Upon the earlier of, Customer checking “I agree” where applicable and/or upon its access and/or use of the Platform, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. If Customer is unwilling to accept all of the terms of this Agreement, it should not check the “I agree” checkbox where applicable and may not use the Platform.
Customer declares that by acceptance of this Agreement and/or by using the Platform it is of legal age to form a binding contract with OGY. If Customer is accepting this Agreement on behalf of a company or other legal entity, Customer represents and warrants that it has the authority to bind such entity to the terms and conditions contained herein. Customer may not use the Platform and may not accept this Agreement if it is an entity and/or person barred from receiving access and use of the Platform under the laws of the country in which it is a resident or from which it uses the Platform.
OGY may update or modify this Agreement and/or the Platform and/or the OGY API from time to time as further detailed herein. If, in OGY’s reasonable judgment, any such modification to the Platform materially reduces the functionality of the Platform, OGY will endeavor to inform Customer via the e-mail address associated with its Account (as defined below), no less than seven (7) days prior to such change. Customer’s continued access and/or use of the Platform following such changes or modifications shall be deemed to be acceptance of such revised Platform and/or Agreement.
Customer further acknowledges and accepts that access and use of the Platform is subject to the “Wave Application & Network Bylaws” as may be updated from time to time (“Wave Bylaws“). A version of the Wave Bylaws may be accessed upon Account creation and a copy may be requested to be provided. Upon creation of the Account, Customer acknowledges that it has read, understood and accepts the terms of the Wave Bylaws. Capitalized terms used but not defined herein, shall have the meaning ascribed to them in the Wave Bylaws.
1. THE PLATFORM
1.1. OGY operates the Platform on the “Wave Application Network” which is a business to business distributed ledger network of applications which enables its users with the ability to issue, exchange, digitally or blockchain sign documents and issued documents (including electronic bills of lading), in an encrypted, direct peer to peer transmission.
1.2. Subject to Customer’s compliance with the terms and conditions of the Agreement, the usage limitations specified in the Order and payment of all applicable fees, OGY shall provide Customer with a personal, limited, non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Platform, during the term of this Agreement for its internal business purpose.
1.3. Customer shall be responsible to ensure that its computer, operating systems, computer networks and network connections, telecommunications facilities or mobile device meet all the necessary technical specifications to enable it to access and use the Platform. OGY does not provide Customer with the equipment to access and/or use the Platform. Customer is responsible for all fees charged by third parties related to its access and use of the Platform (e.g., charges by Internet service providers or air time charges).
1.4. OGY may, at its sole discretion, offer a free trial subscription to the Platform, on which the Account was provisioned and ending at the date determined specified in the Order and if not specified for one (1) months (“Evaluation Period”). Unless otherwise agreed between the Parties, no fees are due from Customer for use of the Platform during the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE EVALUATION PERIOD THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHASOEVER AND COMPANY WILL HAVE NO WARRANTY, INDEMNITY OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE EVALUATION PERIOD. FOR GREATER CLARITY, OGY SHALL NOT BE LIABLE FOR HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER; NOR FOR DAMAGES OR LOSSES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PLATFORM. In the event of any inconsistencies between the terms of this Section and other provisions of this Agreement, the terms specified in this Section shall prevail with respect to the Evaluation Period.
2. ACCOUNT INFORMATION
2.1.During the process of creating an account in order to access the Platform (“Account”), Customer may be required to provide certain information including the selection of a password (the “Login Information”). The following rules govern the security of Customers Account and Login Information. For the purposes of this Agreement, references to Account and Login Information shall include any account and account information, including user names, passwords or security questions, whether or not created for the purpose of using the Platform, that are used to access the Platform:
a. Customer shall not share its Account or Login Information, nor let anyone else access its Account or do anything else that might jeopardize the security of the Account;
b. In the event Customer becomes aware of or reasonably suspects any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its Login Information or unauthorized access to its Account, Customer must immediately notify OGY and modify its Login Information;
c. Customer is solely responsible for maintaining the confidentiality of the Login Information, and will be responsible for all uses of its Login Information, whether or not authorized by it;
d. Customer is responsible for anything that happens through its Account, whether or not such actions were taken by it, including, for the avoidance of doubt, actions taken by third parties. Customer therefore acknowledges that its Account may be terminated if someone else uses it to engage in any activity that violates this Agreement or is otherwise improper or illegal;
e. Customer undertakes to monitor its Account and restrict use by any individual barred from fulfilling the conditions set in this Agreement and/or using the Platform, under the provisions listed herein or any applicable law. Customer shall accept full responsibility for any unauthorized use of the Platform by any of the above mentioned;
f. OGY reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
3. RULES OF CONDUCT AND USAGE
3.1. Customer represents and warrants that it has full right and authority to use the Platform and to be bound by this Agreement. Customer agrees that it will comply fully with this Agreement and all applicable domestic and international laws, regulations, statutes, ordinances that govern its use of the Platform. Without limiting the foregoing and in recognition of the global nature of the Internet, Customer agrees to comply with all local and international rules regarding online conduct. Customer also agrees to comply with all applicable laws affecting the transmission of content or the privacy of persons including but not limited to all laws governing deceptive trade practices and/or online marketing and/or advertising and refraining from using the Platform for the transmission of illegal or prohibited content.
3.2. Customer hereby agrees that in case that OGY determines that Customer has acted in violation of this Agreement or any applicable law while using the Platform, or if OGY determines Customer’s actions fall outside of reasonable standards, OGY may, at its sole discretion, suspend or terminate Customer’s Account and prohibit it from using the Platform. In furtherance of the foregoing, and as an example and not as a limitation, Customer hereby agrees that by using the Platform it shall not act as follows:
a. Grant access, rent, lease, sell, transfer, assign and/or sublicense it’s Account to any person or entity.
b. Upload or transmit (or attempt to upload or transmit) files that contain viruses, trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Platform.
c. Violate the contractual, personal, privacy, intellectual property or other rights of any party including by using, uploading, transmitting, distributing, or otherwise making available any information or material made available through the Platform in any manner that infringes any copyright, trademark, design, patent, trade secret, or other rights of any party (including rights of privacy or publicity).
d. Create false personas, multiple identities, multiple user Accounts, set up an Account on behalf of someone else.
e. Attempt to obtain passwords or other private information from other members including personally identifiable information (whether in text, image or video form), identification documents, or financial information.
f. Upload or transmit (or attempt to upload or to transmit), any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware”, “passive collection mechanisms” or “pcms”). Use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the Platform for any purpose.
g. Attempt to interfere with, hack into or decipher any transmissions to or from the servers for the Platform.
h. Not to defraud, or attempt to defraud, OGY or its customers, and to refrain from acting in bad faith in its use of the Platform.
i. To build a competitive product or service or to otherwise copy the features, functionality or user interfaces of the Platform.
3.3. Export Control. Customer agrees to comply with all applicable export control and sanctions laws and regulations of the United States of America, of member States of the European Union, and any other relevant country (“Export Control Laws”). Customer will not violate, and will not cause OGY to violate, any Export Control Laws (e.g., by shipping or supplying goods or services to or from sanctioned countries). Licenses or other authorizations required for the export of Customer’s goods or services will be the responsibility of Customer. Customer shall indemnify and hold OGY harmless from and against any and all claims, liabilities and expenses resulting from Customer’s failure to comply with applicable Export Control Laws and economic sanctions of the applicable jurisdictions.
3.4. Anti-Corruption/Anti-Bribery. Customer represents and warrants that neither it nor any of the its personnel have taken or will take any action that might cause OGY to violate any applicable anti-bribery law, namely: that neither it nor any of its personnel will, authorize, offer, give or agree to offer or give, directly or indirectly, any payment, gift or other advantage with respect to any activities undertaken relating to this Agreement which: (i) is intended to, or does, influence any person to act or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept; or (ii) is made to or for the benefit of a public official, or to any person while knowing or being aware of a high probability that all or a portion of the payment, gift or other advantage will be offered or given to a public official, with the intention of influencing any act or decision of the public official in his/its official capacity, inducing such public official to use his/its influence to affect any act or decision of a government entity, or securing an improper advantage; or (iii) would otherwise violate applicable anti-bribery law.
4. OGY API LICENSE GRANT.
4.1. Subject to the terms and conditions of this Agreement, OGY grants Customer a personal, limited, non-exclusive, non-sublicensable, non-transferable, non-assignable license to: (i) access and use the OGY’s application programming interface software that is called or queried under an API Call (“OGY API”); (ii) access and use, for internal purposes only, the data obtained through the OGY API from the OGY database (the “Data”); and (iii) where applicable, use and access certain OGY documentation and materials made available to Customer by OGY (the “Documentation”). The OGY API, Data and the Documentation shall hereinafter be referred collectively as the “OGY Materials”, and shall be used solely for the purpose of connecting Customer’s software and/or database to the OGY Materials, using the OGY API (the “Integration”).
4.2. Customer is, and shall always remain, solely responsible and liable for the Integration, and OGY will have no liability or obligations with respect to the same (including support obligations), unless otherwise set forth herein.
4.3. This Agreement does not entitle Customer to any support, maintenance or other technical assistance for the OGY Materials. OGY is under no obligation to create or make available any updates or upgrades to the OGY API or the Documentation. In the event that we do create an update or upgrade to any of the foregoing, OGY reserves the right at OGY’s sole and absolute discretion to decide if, when, and under what circumstances OGY makes such update or upgrade available.
5.1. In consideration for the right to access and use the Platform under this Agreement, Customer shall pay OGY the fees upon such terms and dates stated in the Order (“Order Fees”).
5.2. Payment Method. OGY may accept payments made by credit card, wire transfer, debit cards or other online payment services all as shall be detailed in the Order and/or during the payment process in the Platform. All payments to be made by Customer, must be made in cleared funds, meaning without any deduction or set-off, even if some portion of the amount paid by Customer is required by any bank, or governmental, fiscal or other authority. If Customer is required to make any such deduction, Customer must pay such additional amounts as are necessary to ensure OGY’s receipt of the full amount charged.
OGY may use a third-party service provider to manage credit card processing. This service provider is not permitted to store, retain, or use billing information except for the sole purpose of credit card processing on OGY’s behalf. OGY does not store any credit card information on its servers that support the Platform.
5.3. All fees payable under the Agreement are: (i) paid upon receipt unless agreed otherwise in the Order, and (ii) non-refundable, net amounts and are payable in full, without any deduction of any kind including for taxes and/or duties. In addition, no amounts shall be set off by Customer for any reason whatsoever. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with the Agreement or its use of the Platform, except for taxes based on OGY’s net income.
5.4. Any payments by Customer that are not paid on or before the date such payments are due under the Agreement shall bear interest of three percent (3%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly. OGY may use a third party to collect past due amounts. Customer shall be required to pay for all reasonable costs OGY incurs in order to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs.
6. SUSPENSION, TERM AND TERMINATION
6.1. Without derogating from OGY’s rights under this Agreement or by law, OGY reserves the right to suspend Customer’s access and use the Platform: (i) for any account for which any payment is due but remains unpaid after thirty (30) days written notice of such delinquency or (ii) if OGY believes that Customer is using the Platform in a manner that may cause harm to OGY or any third party until such time as OGY believes the threat of harm, or actual harm, has passed. Customer agrees that OGY shall not be liable to Customer, or to any third party, for any suspension resulting from the events described in this Section.
6.2. The Agreement shall commence as of the date set forth in the initial Order and, unless earlier terminated as set forth below, and, if not agreed otherwise in the Order, shall remain in effect for a period of twelve (12) months (“Initial Term”). Except as otherwise specified in an Order, after the Initial Term, the Agreement shall be automatically renewed for additional terms equal to the Initial Term (with the necessary pricing adjustments which OGY may implement, with at least thirty (30) days prior notice prior to the expiration of the Initial Term or any other term thereafter, as applicable) (each a “Renewal Term”), unless one Party notifies the other Party in writing of its intent not to renew the Agreement, at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term.
6.3. Customer may upgrade or downgrade between the Plans subject to prior written approval of OGY. Customer understands that downgrading may cause loss of features or capacity of the Services as available to him before downgrading his Subscription. OGY will not be liable for such loss. When Customer upgrades or downgrades the Plan, new Order Fees become immediately applicable. Upon upgrade, the new Order Fees for the subsisting month would be charged on a pro-rated basis and shall be payable in accordance with Section 5.2 (Payment). Subsequent months will be charged in full according to the new Order Fees and any credits will be adjusted appropriately.
6.4. Either Party may terminate this Agreement if the other Party breaches any material term or condition of the Agreement and such breach is not remedied within seven (7) business days after receiving written notice thereof. Notwithstanding the foregoing, OGY may immediately, by written notice to Customer, suspend or terminate the Agreement if Customer fails to make any timely payment of fees owed or in case of breach and/or failure to comply with any of the provisions of Sections 1 (“The Platform”), 10 (“Intellectual Property Ownership”), or 11 (“Confidentiality”) or in the event of a suspected or actual security breach of the Platform.
6.5. Without derogating from the other termination rights contained herein, a Party shall have the right to immediately terminate the Agreement, upon written notice, in the event the other Party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within ninety (90) days.
6.6. Effects of Termination. The following shall apply with respect to the expiration or termination of this Agreement, howsoever arising:
6.6.1. Upon termination of the Agreement, (i) Customer shall cease to use the Platform and OGY Materials, (ii) pay OGY any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, and (iii) Customer shall cease to use and shall either destroy or return to OGY any Confidential Information in its possession.
6.6.2. Customer acknowledges that OGY may retain Customer Data for a period of up to thirty (30) days following the termination date and/or the Winding Down Period (if applicable) in order to permit Customer to request a copy of such data (which for the avoidance of doubt does not include metadata related to such data). Following such time period, OGY may be entitled to delete all such data.
6.7. Survival. Termination of the Agreement shall not affect any provision of the Agreement which is expressly or by implication intended to come into force or continue in force on or after the termination.
7. PLATFORM AVAILABILITY
7.1. OGY shall provide support and maintenance services for the support package purchased by the Customer according to our Service Level Agreement (attached and marked as annex B) and may be amended from time to time.
7.2. Security Measures. OGY uses a variety of security technologies and procedures in accordance with industry standards to help protect unauthorized access to or use of the Platform; however, we cannot guarantee that we will be successful at doing so. Accordingly, without limitation to any other provisions of this Agreement, Customer acknowledges that it bears sole responsibility for adequate security, protection and backup of its data, content, software programs or services it uses in connection with access to or use of the Platform. OGY strongly encourages Customer, where available and appropriate, to take measures to protect its data, content, software applications or services, including without limitation using encryption technology to protect from unauthorized access, and to routinely archive as appropriate. In using the Platform, Customer agrees to promptly notify OGY if it learns of a security breach related to the Platform.
7.3. OGY may make changes or updates to the Platform (such as infrastructure, security, technical configurations, features, etc.) during the term of the Agreement, including to reflect changes in technology, industry practices and patterns of system use. The terms of the Agreement will apply to any such changes and/or updates that OGY may make available to Customer. If, in OGY’s reasonable judgment, any such modification to the Platform materially reduces its functionality, OGY will endeavor to inform Customer via the e-mail address associated with Customer’s Account no less than fourteen (14) days prior to such change. Customer’s continued access and/or use of the Platform following such changes or modifications shall be deemed to be Customers acceptance of the revised Platform.
8. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, THE OGY MATERIALS, ANY INFORMATION PROVIDED UNDER THE AGREEMENT AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND OGY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE PLATFORM AND/OR OGY MATERIALS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR WITH RESPECT TO THE FUNCTIONALITY AND PERFORMANCE OF THE PLATFORM OR USE OF RESULTS OBTAINED THEREOF.
CUSTOMER AGREES THAT OGY WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO CUSTOMER OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OGY’S OR OTHER SERVERS.
CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT OGY SHALL NOT BE RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE PLATFORM AND/OR THE OGY MATERIALS. CUSTOMER’S INTERACTION WITH ANY OTHER USER OF THE PLATFORM AND/OR THE OGY MATERIALS, IS AT CUSTOMER’S SOLE RISK. IF CUSTOMER HAS A DISPUTE WITH ANY OTHER USER OF THE PLATFORM AND/OR OGY MATERIAL (INCLUDING WITH REGARD TO ANY PAYMENT OBLIGATION), CUSTOMER AGREES THAT OGY IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE.
9. CUSTOMER DATA
9.1. For the purpose of providing access and usage rights to the Platform, Customer support and for analyzing and improving the Platform, OGY will be entitled to use the Customer Data.
The term “Customer Data” shall mean Customers name, logo, trade dress, trademark or service mark, email address, contact details and the files or attachments submitted to OGY by Customer as part of the Platform, files transmitted by or to the Customer with the use of the Platform, as well as the account and contact information submitted to OGY by Customer (if any).
9.2. OGY acknowledges that, as between Customer and OGY, Customer owns all rights, title and interest in the Customer Data. OGY acknowledges that nothing in the Agreement shall be construed to convey to OGY any rights in any copyrighted material of Customer.
9.3. Customer warrants and represents to OGY that Customer possesses all rights required to lawfully provide the Customer Data to OGY and allow OGY to perform such acts in connection therewith in accordance with the access and use of the Platform, and further warrants and represents that Customer Data and/or the display of and access to such materials do not infringe upon, misappropriate, or otherwise violate any intellectual property, proprietary, privacy or other rights of any third parties.
9.4. Without derogating from any of OGY’s rights and remedies under the Agreement and/or under law, OGY will be entitled to immediately discontinue the access and use of the Platform or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with the Customer Data.
9.5. Customer acknowledges and agrees that OGY has no obligation to review any of the contents of Customer Data provided to OGY for inaccuracy or completeness, or for the potential violation of any third party rights.
9.6. OGY shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Platform and Customer Data. If Customer’s use of the Platform involves processing personal data which is subject to the EU General Data Protection Regulation, the Data Processing Addendum available on our website shall apply and the terms of which shall be incorporated herein by reference.
10. INTELLECTUAL PROPERTY OWNERSHIP
10.1. The Platform, OGY Materials including but not limited to any and all improvements, derivative works, and/or modifications of/to the foregoing (regardless of inventorship or authorship) and any materials, computer software (in object code and source code form), data or information employed by OGY pursuant to the Agreement, and any know-how, methodologies, equipment, or processes used by OGY to provide the Platform and/or OGY Materials, including without limitation all patent, copyright, trade secret and any other proprietary rights therein and any other deliverables provided by it hereinunder, are and shall remain the sole and exclusive property of OGY. Nothing herein constitutes a waiver of the OGY’s intellectual property rights under any law. OGY reserves all rights not expressly granted herein to the Platform.
10.2. Nothing in this Agreement gives Customer a right to use any of OGY’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
10.3. If OGY receives any feedback (whether orally or in writing) (e.g., questions, comments, suggestions or the like) regarding the Platform and/or OGY Materials, whether through use of the Platform and/or OGY Materials, or any other communication with Company, (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to OGY and that such shall be considered OGY’S Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to OGY all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by OGY at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
10.5. Customer’s use of the Platform and/or OGY API is limited to that specifically and explicitly permitted in this Agreement. Customer shall not and shall not permit any third party to: (a) engage in, cause, or permit the reverse engineering, disassembly, decompilation or any similar manipulation or attempt to discover the source code or underlying ideas or algorithms of the Platform, OGY API or any part thereof; (b) bypass, alter, or tamper with any security or lockout features of the Platform and/or OGY API; (c) create any derivative work or translation of the Platform and/or OGY API; or (d) provide, lease, rent, lend, license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Platform and/or OGY API for the benefit of any third party.
11.1. Each party hereto (“Recipient”) shall keep any non-public information (“Confidential Information”) provided by the other party (“Discloser”), in strict confidence, and shall prevent and protect the Confidential Information of the Discloser from unauthorized disclosure or use. The Recipient shall not disclose any or all of the Confidential Information of the Discloser (including methods or concepts utilized therein) to anyone, except to the Discloser, and to the Recipient’s employees and/or service providers who need to know such information in order to perform its obligations under the Agreement. The Recipient shall ensure that such employee shall be bound, prior to such disclosure, by a confidentiality undertaking with terms not less restrictive in comparison to the terms set forth in this Agreement.
11.2. Confidential Information shall be treated as such (i) if in written, recorded, electronic, graphical or other tangible form, is marked as confidential and/or proprietary or with a similar legend or other notation denoting the confidential nature of the information or the proprietary interest of the Discloser therein; or (ii) if disclosed orally, is identified orally as confidential and/or proprietary at the time of disclosure and shall be followed by transmittal of a reasonably detailed written summary of the information provided to the Recipient and labeled as confidential and/or proprietary within thirty (30) days of disclosure. For clarity and notwithstanding the above, the features, functionality and content of the Platform (including all data and information made available by OGY via the Platform), any documentation, the fees charged hereunder and any information regarding planned modifications or updates to the Platform or other OGY products and services constitutes Confidential Information of OGY.
11.3. Information shall not be considered as Confidential Information if such information: (a) was or hereafter becomes known to the Recipient prior to the disclosure by the Discloser; (b) was at the time of disclosure to the Recipient, or subsequently became generally available to the public through no act of the Recipient; (c) was received by the Recipient from a third party without restrictions as to disclosure; (d) was independently developed by the Recipient without use of the Confidential Information of the Discloser; or (e) required to be disclosed by a court or governmental authority or by applicable law or regulation, provided however, that (i) the Recipient notifies the Discloser of such disclosure, to the extent not limited by law; and (ii) to the extent possible, provides the Discloser with the opportunity to oppose the disclosure or obtain a protective order.
11.4. Either party may disclose this Agreement to potential parties to an acquisition, investments, or similar transaction to facilitate due diligence and closing of the transaction, provided that the potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction.
12.1. OGY shall defend and hold Customer and its officers, directors and employees harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party alleging that the Platform, when used in accordance with this Agreement, infringes the copyright, patent or other intellectual property ownership rights of a third party and shall pay any damages awarded by court against the Customer that are attributable to any such claim.
12.2. Notwithstanding the above, should the Platform become, or in OGY’s opinion, is likely to become the subject of such a claim, OGY may, at its option and as Customer’s sole and exclusive remedy in connection with the foregoing, (a) procure for Customer the right to continue using the Platform under the terms of this Agreement; (b) replace or modify the Platform so that it is non-infringing and substantially equivalent in function to the enjoined Platform; or (c) if options (a) and (b) above cannot be accomplished despite OGY’s reasonable efforts, then OGY may terminate this Agreement and refund to Customer the pro-rate fees which were prepaid by Customer hereunder in advance for use of the Platform.
12.3. Notwithstanding the foregoing, OGY shall have no liability or obligation to Customer hereunder with respect to any claim for infringement based upon or arises out of (i) the use or combination of the Platform with any software or hardware, products, data or other materials not provided by OGY and where such claim would not have occurred absent such use or combination; (ii) the modification or alteration of the Platform by anyone other than OGY; (iii) compliance by OGY with designs, plans or specifications furnished by or on behalf of Customer; or (iv) the use of the Platform in excess of the rights granted in or in breach of this Agreement.
12.4. Customer shall indemnify, defend and hold OGY, and its officers, directors and employees harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party relating to: (a) Customer’s use of the Platform; or (b) breach by Customer of any of its covenants, obligations and/or undertakings hereunder.
12.5. The Party seeking indemnity under this Section 12 (“Indemnifiable Party”) shall give the other Party (“Indemnifying Party”) prompt, written notice of any claim to which the Indemnifiable Party seeks indemnity, and shall give sole control of the defense and settlement of such claim to the Indemnifying Party, and all reasonable assistance to defend such claim, provided that the Indemnifying Party shall not settle the claim if such settlement entails any liability on the Indemnifiable Party without the Indemnifiable Party’s written consent, provided that such consent is not unreasonably withheld, conditioned or delayed. Failure of the Indemnifiable Party to give said notice to the Indemnifying Party shall not affect Indemnifying Party’s indemnification obligations hereunder, except where such failure jeopardizes the Indemnifying Party ability to defend or settle such claim. The Indemnifiable Party shall not agree to make any admissions or settle the claim without the Indemnifying Party’s written consent, provided that such consent is not unreasonably withheld, conditioned or delayed. The Indemnifying Party shall regularly update the Indemnifiable Party on the progress of the defense or settlement of such claim. The Indemnifying Party shall have no obligations under this Section 11 to the extent that the indemnifiable claims result from the Indemnifiable Party’s breach of this Agreement or unauthorized use of or modifications of the Platform.
13. LIMITATIONS OF LIABILITY
13.1. OGY strives to keep its Platform secure, but cannot guarantee that it will always be successful at doing so, given the nature of the Internet. Accordingly, OGY will have no liability to Customer for any unauthorized access, copying or use of the Customer’s Account and/or information, or any resulting corruption, deletion, destruction or loss thereof.
13.2. IN NO EVENT SHALL OGY OR ANYONE ON ITS BEHALF BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR LOSS OR DAMAGES TO GOODWILL, IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF OGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL OGY’S TOTAL AND AGGREGATE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO OGY FOR THE RIGHT TO USE THE PLATFORM IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
13.3. IT IS HEREBY CLARIFIED THAT THIS SECTION SHALL NOT DEROGATE FROM OGY’S RESPONSIBILITY WITH RESPECT TO “SYSTEM FAILURE” AS SPECIFICALLY STATED IN THE WAVE BYLAWS.
14.1. Governing Law and Jurisdiction. This Agreement is governed by the laws of England and Wales, without application of its principles of conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction of the competent courts in London, England, to adjudicate all disputes arising from or related to this Agreement to the exclusion of the jurisdiction of any other court; however, OGY shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory. The Parties further agree that the United Nations Convention on the International Sales Goods shall not apply to the Agreement.
14.2. Exclusion of Contracts (Rights of Third Parties) Act 1999. – The parties to these Bylaws do not intend any of the Bylaws to be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to them.
14.3. Publicity. To the extent agreed to by Customer, OGY may identify Customer on OGY’s website(s) and other marketing materials as a user of the Platform.
14.4. Assignment. Neither party shall transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement without the prior written consent of the other party, provided however, that a party may assign this Agreement in connection with a merger, acquisition, sale of all or substantially all of its assets or other such corporate reorganization.
14.5. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory or public policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall in no way be affected, impaired or invalidated.
14.6. Entire Agreement. The terms and provisions contained herein and in the Order constitute the entire agreement between the parties hereto with respect to the subject matters hereof and shall supersede all previous communications, oral or written, between the parties hereto with respect to the subject matters hereof.
14.7. Amendments. The technology for the Platform is constantly evolving, as is the law governing its subject matter. Accordingly, OGY reserves the right to amend this Agreement at any time in its sole discretion. OGY will endeavor to send an email with notice of any such amendments to the email address Customer listed in its Account. Any such amendments shall become effective on the date that is thirty (30) days after the date of OGY’s email notice to you. If you do not accept, or refuse to be bound by, any of OGY’s proposed amendments, Customer may terminate this Agreement prior to the expiration of the thirty-day notice period by providing written notice of termination to OGY. If Customer terminates this Agreement within the thirty-day notice period, the proposed amendments will not take effect and will not be binding on Customer. However, if Customer does not terminate this Agreement as provided above within the thirty-day notice period, then Customer’s continued use of the Platform will constitute its acceptance of the proposed amendments and these amendments will be binding on Customer. Except as provided in this Section 13.7, no other act, document, usage, or custom shall be deemed to amend this Agreement.
14.8. Waiver. No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Furthermore, no waiver or delay on the part of a Party in exercising any power or right hereunder, and no forbearance or indulgence of a party granted to the other party, shall in any way restrict or diminish the full rights and powers of that Party under this Agreement, or operate as a waiver of any breach by a Party of any of the terms or conditions of this Agreement.
14.9. Independent Contractor. No agency, partnership, joint venture or employment relationship is or shall be created by virtue of the Platform and/or the Agreement.
14.10. Notices. Any notice provided pursuant to the Agreement shall be in writing and shall be sent by registered mail, or e-mail with notice of receipt requested, or by hand delivery to the addresses of the parties as specified herein. Notices sent to OGY shall be addressed to OGY Docs Inc., firstname.lastname@example.org and to Customer’s address set forth in the Order, or to the address otherwise designated from time to time in writing by the Parties. All notices will be deemed to have been delivered five (5) business days after being mailed (return receipt requested) if delivered by registered mail, or one (1) business day after delivered by hand or by e-mail (with confirmation of receipt).
Notices to Customer may be made via the Platform and/or e-mail. OGY may also provide notices of changes to these terms or other matters by displaying notices or links to notices to Customer generally on the Platform. Customer agrees that all agreements, notices, disclosures and any other communications that OGY provides as aforementioned satisfy any legal requirement that such communications be in writing. Any and all e-mail notices sent to Customer will constitute sufficient and effective delivery and notice to it, whether or not Customer accesses or reviews the notice and shall be deemed to have been delivered to it, whether actually received by it or not.
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