We are committed to maintaining the accuracy, confidentiality, and security of personally identifiable information (“Personal Information”). As part of this commitment, our privacy policy governs our actions as they relate to the collection, use and disclosure of Personal Information. Our privacy policy is based upon the values set by the Canadian Standards Association’s Model Code for the Protection of Personal Information and Canada’s Personal Information Protection and Electronic Documents Act.
1. Introduction
We are responsible for maintaining and protecting the Personal Information under our control. We have designated an individual or individuals who is/are responsible for compliance with our privacy policy. This privacy policy applies to our web application, mobile applications, and device specific use cases.
2. Data Collection
We collect, use and disclose Personal Information to provide the product or service requested and to offer additional products and services we believe you might be interested in. The purposes for which we collect Personal Information is related to business marketing, sales, access control, data security, application security, and/or business growth. We may collect contact information, location information, personal device information, camera app access, picture or video gallery access to provide application functionality.
3. Consent
Knowledge and consent are required for the collection, use or disclosure of Personal Information except where required or permitted by law. Providing us with your Personal Information is always your choice. However, should you decide to use our service you consent to the collection, use, or disclosure of information as a condition to the supply of our product or service.
4. Limiting Collection
The Personal Information collected will be limited to those details necessary for the function of application use. As part of your consent, we may collect Personal Information in person, over the telephone or by corresponding with you via mail, facsimile, or the Internet.
5. Limiting Use, Disclosure and Retention
Personal Information may only be used or disclosed for the purpose for which it was collected unless you have otherwise consented, or when it is required or permitted by law. Information is retained for 7 years subsequent to cancellation or for the period of contract in specific cases to fulfill the business purpose for which we collected it or as may be required by law. For business reasons, we may use your personal information to run sales campaigns. We do not sell any user data to third parties and restrict use for our own business sales and products. However, information can be shared with third parties to enable application functionality, telecom infrastructure use, provider access, or business use in general directly tied to our operations.
6. Accuracy
Personal Information will be maintained in as accurate, complete and up-to-date form as is necessary to fulfill the purposes for which it is to be used.
7. Safeguarding Customer Information
Personal Information will be protected by security safeguards that are appropriate to the sensitivity level of the information. We take reasonable precautions to protect your Personal Information from any loss or unauthorized use, access or disclosure.
8. Openness
We will make information available to you about our policies and practices with respect to the management of your Personal Information.
9. Access
The data we use is provided for business use by our customers. As such any relevant data access request needs to arise from the person providing the data. However, in certain circumstances permitted by law, we will not disclose certain information. For example, we may not disclose information relating to you if other individuals are referenced or if there are legal, security or commercial proprietary restrictions.
10. Handling Customer Complaints and Suggestions
You may direct any questions or enquiries with respect to our privacy policy or our practices by contacting: compliance@whistle.tech
11. Who does this apply to
This policy applies to all users of our applications including mobile apps developed by Whistle, aproved contractors, and affiliates such as CloudGenie Corp.
Additional Information
Cookies
A cookie is a small computer file or piece of information that may be stored in your computer’s hard drive when you visit our websites. We may use cookies to improve our website’s functionality and in some cases, to provide visitors with a customized online experience.
Cookies are widely used and most web browsers are configured initially to accept cookies automatically. You may change your Internet browser settings to prevent your computer from accepting cookies or to notify you when you receive a cookie so that you may decline its acceptance. Please note, however, if you disable cookies, you may not experience optimal performance of our website.
When you visit or log in to our website, cookies and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or home address. We (or service providers on our behalf) may then send communications and marketing for business purposes.
Other Websites
Our website may contain links to other third party sites that are not governed by this privacy policy. Although we endeavour to only link to sites with high privacy standards, our privacy policy will no longer apply once you leave our website. Additionally, we are not responsible for the privacy practices employed by third party websites. Therefore, we suggest that you examine the privacy statements of those sites if presented by them to learn how your information may be collected, used, shared and disclosed.
Terms of Use Agreement
This User Agreement (hereinafter referred to as the “Agreement”) is entered into between Whistle Technologies Inc., a company incorporated under the laws of The Province of Manitoba, Canada, with its principal place of business at 441-100 Innovation Dr, Winnipeg, MB, R3T 6G2, Canada (hereinafter referred to as the “Company”), and the individual or entity (hereinafter referred to as the “User”) who accepts the terms of this Agreement and is authorized to sign on behalf of their organization and bind all users to agree to the same terms.
Confidential Information shall include, and shall be deemed to include, all information conveyed by the Company to the User orally, in writing, by demonstration, or by other media. Confidential Information shall be considered as such at the time of transmittal. Confidential Information may include, by way of example but without limitation data, know-how, contacts, contracts, software, formulas, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, information obtained from previous or current participants in programs of the Company, and information relating to transactional procedures. However, Confidential Information shall not include information, which can clearly demonstrate to be:
a. Generally known or available to the public, through no act or omission on the part of the receiving party; or
b. Provided to the receiving party by a third party without any restriction on disclosure and without breach of any obligation of confidentiality to a party to this Agreement; or independently developed by the receiving party without use of the Confidential Information.
Other terms and legal definitions are listed below and are part of this agreement.
By accepting these terms, the User, acting on behalf of their organization, acknowledges that they have read, understood, and agreed to be bound by all the terms and conditions of this Agreement and that they have the authority to bind their organization and all users to the same terms.
Whistle Technologies Inc
Date Updated: Nov 29, 2023
These terms are in line with our Carrier Partner obligations. Acceptance of the User Agreement includes these terms.
It is important that you review and understand these terms before using our services. If you do not agree to these terms, you should not agree to them, create an account, or use our services.
Our services are generally intended for business or professional use only.
These terms are effective on the date you accept them or start service.
PLEASE REVIEW THESE WHISTLE TERMS OF SERVICE CAREFULLY. ONCE ACCEPTED, THESE WHISTLE TECHNOLOGY INC (WHISTLE) TERMS OF SERVICE BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND WHISTLE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT ACCEPT THIS AGREEMENT, CREATE AN ACCOUNT, OR USE THE SERVICES (AS DEFINED IN SECTION 1 (DEFINITIONS) BELOW).
THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S BUSINESS, TRADE, CRAFT, OR PROFESSION ONLY.
These WHISTLE Terms of Service (“Agreement”) set forth the terms for your use of the Services and are effective as of the date you accept or otherwise agree to the terms of this Agreement (“Effective Date”). This Agreement is between the applicable WHISTLE entity identified below (“WHISTLE”) and you or the organization on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (“you”, “your”, “yours”, or “Customer”).
These terms might change. We will let you know at least 30 days before we make any significant changes that impact you or your use of our services, unless we are unable to do so in a timely manner because of sudden changes in laws, regulations, carrier requirements or business limitations.
If you keep using our services after these terms have changed and gone into effect, that means you have accepted those changes and they are legally binding on you. If you do not agree with the changed terms, you must stop using our services immediately.
WHISTLE may update the terms of this Agreement from time to time. The updated version of this Agreement will be available at https://www.whistle.tech/tos.
If you reassign your account to a third-party reseller, new owner, partner, or any other entity, you or subsequently the new entity are still responsible for your obligations under these terms.
If you are the party that agreed to the terms of this Agreement and you reassign your account to a third-party reseller for administration purposes, such account reassignment will not excuse your obligations under this Agreement. Your use of the Services will continue to be subject to this Agreement.
Definitions
These are definitions for certain words that we will use repeatedly throughout these terms. When you see these capitalized words used as you read through these terms, they have the meanings provided in this Section 1.
There may be additional words that we define in the body of these terms. Make sure to look out for those – they will have quotes around them and each word will begin with a capital letter.
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Beta Offerings” means Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by WHISTLE.
“Customer Application” means any software application or service that you make available to your End Users (as defined below) that interfaces with the Services.
“Customer Data” means data and other information made available by or for you, to WHISTLE, through the use of the Services under this Agreement.
“End User” means any user of each Customer Application.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document between you and WHISTLE (or any of their Affiliates) that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments.
“Services” means the products and services provided by WHISTLE or its Affiliates, as applicable, that (a) you use, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) you order under an Order Form. Services include products and services that provide both (x) platform services, including access to any application programming interface (“WHISTLE API”) and (y) where applicable, communications services used in connection with the WHISTLE APIs.
“Service Usage Data” means any data that is derived from the use of the Services that does not directly or indirectly identify you, your End Users, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, your End Users, or any natural persons.
Services
We will make our services available to you and also protect your data and our services.
2.1 Provision of the Services. WHISTLE will: provide the Services to you pursuant to this Agreement, the applicable Documentation, and any applicable Order Form(s).
Here are some “dos” and “don’ts” you must follow when using our services:
(a) You’re responsible for all use of our services under your account.
(b) You will not transfer, resell, or make available to third parties our services, except to your end users as part of the software applications you develop or services you offer;
(c) You will use our services according to these terms and any laws or regulations;
(d) You are responsible for your end users, including all of their activities;
(e) You will prevent unauthorized access to or use of our services;
(f) You will cooperate during information requests we receive relating to your use of our services; and
(g) You will comply with your promises in Section 5 (Representations, Warranties, and Disclaimer) below.
2.2 Customer Responsibilities. You will: (a) be solely responsible for all use of the Services and Documentation under your account and each Customer Application; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to your End Users in connection with the use of each Customer Application as permitted herein) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the WHISTLE Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of your End Users, including their compliance with this Agreement, the WHISTLE Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify WHISTLE promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with your representations and warranties set forth in Section 5 (Representations, Warranties, and Disclaimer).
We can suspend your use of our services in the following situations:
(a) You or your end users violate these terms;
(b) You send fraudulent traffic using our services or your use of our services negatively impacts the operation of our services;
(c) Legal or regulatory conditions prohibit us from providing our services;
(d) Your use or your end users’ use threatens the security or operability of our services; or
(e) The information about you in your account is not true, accurate, or complete.
2.3 Suspension of Services. WHISTLE may suspend the Services immediately upon notice to you for cause if WHISTLE, in good faith, determines: (a) that you or your End Users materially breach (or WHISTLE, in good faith, believes that you or your End Users have materially breached) any provision of this Agreement, including their obligations under the WHISTLE Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or your End Users that threatens the security, integrity, or availability of the Services; or (e) that information in your account is untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined in Section 3.3 (Payment Terms)).
Our services operate on a multi-tenant platform, which we are always looking to innovate and make better. As such, our APIs may change over time. We will let you know in advance if any API changes are not backwards-compatible. We may also work with you to resolve any significant negative impacts that result from the API changes that are not backwards-compatible
2.4 Changes to the Services. You acknowledge that the features and functions of the Services may change over time; provided, however, WHISTLE will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Customer Application is compatible with the Services. Although WHISTLE endeavors to avoid changes to the WHISTLE APIs that are not backwards compatible, if any such changes become necessary, WHISTLE will use commercially reasonable efforts to notify you at least sixty (60) days prior to implementation. In the event WHISTLE makes a non-backwards compatible change to a WHISTLE API and such change materially and negatively impacts your use of the Services (“Adverse API Change”), (a) you will notify WHISTLE of the Adverse API Change and (b) WHISTLE may agree to work with you to resolve or otherwise address the Adverse API Change, except where WHISTLE, in its sole discretion, has determined that an Adverse API Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.
You may use products called beta offerings, which are not generally available (e.g., services that are in alpha, beta, limited release.). You are not required to use beta offerings in order to use our services.
2.5 Beta Offerings. From time to time, WHISTLE may make Beta Offerings available to you. You may, in your sole discretion, choose to use a Beta Offering. WHISTLE may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available.
Fees and Payment Terms
The fees you pay to us are outlined in the order form.
3.1 Fees. You agree to pay the fees set forth in the applicable Order Form(s). If you use any Services not set forth in the applicable Order Form(s), you will be charged higher rates.
You agree to pay taxes, communications surcharges (e.g., pass-through carrier fees), and costs, fines, or penalties that we incur relating to your use of our services. Taxes and communications surcharges are shown as separate line items on your invoice, so you can identify them easily.
3.2 Taxes and Communications Surcharges.
3.2.1 Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with this Agreement, excluding any taxes based on WHISTLE’s net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to WHISTLE, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by WHISTLE. You will provide WHISTLE with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
3.2.2 Communications Charges. All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”), you will pay all Communications Surcharges associated with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice. You will pay all costs, fines, or penalties that are imposed on WHISTLE by a government or regulatory body or a telecommunications provider as a result of your or your End Users’ use of the Services.
3.2.3 Exemption. If you are exempt from paying certain Taxes or Communications Surcharges, you will provide the necessary exemption information as requested by WHISTLE or a valid exemption certificate issued by the appropriate authority via e-mail to billing@whistle.tech. The team at Whistle will review if tax exemption can be applied through our system. If an appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communications Surcharges, you will promptly pay such Taxes or Communications Surcharges to WHISTLE, plus any applicable interest or penalties.
You agree to pay us for any services you use.
If the fees you owe us are not paid in a reasonable amount of time or your credit card declines, then we may suspend our services to all of your accounts.
If we approve you for invoicing, you agree to pay the fees owed to us in CAD dollars, unless another currency is shown on your order form or invoice, no later than 7 days after the date of the invoice.
If you do not pay on time, then we will send you a late notice. If we do not get your payment within 7 days of the date of the late notice, then we may charge a late fee and suspend our services to all of your accounts. Please pay us on time.
You also may not create new accounts until any fees that you owe us are paid in full.
3.3 Payment Terms. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.3.4 (Payment Disputes), You will pay the Fees due hereunder in accordance with the following applicable payment method:
3.3.1 Credit Card. If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, WHISTLE may suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.
3.3.2 Invoicing. If you elect to receive invoices and WHISTLE approves you for the same, invoices will be sent to you each month, except as otherwise set forth in the applicable Order Form(s), via email to the email address(es) you designate in your account. You will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without any applicable Order Form(s), the Fees are payable in Canadian dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date WHISTLE provides you the invoice, then WHISTLE may (a) assess and you will pay a late fee of the lesser of 10% per month or the maximum amount allowable by law and (b) suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.
If you ever think that we charged you the wrong amount and you want to dispute it, then let us know in writing within 30 days of the billing date for the charge in question. You have to be reasonable when disputing a charge and must act in good faith and cooperate with us to resolve the dispute.
3.3.4 Payment Disputes. You will notify WHISTLE in writing within thirty (30) days of the date WHISTLE bills you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with WHISTLE to resolve the dispute. WHISTLE will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with WHISTLE or WHISTLE determines the dispute is not reasonable or brought in good faith by you.
3.4 Fulfillment Resale. If you are purchasing the Services through a third-party fulfillment reseller that is solely responsible for facilitating payments to WHISTLE for your use of the Services (“Fulfillment Reseller”), you will pay all fees due for your use of the Services directly to the Fulfillment Reseller in accordance with your agreement with the Fulfillment Reseller (“Fulfillment Agreement”). If you breach your payment obligations to the Fulfillment Reseller and fail to cure such breach within the time period specified in the Fulfillment Agreement, the Fulfillment Reseller or WHISTLE may suspend the provision of the Services to you upon written notice.
Ownership, Customer Data, and Confidentiality
What is ours is ours, including our services, our published documentation on our website, our confidential information, data that is derived from the use of our services that does not identify or no longer identifies you, your end users, or any natural person, and any feedback you or your end users provide to us about our services. What is yours is yours, including your confidential information, and your data.
4.1 Ownership Rights. As between the parties, WHISTLE exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, WHISTLE’s Confidential Information (as defined in Section 4.3.1 (Definition)), Service Usage Data, and any feedback or suggestions you or your End Users provide regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to the Customer Applications, your Confidential Information, and Customer Data, subject to WHISTLE’s rights to process Customer Data in accordance with this Agreement.
We or our affiliates can use your data in order to provide you with our services according to our obligations in these terms.
4.2 Customer Data. You grant WHISTLE and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement. You are responsible for the quality and integrity of Customer Data.
Neither of us will tell anyone else about or use the confidential information that we got from each other, except to carry out each of our individual obligations under these terms.
If either of us shares the other’s confidential information with third parties, then the one sharing that confidential information will make sure those third parties comply with these confidentiality obligations.
4.3 Confidentiality
4.3.1 Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, this Agreement, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of this Agreement or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
4.3.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under this Agreement and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in WHISTLE’s case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under this Agreement. Receiving Party is responsible for its Representatives’ compliance with this Section 4.3. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 4.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care. Notwithstanding the foregoing, You may disclose WHISTLE’s SOC2 or similar report, which will constitute WHISTLE’s Confidential Information, only to your End Users or their employee or contract worker who has a “need to know” for such SOC2 or similar report and is legally bound to terms of confidentiality that are at least as protective as the terms of this Section 4.3.
Either of us may disclose the confidential information we got from the other if required by a law, regulation, subpoena, or a court order, if we fulfill certain conditions, such as providing notice, if legally allowed, and reasonable cooperation.
4.3.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
Money alone may not be enough to make either of us whole if one of us breaks our promise of confidentiality. As such, either of us may seek other remedies, like gag orders, if needed.
4.3.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 4.3 and that, in the event of an actual or threatened breach of the provisions of this Section 4.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
We may use your name, logo, and a description of how you use our services on our website, in earnings releases, and in other marketing materials. We promise to follow any usage guidelines that you provide to us.
4.4 Use of Marks. You grant WHISTLE the right to use your name, logo, and a description of your use case(s) on WHISTLE’s website, in earnings releases and calls, and in marketing and promotional materials, subject to your standard trademark usage guidelines that you expressly provide to WHISTLE.
Representations, Warranties, and Disclaimer
Each of us agrees to these terms and promises it has the legal power to do so.
5.1 Power and Authority Representation. Each party represents and warrants that it has validly accepted or entered into this Agreement and has the legal power to do so.
Each of us will follow anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and government orders. Each of us also confirms that we, or our organization, is not on any government sanctions or restricted party lists of people and organizations that companies like WHISTLE are not allowed to do business with.
If you or your end users become placed on any government sanctions or restricted party lists, you will stop using our services and remove any end users’ access to our services.
5.2 Anti-Corruption and International Trade Laws. Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify WHISTLE in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by WHISTLE. You represent that you have obtained, and warrant that you will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and in your case, also your End Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You will immediately (a) discontinue your use of the Services if you become placed on any Sanctions List and (b) remove your End Users’ access to the Services if such End Users become placed on any Sanctions List. You represent that you have not, and warrants that you will not, export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 5.2. If your account is blocked because it is operating in a country or region prohibited under this Section 5.2, you will receive notice of your account being inoperable when you attempt to log into your account in such prohibited country or region.
You will only give us data for which you provided any required notices and received any required permissions, including in a manner as required by law or regulation. In addition, we will only use this data according to Section 4.2 (Customer Data) above.
5.3 Consents and Permissions. You represent and warrant that you have provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to WHISTLE for processing pursuant to Section 4.2 (Customer Data).
5.4 Services. WHISTLE represents and warrants that the Services perform materially in accordance with the applicable Documentation. Your exclusive remedy for a breach of this Section 5.4 will be, at WHISTLE’s option, to (a) remediate any material non-conformity or (b) refund you the Fees paid for the time period during which the affected Services do not comply with this Section 5.4.
Except for any of the explicit promises in this Section 5, we are offering our services “as is.” You also understand that we are not responsible if anything happens to your data outside of our network or for anything that happens because of your use of our beta offerings.
5.5 DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WHISTLE ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO TELECOMMUNICATIONS PROVIDERS. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT WHISTLE WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES AND WHISTLE WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
Mutual Indemnification
If someone comes after you claiming that our provision of our services violates their intellectual property rights, we will fight that fight for you and pay any awarded damages or settlement we enter into.
6.1 Indemnification by WHISTLE
6.1.1 Scope of Indemnification. WHISTLE will safeguard its rights as a business organization and expects clients to Indemnify and protect WHIISL against any complaints or lawsuits related to the services it is providing on behalf of the client.
6.1.2 Infringement Options. If WHISTLE’s provision of the Services has become, or in WHISTLE’s opinion is likely to become, the subject of any WHISTLE Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, WHISTLE may at its option and expense: (a) procure the right to continue to provide the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement, or, if applicable, terminate the Services that are the subject of any WHISTLE Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, and refund you any unused pre-paid Fees.
In this Section 6.1.3, we describe situations where we do not have to indemnify you, such as (a) your violation of these terms, (b) any claims brought against you by someone due to your use of our services in combination with other applications or services, or (c) your use of our services that are free of charge.
6.1.3 Limitations. WHISTLE will have no liability or obligation under this Section 6.1 with respect to any WHISTLE Indemnifiable Claim arising out of (a) your use of the Services in breach of this Agreement; (b) the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) Services for which there is no charge.
Similar to above, you need to fight the fight if someone comes after us because you or your end users breach your responsibilities in Section 2.2 (Customer Responsibilities).
6.2 Indemnification by Customer. You will defend WHISTLE, its Affiliates, and each of their directors, officers, and employees (collectively, “WHISTLE Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a WHISTLE Indemnified Party by a third party alleging or arising out of: (a) your or your End Users’ breach of Section 2.2 (Customer Responsibilities) or (b) a Customer Application, including, without limitation, any claims that a Customer Application, or your or your End Users’ use of a Customer Application, infringes or misappropriates such third party’s intellectual property rights (collectively, “Customer Indemnifiable Claims”). You will indemnify WHISTLE from any fines, penalties, damages, attorneys’ fees, and costs awarded against a WHISTLE Indemnified Party or for settlement amounts that you approve for a Customer Indemnifiable Claim.
This Section 6.3 outlines the indemnification process – how it works, what is required, etc. It applies to both of us equally. Please be sure to read it.
6.3 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Customer Indemnifiable Claim or WHISTLE Indemnifiable Claim (individually or collectively referred to herein as a “Claim”); provided, however, that the failure to give prompt notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for which it has an obligation to indemnify under this Section 6 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
6.4 Exclusive Remedy. This Section 6 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
Limitation of Liability
This Section 7.1 outlines the types of damages that are available in the event of a claim. At a high level, neither of us is responsible for damages that indirectly result from an incident.
7.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Generally speaking, any direct damages either of us might owe to the other are capped at the amounts you paid us (or should have paid us) in the 12-month period before the incident occurred.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
The only exceptions to the limitations in Section 7.1 (Limitation on Indirect, Consequential, and Related Damages) and Section 7.2 (Limitation of Liability) are for your violation of your responsibilities in Section 2.2 (Customer Responsibilities), your payment obligations in Section 3 (Fees and Payment Terms), and both of our indemnification obligations in Section 6 (Mutual Indemnification).
7.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 7.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 7.1 AND SECTION 7.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 2.2 (CUSTOMER RESPONSIBILITIES); (b) YOUR AND YOUR AFFILIATES’ BREACH OF SECTION 3 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (MUTUAL INDEMNIFICATION).
Term, Termination, and Survival
These terms will be valid and effective from the date you agree to them until they are ended according to one of the events in Section 8.2 (Termination) below.
8.1 Agreement Term. This Agreement will commence on the Effective Date and continue until terminated in accordance with Section 8.2 (Termination) (“Term”).
Either of us may end these terms by providing the other with 30 days advance notice. However, if you have any order forms in effect, those order forms will remain in effect for the duration of their order form term and these terms will continue to apply.
8.2 Termination
8.2.1 For Convenience. Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.
If either of us violates these terms and does not fix the violation within 15 days, the other one may end these terms.
Ending these terms will result in the closure of all of your accounts.
8.2.2 Material Breach. Either party may terminate this Agreement (including all Order Form(s) and Services that are in effect) in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. For the avoidance of doubt, a breach of the WHISTLE Acceptable Use Policy will be considered a material breach of this Agreement. If WHISTLE terminates this Agreement because of your material breach, then WHISTLE will also close your accounts.
Either of us may end these terms by providing the other with written notice if the other goes bankrupt or fails to continue its business.
8.2.3 Insolvency. Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
Certain important terms live on even after these terms end. That includes your payment obligations to us and the specific sections mentioned on the right.
8.3 Survival. Upon termination of this Agreement, your payment obligations, the terms of this Section 8.3 and the terms of the following Sections will survive: Section 2.1(c) (regarding the WHISTLE Security Overview), Section 3 (Fees and Payment Terms), Section 4 (Ownership, Customer Data, and Confidentiality), Section 5.5 (Disclaimer), Section 6 (Mutual Indemnification), Section 7 (Limitation of Liability), Section 9 (General), and any applicable terms in Section 10 (Additional Terms).
General
Your affiliates may use our services according to these terms. However, you and your affiliates are both responsible for the activities of your affiliates.
9.1.1 Affiliates of Customer. Your Affiliates may use the Services under and in accordance with the terms of this Agreement. You represent and warrant that you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates. You and each of your Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Only you will bring any claim against WHISTLE on behalf of your Affiliates.
Our affiliates may provide you or your affiliates with our services or bill you or your affiliates on behalf of us or another WHISTLE entity providing our services.
9.1.2 Affiliates of WHISTLE. An Affiliate of WHISTLE may provide the Services, or a portion thereof, to you or your Affiliates, as applicable, in accordance with this Agreement and any applicable Order Form(s) with such Affiliate of WHISTLE. WHISTLE will (a) be responsible for the Services its Affiliates provide and (b) not be relieved of its obligations under this Agreement if its Affiliates provide the Services or a portion thereof. WHISTLE will enforce the terms of this Agreement relating to the Services its Affiliates provide. Notwithstanding anything to the contrary in this Agreement, an Affiliate of WHISTLE may directly bill you or your Affiliates, as applicable, (x) for the Services it provides or (y) solely as a billing agent for WHISTLE or the Affiliate of WHISTLE providing the Services, as applicable.
Neither of us may transfer our obligations under these terms without the other’s prior written consent, unless either of us is transferring our obligations to an entity that is assuming either of our assets or business or to either of our affiliates.
9.2 Assignment. Neither party hereto may assign or otherwise transfer this Agreement or any applicable Order Form(s), in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement or any applicable Order Form(s), in whole or in part, without consent to (a) a successor to all or substantially all of its assets or business or (b) an Affiliate. Any attempted assignment, delegation, or transfer by either party in violation hereof will be void. Subject to the foregoing, this Agreement and any applicable Order Form(s) will be binding on the parties and their respective successors and permitted assigns.
These terms do not create any special relationship between us, like an employer-employee relationship, joint venture, or a partnership. Nothing will change that. Each of us is responsible for our own employees and agents.
9.3 Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
These terms are strictly between you and us. No third parties have any rights under these terms unless we already say so in these terms.
9.4 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party (including your End Users or an Affiliate) unless it expressly states that it does.
If you need to notify us, you must send notices via email to compliance@whistle.tech.
If we need to notify you, we will notify you via email to the email address designated in your account.
9.5 Notices. Notices to WHISTLE will be provided via email to compliance@whistle.tech All notices to you will be provided via email to the relevant contact(s) you designate in your account.
These terms are governed by the law specified in the table below, depending on where your business entity is registered.
If we go to court to resolve a dispute between us, then the courts specified in the table below, depending on where your business entity is registered, will be responsible for resolving that dispute.
9.6 Governing Law and Attorneys’ Fees. This Agreement will be governed by and interpreted according to the laws of the applicable state or country identified below without regard to conflicts of laws and principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Except as provided in Section 9.7 (Dispute Resolution), any action arising out of this Agreement will be instituted in the applicable courts identified below and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such action will be entitled to reimbursement of its attorneys’ fees and related costs by the non-prevailing party.
If there is a dispute (except for intellectual property disputes) between us, each of us will escalate the dispute internally to see if we can resolve it. If we cannot, each of us agrees to resolve the dispute through binding arbitration.
9.7 Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in (a) Manitoba, Canada, if you are domiciled in any country outside of the (i) European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City and (ii) Asia-Pacific region; (b) London, England, if you are domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, or Vatican City; or (c) Singapore, if you are domiciled in any country within the Asia-Pacific region.
If neither of us can carry out our obligations under these terms because something crazy happens beyond either of our control (think earthquake, massive power outage, war), then that does not count as a violation of these terms.
9.8 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.
If neither of us enforces any part of these terms, that does not mean that we cannot enforce that part now or in the future.
If there are inconsistencies between the various terms and conditions that make up these terms, the order of precedence will be as follows to resolve those inconsistencies: (1) any order forms; (2) the terms set forth in the body of these Terms of Service; (3) any other terms and conditions incorporated into these terms.
9.9 Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement
If any part of these terms is not legally enforceable, the rest of these terms will still be legally enforceable.
9.10 Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
These terms and these terms only govern our relationship with each other and your use of our services. Any terms and conditions outside of these terms will be invalid and not apply.
9.11 Entire Agreement. This Agreement (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by WHISTLE, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. The parties agree that any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document will be construed solely as evidence of your internal business processes and the terms and conditions contained therein will be void and have no effect with regard to this Agreement, even if accepted by WHISTLE or signed by the parties after the Effective Date.
Additional Terms
If you are a U.S. Federal or U.S. state entity, or a federally-recognized tribal entity performing governmental functions and eligible for funding and services from the U.S. Department of the Interior, these terms apply to you.
10.1 United States Federal, State, and Tribal Governments. If you are a (a) United States federal entity, including without limitation, a bureau, office, agency, department, or other entity of the United States government; (b) a United States state entity, including without limitation, a bureau, department, office, or other entity of a state or a local, county, borough, commonwealth city, municipality, town, township, special purpose district, or other entity established by the laws of a state and located in such state; or (c) a federally-recognized tribal entity performing governmental functions and eligible for funding and services from the United States Department of the Interior by virtue of its status as an Indian tribe, or in Alaska, a Native village or Alaska Regional Native corporation, the following terms apply:
10.1.1 Failure to Pay. WHISTLE may assess, and you will pay, interest equal to the maximum amount allowable by applicable law, if you fail to pay the Fees and remedy such failure within fifteen (15) days of the date WHISTLE provides you with written notice of the same.
10.1.2 Public Disclosure Laws. Section 4.3.2 (Use and Disclosure) of this Agreement does not prohibit you from disclosing the terms of this Agreement to the extent required by public disclosure laws applicable to you (“Public Disclosure Laws”), provided that, to the extent permissible, any material legal terms included in this Agreement (e.g., representations and warranties, indemnification, limitation of liability) and any trade secrets, non-publicly available pricing, future business plans, future product plans or features, or business strategies of WHISTLE are redacted.
10.1.3 Compelled Disclosure of Confidential Information. Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense to the extent permitted by applicable law.
10.1.4 Customer Application IP Infringement. You represent and warrant that each Customer Application, or your or your End Users’ use of each Customer Application, does not and will not infringe or misappropriate a third party’s intellectual property rights. Your breach of this Section 10.1.4 will not be subject to liability limitations set forth in Section 7 (Limitation of Liability) of this Agreement.
10.1.5 Use of Marks. WHISTLE will not use your name, logo, or a description of your use case(s) on WHISTLE’s website, earnings release and calls, or marketing or promotional materials without your prior written consent.
10.1.6 Contests and Promotions. Promotional activity participation will be considered as consent to receive messaging and calls. By participating in promotions and contests held by WHISTLE, participants agree that their information may be used for business promotion, marketing, sales, referrals, and campaigns directly or indirectly managed by WHISTLE for itself, its customers or on their behalf by us. Customers can always opt-out of such communication by texting the word STOP.
10.1.7 Indemnification by Customer. Your obligations in Section 6.2 (Indemnification by Customer) of this Agreement will apply to the extent permitted by applicable law, regulation, or procedure.
10.1.8 Assignment. The ability of either party to assign this Agreement without consent pursuant to Section 9.2 (Assignment) of this Agreement will not apply where prohibited by applicable law.
10.1.9 Governing Law. Section 9.6 (Governing Law and Attorneys’ Fees) of this Agreement is hereby deleted in its entirety and replaced with the following:
Governing Law. This Agreement will be governed by and interpreted according to the laws of Province of Manitoba.
10.1.10 Dispute Resolution. Section 9.7 (Dispute Resolution) of this Agreement is hereby deleted in its entirety and replaced with the following:
Except as otherwise specified in applicable law, in the event of a dispute, claim, or controversy arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may seek relief as set forth in Section 9.6 (Governing Law and Attorneys’ Fees).
10.1.11 Conflict. In the event of any conflict between this Section 10.1 and any other terms of this Agreement, this Section 10.1 will prevail.’
