Unity End-User License Agreement (Unity EULA)
IBWAVE SOLUTIONS INC.
IBWAVE UNITY
IMPORTANT: PLEASE READ CAREFULLY BEFORE INSTALLING OR USING THE IBWAVE SAAS SERVICES
This iBwave Software as A Service Terms of Service (this “Agreement”) are an agreement between iBwave Solutions Inc. (“iBwave”) and the person visiting, browsing, accessing, downloading, installing or otherwise using (the term “use” and “using” will to any of the foregoing) the Software or iBwave SaaS Services (such person, the “Customer”, Customer and iBwave, the “Parties” and each, a “Party”) and is entered in the earlier of: a) the date Customer first uses any part of the iBwave SaaS Services and/or the Software; and b) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
BY CLICKING “I ACCEPT” OR BY USING THE SOFTWARE AND/OR THE iBWAVE SAAS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12.3. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE iBWAVE SAAS SERVICES AND/OR THE SOFTWARE. CUSTOMER REPRESENTS AND WARRANTS TO iBWAVE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE iBWAVE SAAS SERVICES AND/OR THE SOFTWARE ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO iBWAVE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
1. DEFINITIONS
“Administrator Account” has the meaning set forth in Section 4.
“AMS” means the Annual Maintenance and Support Agreement between iBwave and Customer, if any.
“Cloud Services” means the cloud services which provide Customer with cloud storage in association with the Use of the iBwave SaaS Services.
“Customer Data” means any data, information, content, records and files that Customer (or any User) leads, receives through, transmits to or enters into the iBwave SaaS Services.
“Customer User Account” has the meaning set out in Section 4.
“iBwave Data” means any data, information, content, records and files that iBwave or any of its affiliates make available in connection with the iBwave SaaS Services or on the website.
“iBwave SaaS Services” means services through which iBwave hosts and makes available the Software. The term “iBwave SaaS Services” includes the Software, the Cloud Services and the Reporting Module as set out in Section 2.6.
“Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Personal Information” means information about an identifiable individual.
“Project” means in-building projects managed by Customer with the iBwave SaaS Services.
“Reporting Module” means the Izenda reporting module.
“Software” means the software product made available under the name iBwave Unity and any updates provided as part of the iBwave Saas Services.
“Term” has the meaning set out in Section 11.1.
“User” means any individual that directly or indirectly accesses or Uses the iBwave SaaS Services.
“Website” means any website used by iBwave to provide the iBwave SaaS Services, including the website located at https://www.ibwave.com.
2. IBWAVE UNITY SAAS SERVICES
2.1 Provisioning of the iBwave SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, iBwave will make the iBwave SaaS Services available to Customer on the terms and conditions set out in this Agreement. Customer is responsible for identifying and authenticating the Users and for the Users’ compliance with this Agreement.
2.2 Restriction on Use. Customer acknowledges and agrees that it is responsible for the compliance by the Users with this Agreement, any guidelines and policies published by iBwave from time to time, and the activities of the Users on the iBwave Unity SaaS Services. Without limiting the generality of any of the foregoing, Customer must not itself, and will not permit others to:
(a) install, or download the Software on more than one server;
(b) reverse engineer, de-compile, disassemble or unlock the iBwave SaaS Services;
(c) Modify the iBwave SaaS Services;
(d) Use or access the iBwave SaaS Services in a way intended to avoid incurring or exceeding usage limits or quotas;
(e) Use the iBwave SaaS Services to permit timesharing or commercially exploit the iBwave SaaS Services;
(f) distribute, copy, transfer, sell, rent, lend, lease or sublicense the iBwave SaaS Services or any intellectual property rights therein or otherwise make the iBwave SaaS Services available to others unless agreed in writing by iBwave;
(g) Use or access the iBwave SaaS Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the iBwave SaaS Services, or for any purpose or in any manner not expressly permitted in this Agreement;
(h) Use the iBwave SaaS Services to create, collect, transmit, store, use or process any Customer Data:
(i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(i) remove or obscure any proprietary notices or labels on the iBwave SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
(j) perform any vulnerability, penetration or similar testing of the iBwave SaaS Services;
(k) Use the iBwave SaaS Services with online control equipment;
(l) access or Use the iBwave SaaS Services in order to build a similar product or competitive service; or
(m) Use the iBwave SaaS Services in hazardous environments requiring fail- safe performance, such as in the operation of nuclear facilities, aircraft, navigation, communication or control systems, direct life support machines, weapons systems, or other uses in which failure of the software could lead directly to death, personal injury or severe physical or environmental damage.
2.3 Suspension of Access: Scheduled Downtime; Modifications. iBwave may, at its discretion:
(a) suspend Customer’s access to or Use of the iBwave SaaS Services or any component thereof:
(i) for scheduled maintenance;
(ii) if Customer or Users violate any provision of this Agreement, ;
(iii) to address any emergency security concerns;
(iv) if Customer or Users’ Use of the iBwave SaaS Services (A) may adversely impact the Use of the iBwave SaaS Services of any other iBwave customer, (B) may subject iBwave, its affiliates, licensors or distributors or any third party to liability, or (C) may be fraudulent; or
(v) if iBwave no longer has the right to grant access to any component of the iBwave SaaS Services.
(b) Modify the iBwave Unity SaaS Services.
iBwave will notify Customer of any material change to or discontinuance of the iBwave SaaS Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of iBwave to the iBwave SaaS Services.
2.4 Effect of Suspension. If iBwave suspends Customer’s or Users’ right to access or Use any of the iBwave SaaS Services:
(a) Customer remains responsible for all fees and charges Customer have incurred through the date of suspension;
(b) Customer remains responsible for any applicable fees and charges for any of the iBwave SaaS Services to which Customer continue to have access;
(c) Customer will not be entitled to any service credits under the AMS for any period of suspension; and
(d) iBwave will not erase any of Customer Data as a result of Customer suspension, except as specified elsewhere in this Agreement.
iBwave right to suspend Customer or any User’s right to access or Use any of the Service Offerings is in addition to iBwave right to terminate this Agreement pursuant to Section 11.
2.5 Maintenance. For a period of 12 months from the Effective Date (the “Initial Period”), Customer will have access to the support and maintenance of the Software as more fully described in the AMS. After the Initial Period, Customer may renew the AMS on an annual basis.
2.6 Reporting Module. If the AMS is no longer in force, Customer will lose the right to use the Reporting Module otherwise comprised in the iBwave SaaS Services. If Customer loses the right to use the Reporting Module, Customer acknowledges and agrees that Customer will only have access to the reporting module from Stimulsoft.
3. OWNERSHIP AND RESERVATION OF RIGHTS
3.1 Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to iBwave a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the iBwave SaaS Services. iBwave may collect and analyze data and other information relating to the provision, use and performance of the iBwave SaaS Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term, iBwave may: (i) use such data and information to improve and enhance the iBwave SaaS Services and for other development, diagnostic and corrective purposes in connection with the iBwave SaaS Services and other iBwave offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
3.2 iBwave, its affiliates and licensors retain all ownership and intellectual property rights, in and to (A) (i) the iBwave SaaS Services; (ii) iBwave Data; (iii) anything developed or delivered by or on behalf of iBwave under this Agreement; and
(iv) any Modifications to the foregoing (i), (ii) and (iii).
3.3 All rights not expressly granted by iBwave to Customer under this Agreement are reserved.
4. CUSTOMER USER ACCOUNT
Upon Customer’s request, iBwave will issue one administrator account (the “Administrator Account”) to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) that Customer wishes to have access to and use of the iBwave SaaS Services. Customer will ensure that the Users use the iBwave Unity SaaS Services through the Customer User Accounts. Customer will not allow any User to share the Customer User Account with any other person. Customer will promptly notify iBwave of any actual or suspected unauthorized Use of the iBwave Unity SaaS Services. iBwave reserves the right to suspend, deactivate, or replace the Customer
User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
5. PRIVACY
Customer agrees (on Customer’s behalf and on behalf of any User) to iBwave’s access, use collection, storage and disclosure of Customer’s and the Users’ Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information, including Personal Information of any Users, will be treated with iBwave’s privacy policy located at https://www.ibwave.com (the “Privacy Policy”).
6. CUSTOMER’S RESPONSIBILITIES
6.1 Testing. Customer is solely responsible for the Use of any of the iBwave SaaS Services and taking its own steps to test such iBwave SaaS Services thoroughly with non-critical data before relying on it.
6.2 Customer Data. Customer is solely responsible for the development, content, operation, maintenance and Use of Customer Data. Customer is solely responsible for any claims relating to Customer Data.
6.3 User Violation. Customer shall ensure that Users comply with Customer’s obligations under this Agreement and that the terms of Customer’s agreement with any User are consistent with Customer’s obligations under this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement, Customer shall immediately terminate such Users’ access to Customer Data and iBwave SaaS Services.
6.4 User Support. Customer is responsible for providing support service to the Users.
7. FEES AND PAYMENT
The license fees and payment terms are as set out in iBwave’s invoice(s) issued to Customer in relation to this Agreement.
7.1 Invoicing. iBwave will prepare and send to the Customer, at the then-current contact information on file with iBwave, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 45 calendar days of the invoice date. For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the Website, and iBwave will invoice or charge Customer on a recurring basis.
7.2 Disputed Invoices or Charges. If Customer believes iBwave has charged or invoiced Customer incorrectly, Customer must contact iBwave no later than 45 days after having been charged by iBwave or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
7.3 Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. iBwave reserves the right to suspend Customer’s access to the iBwave Unity SaaS Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
7.4 Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST, QST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of iBwave.
7.5 Suspension. Any suspension of the iBwave Unity SaaS Services by iBwave pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information;
(ii) information that is publicly available through no wrongful act of Recipient; or
(iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
8.2 Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
8.3 Exceptions to Confidentiality. Notwithstanding Section 8.2, Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of iBwave, to potential assignees, acquirers or successors of iBwave if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of iBwave.
9. WARRANTY, DISCLAMER; INDEMNITY
9.1 General Disclaimers. iBWAVE DOES NOT WARRANT THAT THE iBWAVE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE iBWAVE SAAS SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE iBWAVE SAAS SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY iBWAVE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IBWAVE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, IBWAVE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE IBWAVE SAAS SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
9.2 Indemnity. Customer will defend, indemnify and hold harmless iBwave, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Users) liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the iBwave SaaS Services (or any part thereof) by Customer or any User in combination with any third party software, application or service. Customer will fully cooperate with iBwave in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of iBwave.
10. LIMITATION OF LIABILITIES
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedies.
10.1 Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF IBWAVE IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER CONTRACTUAL OR EXTRA-CONTRACTUAL (INCLUDING NEGLIGENCE, INTENTIONAL FAULT OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE IBWAVE SAAS SERVICES IN THE PRIOR 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL IBWAVE’S THIRD PARTY SUPPLIERS, LICENSORS OR DISTRIBUTORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL IBWAVE BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, REVENUES, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER CONTRACTUAL, EXTRA-CONTRACTUAL (INCLUDING NEGLIGENCE, INTENTIONAL FAULT OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10.3 Customer Warranty. Customer represents and warrants to, and covenants with iBwave that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to the User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable iBwave to provide the iBwave SaaS Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to iBwave and to or from all applicable third parties.
11. TERM; TERMINATION
11.1 Term. At the option of Customer as set out in iBwave’s invoice(s) issued to Customer in relation to this Agreement, the term of this Agreement (the “Term”) will commence on the Effective Date and will either (i) remain in effect until terminated by Customer or iBwave in accordance with this Section 11 or (ii) be renewed on an annual basis by Customer.
11.2 Termination for cause.
(a) By Either Party. Either Party may terminate this Agreement for cause by providing if the other Party commits a material default of any provision of this Agreement and fails within 30 days after receipt of notice of such breach to correct such material breach.
(b) By iBwave. iBwave may also terminate this Agreement immediately upon notice to Customer (A) for cause, if any act or omission by Customer or User results in a suspension described in Section 2.3, (B) in order to comply with the law or requests of governmental entities, or (C) if iBwave determines that the use of any of the iBwave SaaS Services by Customer or any Users has become impractical or unfeasible for any legal or regulatory reason.
11.3 Effect of Termination.
Upon any termination of this Agreement:
(i) all Customer rights under this Agreement immediately terminate;
(ii) Customer remains responsible for all fees and charges Customer has incurred through the date of termination, including fees and charges for in- process tasks completed after the date of termination; and
(iii) Customer will immediately return or, if instructed by iBwave, destroy all iBwave Data in Customer control.
11.4 Post-Termination Assistance. Within the 30 day period following termination, unless iBwave terminates the iBwave SaaS Services pursuant to Section 11.2(a) or 11.2(b)(A):
(i) iBwave will not erase any of Customer Data as a result of the termination;
(ii) Customer may retrieve Customer Data from the iBwave SaaS Services only if Customer has paid any charges for any post-termination use of the iBwave SaaS Services and all other amounts due; and
(iii) iBwave will provide Customer with the same post-termination data retrieval assistance that iBwave generally makes available to all customers.
Any additional post-termination assistance from iBwave is subject to mutual agreement by iBwave and Customer.
11.5 Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 5 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11.5 and Section 12 (General Provisions).
12. GENERAL PROVISIONS
12.1 Import and Export Compliance. Customer will comply with all export, laws and regulations that may apply to its access or Use of the iBwave SaaS Services. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Software, including the transfer and processing of Customer Data and the provision of Customer Data to User.
12.2 Governing Law. This Agreement and any dispute of any sort that might arise between iBwave and Customer are hereby governed by the laws of the Province of Quebec, Canada without reference to any conflict of low rules. Any dispute relating in any way to the Software or this Agreement will be adjudicated in the courts of the Province of Québec, district of Montréal. Customer consents to exclusive jurisdiction and venue in those courts. iBwave may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of iBwave, its affiliates, licensors, distributors or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. If the Software is licensed for Use in the Province of Quebec, Canada, the parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English (i.e. Les parties ont exigé que le présent contrat ainsi que tous les documents connexes soient rédigés en anglais).
12.3 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, iBwave may unilaterally amend this agreement, in whole or in part, (each, an “Amendment”), by: (i) giving Customer prior notice of such Amendment; or (ii) posting notice of such Amendment on the Website. Unless otherwise indicated by iBwave, any such Amendment will become effective as of the date the notice of such Amendment is provided to Customer or is posted on the Website (whichever is the earlier).
12.4 Assignment. Customer will not assign this Agreement, or delegate or sublicense any of its rights under this Agreement, without iBwave prior written consent. iBwave may assign this Agreement or any right thereunder to any third party without Customer consent. Any assignment or transfer in violation of this Section 12.4 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
12.5 Force Majeure. Neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes, internet service failures or delays, or the unavailabilities or Modifications by third parties of telecommunications or hosting infrastructure or third party websites.
12.6 Notice.
(a) To Customer. iBwave may provide any notice to Customer under this Agreement by: (A) posting a notice on the website; or (B) sending a message to the email address then associated with Administrator Account. Notices iBwave provides by posting on the website will be effective upon posting and notices iBwave provides by email will be effective when iBwave sends the email. It is Customer responsibility to keep Customer email address current. Customer will be deemed to have received any email sent to the email address then associated with Administrator Account when iBwave sends the email, whether or not Customer actually receive the email.
(b) To iBwave. To give iBwave notice under this Agreement, Customer must contact iBwave as follows: (i) by email to ; or (ii) by personal delivery, overnight courier or registered or certified mail to iBwave Solutions Inc., 8500 Decarie Blvd, 3rd floor, Suite 116, Mount Royal, Quebec, Canada, H4P 2N2, Canada. iBwave may update the email address, facsimile number or address for notices to iBwave by posting a notice on the iBwave Site. Notices provided by personal delivery will be effective immediately. Notices provided by email, facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
12.7 Entire Agreement. This Agreement constitutes the entire agreement between Customer and iBwave regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and iBwave, whether written or verbal, regarding the subject matter of this Agreement.