These Terms and Conditions of Service (this "Agreement"), form a binding contract between you (the “Customer”, “you”, or “your”) and Bluewater Trailer Sales Ltd. ("Bluewater", “we”, or “us”). This Agreement governs Customer’s access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICES.
"Bluewater IP" means the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Bluewater IP includes Aggregated Statistics and any information, data, or other content derived from Bluewater's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
"Aggregated Statistics" has the meaning set forth in Section 2(e).
"Agreement" includes this Agreement, as defined in the preamble, and includes any document, schedule, or exhibit incorporated by reference in this Agreement.
Customer shall not, and shall not permit any Authorized Users to, use the Services including any software component of the Services or Documentation for any purposes beyond the scope of the access granted in this Agreement.
Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (A) copy, modify, or create derivative works of the Services in whole or in part; (B) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services except as expressly permitted under this Agreement, which, for clarity, includes a general prohibition with sharing any password and/or access credentials among Authorized Users or otherwise; (C) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (D) remove any proprietary notices from the Services; or (E) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any applicable law, regulation or rule, or any other right of any other person, including without limitation any intellectual property right, privacy law or privacy right or other right of Bluewater or any other person, or that violates any applicable Law or in any manner that is otherwise contrary to the Acceptable Use Policy.
Customer shall ensure that no person other than an Authorized User has access to the Services through the access credentials and mechanisms provided to Customer. Customer will promptly delete all credentials for accessing the Services for anyone who is no longer an Authorized User.
Bluewater reasonably determines that (A) there is a threat or attack on any of the Bluewater IP; (B) Customer's or any other Authorized User's use of the Bluewater IP disrupts or poses a security risk to the Bluewater IP or to any other customer, contractor or vendor of Bluewater (including through your offline conduct); (C) Customer or any other Authorized User is using the Bluewater IP for fraudulent, illegal or improper activities or in any way inconsistent with the Acceptable Use Policy; (D) Customer’s use of the Service causes or may cause harm to Bluewater’s reputation; (E) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (F) Bluewater's provision of the Services to Customer or any other Authorized User is prohibited by applicable Law;
any vendor of Bluewater has suspended or terminated Bluewater's access to or use of any third party services or products required to enable Customer to access the Services; or
Customer has not made prompt payments of Fees in accordance with Section 5.
(any such suspension described in subclause (i), (ii), or (iii), being a "Service Suspension"). Bluewater shall use commercially reasonable efforts to provide notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Bluewater shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Bluewater will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that customer or any other authorized user may incur as a result of a Service Suspension.
BLUEWATER IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS, INCLUDING WITHOUT LIMITATION ANY LOSS OF ACCESS TO THE SERVICES RELATING TO OR RESULTING FROM THE AVAILABILITY OR NON-AVAILABILITY OF THE THIRD PARTY PRODUCTS.
Customer Infrastructure. Customer will be responsible to provide at its expense all requisite high speed internet connections, equipment, devices, peripherals and other customer infrastructure and requirements to securely access and properly utilize the Services.
Bluewater shall take commercially reasonable steps to ensure that the Services are available 90% of the time during the Operating Hours (the “Uptime Level”);
Bluewater may make the Services available outside the Operating Hours, but Bluewater expressly disclaims any representation or warranty with respect to the availability of the Services outside Operating Hours;
In determining the Uptime Level, no regard shall be given in the denominator referred to in Section 4(a)(iii) to any failure, downtime, or loss of access due to Customer’s infrastructure including internet services between Customer and Bluewater’s servers, or due to any Third Party Products, Service Suspension or Force Majeure;
In the event that the Uptime Level falls below 90% in a given month, Customer may provide written notice to Bluewater within 30 days of the end of such month, together with a copy of it calculations of Uptime Levels for such month, and request a non-refundable account credit. Upon verification by Bluewater, the Customer will be provided with an account credit towards Customer’s next due Monthly Fees equal to the difference between the Monthly Fees paid by Customer for such month and the amount obtained by pro-rating the Monthly Fees paid by Customer for such month on a straight-line basis in accordance with the fraction determined in Section 4(a)(iii) representing the Uptime Level for such month.
THE REMEDIES SET OUT IN THIS SECTION 4(a) SHALL BE CUSTOMER’S SOLE REMEDY WITH RESPECT TO THE SERVICE LEVELS.
Location of Data. Bluewater may use servers and storage in Canada, the United States of America, or elsewhere. The Services and the Customer Data may be stored and hosted on a shared virtual machine or virtual machines or such other infrastructure as Bluewater may determine from time to time.
Fees and Payment. Customer shall pay Bluewater the fees as described on the Website ("Fees") within thirty (30) days from the invoice date without set-off or deduction. Customer shall make all payments hereunder in Canadian dollars on or before the due date. If Customer fails to make any payment when due, without limiting Bluewater's other rights and remedies: (i) Bluewater may charge interest on the past due amount at the rate of eighteen percent (18%) per annum or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Bluewater for all costs incurred by Bluewater in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for sixty (60) days or more, Bluewater may suspend, in accordance with Section 2(g), Customer's and all other Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
Survival. This Section 13 (Survival), and Sections 7 (Confidentiality), 9 (Intellectual Property Ownership; Feedback), 11 (Indemnification), 12 (Limitation of Liability), 16 (Dispute Resolution) and any provision, right, obligation, or required performance of the parties in this Agreement which, by its nature, express terms or context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 (Confidentiality) or 9 (Intellectual Property Ownership; Feedback), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity or otherwise.
Modifications. Customer acknowledges and agrees that Bluewater has the right, in its sole discretion, to modify this Agreement from time to time, and that modified Terms become effective on posting. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified Terms. Bluewater will provide at least 90 days' advance notice of changes to any service level that Bluewater reasonably anticipates may result in a material reduction in quality or services by email to the most recent email address Customer has on file with Bluewater.
Dispute Resolution. If any dispute or controversy arises between Customer and Bluewater relating to or arising from this Agreement, the Services, or the relationship between Customer and Bluewater (a “Dispute”), the Dispute will be resolved in accordance with this Section 16.
CUSTOMER AND BLUEWATER HEREBY EXPRESSLY WAIVE THE RIGHT TO ANY TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION IN ANY MANNER. CUSTOMER AND BLUEWATER EACH AGREE THAT CLAIMS WILL ONLY BE BROUGHT IN CUSTOMER’S AND BLUEWATER’S INDIVIDUAL CAPACITIES AND NEITHER OF CUSTOMER NOR BLUEWATER WILL BRING A CLAIM AS A PART OF A CLASS, WHETHER AS LEAD PLAINTIFF, MEMBER, REPRESENTATIVE, OR OTHERWISE.
Negotiation. Before resorting to arbitration, each of Customer and Bluewater will attempt to resolve the Dispute through negotiation, which negotiation may be conducted electronically or virtually. The complaining party (the “Complainant”) will first provide the other party (the “Respondent”) with a written notice of the dispute (a “Notice of Dispute”). The Notice of Dispute will include (i) the full legal name and contact information of the Complainant, (ii) describe the nature and basis of the claim or dispute in detail, and (iii) set out the specific relief that the Complainant is seeking. If Bluewater is the Complainant, Bluewater will send any Notice of Dispute to Customer’s internal business operations address and to the last email address that Customer provided to Bluewater. If Customer is the complainant, Customer will send the Notice of Dispute to the address of Bluewater’s headquarters, which can be found on the Website, prepaid, by registered mail or nationally recognized courier, with proof of receipt requested. The effective date of the Notice of Dispute will be the day that Bluewater receives it, if sent to Bluewater, or the day that Bluewater sends it by email if sent to Customer.
Binding Arbitration. If Customer and Bluewater are unable to come to a negotiated agreement within thirty (30) days of the effective date of the Notice of Dispute, the Dispute will be finally and conclusively resolved by binding arbitration under the Arbitration Rules of the ADR Institute of Canada. The seat of arbitration will be London, Ontario, Canada and the arbitration may be conducted virtually at the request of either party. The language of the arbitration will be English. The arbitrator will be selected in accordance with the Arbitration Rules, and will be a former judge of Ontario or a senior lawyer licensed to practice law in Ontario and experienced in commercial disputes. There will be no appeal from the decision of an arbitrator except on a question of law. Costs of the arbitrator shall be determined by the arbitrator consistently with costs practice in the Superior Court of Justice in Ontario.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH ARBITRATION SHALL BE INDIVIDUALLY BETWEEN TWO PARTIES AT A TIME, AND NO ARBITRATIONS SHALL BE COMBINED SO AS TO FORM A CLASS ARBITRATION.
Enforceability/Law. Any question that must be put to a court pertaining to a Dispute shall be put to the courts of Ontario located in London, Ontario. If this Section 16 is found to be unenforceable in whole or in part, then the exclusive jurisdiction and venue provisions of Sections 18 and 19 shall govern. Any party may obtain an order reflecting a decision or order of the arbitrator in any court of competent jurisdiction.
Limitation Period. Customer may not initiate a Dispute that is based upon facts or events that commenced more than one (1) year prior to such time.
Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Severability. If any provision of this Agreement is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall be severed only to the extent of the invalidity, illegality or unenforceability so as to retain, to the maximum extent possible, the intent of the parties as reflected in the term or provisions as drafted, and shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Further Assurances. Customer shall, and shall cause its affiliates and Authorized Users, to, from time to time at the request of Bluewater, furnish Bluewater with such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement.