API Licensing Agreement
This Aquanow API Terms of Service (this "Agreement") is an agreement between CLTS Technologies Ltd. ("CLTS” “we” “us” “our”) and you. You must first read and agree to the terms of this Aquanow API Terms of Service before accessing or using the Aquanow API or other Aquanow Materials.
You also agree that your use of the Aquanow APIs and other Aquanow Materials is also subject to the Aquanow User Agreement and the Aquanow Terms of Service at https://aquanow.io/terms/, and that those agreements are hereby incorporated into this Agreement by reference.
1.1 Binding Agreement. By submitting an Application for API Credentials, you acknowledge and agree that (i) you have read and understand this Agreement, and (ii) if your Application for API Credentials is accepted by CLTS, this Agreement will, immediately upon such acceptance, become a legally binding agreement between you and CLTS. Among other things, this Agreement governs your access and use of the Aquanow Materials.
1.2 Your Confirmations. YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND: (I) IF ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (II) IF YOU ARE AN INDIVIDUAL, YOU ARE AT LEAST THE OLDER OF 19 YEARS OF AGE AND THE AGE OF MAJORITY UNDER APPLICABLE LAW TO FORM A BINDING CONTRACT WITH CLTS.
1.3 Modifications to Agreement. We reserve the right in our in our sole discretion to revise and update this Agreement from time to time by posting the modified version on our Website or by emailing you with the modified version at the email address we have on file for your account with us. Any and all such modifications are effective immediately upon posting and apply to all continued use of the Aquanow Materials. You agree to periodically review this Agreement in order to be aware of any such modifications and your continued use of the Aquanow Materials constitutes your acceptance of such modifications. Your only recourse if you disagree with any modifications to this Agreement is to discontinue use of the Aquanow Materials and terminate this Agreement as provided in Section 12.
1.4 Modifications to the Aquanow API. The Aquanow API, including any functionalities and features, may be changed, withdrawn or terminated by CLTS at any time in CLTS’s sole discretion without notice. We will not be liable if for any reason all or any part of the Aquanow API is restricted to certain users or applications or is unavailable at any time or for any period. CLTS may release new versions of the Aquanow API and may require you to cease use of out-of-date versions of the Aquanow API.
2. DEFINITIONS AND INTERPRETATION.
2.1 Definitions. The following words have the following meanings:
(a) “Affiliate” means a Person directly or indirectly controlled, controlling, controlled by, or under common control with CLTS. “control” for the purpose of this definition shall mean, with respect to any person or entity, the right to exercise or cause to be exercised at least fifty per cent (50%) of the voting rights in such Person.
(b) “API Credentials” means the secret key and access token that allow you to make authenticated requests to the Aquanow API.
(c) “Application for API Credentials” means an application, in the form approved by CLTS from time to time, for access to the Aquanow API and acquisition of API Credentials.
(d) “Aquanow API” means the: (a) application programming interface made available by CLTS that allows other software or hardware devices to interface with the Aquanow Service Software; (b) example source code provided by CLTS that enables interfacing the Aquanow Service Software; and (c) the Documentation.
(e) “Aquanow Links" mean webpage URLs, banners, or button advertisements, or other graphical or text elements, provided by CLTS though an Aquanow API and containing one or more CLTS Marks or a link to a page on our Website.
(f) "Aquanow Materials" mean the Aquanow API, Aquanow Links, CLTS Marks, Documentation, and CLTS Data.
(g) “Aquanow Services” means the products, services, and technologies provided by CLTS related to the sourcing and delivering liquidity for the purchase and sale of Digital Assets.
(h) “Aquanow Service Software” means the software application or applications and any other CLTS or third-party software application or applications that CLTS provides remote access to, and use of, to enable CLTS clients to access and use the Aquanow Services.
(i) “Authorized User” has the meaning set forth in the Aquanow User Agreement.
(j) “Authorized Application” means a software application designed to access and use the Aquanow Services via the Aquanow API, such as: (i) a website or client-based application, mobile application, or desktop application; (ii) the components of your gateway server designed to enable access to the Aquanow Services; or (iii) interfaces or any other technological means used to access the Aquanow Services via the Aquanow API.
(k) "CLTS Data" means the data, information, and other materials and content made available by CLTS through the Aquanow APIs.
(l) “CLTS Marks" means CLTS’ trademarks, trade names, service marks, and logos, including “Aquanow”.
(m) “CLTS Parties” means CLTS, its Affiliates and its and their respective employees, agents, officers, directors, third-party licensors, service providers, successors, and assigns.
(n) “Customer” has the meaning set forth in the Aquanow User Agreement.
(o) “Documentation” means any instructions or documentation that CLTS makes available that assist with access or use of the Aquanow API.
(p) “End Users” means the Persons who use your Authorized Applications, including your Authorized Users and Customers.
(q) “Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, provincial, state, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(r) “Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(s) “Person” means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association or any other entity.
(t) “Personnel” means your employees and contractors.
(u) “Website" means the website located at https://trade.aquanow.io/
2.2 Interpretation. For the purposes of this Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) unless the context otherwise requires, references herein: (i) to Articles, Sections, Schedules and Exhibits mean the Articles and Sections of, and Schedules and Exhibits attached to, this Agreement, (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof, and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder; (e) the Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein; (f) Section and Schedule headings do not affect the interpretation of this Agreement; (g) words in the singular include the plural and those in the plural include the singular; and (h) a reference to “writing” or “written” includes email, unless otherwise stated
3. ACCESS AND USE OF AQUANOW API AND OTHER AQUANOW MATERIALS.
3.1 License. Subject to, and conditional on your compliance with, the terms and conditions of this Agreement, and further conditioned on CLTS’ acceptance of your Application for API Credentials, CLTS grants you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license during the Term to (the “License”): (a) use the Aquanow API to develop and support Authorized Applications; (b) to access and use the Aquanow API through your Authorized Applications; and (c) allow your End Users to access the Aquanow Services via your integration of the Aquanow API in your Authorized Applications. All rights not expressly granted to you are reserved by CLTS. The License will terminate automatically if you breach this Agreement.
3.2 Limits on Use of Aquanow API. CLTS may place limits on your use of the Aquanow API. Without limiting the foregoing, CLTS may limit the number API queries or requests that may be submitted by your Authorized Applications per period of time specified by CLTS (e.g. a day or an hour).
3.3 Other Limitations and Restrictions. You shall not, and shall not permit any End User to access or use the Aquanow Materials (which for clarity, includes the Aquanow API) except as expressly permitted by this Agreement, and in the case of third-party materials incorporated in the Aquanow API, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(a) permit access to the Aquanow APIs and other Aquanow Materials except through the Authorized Applications;
(b) make available the CLTS Data or results of the Aquanow API through any means other than the Authorized Applications;
(c) reproduce, distribute, publicly display, or publicly perform the CLTS Data outside of your Authorized Applications;
(d) data mine, scrape, index the Aquanow Services or any CLTS Data, or otherwise construct databases using the Aquanow Data;
(e) use the Aquanow API in any manner that damages, destroys, disrupts, disables, impairs, interferes with or otherwise impedes or harms in any manner the Aquanow Services, CLTS’s provision of the Aquanow Services to any Person (in whole or in part), or the systems, servers, or infrastructure upon which the Aquanow Service Software operates;
(f) input, upload, transmit or otherwise provide to or through the Aquanow Services or Aquanow API any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful or malicious code;
(g) bypass or breach any security device or protection used by the Aquanow Services or Aquanow API or access or use the Aquanow API other than through the use of your then-valid API Credentials;
(h) remove, delete, alter or obscure any trademarks, specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Aquanow Materials, including any copy thereof;
(i) access or use the Aquanow API for purposes of competitive analysis of the Aquanow Services, the development, provision or use of a competing software service or product, or any other purpose that is to CLTS’s detriment or commercial disadvantage;
(j) without limiting Section 3.3(i), access or use the Aquanow Materials for the purpose of encouraging CLTS customers to reduce or cease their business with CLTS, except in connection with the use of your Authorized Applications;
(k) make more requests or calls to the Aquanow API than minimally necessary to provide the desired and reasonable functionalities of your Authorized Applications;
(l) use an unreasonable amount of data when using the Aquanow API or otherwise overburden the Aquanow Service Software or its related systems;
(m) use any CLTS Data for the purposes of marketing or advertising;
(n) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Aquanow API to any Person except you may provide your Personnel with access to the Aquanow API but only as an integrated component of an Authorized Application and only in accordance with this Agreement;
(o) access or use the Aquanow Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other CLTS customer), or in any manner or for any purpose that violates any applicable Law (including unlawful gambling and the distribution of spam);
(p) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt, to derive or gain access to the source code of the Aquanow Services or Aquanow Materials, or any part thereof; or
(q) substantially reproduce or replicate the Aquanow Services or otherwise develop applications that compete with the Aquanow Services; or
(r) use the Aquanow API in any manner that, in the sole and arbitrary discretion of CLTS, could expose CLTS or any other Person to undue risk of harm or credit risk.
3.4 Privacy and Data Protection Requirements.
(a) You shall comply with all appliable Laws related to your use of the Aquanow Materials, including all privacy and data protection laws. Without limiting the foregoing, you shall:
(i) obtain all necessary consents from all End Users in respect of the personal information of such End Users that you collect or use through the Authorized Applications, including, such consents as necessary to enable CLTS to process such End Users personal information for the purposes of providing the Aquanow Services;
(ii) ensure your data is stored securely, using appropriate physical, technical, and organizational security controls;
(iii) implement appropriate data retention and deletion policies;
(b) If you discover a security vulnerability or data breach respecting your Authorized Application or any personal information collected from End Users, you shall promptly (and in any event no later than 24 hours after such discovery) provide CLTS with comprehensive details of such vulnerability or breach (and in no event with fewer details than necessary to enable CLTS to comply with its obligations under applicable privacy laws) and, at your own expense, you shall, subject to any reasonable instructions provided by CLTS: (i) promptly remedy or remediate such vulnerability or breach; (ii) investigate the cause of vulnerability or breach; and (iii) make such notifications to affected parties as required by law.
(c) You shall indemnify, defend, and hold harmless CLTS and the Indemnified Associates from and against any and all Losses incurred by CLTS or the Indemnified Associates arising out of or relating to any Action by a third party that arises out of or relates to any security vulnerability or data breach respecting your Authorized Application or any personal information collected from End Users.
(d) No joint controller or processor-subprocessor relationship arises between you and CLTS merely as a consequence of this Agreement.
3.5 Other Requirements.
(a) You shall ensure that queries to the Aquanow API contain all required parameters.
(b) You shall comply with the following, to the extent applicable, as set forth in the Documentation:
(i) The API access frequency is constrained by the default rate limit listed on the online API documentation
(ii) as well as any other special requirements set forth in the Documentation;
(c) You shall ensure that the use or display of the Aquanow Materials does not suggest that CLTS promotes or endorses you or any third party or the causes, ideas, websites, products or services of you or any third party.
(d) You shall permit CLTS, or an auditor appointed by CLTS, to audit your use of the Aquanow API and to access to your Authorized Applications, including source code, for the purpose of verifying your compliance with this Agreement and you shall cooperate in any such audits. You shall promptly and accurately respond to any questions CLTS may have related to your compliance with this Agreement. This Section 3.5(d) will survive for three years after termination of this Agreement.
(e) You shall make reasonable efforts to prevent unauthorized access to or use of the Aquanow Materials and your API Credentials. CLTS is not responsible or liable for any unauthorized use of your API Credentials.
(f) You are responsible for all charges incurred as a result of use of the Aquanow Services through your API Credentials, irrespective of whether such use was authorized.
(g) You shall monitor use of the Authorized Applications to ensure all use is authorized.
(h) All use of the Aquanow Services through the Aquanow API is subject to the Aquanow User Agreement.
3.6 Open Source Components. Notwithstanding Section 3.1, you acknowledge that certain components of the Aquanow API may contain components licensed under “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation, any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (such component, “Open Source Components”). A list of the Open Source Components and their corresponding open source licenses will be available through the Documentation. To the extent required by the applicable open source licenses covering the Open Source Components, your use of the Open Source Components will be subject and governed by the terms and conditions of the applicable open source licenses. To the extent the terms of licenses applicable to Open Source Components prohibits any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the license applicable to the Open Source Components require CLTS to provide you with source code for such Open Source Components, such offer is hereby made, and you may exercise such offer by contacting CLTS at email@example.com. You hereby confirm that you have received all required license notices for Open Source Components included in your initial download of the Aquanow API.
4. NO SUPPORT.
Nothing in this Agreement or otherwise obligates CLTS to provide support, upgrades, or maintenance for the Aquanow API.
5. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS.
5.1 Confidentiality. During the Term, CLTS may provide you with confidential or non-public information (“Confidential Information”). The API Credentials and Documentation are deemed the Confidential Information of CLTS. You shall keep and maintain all Confidential Information in strict confidence and shall protect the Confidential Information with at least the same degree of care (and in any event no less than reasonable care) that you use to protect your own confidential and proprietary information. You shall not disclose or permit your Personnel to disclose any Confidential Information (or summaries thereof) to the public or any Person except to your Personnel, but only to the minimal extent necessary to permit such Personnel who need to know the Confidential Information to assist you with developing, supporting, and maintaining your Authorized Applications, on the condition that you shall:
(a) prior to any such disclosure:
(i) inform your Personnel of the confidential nature of the Confidential Information; and
(ii) ensure that your Personnel are subject to confidentiality duties or obligations to it which are no less restrictive than the terms and conditions of this Agreement and which limit any further disclosure or use of the Confidential Information (the “Personnel Confidentiality Obligations”)
(b) be responsible for any breach of this Agreement, the Personnel Confidentiality Obligations, or unauthorized disclosure of the Confidential Information by your Personnel. Such responsibilities include indemnifying and defending CLTS against all Losses CLTS may incur as a result of any such breach or unauthorized disclosure by your Personnel.
5.2 No Public Announcements. You shall not make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding CLTS, the Aquanow Materials, or CLTS’ business unless:
(a) you have received the express written consent of CLTS; or
(b) you must do so as required by Law or the rules of any stock exchange to which you are subject.
This Section 5.2 will survive for five years following termination of this Agreement.
6. INTELLECTUAL PROPERTY.
6.1 Ownership. You acknowledge that CLTS now and at all times hereafter is the exclusive owner of all right, title and interest in and to all Aquanow Materials other than the Open Source Components; and that you receive and acquire no licenses with respect to any Aquanow Materials except as expressly granted in this Agreement. You shall not assert any copyright, trademark or other intellectual property ownership or other proprietary rights in or to any Aquanow Materials, or any part of these items or in any derivative work of these items. Except for the right to use the Aquanow Materials as set forth in this Agreement, nothing contained in this Agreement will be construed to grant you any right, title or interest in or to any intellectual property of CLTS, and you are prohibited from making any use thereof of any nature except as expressly authorized in this Agreement. You shall not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the CLTS Marks (as determined by CLTS in the exercise of its reasonable business judgment) or in such a way as to create combination marks.
6.2 CLTS Marks. Under no circumstances may you use any CLTS Marks for any purpose other than the placement of Aquanow Links on your Authorized Applications in accordance with this Agreement. You shall not enter any agreement with a third party for the purchase of traffic involving keywords that are identical to or similar to any of CLTS's Marks.
7. YOUR REPRESENTATIONS AND WARRANTIES.
7.1 You represent, warrant, and covenant as of the time you accept this Agreement and for the duration of your use of the Aquanow APIs that:
(a) you have full power and authority to enter into this Agreement;
(b) you are in compliance with all applicable Laws, if any, related to the performance of your obligations under this Agreement and the operation of your Authorized Application;
(c) your Authorized Applications have been designed to operate with the Aquanow API in a secure manner in accordance with best industry standards;
(d) your Authorized Applications have been developed in accordance with best industry standards, including security standards;
(e) you will handle all personal information collected by you in connection with your use of the Aquanow API in accordance with best industry standards, including security standards, and applicable Law;
(f) all information provided in your Application for Aquanow API Credentials is true, accurate, complete, and current, and that you shall promptly update such information if any of it becomes out of date or inaccurate;
(g) you fully own (or are an authorized licensee), and control all of the development, maintenance and operation of, and content on, your Authorized Application (other than Aquanow Materials);
(h) all content and materials on your Authorized Application is owned or validly licensed for use by you or is in the public domain;
(i) none of the content on your Authorized Application is defamatory, constitutes obscenity, or violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy or publicity;
(j) none of the content and materials on your Authorized Application constitutes or results in any consumer fraud, product liability, breach of contract to which you are a party or which cause injury to any third party; and
(k) your Authorized Application does not contain or directly link to any objectionable material, as determined by CLTS in its sole discretion, but which includes pornography, unlawful gambling, obscene language or other obscene content, or support for violent or hate groups, or content that is abusive, illegal, hateful, harmful, harassing, or racially or ethnically discriminatory.
8. DISCLAIMER OF WARRANTIES.
THE AQUANOW MATERIALS AND ALL OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY CLTS ARE PROVIDED "AS IS." CLTS HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CLTS MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE AQUANOW MATERIALS OR, OR ANY OTHER CLTS OR THIRDPARTY GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET YOUR OR ANY OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPENSOURCE COMPONENTS AND OTHER THIRDPARTY MATERIALS ARE PROVIDED "AS IS" AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRDPARTY OWNER OR DISTRIBUTOR OF SUCH OPENSOURCE COMPONENTS AND THIRDPARTY MATERIALS.
9. ASSUMPTION OF RISK AND LIMITATION OF LIABILITY.
9.1 Assumption of Risk. YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR AND YOUR END USER’S USE OF THE AUTHORIZED APPLICATIONS, THE AQUANOW MATERIALS, AND THE RESULTS OBTAINED FROM US THE AUTHORIZED APPLICATIONS OR AQUANOW MATERIALS. YOU ACKNOWLEDGE THAT USE OF THE AQUANOW API TO PLACE ORDERS AND EXECUTE TRADES MAY EXPOSE YOU TO TECHNICAL OR SECURITY RISKS AND HARMS, INCLUDING CONNECTIVITY ISSUES, HARDWARE MALFUNCTIONS OR FAILURES, SOFTWARE BUGS OR ERRORS, AND ATTACKS BY MALICIOUS ACTORS. THE CLTS PARTIES WILL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR SUCH EVENTS OR ANY RELATED LOSSES.
9.2 Limitation of Liability.
(a) Dollar Cap. WITHOUT LIMITING SECTION 10.2(b), IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE CLTS PARTIES UNDER OR IN RELATION TO THIS AGREEMENT, THE AQUANOW MATERIALS, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $10.00 CAD.
(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE CLTS PARTIES BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT, THE AQUANOW MATERIALS, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE AQUANOW API; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA, OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER THE CLTS PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
APPLICABLE LAW IN SOME JURISDICTIONS MIGHT NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION OF LIABILITY MIGHT NOT APPLY TO YOU IF YOU LIVE IN SUCH A JURISDICTION AND APPLICABLE LAW IN YOUR JURISDICTION DOES NOT ALLOW THE CLTS PARTIES TO LIMIT OR EXCLUDE THEIR RESPECTIVE LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH JURISDICTIONS, THE CLTS PARTIES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You will defend, indemnify and hold harmless CLTS from and against any and all losses, damages, costs, expenses (including legal fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including settlement payments) arising from any third-party claim or action, resulting from, connected with, or relating to: (a) your use of the Aquanow Materials; or (b) your negligence, misconduct, or breach of this Agreement. Notwithstanding the foregoing, CLTS retains the right to participate in the defense of and settlement negotiations relating to any third party claim, complaint, demand, action, suit or proceeding with counsel of its own selection at its cost and expense
11. TERM AND TERMINATION.
11.1 Term & Termination. The term of this Agreement (the "Term") will commence on the date your Application for API Credentials is accepted by CLTS and will continue until terminated by either party. Either party may terminate the Agreement by giving written notice of such termination to the other party. A termination by CLTS of your access to the APIs will be deemed a termination of the Agreement by CLTS. CLTS may condition your continued use of the Aquanow Materials, and thus its agreement not to exercise its right to terminate the Agreement, on your compliance with additional conditions or requirements that are not set forth in this Agreement and that may not be applicable to other licensees of the Aquanow Materials.
11.2 Effect of Termination. Upon the termination of this Agreement, you shall:
(a) immediately cease use of the Aquanow APIs and other Aquanow Materials; and
(b) destroy or permanently erase all Confidential Information in your possession or your control (subject to reasonable instructions provided by CLTS).
11.3 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of either of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 1.3, 1.4, 3.4(b), 3.5(d), 3.6, 4, 5, 6, 8, 9, 10, 11, 12.2, 12.3, and 13.
12.1 Governing Law. This Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to: (a) any choice or conflict of law provision, principle or rule and notwithstanding your domicile, residence or physical location; or (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods.
12.2 Disputes and Controversies. Disputes and controversies between the parties concerning this Agreement or the Aquanow API will be adjudicated and resolved as set forth in the Aquanow User Agreement.
12.3 No Third-Party Beneficiaries.
(a) Except as set forth in Section 13.3(b), the parties do not confer any legal, equitable or other rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
(b) The parties hereby designate each of the CLTS Parties as third-party beneficiaries of Section 10 having the right to enforce that Section.
12.4 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, franchise, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
12.5 No Waiver. The failure of CLTS to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by you.
12.6 Headings. The headings used in this Agreement are included for convenience only and will not limit or otherwise affect this Agreement.
12.7 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.8 Assignment. We may assign this Agreement in part or in their entirety, including our rights, interests, and obligations hereunder, without notice to you or your consent. This Agreement is personal to you and you may not assign this Agreement nor your rights, interests, or obligations under this Agreement to any Person without our express written consent.
12.9 Cumulative Remedies. All rights and remedies provided in this Agreement for the benefit of CLTS are cumulative and not exclusive, and are in addition to and without prejudice to any other rights or remedies available at law, in equity, by statute or otherwise, and the exercise by CLTS of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
12.11 Language. The parties acknowledge that they have required that the Agreement and all related documents be prepared in English. Les parties reconnaissent avoir exigé que les présentes modalités de vente et tous les documents connexes soient rédigés en anglais.
12.12 Enurement. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs, and permitted assigns.
12.13 Equitable Relief. You hereby acknowledge and agree that any breach by you of this Agreement would result in harm to CLTS, and that CLTS could not be adequately compensated for such harm by monetary award. Accordingly, you hereby agree that in the event of any such breach, in addition to all other remedies available to CLTS at law or equity, CLTS will be entitled as a matter of right, and without posting bond or proving damages, to, notwithstanding Section 13.2, apply to any court of competent jurisdiction for such equitable relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance by you with this Agreement.
12.14 Notices. Except as expressly provided in this Agreement, legal notices shall be provided by each party in the manner permitted or required in the Aquanow User Agreement.