Terms & Conditions

BeWhere Inc. Terms and Conditions 

Master Subscription Service Terms

Effective Date: March 1st, 2020

By clicking on the “I agree” (or similar button) that is presented to User at the time of User’s Order, or by using or accessing BeWhere products and services, User indicates User’s assent to be bound by this Agreement and the Privacy Policy.

This BeWhere User Agreement (the “Agreement” or “Terms and Conditions”) governs the relationship between User and BeWhere Inc. (“BeWhere”) and User’s use of and access to the BeWhere Web-Based Application (“website”). If User is agreeing to the Terms and Conditions of this Agreement not as an individual but in a representative capacity on behalf of an entity, then “Customer” or “User” means the entity User represents, and User is binding the entity User represents to this Agreement. (If User represents a federal, state or local government agency, please Contact Us.) BeWhere may modify the Terms and Conditions of this Agreement from time to time.

This Agreement is made between the client identified in the Order Form (the “Client”) and BeWhere Inc. (“BEWHERE” or “BeWhere”) on the Effective Date (as defined below).
 
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, BEWHERE and Client hereby agree as follows:

1. DEFINITIONS

All definitions in the Order Form are integrated herein. In addition, in this Agreement or in any Order relating to the Service governed by this Agreement, the following terms shall have the following meanings respectively:

           “BEWHERE Server” means a BEWHERE computer server located at BEWHERE’s premises, or a third party provider of hosting and/or network services, that hosts the Software.
           “Data" means any and all data, information, records or files that are collected, created or generated by the Service and transmitted to, uploaded to and/or stored on servers provided by BEWHERE for use with the Service.
           “Data Locations” means the location of BEWHERE’s secure server and data facility, back-up facility, back-up storage facility and any other location where Data will be stored, or such other location as may be determined by BEWHERE from time to time.
           “Documentation” means the explanatory user materials supplied by BEWHERE with the Service in electronic form.
           “Effective Date” has the meaning ascribed thereto in Section 4.1 hereof.
           “Hardware” means any mobile electronic device, mobile phone, mobile data terminal, or mobile asset (including vehicles, trailers or containers), installed modem, related sensors and other equipment or accessories onto which a mobile application has been embedded, installed or which is used to access a mobile application and which is required to use the Service as intended as described in the Documentation.
           “Installation” shall mean the installation of Hardware (and accessories, as necessary) in the Clients vehicles or assets, the activation of Subscribers on the TSP’s network (“Activation”) and the provisioning of Subscribers (“Provisioning”).
           “Location Data” means Data that is about or relates to the geographical location, heading, speed or similar information relating to Hardware.
           “Order” means an order for the Service on an Order Form signed by Client and accepted by BEWHERE. All Orders placed by Client, directly or indirectly, and accepted by BEWHERE will be governed by the terms and conditions of this Agreement.
           “Service” means the provision of Subscribers, location and data communications services, the Software and Documentation for which Client is granted rights of access and use under this Agreement, which resides on one or more BEWHERE Servers and which will be remotely accessible over the Internet by Client and its Users, including Support Services and any other ancillary services available in connection therewith, as such Service may be updated from time to time by BEWHERE in its sole discretion.
           “Software” means BEWHERE’s proprietary BeWhere software application and the software installed on the Subscribers and other Hardware.
           “Subscriber” means a Hardware device running embedded or installed software and connected to a communication network (including, but not limited to, Wi-Fi, cellular, Bluetooth and satellite networks) that transmits location information and other data to the BEWHERE Servers running the Service and which are provided by BEWHERE or a third party and installed on Client’s vehicles or assets to enable the provision of the Service.
           “Subscription” means the right granted by BEWHERE to Client to access and use the Service in accordance with the terms of this Agreement and the applicable Order, for use in connection with the number of Subscribers and for the Subscription Term specified in the applicable Order.
           “Subscription Fee” means the fees payable by Client for a Subscription as set out in the Order.
           “Subscription Term” means the period commencing on the Effective Date and continuing for the Subscription Term specified in the applicable Order.
           “Support Services” means the technical support services for the Service provided by BEWHERE as described in, and in accordance with, the BEWHERE Support Terms.
           “Support Terms” means BEWHERE’s terms and conditions for the provision of Support Services to Client and its Users.
           “Beacon Data” means Data that is about or relates to an asset equipped with a BEWHERE Beacon such as movement, sensor information, and includes Location Data.
           “User” means an employee or contractor of Client.
           “Work Order Data” means Data that relates to an order for services or deliveries that was dispatched from or to a Subscriber using the Service.

2.  LICENSE GRANTS
2.1      Service License. Subject to the terms and conditions of this Agreement and payment of the applicable Subscription Fees, BEWHERE hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Service, solely during the Subscription Term by a limited number of Users (as defined in the Order Form); and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Client’s permitted use of the Service during the Subscription Term for the number of Subscribers for which Client has purchased Subscriptions and pays the applicable Subscription Fees (as specified in one or more Orders).
2.2      Restrictions. Client may not:

(a)  make copies of the Software and Documentation except as permitted in this Agreement;

(b)  reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the object code for the Software in order to derive the source code form, or decode any passwords or encrypted license or installation keys that have been provided to Client by BEWHERE in order to enable the execution of the Service on unauthorized equipment, or for any other reason do or attempt to do any of the foregoing, except to the extent the foregoing restriction is expressly prohibited by applicable law;

(c)  use the Service in violation of applicable laws;
(d)  assign (by operation of law or otherwise) or transfer this Agreement or Client’s interest in or rights under this Agreement, or attempt to do so or enter into any agreement to do so with any other party, without the prior written agreement of BEWHERE, and any such assignment or attempted assignment shall be null and void and shall result in the automatic and immediate termination of this Agreement;
(e)  knowingly interfere with service to any of BEWHERE’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing;
(f)  create any “links” to or “frame” or “mirror” of the Service or the Software, or
any portion thereof, except when using BEWHERE provided APIs;
(g)  make the Service, Software and/or Documentation available on a server that can be accessed via a public network, such as, for example and without limitation, the Internet, in a manner that allows the Service, Software, and/or Documentation to be copied by any third party;

(h)  defeat, disable or circumvent any protection mechanism related to the Service;
(i)  except as expressly provided herein, or unless expressly authorized by BEWHERE in writing, sublicense, distribute, transfer, loan, use, lease or otherwise make available the Service, Software and Documentation, or any part thereof, to any third party; or
(j)  remove or obscure any copyright notices, trade-marks, or any other proprietary legends and/or logos of BEWHERE or its licensors appearing on the Software or the Documentation.

2.3      Documentation License. Client may, during the Subscription Term, use the Documentation provided by BEWHERE to assist Client with the operation and use of the Service solely to support Client’s use of the Service as permitted hereunder.
2.4      Reservation of Rights. This Agreement does not constitute a sale of the Software. Client is granted no title, ownership of intellectual property rights in or to the Service, Software or Documentation, in whole or part. All such rights shall remain in BEWHERE and/or in licensors to BEWHERE of programs provided within the Service.

3. HARDWARE SHIPMENT AND INSTALLATION.

3.1      Shipping and Title. Title to the Hardware, and risk of loss or damage, will pass to Client when BEWHERE delivers such material to the shipping carrier. BEWHERE’s title and rights to the embedded or installed software and all associated intellectual property rights therein remain with BEWHERE and do not transfer to Client. Unless otherwise agreed, BEWHERE will deliver the Hardware being shipped, freight prepaid; provided the Client has fully paid the Total Upfront Fee (as specified on the Order Form).
3.2      Hardware Installation and Provisioning. Client shall be solely responsible for (i) Installation unless Installation is purchased from BEWHERE and included in the Order; and (ii) integration of the Subscriber with any other hardware and software applications not purchased from BEWHERE, any such integration being at Client’s sole risk and cost. Provisioning is complete when the Subscribers and the BEWHERE Server(s) have been programmed, enabling the BEWHERE Server(s) to identify, communicate with and provide automated system access and services to the Subscriber. Client shall use commercially reasonable efforts to arrange for Installation to be completed for the Estimated Subscriber installation Date identified within the Order. Any delay of the Installation resulting in a delay the Service Commencement Date by more than 60 days shall be considered as an Early Termination of the Order.
3.3      Installers. If an Installation service is purchased from BEWHERE, it will be performed by BEWHERE’s authorized contractor (“Installer”) subject to Client’s compliance with the requirements of Section 3.4 below. Client acknowledges that the Installation services purchased from BEWHERE are performed by independent contractors and not BEWHERE employees. Such contractors are not contracted by BEWHERE to perform any additional services for Client during the course of Installation. Any additional services or equipment purchased from such contractors will be at the sole additional expense and risk of Client.

3.4      BEWHERE Installation Process.

(a)  Standard Installation hours are between 7:00 a.m. and 6:00 p.m., Monday through Friday, Client’s local time. BEWHERE or its Installer will contact the Client to schedule the Installation date once the Order is processed by BEWHERE.
(b)  Hardware will be shipped to the Client’s designated location in advance of the Installation date. Client will be required to receive and securely store the Hardware, and then make it available to the Installer at the scheduled location on the Installation date.
(c)  All vehicles or assets must be placed in a single designated location and access provided to the Installer. Vehicles or assets must be free of any mechanical, electrical or other problems (“Asset Faults”) that would prevent or materially hamper or delay performance of Installation. If any Asset Fault prevents Installation at the scheduled time and location, the Installer will not complete Installation.
(d)  Client shall provide a reasonably safe, secure, and dry work environment with protection from inclement weather at the installation site and access to adequate power source. Client shall not in any manner interfere with the Installer performing the Installation.
(e)  Client shall provide an on-site contact, who upon completion of installation shall confirm in writing that the Installation has been performed.

(f)  Client acknowledges that the Installer may modify or alter Client’s vehicles/assets, including without limitation drill holes. BEWHERE will not be responsible for subsequent restoration of Client’s vehicles to their unmodified or unaltered condition. Legacy equipment that is uninstalled from vehicles in order to enable Installation is not included in the Installation fee(s) quoted to Client, and Client will be responsible for all such additional fees. Neither BEWHERE nor the Installer will have any responsibility for legacy equipment which will be delivered to Client’s on-site contact during the scheduled Installation.
(g)  Client will additionally be responsible to pay for all travel related expenses including overnight accommodations, incurred by Installer in conjunction with Installation, in accordance with Installer’s or BEWHERE’s travel and expense reimbursement policies, or as per the Order Form.

 

4. TERM
4.1      Term. The term of this Agreement will commence on the date on which the initial Order Form is signed by the Client (the “Effective Date”) and shall continue for the duration of the Subscription Term (including renewals or extensions, as applicable) of the last Order by Client.
4.2      Termination. BEWHERE may terminate this Agreement if (i) it has provided written notice to Client of the claimed breach and the Client fails to correct such breach to the reasonable satisfaction of BEWHERE within 30 days of receiving such notice, or (ii) proceedings under bankruptcy or similar insolvency laws are instituted by or against Client and are not dismissed within 60 days, Client makes an assignment for the benefit of its creditors, or a receiver, liquidator or similar officer is appointed for the business, property, affairs or revenues of Client and such proceedings continue for 30 days. If Client fails to pay the amounts invoiced in respect of the Service, Client shall be deemed to have materially breached this Agreement. If BEWHERE terminates this Agreement for Client's non-payment, Client must pay within 30 days all amounts which have accrued prior to such termination, as well as all amounts payable by Client on account of the remainder of the then-current Subscription Term (even if earlier terminated) for all Orders under this Agreement.
4.3      Obligations on Termination. Upon the termination of this Agreement, (a) BEWHERE shall, upon Client’s written request, return to Client all Work Order Data and will have the right to terminate Client’s access to and use of the Service; and (b) Client shall forthwith discontinue the use of the Service.

5.FEES AND PAYMENT
5.1      Fees. The fees set out in the Order Form must be paid according to the schedule therein. The License shall continue so long as each installment or Subscription Fee is paid on or before its due date. If an installment payment or Subscription Fee is not available or not paid on the due date, then BEWHERE may terminate this Agreement pursuant to section 4.2. ANY AND ALL PAYMENTS RECEIVED BY BEWHERE ARE FINAL AND NON-REFUNDABLE.
5.2      Invoices. The Total Upfront Fee will be invoiced upon acceptance of the executed Order Form by BEWHERE. All amounts due will be paid concurrent with the invoice of PAD or credit card authorization provided by Client. BEWHERE shall send all invoices to Client at the email address provided on the Order Form within 15 business days of remittance of funds through PAD/credit card.
5.3      Suspension for Non-Payment. If payment is overdue by more than 15 days, then BEWHERE may immediately suspend Client’s license access to and use of the Service if Client fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the licensed rights hereunder by BEWHERE under the preceding sentence shall not excuse Client from its obligation to make all payment(s) under the Agreement.

6. TAXES
All prices and rates on an Order, or for any additional charges due or for the Service or other services to be provided, do not include present and future personal property, sales, use, excise, GST, service charge, value-added, franchise, license, gross receipts or other foreign, federal, state, provincial or local fees, taxes, duties or similar taxes or charges (collectively “Taxes”), which shall be paid by Client (except for taxes based on the net income of BEWHERE). If applicable, Client may provide BEWHERE with a tax exemption certificate annually that is acceptable to applicable taxing authorities. Client will indemnify and hold BEWHERE harmless from all claims, liability and expense arising from Client's failure to pay any such Taxes, including interest, penalties and similar fees.

7.  CLIENT REQUIREMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1      Desktop Requirements. Client agrees that desktop or laptop computers that run the Service will have the Windows 7 operating system, the latest .NET framework, a minimum of 4GB of RAM and Internet Explorer 9 or greater (the “Desktop Requirements”).
7.2      Client Equipment. Client is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Client to access and use the Service, and for all expenses relating thereto. Client agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures that may be issued by BEWHERE from time to time.
7.3      Client Representations and Warranties. Client hereby represents and warrants as of the Effective Date and throughout the term of this Agreement that Client will not upload or transmit any Data- (i) that Client does not have the lawful right to copy, transmit, distribute, and display; or (ii) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.

8.  BEWHERE RIGHTS AND RESPONSIBILITIES
8.1      Database Backup. A complete backup of the Client’s database compiled through the use of the Service will be stored to a file on the BEWHERE Servers every 24 hours. Once every 30 days a copy of the latest complete backup file will be transferred and stored in a fire retardant safe at a secondary site which is a different address from where the production version of Client’s database is located.
8.2      Data Storage and Retention. BEWHERE will retain the Data during the term of this Agreement in accordance with the terms of this Agreement. The Data will be located at the Data Locations. As of the Effective Date, BEWHERE does not store Data at any locations other than the Data Locations. BEWHERE shall retain: (a) Location Data for at least one (1) year from the date that Location Data is submitted to a BEWHERE Server by the Client or the Service. Upon Client’s request, which may be made at any time and from time to time during the applicable Retention Period, BEWHERE will make available for secure retrieval by Client all Data then in BEWHERE’s possession at BEWHERE’s then current rate for data retrieval.
8.3      Rights in Data. To the extent necessary to fulfill the purposes of this Agreement, including this section 8.3, Client hereby grants to BEWHERE a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to use and to allow BEWHERE and third parties to use aggregated Data and de-identified Data, including information relating to service or delivery orders, Beacon Data, time, speed and other information generated by the Service for traffic information, journey data analysis, mapping, fleet and industry benchmarking, or any other purpose. BEWHERE shall own all aggregated Data or de-identified Data, modifications to such Data and all derivatives thereof (collectively, “Derivative Data”) and shall have the right to use such Derivative Data for any purpose, including commercial purposes, without compensation to or the approval or consent of the Client. BEWHERE may transfer or assign any of its rights in the Derivative Data to any third party. Client acquires no rights in any research or the development of any commercial products or uses of the Derivative Data by BEWHERE or any third party.
8.4      Suspension of Access. In addition to any termination rights of BEWHERE pursuant to this Agreement, extraordinary circumstances may require BEWHERE to suspend or terminate (where appropriate), as determined in BEWHERE’s reasonable discretion, Client’s access to and/or use of, or otherwise modify, the Service and/or any component thereof in order to: (a) prevent material damages to, or material degradation of the integrity of, BEWHERE’s network; or (b) comply with any law, regulation, court order, or other governmental order. BEWHERE will notify Client of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, BEWHERE will limit such suspension to that which is minimally required and will promptly restore Client’s access to the Service as soon as the event giving rise to the suspension has been reasonably addressed (including by Client agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Client (including any action taken by an Affiliate of Client or any User that would constitute a breach of this Agreement by Client): (i) all fees related to the Service Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived fees which have been pre-paid shall be refunded to Client; and (ii) in the event of a termination in connection with this section 8.4, Client shall receive a refund of any and all prepaid fees.

9.  CLIENT CONFIDENTIALITY OBLIGATIONS

The Service, in particular the Software, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of BEWHERE and/or its licensors (the "Confidential Information"), the unauthorized disclosure of which would cause irreparable harm to BEWHERE. Client shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. Client shall not use, reproduce or distribute the Confidential Information other than for the purposes authorized by this Agreement. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Client prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Client by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Client shall give all reasonable prior notice to BEWHERE to allow it to seek protective or other court orders.

10. LIMITED WARRANTY
10.1     Service Warranty. BEWHERE warrants that the Service will perform substantially in accordance with the Documentation or other specifications published by BEWHERE during the Subscription Term. BEWHERE does not warrant, however, that Client’s use of the Service will be uninterrupted, that the operation of the Service will be error-free, that the Service will meet Client’s requirements or that all errors will be corrected.
10.2     Warranty Exclusions. This warranty shall not apply if the Service is used on or in conjunction with hardware or programs other than the unmodified version of the hardware and programs with which the Service is designed to be used as described in the Documentation.
10.3     Hardware Warranty. BEWHERE warrants the Subscribers in accordance with BEWHERE’s Hardware Warranty, 
10.4     No Warranty for Evaluations. IF CLIENT IS EVALUATING THE SERVICE THEN THE SERVICE AND DOCUMENTATION IS PROVIDED TO CLIENT BY BEWHERE ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND.
10.5     Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 10, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, USAGE OF TRADE OR COURSE OF DEALING. BEWHERE DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE SERVICE AND THE ACCOMPANYING DOCUMENTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE. BEWHERE DOES NOT OTHERWISE WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED.
10.6     Internet Connectivity Disclaimer. BEWHERE makes the Service available for access via the Internet. Client shall provide, at Client’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Client acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to the Service or performance hereunder. Except as expressly set forth herein, Client agrees that BEWHERE is not responsible for any interference with Client’s use of or access to the Service to the extent caused by, arising from or attributable to the Internet.

 

11. TELECOMMUNICATIONS CARRIERS AND GPS
The Client acknowledges that communication services used in the provision of the Service are provided by third parties and the Client specifically acknowledges and agrees to the following:

(a)  Client acknowledges that the Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission networks. Client agrees that BEWHERE shall not be responsible for such interruptions of Service or the inability to use the Service.
(b)  BEWHERE may temporarily suspend or permanently terminate the provision of some or all of the Service upon little or no notice in the event that Client violates a telecommunications carrier’s acceptable use policy or other network rules and policies.
(c)  There must be a relatively clear “line of sight” between the GPS beacon and
4 or more satellites. Objects, such as buildings, overpasses, and other obstructions (such as parking in garages or underground structures) that shield the antenna from a satellite can potentially weaken a satellite’s signal such that it becomes too difficult to ensure reliable and/or accurate positioning. These difficulties are particularly prevalent in densely urban areas.

12. IP INFRINGEMENT INDEMNIFICATION
12.1     BEWHERE Indemnity. BEWHERE will defend and indemnify Client (including its employees, contractors, officers and directors) against fines, penalties, losses, costs, damages, injuries, claims, liabilities, settlements and expenses (including reasonable legal fees and expenses) arising from third party claims that the exercise of the rights granted hereunder infringes any third party patent, copyright, or trade secret (“Infringement Claim Liabilities”).
12.1     Conditions to Indemnity. As a condition of such obligation to defend and indemnify the Client pursuant to Section 12.1 hereof, Client shall give BEWHERE prompt written notice of any such claim, and cooperate and provide, at BEWHERE’s expense, reasonable information and assistance in connection with the defense and settlement of such claims. BEWHERE shall have sole control of the settlement or defense of all infringement claims.
12.2     Exceptions. BEWHERE shall not be responsible for indemnifying Client to the extent that the infringement claim liability results from (i) compliance with Client’s designs, specifications, or written instructions as requested and provided by Client to BEWHERE; (ii) modification by Client of the Service if such infringement would have been avoided but for such modification;
(iii) the combination of Service with equipment or software not authorized or provided by BEWHERE or otherwise approved by BEWHERE in the Documentation, if such infringement would have been avoided but for such combination; or (iv) the failure by Client to use an updated or current version of the Service provided by BEWHERE following notice by BEWHERE that the previous version of the Service infringes any third party intellectual property right.
12.3     Other Remedies. Without limiting the provisions of Section 12.1 above, and in addition thereto, when notified of an action or motion that seeks to restrict the exercise of any of the rights granted herein, BEWHERE may, (and in the case of a judgment, order or injunction that restricts the exercise of any of the rights granted herein, shall), in good faith, at its option and expense, (a) obtain the right for Client to exercise their rights in accordance with this Agreement, (b) substitute other non-infringing software with equivalent functional capabilities, (c) modify the Service while retaining equivalent functional capabilities, so that it no longer infringes, or (d) if none of the foregoing are commercially feasible, as determined by BEWHERE in its sole discretion, terminate the license(s) for such Service and refund to Client that portion of any prepaid subscription Fees that is applicable to the period following the termination of the license pursuant to this Section.
12.4     Exclusive Remedies. SECTION 12 HEREOF CONTAINS BEWHERE’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIM LIABILITIES.

13. LIMITATION OF LIABILITY
13.1     Indirect Damages. EXCEPT FOR A BREACH OF SECTION 9 HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
13.2     Direct Damages. EXCEPT FOR CLAIMS MADE UNDER SECTION 12 OF THIS AGREEMENT, THE TOTAL LIABILITY OF BEWHERE FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT BEWHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY THE CLIENT TO BEWHERE FOR THE SERVICE HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

14. U.S. GOVERNMENT USERS
The Software and Documentation is a "commercial item"  as  that  term  is  defined  at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and is provided to the
U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Service, Plug-in(s) and Documentation consistent with:
(i)  for acquisition by or on behalf of civilian agencies, the terms set forth in FAR 12.212; or
(ii)  for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Service and related Documentation is further restricted by the terms and conditions of this Agreement. Manufacturer is BeWhere Inc., 3264 Lake Shore Boulevard West, Etobicoke, ON M8V 1M4, Canada.

15. EXPORT RESTRICTIONS
The Service and related information are subject to export and import restrictions. By downloading, installing, accessing or using the Service, Client is representing and warranting that it is not located in, under the control of, and is not a national or resident of, any country to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Client also represents and warrants that it is not an entity to which the export of the Service or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Client shall comply with the export laws and regulations of Canada and the United States that are applicable to the Service and related information and Client shall comply with any local laws and/or regulations within its jurisdiction that may impact its right to export, import, or use the Service or related information, and Client represents and warrants that it has complied with any such applicable laws and/or regulations. The Service shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. Client shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service or related information.

16. SUPPORT
16.1     Support Terms. Support is included in the license fees and is provided by BEWHERE in accordance with its then-current Support Terms or Distribution Agreement. BEWHERE’s Support Terms are subject to change from time to time in BEWHERE’s sole discretion.
16.2     Exclusions. BEWHERE will only provide technical support for the Service and not in relation to any other supporting hardware or software. BEWHERE may assist Client in getting technical support and warranty service for hardware sold by BEWHERE or its partners.

 

17. GENERAL PROVISIONS
17.1     Non-Disparagement. Client shall not indirectly or directly, disparage BEWHERE or any affiliated company, including after termination of this Agreement.
17.2     Orders and Conflicts. In case of conflict between these Master Subscription Service Terms and an Order Form, the terms and conditions contained in the Order Form shall prevail.
17.3     Amendments. No amendment to any portion of this Agreement shall be binding upon the Parties unless in writing signed by both Parties.
17.4     Assignment. Neither party may assign the whole or any part of this Agreement without prior written consent by both parties. Notwithstanding the foregoing, either party may assign this Agreement or any of its rights or obligations hereunder to an affiliated entity or to a third party in connection with the sale of all or substantially all of the assigning party’s business or assets relating to this Agreement, whether by merger, sale of stock or shares, sale of assets, or otherwise, without the prior written consent of the other party, provided that the assignee agrees to assume all of the assignor’s obligations under this Agreement.
17.5     Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes and replaces any prior verbal agreements or other understandings, whether written or oral between the parties.
17.6     Further Assurances. The parties agree to execute such further documents and to perform such further acts, from time to time, as may be necessary or desirable to give full effect to the letter and spirit of this Agreement. Any changes to this Agreement must be authorized and agreed upon by both Parties and documented as amendments to this Agreement.
17.7     Governing Law. If the Client is located in Canada, then this Agreement is to be governed by and construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be governed by and construed in accordance with the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions contemplated hereunder.

17.8     No Waiver. Any failure by any Party to exercise its rights, powers or remedies hereunder or any delay by such Party in the exercise of any of its rights and remedies hereunder shall not, to the extent permitted by law, operate as a waiver or variation of such or any other right or remedy hereunder.

17.9     Binding Effect. This Agreement shall be binding upon and ensure to the benefit of the respective Parties hereto, their heirs or legal representatives, successors and permitted assignees.