Terms of Service

Effective April 7th 2020, 12:00 PM WST to Present

 

THIS TERMS OF SERVICE ("AGREEMENT") GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES PROVIDED BY ABILITY WEARABLES LTD, A STATE OF WESTERN AUSTRALIA LIMITED COMPANY ("ABILITY"), DOING BUSINESS AS "ABILITY AI", WHETHER IN CONNECTION WITH A SERVICE AGREEMENT OR A FREE TRIAL OF THE SERVICES.

 

This Agreement is effective as of the date you accept it (the "Effective Date"). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. You represent that you are at least 18 years of age.

 

Ability may modify the terms of this Agreement at any time, provided that such modification shall only be effective as of the beginning of the your next renewal term unless otherwise mutually agreed upon by the parties in writing. You will have an opportunity to review and accept the modified Agreement. If you fail to accept such modified Agreement, Ability reserves the right to terminate your access and use of the Services upon the termination of your Subscription Term, or next renewal term, as applicable.

 

1.            SERVICES

 

1.1 SERVICES

 

Subject to the terms of this Agreement, Ability will use commercially reasonable efforts to provide you the Services. As part of the registration process, you will identify an administrative user name and password for your Ability account. Subject to the terms hereof, Ability will endeavor to provide you with reasonable support services, through electronic mail or another online mechanism, in accordance with Ability’s standard practice.

 

During the Subscription Term, and subject to all terms and conditions of this Agreement, Ability will use commercially reasonable efforts to provide the Services consistent with your Service Agreement. Ability may provide the Services using third party vendors or service providers. You agree to pay Ability the Subscription Charges, in the amounts and at the times specified in your selected Service Agreement. You will have the right to register your Authorized Users, who may access and use the Service.

 

Your use of the Service under a Service Agreement may be measured based on the number of Units described in the Service Agreement. Once a Per-Unit Service Agreement is established, the right of the named Authorized User to access and use the Service is not transferable unless otherwise agreed by Ability; any additional must purchase Per-Unit Service Agreements to use the Service.  If you add more Authorized Users than the number of Units you purchased, we will add those Authorized Users to your account and impose additional charges for such additional Units on an ongoing basis.

 

1.2 CHANGES TO THE SERVICES

 

Ability may also make commercially reasonable modifications to the Services from time to time without prior notice. Ability may make changes to any Service Agreement at any time. After 30 days’ notice to you of a change to your then applicable Service Agreement, if you continue to use the Services beyond the expiration of your then current Subscription Term or renewal term, such use in the subsequent renewal term will be governed by the modified Service Agreement.

 

1.3 LIMITATIONS

 

Ability will not be responsible or liable for any failure in the Services to the extent such failure results from or directly attributable to (a) your Systems, (b) network, telecommunications or other service or equipment, (c) your products or services or third party products or services procured or provided by you, (d) your gross negligence or willful misconduct or the gross negligence or willful misconduct of third parties engaged by you, (e) any Force Majeure Event, (f) scheduled maintenance or (g) unauthorized access by third parties to the Services that results from Systems used by you to access the Services.

 

1.4 SYSTEMS

 

Ability may provide you with Hardware needed to use the Services and provide all corresponding software updates and maintenance services.  You shall obtain and operate any and all other Systems needed to use the Services, and provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services.

1.5 SERVICE USE

 

Subject to the terms and conditions of this Agreement, Ability grants to you a limited, nonexclusive, nontransferable, nonsublicensable, worldwide, revocable right and license during the Subscription Term to use the Service solely for use by you and your End Users.

 

Ability may modify, amend, change, or deprecate all or part of the Services in its sole discretion at any time (a “Service Modification”). Ability shall use commercially reasonable efforts to provide prior notice to you of any such actions as soon as reasonably practical. You shall, within thirty (30) days from the date of first notice of any Service Modification(s) (or such shorter period of time specified in the notice of the Service Modification(s)) (the “Conformance Period”) comply with such modification(s) by (i) implementing and using the most current version of the Service; provided that such current version is provided to you at no additional Subscription Charge (fee), (ii) making any changes to your application using the Service that may be required as a result of such Service Modification, (iii) using commercially reasonable efforts to stop distribution of all prior versions of your applications using the Service, and (iv) using commercially reasonable efforts to upgrade all prior versions of your applications using the Service then in use to the most recent version. You acknowledge that a Service Modification may have a material adverse effect on your applications using the Service, including but not limited to causing such applications to not to operate as designed. Ability shall have no liability of any kind to you or any End User with respect to such Service Modifications or any adverse effects resulting from such Service Modifications. Your continued access to or use of the Service following the Conformance Period shall constitute binding acceptance of the Service Modifications at issue.

1.6 CONSENT

 

By using the Services, you affirmatively consent to conducting electronic business transactions and using electronic signatures via the Services. You also confirm your ability to access information in the form that will be used to provide the information that is subject to your consent. Your consent applies only to the transaction that gave rise to the obligation to provide the agreement. If you are a consumer, you may have the right or option to have the agreement provided or made available on paper or in nonelectronic form. You hereby agree that Ability has no obligation to provide or make available on paper or nonelectronic forms any agreements to which you are a party and that your counterparty is solely responsible for providing any agreements on paper or in non-electronic form. After signing a document using the Services, Ability will provide you with the option to download and print a paper copy of the document.

 

1.7 USE OF THE SERVICES

 

Your use of the Services is subject to your acknowledgement and agreement to the following:

 

(a) The Services facilitate the execution of contracts between multiple parties. Nothing in this Agreement may be construed to make Ability a party to any of your contracts processed through the Services, and Ability makes no representation or warranty regarding the transactions sought to be effected by any contract.

 

(b) You have exclusive control over and responsibility for the content, quality, and format of any of your contracts.

 

(c) Ability assumes no liability or responsibility for a party's failure or inability to electronically sign any of your contracts within a period of time or at all.

 

(d) You are solely responsible for ensuring that your use of the Services for any transaction complies with all laws applicable to you in your use of the Services, including applicable electronic signature law and any special legal requirements relating to consumers engaging in electronic transactions.

 

(e) Ability is not responsible or liable to determine whether any particular contract is subject to an exception to applicable electronic signature laws, rules or regulations, or whether it can be legally formed by electronic signatures.

 

(f) Ability is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, rules of regulations.

 

(g) Ability is not responsible for or liable to provide your contracts to any third parties.

2. Proprietary Rights and Confidentiality

 

2.1 DATA

 

As between the parties, Ability shall own all your Data. You hereby authorize Ability to use, copy, perform, display, and distribute said Data and to prepare derivative works of your Data, solely for the purpose of providing the Services, both to you and End Users (i.e. End Users that have accepted legal agreements via the Service). You agree to indemnify and hold Ability harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of your Data permitted hereunder. You represent and warrant that you have the right to grant the foregoing authorization to Ability. You may not use the Services to collect sensitive information from End User, including but not limited to credit card information and social security numbers.

 

All of your Data is archived indefinitely while your paid subscription remains active and account remains in good standing. If you cancel your access to the Services or your account is terminated in accordance with the provisions herein, your Data may be deleted or rendered not accessible via the Services. When all counterparties have signed a contract via the Services, all signers may have the option to receive and electronic record of the contract in Portable Document Format via email. You agree that Ability is not responsible for any damages you may suffer or incur resulting from information or communication that is blocked by a spam filter and that you are solely responsible for implementing appropriate safeguards to secure your equipment and to back-up your information stored on each. You may login to your Ability dashboard to access and download an electronic record of the contract. You are solely responsible for retaining your contracts, and you hereby agree that you are solely responsible for retaining any contracts that you execute using the Services for the periods required by any applicable statute of limitation and that Ability shall have no liability for not retaining any contracts for such periods.

2.2 ABILITY INFORMATION

 

Proprietary Information of Ability includes non-public information regarding features, functionality and performance of the Service. You agree (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. You agree that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that you can document (a) is or becomes generally available to the public, or (b) was rightfully known or disclosed to it without restriction by a third party, or (c) was independently developed without use of any Proprietary Information of Ability, or (d) is required to be disclosed by law.

 

Ability shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements or modifications thereto, (b) any software, applications, algorithms, data, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Ability shall have the right to collect, analyze and develop data and other information relating to the provision, use and performance of the Services and related systems and technologies, and Ability will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and other Ability offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

 

You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services or Software; modify, translate, or create derivative works based on the Services of Software; use the Services and Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Services that are distributed or provided to you (as part of hardware or otherwise), Ability hereby grants you a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2 NO IMPLIED LICENSE

 

Except for the limited rights and licenses expressly granted hereunder, no other license is granted to you, no other use is permitted and Ability (and its licensors) shall retain all right, title and interest in and to the Services and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). You shall not take any action inconsistent with such rights.

2.3 RESTRICTIONS

 

Any reproduction, modification, creation of derivative works from or redistribution of the AbilityWearables.com website, and/or copying or reproducing the AbilityWearables.com website or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Ability. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Services. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Services.

 

2.4 TRADEMARK

 

You shall not alter, obscure or remove any printed or on-screen trademark, copyright or other proprietary or legal notice.

 

2.5 CONFIDENTIAL INFORMATION

 

Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.

 

Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

 

Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

 

3. Service Agreements

 

3.1 SERVICE AGREEMENT UPGRADES

 

Your Service Agreement includes certain restrictions and limitation on your use of the Services. In the event your use of the Services exceeds any such limitations at any time, you consent and agree to your Service Agreement being upgraded at the beginning of your next renewal term, to the Service Agreement appropriate for your usage level. Any such upgrade shall not require your prior consent or any notice to you.

 

3.2 TRIAL PERIODS

 

If you signed up for a 'Pilot Program’ or ‘Free Trial' (“Trial”), you will be permitted to access and use the Services until the end of your Trial Period. Upon the termination of such trial period, you must select a Service Agreement other than a Trial and begin paying Subscription Charges as set forth in this Agreement.

 

4. Billing

 

4.1 FEES

 

You will pay Ability the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If your use of the Services exceeds the Service Capacity set forth on the Order Form, you shall be billed for such usage and you agree to pay the additional fees in the manner provided herein. Ability reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that Ability has billed you incorrectly, you must contact Ability no later than 60 days after the closing date on the applicable billing statement in order to receive an adjustment or credit.

 

Ability may choose to bill through an invoice in which case, full payment for invoices issued in any given month must be received by Ability or its designated distributor thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services and this Agreement other than U.S. taxes based on Bridgcrest’s net income.

 

4.2 CREDIT CARD INFORMATION

 

Except as otherwise set forth in an Addendum, in order to set up an account with Ability, you must provide Ability with accurate and complete billing information including legal name, address, telephone number, and, if required, a valid credit card. By submitting such credit card information, you give Ability permission to charge all Subscription Charges and any other fees incurred for using the Services to the designated credit card. Ability reserves the right to terminate this Agreement and your access to and use of the Services in accordance with Section 7 hereto if you do not provide a valid credit card for the payment of fees hereunder, or if any Subscription Charges or other charges are not timely paid.

 

4.3 PAYMENT TERMS

 

Except as otherwise set forth your Service Agreement or an Addendum, the Subscription Charges are billed in advance upon commencement of your Subscription Term, and thereafter on a monthly basis and are non-refundable. There will be no refunds or credits for partial periods of Service, upgrade/downgrade refunds. For any upgrades or downgrade in Service Agreement level, your credit card will automatically be charged the new rate beginning with the next billing cycle. Any add-on features or Services not provided in your Service Agreement will be billed in accordance with specific terms provided at the time the add-on features or Service is requested by you.

 

4.3 TAXES

 

All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes, export taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Ability's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

 

4.4 REVISING SUBSCRIPTION CHARGES

 

Ability may revise Subscription Charges for the Services by providing you written notice (which may be by email) at least thirty days prior to the start of the following renewal term of your Subscription term.

 

5. Disclaimers

 

THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ABILITY DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, ABILITY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

 

Ability shall use reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, but Ability shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ABILITY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ABILITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ABILITY MAKE NO WARRANTY AND SHALL HAVE NO LIABILITY CONCERNING HARDWARE.

 

6. LIMITATION OF LIABILITY

 

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY HARDWARE DEVICE, SOFTWARE, NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO ABILITY HEREUNDER BY YOU WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

 

7. TERM AND TERMINATION

 

7.1 TERM

 

This Agreement shall commence on the Effective Date and shall continue in effect for the initial term, and any renewal term, specified in the Service Agreement. If no initial term is specified in the Service Agreement, the initial term shall be 3 months. Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of 9 months at the end of the initial term and then 12 months for each subsequent renewal term, or as otherwise set forth in your Service Agreement (collectively, the 'Subscription Term'). Either party may elect not to renew this Agreement by giving written notice thereof, which shall include notice via email, to the other party at least thirty (90) days prior to the end of the then current initial or renewal term. You must terminate in accordance with this Section 7 before automatic renewal in order to avoid billing of the next renewal term.

 

This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within twenty (20) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course, (c) or as otherwise set forth in this Agreement.

 

7.2 EFFECTS OF TERMINATION

 

Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the Effective Date of termination (including without limitation, all payment obligations) shall survive,(b) Ability may, but shall not be obligated to, delete your Data and (c) the provisions of Sections 2 (Proprietary Rights), 4 (Payments), 5 (Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section 7.3 shall survive. Following any termination or expiration of this Agreement, you shall have 30 days to access your account and download / export your Data.

 

8. GENERAL PROVISIONS

 

8.1 ENTIRE AGREEMENT

 

This Agreement (together with the applicable Service Agreement(s)), and any Addendum executed by both parties) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the any Addendum, the terms and conditions in the Addendum will prevail and be controlling. No waiver, consent or, except as expressly provided herein, modification or amendment of this Agreement (including any applicable Service Agreement(s) and Addenda) shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Any waiver granted hereunder must be in writing, signed by both parties and shall be valid only in the specific instance in which given. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered by you or on your behalf with any governmental authority, you shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

 

8.2 GOVERNING LAW / BINDING ARBITRATION

 

This Agreement shall be treated as though executed and performed in Perth, Western Australia, and shall be governed by and construed in accordance with the laws of Western Australia, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement.

 

Any dispute relating in any way to your use of the Services shall be submitted to confidential arbitration in the State of Western Australia, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Western Australia. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Western Australia. Arbitration under this Agreement shall be conducted pursuant to the ICC Rules of Arbitration with its seat in Perth, Western Australia. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. Ability operates the Service from its offices in Perth and in the United States.

 

In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

 

8.3 REMEDIES

 

Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 2, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

 

8.4 NOTICES

 

Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed email, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Service Agreement, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

 

8.5 ASSIGNMENT

 

This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by you without the written consent of Ability (which shall not be unreasonably withheld). Ability may assign this Agreement upon 10 days prior written notice toyou. this Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

 

8.6 INDEPENDENT CONTRACTORS

 

The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

 

9. DEFINITIONS

 

“Addendum" means a written amendment or addendum to this Agreement, executed by you and Ability, which includes an order form.

 

“Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

 

“Authorized User" means any of your employees or agents, identified by a unique email address and user name, who is registered under your account, provided that no two persons may register, access or use the Service as the same Authorized User.

 

"Confidential Information" means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Your Data is your Confidential Information.

 

"Data" means all of your registration information and other information collected and stored by Ability in connection with providing the Services to you, including without limitation information, content, legal agreements, and End User data.

 

"End-User" means any person or entity other than you with whom you or your Affiliates interact using the Services, including a Signer.

 

"Force Majuere Event" shall mean the occurrence of an event or circumstance beyond the reasonable control of a party, provided that the non-performing party is without fault in causing of failing to prevent such occurrence.

 

"Unit" means an active Authorized User listed in the membership of your account at any one time. No two individuals may log onto or use the Service as the same Authorized User, but you may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Units purchased.

 

"Service Agreement" means the Service Agreement chosen by you during, or subsequent to, the registration process, or as described in an Addendum.

 

"Services" means the electronic contracting application provided by Ability and further described in your Service Agreement, and any accompanying or related documentation, source code, executable applications, and other materials made available by Ability. Any new or modified features added to the Services are also subject to this Agreement.

 

"Signer" is an individual or entity tracked via the Service as reviewing, accepting or otherwise interacting with any contract, notice, disclosure, or other record or document deposited by you into the Service.

 

"Subscription Charges" means fees payable by you for your use of (a) the Services, as specifically set forth in your Service Agreement or an Addendum or (b) any add-on features or Services requested by you from time to time.

 

"Systems" means modems, servers, software, network and communications equipment and ancillary services and hardware that are owned, controlled or procured by you.

 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Ability’s prior written consent. Ability may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Western Australia without regard to its conflict of laws provisions. Ability shall have the right to use your trademark to identify it as a customer of the Services with your prior written consent (which shall not be unreasonably withheld).