to such assignee as required pursuant to the terms of this Agreement. Each of Fuseforward and you will not be relieved of any obligations under this Agreement as a result of any such assignment by Fuseforward of the right to receive payments from you. Any such assignee will be entitled to rely on your consent to such assignment and your payment obligations related thereto under the terms of this Agreement and shall be considered a third party beneficiary thereof.
11. NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to Fuseforward herein, Fuseforward reserves the right to suspend or terminate this Agreement and/or your access to the Cloud Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month (18% per annum) on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for Cloud Service subscriptions during any period of suspension. Fuseforward reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Cloud Services. If you or Fuseforward initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with Section 8 (Charges and Payment of Fees). You agree that Fuseforward may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
12. TERM AND TERMINATION
This Agreement commences on the Effective Date. The Initial Term will be three (3) years or as defined in the Service Order. Upon the expiration of the initial term, this Agreement will automatically renew for successive renewal terms of one year at Fuseforward’s then-current fees in effect on the first day of the renewal term. Either party may terminate this Agreement or reduce the number of subscriptions, effective upon the expiration of the then-current Subscription Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the then-current Subscription Term.
13. TERMINATION FOR CAUSE
Fuseforward, in its sole discretion, may terminate, at Fuseforward’s election, this Agreement (including termination of use of your password, closure of your account and termination of your use of the Cloud Services) if you materially breach or otherwise fail to comply with this Agreement subject to 30 days prior written notice of such material breach by Fuseforward and the opportunity for you to fully cure such material breach during such notice period. Any breach of your payment obligations or unauthorized use of the Fuseforward Technology or Cloud Service will be deemed a material breach of this Agreement. In addition, Fuseforward may terminate a free account at any time in its sole discretion. Any actual or proposed change in control of you that results or would result in a direct competitor of Fuseforward directly or indirectly owning or controlling 50% or more of you shall entitle Fuseforward to terminate this Agreement for cause immediately upon written notice.
14. REPRESENTATIONS & WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Fuseforward represents and warrants that it will provide the Cloud Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will conform substantially to the online Fuseforward help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Cloud Services and that your billing information is correct.
15. MUTUAL INDEMNIFICATION
You shall indemnify and hold Fuseforward, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
(i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party;
(ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or
(iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Fuseforward (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle any claim unless, in such settlement, you unconditionally release Fuseforward of all liability and such settlement does not affect Fuseforward’s business or Services or require Fuseforward to make any payments or incur any liability); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Fuseforward shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
(i) a claim alleging that the Cloud Services directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party;
(ii) a claim, which if true, would constitute a violation by Fuseforward of its representations or warranties; or
(iii) a claim arising from breach of this Agreement by Fuseforward; provided that you (a) promptly give written notice of the claim to Fuseforward; (b) give Fuseforward sole control of the defense and settlement of the claim (provided that Fuseforward may not settle any claim unless such settlement unconditionally releases you of all liability and does not require you to make any payments or incur any liability); (c) provide to Fuseforward all available information and assistance; and (d) have not compromised or settled such claim. Fuseforward shall have no indemnification obligation, and you shall indemnify Fuseforward pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Cloud Services with any of your products, service, hardware or business process(s).
16. DISCLAIMER OF WARRANTIES
FUSEFORWARD AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CLOUD SERVICES OR ANY FUSEFORWARD TECHNOLOGY. FUSEFORWARD AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (a) THE USE OF THE CLOUD SERVICES AND/OR FUSEFORWARD TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) THE CLOUD SERVICES AND/OR FUSEFORWARD TECHNOLOGY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (c) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE CLOUD SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (e) ERRORS OR DEFECTS WILL BE CORRECTED, OR (f) THE CLOUD SERVICES AND/OR FUSEFORWARD TECHNOLOGY OR THE SERVER(S) THAT MAKE THE CLOUD SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE CLOUD SERVICES AND ALL FUSEFORWARD TECHNOLOGY IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS EXCEPT AS OTHERWISE SPECIFIED IN THE APPLICABLE SERVICE ORDER. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FUSEFORWARD AND ITS LICENSORS.
17. INTERNET DELAYS
FUSEFORWARD’S CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FUSEFORWARD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OF THIS AGREEMENT). IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE CLOUD SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE CLOUD SERVICES, ANY HARDWARE DEVICE, OR FUSEFORWARD TECHNOLOGY OR INFORMATION OBTAINED FROM OR THROUGH THE CLOUD SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, IN THE CLOUD SERVICES, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OF THIS AGREEMENT.)
19. LOCAL LAWS AND EXPORT CONTROL
The Cloud Services use information, hardware, software and technology that may be subject to Canadian or United States export control laws. You acknowledge and agree, on your own behalf and on behalf of each of your Users (for which you shall be jointly and severally liable), that the Cloud Services shall not be used, and none of the underlying information, hardware, software, or technology may be transferred or otherwise exported or re-exported to prohibited or restricted countries, to restricted or prohibited persons or entities or for any prohibited or restricted end uses under applicable U.S. or Canadian laws, including any changes to those laws that may be made from time to time. Pursuant to U.S. laws, the lists of prohibited or restricted end-users includes the List of Specially Designated Nationals and Blocked Persons administered by U.S. Department of the Treasury, Office of Foreign Assets Control, the Entity, Unverified and Denied Persons lists administered by the U.S. Department of Commerce, and the Non-Proliferation and Debarrred Parties Lists administered by the U.S. Department of State.
By using the Cloud Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any prohibited or restricted country and are not a prohibited or restricted person to which the transfer, export or reexport of the information, hardware, software, technology or Cloud Services is prohibited by U.S. or Canadian laws. You also agree to comply strictly with all applicable Canadian and U.S. export laws, as well as any other applicable export laws, and assume sole responsibility for obtaining licenses to export or re-export as may be required.
None of the information acquired through the use of the Cloud Services or any software, or technology used in the Cloud Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate Canadian body for such purposes.
These Cloud Services may use encryption software and/or technology that are subject to licensing or other related requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774.
Fuseforward and its licensors make no representation that the Cloud Services are appropriate or available for use in other locations. If you use the Cloud Services from outside Canada or the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export, import and use regulations of other countries.
Any diversion of the Cloud Services or related hardware, software, technology, or information contrary to Canadian or United States law is prohibited.
Fuseforward may give notice by means of a general notice delivered through the Cloud Services, electronic mail to your e-mail address on record in Fuseforward’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Fuseforward’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Fuseforward (such notice shall be deemed given when received by Fuseforward) at any time by any of the following: letter sent by confirmed facsimile to Fuseforward at the following email address: email@example.com , fax number: (604) 229-2435; or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Fuseforward at the following address: Fuseforward Cloud Services Ltd., 671J Market Hill, Vancouver, BC, Canada V5Z 4B5: attention of: Chief Financial Officer or Chief Executive Officer.
21. ENTIRE AGREEMENT
This Agreement, including all exhibits and addenda hereto and all Service Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Service Order, the terms of such exhibit, addendum or Service Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Service Order) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No waiver of any other provisions of this agreement shall be deemed or shall constitute a waiver of any other provisions (whether or not similar) nor shall the waiver constitute a continuing waiver unless otherwise expressly provided.
22. ASSIGNMENT; CHANGE IN CONTROL
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Service Orders), without the consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any purported assignment in violation of this section shall be void.
With respect to Customers located in the United States, this Agreement shall be governed by Washington State law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Cloud Service shall be subject to the non-exclusive jurisdiction of the state and federal courts located in Seattle, Washington.
With respect to customers located in Canada and Internationally excluding the United States, this Agreement shall be governed by British Columbia and controlling Canadian law without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Cloud Service shall be subject to the non-exclusive jurisdiction of British Columbia, Canada.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between you and Fuseforward as a result of this agreement or use of the Services.
The failure of Fuseforward to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Fuseforward in writing.
The parties agree that each of the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention for the International Sale of Goods is excluded in its entirety from application to this Agreement.