Terms of Service

TERMS AND CONDITIONS OF SERVICE

Last Modified: April 10, 2023

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.

Definitions.
1. "Acceptable Use Policy" has the meaning set forth in Section 3.
2. "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.
3. "Aggregated Statistics" has the meaning set forth in Section 2(e).
4. "Agreement" includes this Agreement, as defined in the preamble, and includes any document, schedule, or exhibit incorporated by reference in this Agreement.
5. "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services have been paid for.
6. "Confidential Information" has the meaning set forth in Section 7.
7. "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services.
8. "Documentation" means Bluewater’s user manuals, handbooks, and guides relating to the Services that Bluewater provides to you in whatever form, whether electronic, hard copy, or posted on the Website.
9. "Fees" has the meaning set forth in Section 5(a).
10. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
11. "Losses" has the meaning set forth in Section 11(a)(i).
12. "Operating Hours" means Monday to Friday, 8:00 am to 5:00 pm and Saturday, 8:00 am to 1:00 pm in London, Ontario.
13. "Privacy Policy" has the meaning set forth in Section 8.
14. "Service Levels" has the meaning set forth in Section 4(a).
15. "Services" means the services provided by Bluewater that are described on the Website.
16. "Service Suspension" has the meaning set forth in Section 2(g).
17. "Term" has the meaning set forth in Section 13(a).
18. "Third Party Claim" has the meaning set forth in Section 13(a)(i).
19. "Third Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services or utilized to make the Services available to the Customer.
20. "Uptime Level" has the meaning set forth in Section 5(a)(i).
21. "Website" means Bluewater’s website, located at https://bluewatertrailers.ca/.

Access and Use.

1. 1. 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.
  2. 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.
2. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Bluewater may monitor Customer's and Authorized Users’ use of the Services and collect and compile data and information related to Customer's and Authorized Users’ use of the Services to be used by Bluewater in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Bluewater and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Bluewater. Customer acknowledges that Bluewater may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Bluewater may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Reservation of Rights. Bluewater reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Bluewater IP.
4. Suspension. Notwithstanding anything to the contrary in this Agreement, Bluewater may temporarily suspend or restrict access to the Services, or make use of any operational, technological, legal or other means available (including without limitation blocking specific IP addresses), to restrict Customer's and any other Authorized User's access to any portion or all of the Services if:
  1. 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;

1. 1. 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
  2. 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.

Customer Responsibilities.

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.

1. 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.

Service Levels and Support.
1. Service Levels. Subject to the terms and conditions of this Agreement, Bluewater shall use commercially reasonable efforts to make the Services available in accordance with this Section 4 as follows: (the "Service Levels")
  1. Bluewater shall take commercially reasonable steps to ensure that the Services are available 90% of the time during the Operating Hours (the “Uptime Level”);
  2. 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;
  3. Uptime Level will be calculated on a minute-by-minute basis for a given month, determined by the fraction that has as its numerator the number of minutes during the Operating Hours that the Services were available and has as its denominator the total number of minutes during the Operating Hours in a given month;
  4. 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;
  5. 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.

1. 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.

Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Bluewater's income.

Confidential Information. From time to time during the Term, Bluewater and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third party confidential information, and other sensitive or proprietary information that a reasonable person would consider confidential, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) previously known to the receiving party outside of any obligation of confidentiality and from a person who is not under an obligation of confidentiality; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, contractors or professional advisors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable Law, provided that, to the extent permitted by Law, the party making the disclosure pursuant to the order shall first have given written notice to the other party; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five (5) years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable Law.

Privacy Policy. Bluewater complies with its privacy policy available at https://bluewatertrailers.ca/privacy_policy (“Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, Customer acknowledges that Customer has reviewed and accepted the Privacy Policy, and Customer consents to all actions taken by Bluewater with respect to Customer’s information in compliance with the then-current version of the Privacy Policy.

Intellectual Property Ownership; Feedback. As between Customer and Bluewater, (a) Bluewater owns all right, title, and interest, including all intellectual property rights, in and to the Services and Bluewater IP, and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. For clarity, nothing in this Agreement grants any license or right to use any trademark or service mark of Bluewater or Third Party Products other than with the express written permission of Bluewater or the Third Party Products suppliers, as applicable. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Bluewater by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Bluewater is free to use such Feedback irrespective of any other obligation or limitation between Customer and Bluewater governing such Feedback. All such Feedback is and will be treated as Confidential Information of Bluewater. Customer hereby assigns to Bluewater on Customer’s behalf, and shall cause Customer’s employees, contractors, and agents to assign, all right, title, and interest in, and Bluewater is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Bluewater is not required to use any Feedback. Upon the request of Bluewater, Customer shall take commercially reasonable steps to cause its employees, contractors and agents to make an assignment in writing of any Feedback, and waive any moral rights in any Feedback.

Limited Warranty and Warranty Disclaimer.
1. Customer Warranty. Customer warrants that Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and Customer’s use of the Services are in compliance with the Acceptable Use Policy and applicable Law.
2. THE SERVICES ARE PROVIDED "AS IS" AND BLUEWATER SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BLUEWATER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BLUEWATER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

Indemnification.
1. Bluewater Indemnification.
  1. Bluewater shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees ("Losses"), incurred by Customer resulting from any third party claim, suit, action, or proceeding ("Third Party Claim") that any use of the Services by the Customer or its Authorized Users in accordance with this Agreement, infringes or misappropriates such third party's Canadian patents, copyrights, or trade secrets, provided that Customer promptly notifies Bluewater in writing of the Third Party Claim, cooperates with Bluewater, and allows Bluewater sole authority to control the defence and settlement of such Third Party Claim.
  2. If such a Third Party Claim is made or Bluewater anticipates such a Third Party Claim will be made, Customer agrees to permit Bluewater, at Bluewater's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Services. If Bluewater determines that neither alternative is reasonably available, Bluewater may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 11(a)(iii) sets forth Customer’s sole remedies and Bluewater’s sole liability and obligation for any actual, threatened, or alleged Third Party Claims that use of the Services in accordance with this agreement infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
  3. This Section 11(a) will not apply to the extent that any such Third Party Claim arises from Customer Data or Third Party Products.
2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Bluewater's option, defend Bluewater and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third Party Claim against Bluewater unless Bluewater consents to such settlement, and further provided that Bluewater will have the right, at its option, to defend itself and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any such Third Party Claim or to participate in the defence thereof by counsel of its own choice at Customer’s cost.

LIMITATIONS OF LIABILITY. IN NO EVENT WILL BLUEWATER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BLUEWATER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BLUEWATER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO BLUEWATER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Term and Termination.
1. Term. The term of this Agreement begins on the date Bluewater notifies Customer it can access the Services and continues until terminated (the “Term”).
2. Termination. In addition to any other express termination right set forth in this Agreement:
3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Bluewater’s obligation to provide the Services will immediately cease and Bluewater may delete all Customer Data in its possession or control. Customer shall, and shall cause all Authorized Users, to immediately discontinue use of the Services and the Bluewater IP, to uninstall downloaded software components of the Services and return to Bluewater or destroy all Bluewater IP in its or their possession. No termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or other amounts due and payable under this Agreement, or entitle Customer to any refund.
4. 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.

1. 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.
2. 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.

1. 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.
2. 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.

Relationship of Parties. Bluewater, in providing the Services is acting as an independent contractor. Bluewater does not undertake by this Agreement or otherwise to perform any obligations of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.

Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.

Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement and the Services, including all statements of work, exhibits, schedules, attachments, and appendices referenced in this Agreement, the services provided by Bluewater, and all contemplated transactions, that is not resolved in accordance with Section 16, shall be instituted in the courts of the Province of Ontario located in London, Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. The service address for Bluewater will be the address of Bluewater’s headquarters which can be found on the Website and the service address for Customer will be Customer’s most recent address provided to Bluewater. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

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.

Miscellaneous. This Agreement constitutes the entire agreement and understanding between Customer and Bluewater with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The parties do not confer any legal, equitable or other rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than the parties to this Agreement and their respective successors and permitted assigns. Words importing the singular number shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders and vice versa. The words "include", "includes" and "including" shall be deemed to be followed by the words "without limitation". The words "herein", "hereof", "hereby", "hereto" and "hereunder" refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any notices to Bluewater must be in writing and sent to Bluewater’s corporate headquarters address available on its Website and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by Bluewater. The Customer’s address will be its internal business operations address. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from Bluewater. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Customer agrees that any notices, agreements, disclosures, or other communications that Bluewater sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. Any failure to act by Bluewater with respect to a breach of this Agreement and this Agreement by Customer or others does not constitute a waiver and will not limit Bluewater rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without Bluewater prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Bluewater expressly reserves the right to assign this Agreement and to delegate or transfer any of its obligations hereunder.

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