Terms of Service
1. APPLICABLE TERMS
These terms and conditions of sale governs the terms of any sales made by Weever Apps Inc. (“Weever” or “us”) relating to its proprietary user interface manager, including any updates made available from time to time by Weever (the “Products”) to you (the “Licensee” or “you”) which reference the application of these terms and conditions of sale. These terms and conditions of sale collectively with any proposal, price quote or acknowledgement issued by Weever form the parties’ final agreement (“Agreement”) governing the sale and use of the Products. In the event of any ambiguity or conflict between these documents, precedence shall apply in accordance with the order written in the previous sentence. Weever’s proposal, offer or acceptance is conditioned on Licensee’s acceptance of this Agreement. Any additional or conflicting terms in Licensee’s request for proposal, specifications, purchase order or any other written or oral communication are not binding on Weever unless separately signed by Weever. Weever’s failure to object to Licensee’s additional or conflicting terms does not operate as a waiver of the terms contained in this Agreement.
Licensee will be bound by these terms and conditions of sale on any purchase and use of the Products or in respect of a trial the Products. If you have any questions regarding them or have questions regarding the Products please contact Weever at firstname.lastname@example.org.
2. GRANT OF LICENSE
Subject to Licensee’s continued compliance with the Agreement, Weever hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable license (the “License”) to use the Products for the Licensee’s internal business purposes (the “Authorized Use”) at the single business location of the Licensee for which the Licensee fee was paid (the “Authorized Site”). Upon the expiration, cancellation or other termination of this Agreement, the License will immediately and automatically cease.
The term of the License will be for a period of one (1) year from the date of the of the Agreement unless terminated earlier in accordance with the terms hereof. The term may be extended for a one (1) year period provided the parties agree to the terms of the renewal prior to the expiry of the prior term. Any renewal term shall be on Weever’s terms and conditions of sale in force at the time of such renewal.
4. PRICING & PAYMENT
License fees and payment terms are as stated in Weever’s proposal or quote. If none are stated, Weever’s standard rates in effect when Weever receives Licensee’s purchase order will govern.
- Fees – License fees for use of the Products (the “License Fees”) are due in advance, prior to the start of the license term or any renewal thereof.
- Payment – Unless stated otherwise in Weever’s proposal, all payments are due upon receipt by Licensee of invoice in United States Dollars.
- Taxes – Unless stated in writing by Weever, the License Fees exclude charges for taxes, excises, fees, duties or other government charges related to the Products. Licensee will pay these amounts to Weever. If Licensee claims a tax or other exemption or direct payment permit, Licensee will provide a valid exemption certificate or permit and indemnify, defend and hold Weever harmless from any taxes, costs and penalties arising from same.
- Late Payments – Late payments shall bear interest at an annual percentage rate of eight percent (8%) or the highest rate allowed by law, whichever is lower. Interest will be charged if not paid within 30 days of Licensee’s receipt of invoice.
5. UNAUTHORIZED USE AND DISTRIBUTION
Licensee ensure that only licensed users for whom the Licensee has paid the License Fee to Weever (an “Authorized Person”) may use the Products at the Authorized Site. Where as a result of any deliberate or negligent act or omission by the Licensee, the Products are supplied to or used by any person (other than an Authorized Person) at a location other than the Authorized Site without the prior written consent of Weever, Weever will immediately have the right (in addition to any other right or claim that Weever may have against the Licensee) to retroactively charge the Licensee (in addition to the License Fee and any other fees paid or payable by the Licensee under or in relation to this Agreement) a fee equal to the License Fee multiplied by the number of sites to or by whom the Products had been supplied or used without the prior written consent of Weever (whether for gain or sale or otherwise), and/or to immediately revoke the Licensee’s right of access to the Products.
Where Weever reasonably suspects that the Products has been supplied to or used by any person (other than an Authorized Person) or at a site other than the Authorized Site without Weever’s prior written consent, the Licensee must, on Weever’s request, provide Weever with an unqualified certificate executed by the Licensee’s auditor at the Licensee’s cost specifying the total number and type of users of the Products and location of such use so that Weever may ascertain whether it may exercise its rights under additional clauses in this Agreement.
6. LICENSOR’S OBLIGATIONS
In addition to the grant of the License, Weever will provide the Licensee with basic technical support for the Product, as defined in the support plan provided by Weever under this Agreement, if applicable. Weever’s performance is contingent upon Licensee timely complying with and fulfilling all of its obligations under this Agreement.
7. LICENSEE’S OBLIGATIONS
Except to the extent that any laws prevent Weever from restraining the Licensee from doing so, the Licensee shall not, without the prior written consent of Weever (which may be withheld, and which may include certain conditions, at Weever’s discretion):
- use the Products for any use other than the Authorized Use;
- decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, the Products or otherwise attempt to derive, the source code of the Products;
- sell, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Products or any data/information provided to the Licensee through the Products to a person (except that nothing in this paragraph iii) is intended to prevent an Authorized Person undertaking Authorized Use at the Authorized Site);
- use the Products to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing, or consulting services, or any other commercial service related to the Products;
- use the Products to develop any products or services which is competitive with the Products;
- vary or amend the Authorized Use without Weever’s prior written approval;
- publish, promote, broadcast, circulate or refer publicly to Weever’s name or logo, without the prior written consent of Weever;
- use the Products to take any action that could harm Weever or anyone else, interfere with the Products, or use the Products in a manner that violates any law, including without limitation, Licensee shall not:
- Impersonate any person or entity, or misrepresent it credentials or any information it provides;
- Collect or store any information (including personal information) of users, without the express consent of such users;
- Solicit, collect, transmit, store, or otherwise make available private information or personal information of any third party;
- Use the Products without authorization from Weever to send commercial electronic messages or install a computer program on another person’s computer system;
- Upload or otherwise transmit any communication, software, or material that contains a virus or is otherwise harmful to our or our users' computers, devices, or systems;
- Use any device, software, or program to interfere with the Products or attempt to probe, scan, test the vulnerability of, or breach the security of any system, device, or network; or
- Use the Products to display inappropriate content, including without limitation content relating to promotion of sexism or racism, or promote inappropriate content to minors.
8. THIRD PARTY SOFTWARE
Licensee is solely responsible for ensuring that: (i) the system on which the Product is installed, run and/or used contains all third party software not contained in the Product as delivered, as may be required by the Licensee (the “Third Party Software”), and (ii) Licensee and/or Licensee’s system fulfill the requirements of all required licenses for such Third Party Software. Weever shall not be responsible for the operation of any Third Party Software which use or access the Product.
Any installation or completion dates will be set forth in the proposal, price quote or acknowledge, and are estimated dates only. Weever is not liable for any loss or expense incurred by Licensee or Licensee's customers if Weever fails to meet any such dates.
10. CANCELLATION AND TERMINATION
- Licensee may cancel this Agreement at any time, provided that, on cancellation Licensee shall not be entitled to a refund of any amounts paid in advance.
- In Weever’s sole discretion, Weever may terminate Licensee’s access to and use of the Products, in whole or in part, on ninety (90) days’ prior notice. In the event of such termination, Weever shall refund any amounts paid by Licensee in advance for the portion of the term which the Licensee did not have access to and use of the Products.
- In the event of a breach of this Agreement by Licensee, Weever may restrict, suspend, or terminate Licensee’s access to and use of the Products, in whole or in part, with or without prior notice. In the event of termination for a breach of this Agreement, Licensee shall not be entitled to a refund of any amounts paid in advance.
- Any provision of this Agreement which expressly or by its nature survives termination, cancellation or expiration, or which contemplates performance or observance subsequent to termination, cancellation or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason. Weever also reserves the right to seek all remedies available at law and in equity for violations of the Agreement. Upon termination, Licensee must cease all use of the Products.
11. FORCE MAJEURE / DELAYS
If either party is unable to perform its obligations under this Agreement or suffers delay in performance, due to any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, inclement or unusually severe weather conditions, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, or acts or inaction of government, the time of performance will be extended by a period equal to the length of time it takes to overcome the effect of the event. In addition, Weever shall be entitled to be compensated by Licensee for reasonable and direct additional costs of Product incurred during such event. Weever will notify Licensee within a reasonable time after becoming aware of any such event. If there are force majeure delays exceeding 180 days in the aggregate, Weever may terminate the Agreement pursuant to Section 10(c). Failure to pay shall not constitute a force majeure delay.
WEEVER MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF THE PRODUCTS OR THE INFORMATION, MATERIALS, GOODS, SERVICES OR PRODUCTS APPEARING OR OFFERED ON THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS". WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WEEVER DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING BUT NOT LIMITED TO (I) THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, QUIET ENJOYMENT, NO LIENS, AND NO ENCUMBRANCES; (II) WARRANTIES AGAINST INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY PERSON OR ENTITY; (III) WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE IN TRADE; AND (IV) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF DATA OR CONTENT MADE AVAILABLE ON THE PRODUCTS OR OTHERWISE BY WEEVER. FURTHER, THERE IS NO WARRANTY THAT THE PRODUCTS WILL MEET THE LICENSEE’S NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON OR ENTITY OR THE NEEDS OR REQUIREMENTS SET FORTH IN ANY DOCUMENTATION. WEEVER MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, OR IMPLIED, THAT THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE CONTENT, FUNCTIONS, OR MATERIALS CONTAINED IN THE PRODUCTS, WILL BE TIMELY, SECURE, ACCURATE, ERRORFREE, COMPLETE, UP-TO-DATE, FREE OF VIRUSES, OR UNINTERRUPTED. WEEVER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND LIABILITIES IN CONNECTION WITH LICENSEE’S CONTENT. NO INFORMATION MADE AVAILABLE BY OR ON BEHALF OF WEEVER SHALL CREATE ANY WARRANTY OR CONDITION. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED OR STATUTORY WARRANTIES TO APPLY TO LICENSEE, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, WEEVER IS NOT LIABLE, WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, CLAIMS ARISING FROM LICENSEE'S THIRD PARTY CONTRACTS, OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE. WHERE A JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, WEEVER’S LIABILITY IN SUCH JURISDICTIONS FOR SUCH DAMAGES SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
WEEVER’S MAXIMUM LIABILITY UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE RECEIVED BY WEEVER UNDER THIS AGREEMENT.
THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES. LICENSEE AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 13 WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF WEEVER HAS BEEN ADVISED BY LICENSEE OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS SECTION 13 EXTEND TO WEEVER’S AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, AGENTS AND SUCCESSORS AND ASSIGNS OF WEEVER.
14. INTELLECTUAL PROPERTY
Licensee acknowledges and agrees that all right, title and interest in and to the Product, including without limitation the goodwill, content, code, software and copyright contained therein, are and shall at all times be the sole and exclusive property of Weever, and Weever is entitled to take whatever action it may decide in order to protect its rights, title and interest in relation to the Product.
Licensee further acknowledges and agrees that all logos and marks of Weever (and all logos and marks of its third party licensors, if applicable) as well as other proprietary materials depicted in connection with the Products are the property of Weever (and, with respect to the logos and marks of its third party licensors, they are the property of its third party licensors) and may not be used commercially without the prior written consent of Weever. Licensee agrees that it shall not remove or alter any trade mark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product.
All right, title and interest in and to any data, information or material provided or submitted by Licensee, or on behalf of Licensee, in the course of using the Products, (the “Licensee Data”) is and shall at all times be the sole and exclusive property of the Licensee. Licensee shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and intellectual property ownership of the Licensee Data and hereby warrants to Weever that Licensee has and will have all rights and consents necessary to use such Licensee Data as required in connection with the use of the Product.
During the term of this Agreement and after expiration, cancellation or termination thereof, Licensee agrees not to dispute or contest, for any reason whatsoever, directly or indirectly, the ownership by Weever of the Products or the logos and marks of Weever.
Weever will, at its own option and expense, defend or settle any suit or proceeding brought against Licensee based on an allegation that any processes performed by Weever in connection with the Products constitutes an infringement of any third party’s intellectual property. Licensee will promptly give Weever written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. Weever shall have full and exclusive authority to defend and settle such claim and will pay the damages and costs awarded against Weever in any suit or proceeding so defended. Licensee shall not make any admission(s) which might be prejudicial to Weever and shall not enter into a settlement without Weever’s consent. If and to the extent any process performed by Weever in connection with the Products as a result of any suit or proceeding so defended is held to constitute infringement or its use by Licensee is enjoined, Weever will, at its option and expense, either: (i) procure for Licensee the right to continue using said process; (ii) replace it with substantially equivalent non-infringing process; or (iii) modify the process so its use is non-infringing.
15. PUBLICITY RIGHTS
The Licensee grants Weever the right to identify the Licensee as a customer on Weever’s website or other promotional material in relation to the Products, and the right to reproduce and display all logos and marks of Licensee on Weever’s website or other promotional material in connection therewith. Licensee agrees to keep the terms of this Agreement confidential.
16. COMPLIANCE WITH LAWS
The parties agree to comply with all applicable laws and regulations.
These terms may only be modified by a written instrument signed by authorized representatives of both parties.
Neither party may assign all or part of this Agreement, or any rights or obligations under this Agreement without the prior written consent of the other; but Weever may assign its rights and obligations, without recourse or consent to, any parent, wholly owned subsidiary or affiliate or affiliate’s successor organization (whether as a result of reorganization, restructuring or sale of substantially all of a party’s assets).
19. APPLICABLE LAW AND JURISDICTION
This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Each party agrees that claims and disputes arising out of this Agreement must be decided exclusively in a federal or provincial court of competent jurisdiction located in the Province of Ontario. Each party submits to the jurisdiction of such court for the purpose of litigating any claims or disputes.
20. ENTIRE AGREEMENT, SEVERABILITY AND WAIVER
This Agreement constitutes the entire agreement between Licensee and Weever, and supercedes all prior agreements between the parties. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not in any way be affected or impaired. A court may modify the invalid, illegal or unenforceable provision to reflect, as closely as possible, the parties’ original intent. The failure to enforce any provisions of this Agreement or respond to a breach by the other party shall not in any way waive a party’s right to enforce subsequently any terms or conditions of this Agreement or to act with respect to similar breaches.
21. EXPORT/IMPORT COMPLIANCE
Licensee acknowledges that Weever is required to comply with applicable export/import laws and regulations relating to the sale, export, import, transfer, assignment, disposal and use of the Products and information provided in the performance of the Products, including any export/import license requirements. Licensee agrees that such goods or information shall not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any applicable Canadian.
Licensee consents to receive communications electronically and agrees that all agreements, notices, disclosures and other communications that Weever provides to Licensee electronically satisfy any legal requirement that such communications be in writing. All notices given by a party under this Agreement will be considered properly give if they are sent by courier, email or registered mail to the addresses of the parties as identified in writing. Delivery will be effective as follows:
- if sent by e-mail, at the time at which it is sent, unless an electronic message is delivered in response indicating that delivery of the e-mail has failed or has been delayed;
- if sent by hand, when its delivery is confirmed by a signature on behalf of the recipient; and
- if sent by post, on the third business day (or seventh business day if sent overseas) after posting.