Last Updated: August 10, 2019
AWELE TERMS OF SERVICES AGREEMENT
Welcome to Awele! This Agreement is between Awele Technologies Inc., a Canadian company, trading as “Awele” and you. This Agreement governs your access to and use of all of Awele’s sites and services (“Awele Services”). The Awele Services, corporate websites, and tools are collectively called the “Awele Platform”.
This Agreement was last updated on September 1, 2019, and it can be accessed https://www.awele.ca/terms-of-use. It is effective between you and Awele as of the date of your acceptance of this Agreement.
Table of Contents
- Entering into this Agreement with Awele
- Relationship to other agreements
- Awele Services|
- Changes to the Agreement or Awele Services
- Registration and Intellectual Property Rights
- SaaS Services
- Buying (including E-Commerce Services)
- Data Services.
- Mutual Non-Disclosure Agreement
- General Use
- Digital Millennium Copyright Act (DMCA)
- Limitation of Liability
- Entering into this Agreement with Awele
By using Awele, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, you cannot use Awele and/or the Awele Services.
- Relationship to other agreements
To the extent that there is a conflict between this Agreement and any other documents executed between you and Awele, including any Purchase Order or Statement of Work between you and Awele which references this Agreement, the provisions of this Agreement will govern, unless you agree otherwise with Awele in a written agreement.
There are also some other documents which operate in conjunction with this Agreement and which are incorporated into this Agreement by reference, namely:
- Awele Price List (if you are consuming any for-pay services),
- the Awele Sellers Standard Operating Procedures (“Seller SOP” – if you are Selling),
- the Terms and Conditions for Awele Buyers,
- and the Awele Transparent Pricing Policy,
all the relevant ones of which you should read carefully. These documents and this Agreement may be updated from time to time, and to the extent that there is a conflict between this Agreement and any of these documents, the provisions of this Agreement will govern.
- Awele Services
3.1. Types of Service. As described further down in this section, we offer different types of services, provided either by us directly or through third party Vendors like the Sellers on Awele. These services can be provided through our own website assets, through external vendors (like Awele Sellers), or through digital channels like Awele APIs. Services include but are not limited to digital services (like quote comparison or online sales for Sellers), and physical services (like shipment transportation services facilitated by Awele Sellers. (“Freight Services”)
3.1.1. Services for Awele Buyers: A person that chooses to compare, book, and/or manage quotes or shipments from Sellers through Awele is a “Buyer”. If that’s you, you can use the Awele to search for suitable Sellers, obtain shipment quotes from those Sellers and facilitate Orders between you and Sellers. You can also manage your shipments through Awele, communicate with the Seller, and manage payments If you are a SaaS Subscriber, (see below) you will be Buying through your Custom Site (see below). If you are not a SaaS Subscriber, you will use Awele main platform (Awele.ca) referred to as a “Marketplace Site” for Buying. Awele Buyers who sign up on Marketplace Site via a Awele Partner agree that the Partner employees have access to all their data, including but not limited to the requests for quotes, bookings, and shipments.
3.1.2. Services for Awele Partners : If you operate a software platform whose customers need Freight Services, such as a Fulfillment Center, Transportation Management System, E-commerce Website, , and have signed a partnership agreement with Awele, you are a “Awele Partner Software Provider”. Awele provides white label customer portals, APIs, software client libraries, widgets, plugins to e-commerce platforms, or other integrations to enable you to digital freight tools, like rate estimates and duty estimates, use rates for Freight Services obtained from Sellers via Awele, and offer shipping to your customers through your own platform (the “E-commerce Tools”). Awele Partners have access to all the data of their customers, including but not limited to the requests for quotes, bookings, and shipments.
3.1.3. Services for Sellers: If you provide, offer to sell, and sell Freight Services (including as a carrier, NVOCC, freight broker or freight forwarder, insurer or customs broker), and if you choose to sell Awele Services or authorize Awele to offer your rates to Buyers through the Awele Platform, you are a “Seller” and you engage in “Selling”. Although Awele is not a Seller and not party to any agreement between a Seller and a Buyer, we help you manage your rates, calculate prices, market your services online , receive Orders on your behalf, and act as your collection agent to collect payments via Awele. You must be a SaaS Subscriber in order to be a Seller unless Awele specifically approves Selling without a paid SaaS Subscription.
3.1.4. Services for SaaS Subscribers: As part of the Awele Services we provide subscription hosted software-as-a-service (SaaS) which allow you to manage your Freight Services business, including importing and storing your tariffs and customer names, automating your Quotes, and various associated features and reports (“SaaS Services”). If you sign up for SaaS Services, you are a “SaaS Subscriber”. If you use our Marketplace Site, but you are not a SaaS Subscriber, you will also find certain more limited SaaS type features there (for example, software which manages your Quotes and Orders) but these do not form part of the SaaS Services.
3.1.5. Data Services for SaaS Subscribers: We provide various services to SaaS Subscribers for processing and converting and importing carrier contracts, freight tariffs, rate sheets, freight tenders, and related data from the SaaS Subscriber’s business to the Awele Platform (“Data Services”). For example, a freight forwarder or enterprise shipper may use Data Services to have the Excel tariffs they receive from carriers processed and imported into the Awele Platform.
3.1.6 Customer Portal Services for SaaS Subscribers: If you are a SaaS Subscriber and you sell Freight Services (e.g. a freight forwarder), Awele may at its discretion allow you to open up your Custom Site to your own customers (e.g. your agents or the shippers you sell to) to access and use to obtain Quotes, and/or to review Quote and Order history (“SaaS Subscriber Customer Portal”).
3.2. Services Used. You may use any, all or a combination of the Awele Services. For example, if you are a freight forwarder, you may be a SaaS Subscriber, a Seller, a Buyer (e.g. buying from freight forwarders as agents, or from carriers), and a customer of Data Services. Some Sections of this Agreement specifically apply to particular types of Awele Services or users. Where Sections of this Agreement are not specifically directed towards particular types of Awele Services or users, they apply to all users of all Awele Services.
3.3. We will sometimes use sub-contractors or other third parties as part of the Awele Services. When we do so, we will always remain responsible for all of our obligations under this Agreement.
- Changes to the Agreement or Awele Services
4.1. Agreement. Given the dynamic nature of our business and industry, we may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Agreement on the Site, posting a notice on the Site and/or the Awele App, or through other communications. Please review changes to the MSA, SOP etc. at the beginning of each calendar quarter and let us know by the end of that calendar quarter if any changes are not acceptable and you wish to terminate your relationship with us. Otherwise changes will become binding at the end of the calendar quarter following the change. I. If you don’t agree to be bound by the modified Agreement, then you will continue to be bound by any existing obligations under the agreement that was in place when you entered into an agreement for those services, however you will not be able to otherwise use Awele.
4.2. Awele Services. As part of our efforts to continually improve the Awele Services, we may change or discontinue any part of the Awele Services at any time at our sole discretion. For example, we may remove a feature that users don’t use very often or add new features.
4.3 Customer requested changes to the Awele Services. When customers request changes to the Awele Services (e.g. new features in the SaaS functionality), Awele may at its discretion offer to make these changes for free, for payment, or not at all. (This will typically depend whether Awele believes the changes are beneficial to other customers.) All new developments in the Awele Services, will be owned by Awele, and may be offered to other Awele customers, even if one customer is paying money towards the development cost, unless otherwise agreed in writing between Awele and that customer.
- Registration and Intellectual Property Rights
5.1 Accounts and Users:
5.1.2. Awele User Registration: You must create an account (“Account”) to use certain features of the Awele Platform and Awele Services. You can register for an Account via the Site or the Awele App. From time to time we may also enable registration through your account with certain third-party services such as Linkedin (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. You agree that you won’t disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5.1.3. Business Accounts. If you are a business, you may create a “Business Account” for a group of Accounts for your employees and/or independent contractors providing services to your business . Each employee or independent contractor must have his/her own Account and you can designate particular employees as administrators of the Business Account (each, a “Business Account Administrator”). Business Account Administrators can allow employees and independent contractors who hold Accounts to be part of the Business Account, and each employee or independent contractor who is accepted into the Business Account is then an “Authorized User”. You may also authorize any of your employees or independent contractors to create an Account as part of your Business Account. You are responsible for all actions taken under an Authorized User’s Account, whether or not such action was authorized by an Authorized User. You are responsible for the security of each Authorized User’s Account and will not share (and will instruct each Authorized User not to share) such Account details with any other person or entity or otherwise permit any other person or entity to access or use the Awele Platform.
5.2 Intellectual Property:
5.2.1. Awele IP: We’ve worked for years to develop our technology and we’re proud of it. Subject to your rights described in Section 5.2.2, we exclusively own all rights, title and interest in, and to any software, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by us in connection with the provision of the Awele Services to you (collectively “Awele Materials”) as well as any text, data, images, information or other materials that are posted, generated, provided or otherwise made available by us through the Awele Platform (collectively “Awele Content”). Our rights expressly include all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights (“Intellectual Property Rights”) in the Awele Materials and the Awele Content. You have no rights in any Awele Materials or Awele Content except as granted to you in this Agreement. You also cannot record or otherwise access or make use of our data with automated programs, software, or any other method of screen scraping.
5.2.2. Customer IP:
22.214.171.124. Customer Content: You’ve been working hard too. Subject to this Section 5.2, you exclusively own all rights, title and interest in and to any text, data, images, information or other materials posted, generated, provided or otherwise made available by you through the Awele Platform, whether on a Custom Site or otherwise (collectively, “Customer Content”), including all Intellectual Property Rights in that Customer Content. You are solely responsible for the accuracy, quality, integrity, legality and reliability of all the Customer Content that you (or any Authorized User) submit to the Awele Platform. By making Customer Content available through the Awele Platform, you grant to Awele a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify your Customer Content in connection with operating the Awele Platform and providing the Awele Services.
126.96.36.199. Anonymous Data and Reference Data. You grant us the right to use Customer Content (whether related to your activities as a Buyer, Seller, SaaS Subscriber, or other) to generate anonymous, statistical data based on such Customer Content (for example, an average price calculated across multiple Customers without naming those Customers), which will not identify you (“Anonymous Data”), and to use such Anonymous Data in any manner in which we see fit, including selling such Anonymous Data. This Anonymous Data is not Confidential Information for purposes of this Agreement and is owned by Awele. Similarly, in order to improve the Awele Services for you and others, Awele may make use of reference data, which is by its nature is not confidential or proprietary, including, but not limited to, formats of industry tariffs or tenders (i.e. column structures with no pricing data), carrier public surcharge data, carrier public “rack rate” prices, fee codes, commodity codes, public service schedules, and names/web sites of corporations (“Reference Data”) and this Reference Data is not Customer Content for purposes of this Agreement.
5.2.3. Software License: Most Awele features are provided to you as software-as-service accessible via the Site, but in certain situations we provide software to install on your devices. This includes E-commerce Tools, and other software from time to time, each, and together, as applicable, “Installed Software”). We grant you a worldwide, non-exclusive, non-transferable and non-sublicensable license to download and install a copy of any Installed Software on a mobile device or computer that you own or control, and to run such copy of Installed Software solely in conjunction with your use of the Awele Services. You agree not to (i) copy the Installed Software, except for making a reasonable number of copies for backup or archival purposes; (ii) distribute, transfer, sublicense, lease, lend or rent the Installed Software to any third party; (iii) reverse engineer, decompile or disassemble the Installed Software; or (iv) make the functionality of the Installed Software available to multiple users (where the Installed Software is designed for a single user) through any means; and (v) use the Installed Software in any way other than the way it is intended to be used. You agree not to modify or create derivative works based on the Installed Software however, you are allowed to modify the E-commerce Tools for the purposes of integrating the E-commerce Tools with your e-commerce platform. If you stop using the Awele Services you agree to uninstall all copies of the Installed Software on your devices immediately.
5.2.4. Trademark License: We’re proud to be doing business with you. We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “Awele” name and logo on your list of vendors or list of technologies you use. All goodwill associated with the use of such name and logo inures to the benefit of Awele. You grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to list your name and logo on Awele’ list of customers (whether in a general customer list or a list of customers for a specific product, service or sector) and to publish your reviews. All goodwill associated with the use of your name and logo inures to your benefit.
5.2.5. Data License: From time to time we may make available certain industry data such as indicative pricing data, whether through our Site or Awele APIs (“Awele Data”) or otherwise and in such event we may sell a non-exclusive, non-transferable, non-assignable, royalty-free license to you to copy and publish (but not modify) such Awele Data, subject to the terms and conditions of such license. Any Awele Data displayed on https://www.awele.ca or associated sites may be used by you provided that you clearly acknowledge Awele as the source of such data together with a prominent link to https://www.awele.ca with every copy of the Awele Data that you make, and also agree to fulfil any other Awele conditions communicated to you governing use of this Awele Data.
5.2.6. Reservation of Rights: We reserve all rights in and to Intellectual Property Rights, Software, Awele Materials and Awele Content not expressly granted to you under this Agreement.
5.3. Data Maintenance and Backup Procedures. We know how important your data is to you. We will use commercially reasonable efforts to store, secure, and backup your Customer Content, including selecting reputable infrastructure or platform providers. We will follow our standard storage, backup and archival procedures for all Customer Content submitted into the Awele Platform. In the event of any loss or corruption of Customer Content, we will use our commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by us. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER CONTENT CAUSED BY ANY THIRD PARTY. OUR EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE AWELE SERVICES AND AWELE PLATFORM.
- SaaS Services
6.1 Provision of SaaS Services:
6.1.1. SaaS Subscription: The SaaS Services will be provided to SaaS Subscribers for their own internal business purposes, in accordance with the service level terms described in Section 6.2.
6.1.2. Authorized Users: If you are a SaaS Subscriber, you agree to create a Business Account and select Business Account Administrators and Authorized Users to use the SaaS Services on your behalf in accordance with Section 5.1.
6.1.3. Testing: You agree to test your Custom Site on a regular basis to ensure that it provides accurate Quotes and otherwise performs as expected.
6.2. Service Level Commitment. Awele will use reasonable commercial efforts to make the SaaS Services available 99.9% of the time during each Billing Period (typically calendar quarter) of the Term (“Uptime”), not including Scheduled Downtime.
“Scheduled Downtime” means maintenance work of up to twenty (20) hours each calendar month, but not more than 100 hours per calendar year, announced in advance to SaaS Subscribers by email or by posting to the Awele Platform, not during normal business hours (e.g. Monday-Friday 9am-5pm) in SaaS Subscriber’s location.
6.3. Custom SaaS Subscriber Customer Portal:
6.3.1. SaaS Subscriber Customer Portal: If you offer a SaaS Subscriber Customer Portal, you may authorize your own customers and/or potential customers (“SaaS Subscriber Customers”) to access and use the SaaS Subscriber Customer Portal and such access to and use will be subject to terms and conditions between you and the SaaS Subscriber Customers (i.e. your own customers) which are at least as protective of Awele and the Awele Services as the terms of this Agreement. We have no legal relationship with SaaS Subscriber Customers. You are responsible for the actions of your SaaS Subscriber Customers and you indemnify us from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your SaaS Subscriber Customers’ use of the Awele Platform or Awele Services.
6.3.2. Testing: You agree to test your SaaS Subscriber Customer Portal on a regular basis to ensure it is operating in the way you intend and specifically that it provides accurate Quotes.
6.4. Awele SaaS Services Payment Terms:
6.4.1. Trial Period: From time to time, we may offer a free trial of the Awele SaaS Services for new users (“Trial Period”). When we offer a free trial period, we will specify its duration, and the trial period will begin when you sign up for SaaS Services. In other instances, we will offer a paid pilot for a limited period of time. Payment for a paid pilot will include both SaaS services and Data Services and payment will be made in advance.
6.4.2. SaaS Subscription Fees: You agree to pay fees to Awele for your use of the SaaS Services (the “SaaS Subscription Fees”) as set forth in the Awele Price List. SaaS Subscription Fees are typically calculated per Authorized User, and are billed on a quarterly basis, each calendar quarter being a “Billing Period” unless a different Billing Period has been agreed between you and Awele in a binding Purchase Order. We will invoice you for SaaS Subscription Fees for each Billing Period at the end of each Billing Period. If you have provided your credit card or bank direct debit details to us, you will be charged automatically on the day on which an invoice is issued or shortly after. If you have not provided your credit card or bank direct debit details to us, or if we fail to charge you, payment for each invoice is due within 21 days of the invoice date. If you fail to pay SaaS Subscription Fees to us when they are due, we reserve the right to block your access (and that of your Authorized Users) to the SaaS Services, including your Custom Site.
6.4.3. Cancellations/Refunds: Other than for SaaS customers with a term of agreement date in their purchase order which shall bind them until the end of the term of their agreement, you may cancel your use of the SaaS Services at any time by providing written notice to us. Cancellations will go into effect at the end of the Billing Period following your written notice to us.
6.5. SaaS Services Restrictions.
6.5.1. As a SaaS Subscriber, you will not:
188.8.131.52. sell, resell, rent or lease the SaaS Services;
184.108.40.206. attempt to modify or reverse engineer the SaaS Services;
220.127.116.11. use the SaaS Services to store any data or information that is unlawful.
6.5.2. You may not access or use (or permit a third party to access or use) the SaaS Services for purposes of monitoring the availability, performance or functionality of the SaaS Services or for any other benchmarking or competitive purposes.
6.5.3. You will not interfere with or disrupt the SaaS Services or attempt to gain access to any related systems or networks to which access is restricted.
- Buying (including E-commerce Services)
7.1. Buying Freight Services:
7.1.1. Quotes: If you’re looking to buy Freight Services, you’ve come to the right place! You can use the Awele Platform to look for Sellers and to request price quotes and related terms for a shipment and delivery of goods (“Quotes”). In addition to discovering new Sellers, and obtaining Quotes, we add features from time to time to help you evaluate Sellers and manage your Quotes, Orders and other documents. If you are only using the Awele Services as a Buyer, you don’t need to pay to use the Awele Services, but of course you do need to pay for any Freight Services that you buy from a Seller.
7.1.2. Where you can Buy: If you are also a SaaS Subscriber, you can buy Freight Services through your Custom Site. If you are not a SaaS Subscriber, you can access Buying services through a Marketplace Site. Note that if you are a Seller as well as a Buyer (e.g. a freight forwarder), or if you are large Buyer who negotiates your own freight contracts, you can become a SaaS Subscriber and Buy through your Custom Site; otherwise a Marketplace Site is probably most convenient.
7.1.3. Representations: If you are a Buyer, by using the Awele Services you represent to Awele and to Sellers that you understand the way in which Freight Services work and that you hold all the necessary permits to legally procure any Freight Services that you buy.
7.2. Accepting Quotes:
7.2.1. Orders: When you accept a Quote, we create an “Order” on your behalf which is a legally binding agreement between you and the Seller who provided that Quote. Sellers, not Awele, are responsible for honoring any Orders and performing the applicable Freight Services. The identity of the Seller will be clearly marked on the Quote. As a Buyer, you agree to accept any terms, conditions, rules, and restrictions associated with such Freight Services that are imposed by the Seller. You acknowledge and agree that you, and not Awele, will be responsible for performing the Buyer’s obligations of the Order and any other contracts with Sellers
7.2.2. SOP: While we are in no way a party to the Order agreement between you and Seller, we do want to help Buyers and Sellers to have a more predictable experience when they meet each other on the Awele Platform. You, therefore, agree that under certain circumstances as specified by Awele, the terms listed under “Standard Terms of Awele Network Seller Quotes” in the SOP will become part of the Order agreement between you and the Seller, subject to any conflicting terms imposed by a Seller in a particular Order which will take precedence.
7.2.3. Grace Period: From time to time to improve the usability of the Awele Network, and in our absolute discretion, we may set a grace period of a specified duration (for example, 24 hours) after an Order is made (“Grace Period”), during which either you or the Seller may cancel the Order for any reason, and in the event of such a cancellation, you and the Seller will have no further responsibility to one another for the canceled Order. If a Grace Period applies, we will state this clearly at the time that the Order is made.
7.3. Awele is Not the Seller. We help you find Quotes from Sellers, but we are not a Seller and we don’t provide Freight Services. Sellers are not agents, contractors, or otherwise affiliated entities of Awele. We don’t endorse any Sellers, and we don’t in any way supervise, direct or control a Seller’s performance of Freight Services, nor do we warrant that any Seller will meet your expectations in performing Freight Services nor do we guarantee specific service levels. We are not obliged to conduct background checks on any Seller, but we might do so on a discretionary basis (and have removed Sellers from Awele when deemed appropriate). In order to assist you, we publish reviews of Sellers or vet particular Sellers from time to time, but we don’t guarantee the accuracy of any reviews and warn you that reviews can be misleading. Your access to and use of the Awele Services is at your own risk and we encourage you to do you your own research and due diligence on any Seller with which you may engage through an Order, just like you would if you found a Seller outside of the Awele Platform. We do act as collection agent for Sellers so if you have purchased freight from a Seller, Awele will have been authorized by the Seller to collect payment and you agree that if you fail to make payment due, Seller and/or Awele as their agent will have the right to detain release of a cargo shipped under the Awele Platform until the freight is paid in full.
7.4. Disputes with Sellers. We encourage you to communicate directly with Sellers regarding any Orders that you make (whether using communication tools on the Awele Platform or offline). If you have any concerns about any Order, you should try to resolve your concerns directly with the Seller in question. If you are not able to resolve your concerns with the relevant Seller, you can make a formal complaint to us and we will address such complaint as we consider appropriate under the circumstances. By using Awele, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Sellers or other third parties will be limited to a claim against the particular Sellers or other third parties who caused you harm, and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
7.5. Buyer Payment Terms:
7.5.1. Awele as Payment Agent: You agree to pay the Seller for the Freight Services associated with an Order. We act as the payment agent of the Seller (also known as agent of the payee). This means that we collect money from you on behalf of the Seller, which we then pass on to the Seller. At our discretion, we may request in respect of a particular Order that you pay the Seller directly, but any such Order remains an Order made through the Awele Platform. We have our own policies and practices as to how and where we collect money from you and how we pass that money on to the Seller. Due to the complexities of our industry, policies and practices may vary depending on factors such as geography, volume and type of Freight Services, Buyer’s track record, and Seller’s track record. For example, payment may or may not be required at the time of making an Order, or we may accept part payment at the time of making an Order with the balance being required at a later time, such as prior to releasing the cargo from the destination country’s customs. The terms of the payment policy applying to your Order will be presented to you at the time of making the Order and there may be further guidelines published from time to time in the Seller’s SOP and Buyers Terms and Conditions.
7.5.2. Quotes: You agree to pay the amounts presented to you in a Quote for an Order you make with a Seller, and any other amounts that you owe to the Seller in connection with an Order. You also agree to provide any documentation reasonably requested by a Seller for the purposes of your Order and you are responsible for the accuracy and timely submission of such documentation to the Seller, whether that occurs through the Awele Platform or otherwise. We will use reasonable efforts to ensure that Quotes displayed on the Awele Platform are all-inclusive. However, as we have already explained, each Seller has its own terms and conditions of sale which will apply to any Order you make with that Seller, and you may be charged an amount that is additional to the amount of the Quote in certain circumstances. For example, if the Seller’s truck waits hours for your cargo, or your cargo weighs more than you declared, you will incur extra charges in addition to what appeared in the relevant Quote, as determined by the Seller’s SOP and Seller’s terms and conditions. Similarly most Sellers will disclaim liability for delays caused by force majeure events including weather and strikes.
7.5.3. Insurance, Customs Brokerage and Import Duties: Unless specifically stated, freight insurance and customs brokerage charges are not included in a Quote for Freight Services. Import duties you may have to pay to the destination government are never included unless the Quote explicitly states Delivery Duty Paid (DDP). Value added tax and/or sales tax (if applicable) are only included if they are specifically listed in the fee breakdown of an Order.
7.5.4. Changes to Payment Policies: In our continued effort to improve the Awele Services, we reserve the right to make changes to our payment policies and practices at any time, for any reason and without advance notice to you. We will always make the current payment policy and practice clear at the time of making an Order. We may sometimes at our discretion offer different payment options such as the ability to pay in different currencies or through different payment mechanisms. We may also offer certain Buyers credit to make a payment at a later date. We reserve the right to charge extra fees for these arrangements (“Processing Fees”) and if you select these services, your payment obligation with respect to such Processing Fees is directly to Awele and you agree to pay these Processing Fees to Awele.
7.6. E-commerce Services: If you are an E-commerce Provider and you make shipping Quotes available to your customers through your e-commerce platform (for example, in the “shipping” section of your shopping cart functionality), you function as a Buyer of the Freight Services for the purposes of this Agreement and all of the terms of this Agreement that apply specifically to Buyers, including all the terms of this Section 7, apply to you. Alternatively, Awele may also allow you to obtain shipping price estimates through use of our Awele API (“Awele Shipping Estimates”) and to present the Awele Shipping Estimates to your own customers together with a hyperlink to the Awele Platform, in which case your customers will be free to become Buyers in their own rights.
8.1 Selling Freight Services:
8.1.1. Where You Can Sell: If you sell Freight Services, you’ve come to the right place! You can use the Awele Platform to sell your Freight Services to Buyers introduced by Awele. As a Seller, you will use your own Custom Site and Account to control which (if any) of your Freight Services are actively offered to Buyers through the Awele Network. You may also have the opportunity to filter which categories of Buyers see Quotes generated for your Freight Services.
8.1.2. Representations: If you are a Seller, by using the Awele Services you represent to Awele and to Buyers that you understand the way in which Freight Services work and that you hold all necessary permits, licenses, knowledge and experience to offer the Freight Services that you provide. You also understand that given the nature of the business and in order to be in compliance with applicable laws and regulations we may be required from time to time to request that you provide us with data about your company or shipments which we reasonably require for compliance and financial purposes and you agree that continued sales on the site may be subject to receipt of the requested data.
8.1.3. Reselling: Businesses which are both Buyers and Sellers (e.g. freight forwarders) may configure the Awele Platform to automatically search for Quotes which are available for them to Buy, markup the prices in those Quotes, and use that in creating a Quote which they offer to Sell (“Reselling”). Often the resold Freight Services will be combined with broader Freight Services. For example, a Seller freight forwarder who has its own sell rates for port-to-port shipping may wish to Resell some other Seller’s trucking Quotes for door delivery and will configure Awele to combine these two rates into a single port-to-door Quote which they offer to the Buyer.
As a Seller you agree that any Buyer who you permit to see your Quotes through the Awele Network may engage in Reselling, that is may use the Awele Platform to automatically create Quotes which are based, or partly based, on the prices in your Quote, plus an optional (positive or negative) markup. Although they use your price in Quoting, should they secure the Order they are not obliged to order the relevant part of the Freight Service from you. Of course, you may also Resell Freight Services offered to you by other Sellers, and use that to increase the range of Freight Services you offer for Selling (for example you can use Reselling to offer Freight Services on new lanes and modes, or extending a port-to-port offering to door-to-door). Please remember that when you Resell you are entering into two bilateral agreements with the Seller who is supplying you and with the Buyer you Sell to, and Awele is a party to neither agreement.
8.2. Awele acts as a facilitator of trade between Buyers and Sellers, and in this capacity Awele provides you with the following services and also acts as your collection Agent:
8.2.1. Awele will:
18.104.22.168. Automate generation of your price quotes based on the information (for example, tariffs) you provide through the SaaS Services and via your use of the Awele Platform;
22.214.171.124. Advertise and promote your Freight Services on the Awele Platform, subject to the configuration options you choose;
126.96.36.199. Facilitate some communication or document exchange between you and the Buyer; and
188.8.131.52. Act as your Collection Agent to collect payment from Buyers on your behalf (also known as agent for payee). By accepting this Agreement you appoint us as your limited agent just for the purposes of collection. Once we collect payment due, you agree that you have no claims against Buyer for such payment. Contract with Buyer: If a Buyer engages you for provision of Freight Services by making an Order, the Order agreement and any subsequent agreement that you enter into with the Buyer will be between you and the Buyer only. We don’t act as your insurer, broker, contracting agent or another representative. You acknowledge and agree that you, and not Awele, are and will be responsible for providing the Freight Services and performing your other obligations under of any agreements with Buyers, and we are not a party to such agreements and disclaim all liability arising from or related to such agreements. That said, in order to help us collect payment on your behalf, you agree upon our request to hold off releasing cargo to a Buyer if the Buyer has not fulfilled its payment obligations.
184.108.40.206. Occasionally we may need your help collecting from a Buyer. We may request and you agree that a shipment purchased through Awele not be released so long as the Buyer of that shipment owes money to any Seller.
220.127.116.11. Seller is fully and solely responsible for determining the correct VAT/tax consequences of the invoice for Freight Services.
8.2.2. No Endorsement of Buyers: We don’t endorse any Buyers. We are not obliged to conduct background checks on any Buyer, but we might do so on a discretionary basis and we may vet particular Buyers from time to time. Your access to and use of Awele and the Awele Services is at your own risk and we encourage you to do your own research and due diligence on any Buyer with which you may engage through an Order, just like you would if you found a Buyer outside of Awele.
8.2.3. No Endorsement of Sellers: We don’t endorse any Sellers or Freight Services, and using the Awele Services does not mean that you or your Freight Services are endorsed in any way by us. We don’t necessarily conduct background checks on any Seller, but we reserve the right to do so on a discretionary basis and you agree to cooperate with us and to provide us with all the information we request from you in the event that we decide to conduct a background check on you as well as accurate information for us to place in your profile in the Awele Platform. You are not an agent, contractor, employee or affiliated entity of Awele and we do not in any way supervise, direct or control your performance of Freight Services.
8.2.4. Subagent: In order for Awele to find more customers for you, you authorize Awele to appoint sub-agents who may also market the Quotes that are generated for your Freight Services via Awele.
8.3. Disputes with Buyers. Disputes with Buyers shall be governed by the relevant provisions in the Seller’s SOP. By using Awele, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers or other third parties will be limited to a claim against the particular Buyers or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
8.4. Seller Fees:
8.4.1. Quote and Applicable Terms: You agree that the price that a Buyer will pay for your Freight Services is the amount specified in the Quote selected by the Buyer. Although the Quotes are generated through Awele, they are still your Quotes and you are bound by the Quote which is selected by the Buyer. It is your obligation to ensure the accuracy and currency of tariffs, data and other Customer Content provided to us through Awele, which is used to generate Quotes. We encourage you to regularly check and test this aspect of your use of the Freight Services to ensure that details such as prices, transit time and terms and conditions are displayed correctly and that the Quotes generated by Awele on your behalf for your Freight Services are accurate and meet your requirements.
8.4.2. SOP: While we are in no way a party to the Order agreement between you and Buyer, we do want to help Buyers and Sellers to have a more predictable experience when they meet each other on Awele. You therefore agree that in certain circumstances, specified by Awele, the terms listed under “AWELE MARKETPLACE SELLER’S GENERAL TERMS AND CONDITIONS” in the SOP will become part of your Quote and therefore of the Order agreement between you and the Buyer, subject to any conflicting terms imposed by you as Seller in a particular Order which will take precedence.
8.4.3. Remittance of Funds: We will charge you a marketing success fee for each Order made with you by a Buyer (a “Seller Fee”). Seller Fees are described in the Awele Price List. We reserve the right to change the Seller Fees from time to time but we will notify you of any changes in advance of their implementation. We will invoice you for the Seller Fees and either (i) deduct the Seller Fees from the payments made by Buyers collected by us on your behalf before remitting funds to you, in which case you authorize us to make such deduction, or (ii) in case we don’t make such deduction you agree to pay the Seller Fees within thirty days of the date of an invoice we send you.
8.4.4. Payment Policies: We aim to have our Sellers paid in a timely and convenient manner. We have our own policies and practices as to how and when we collect money from Buyers and how we pass that money on to you, and under what circumstances (if any) we guarantee payment to you if a Buyer doesn’t pay us. These policies are detailed in the SOP. We reserve the right to make changes to our payment policies and practices at any time and for any reason, but we will notify you of any changes by email and/or posting to the Awele Platform.
8.5. Non-Circumvention. We’ve worked hard to develop Awele and we have invested and continue to invest a lot of time and money in connecting you with Buyers. When a specific Buyer makes an Order with you through Awele (“Initial Order”) for Freight Services, Seller and Buyer both agree that for at least twelve (12) months Seller will not not target or directly sell Freight Services to Buyers introduced through Awele for 12 months from the introduction of such Buyer and Buyers shall not deal directly with Seller introduced through Awele (“Non-circumvention”). We reserve the right to charge you Sellers and Platform Fees, to terminate or suspend your Account, to terminate or suspend your access to the SaaS Services or to do any combination of the foregoing in respect of any breach of this Section by you. Non-circumvention will not apply if the same Buyer had ordered services from Seller’s organization in the six months prior to the Initial Order. Non-circumvention will also not apply if a different part of Seller’s organization sells to the Buyer coincidentally, without being aware of any Order from that Buyer that came through Awele, or if the sale is the result of a general solicitation which would have occurred irrespective of whether Seller and Buyer were previously introduced by Awele. Non-circumvention will not apply with respect to selling services which are not offered through Awele.
- Data Services
Awele may offer Data Services from time to time, usually to SaaS Subscribers, such as services to convert carrier contracts and other freight tariffs and their updates/amendments into a format that can be imported into Awele, or services to convert freight tenders (also known as RFQs or bids) between different Excel formats.
9.1. Statements of Work:
9.1.1. Engagement: If you want to engage Awele to perform Data Services, we’ll prepare a statement of work or purchase order that describes specific Data Services to be performed for you by us that we both sign (any such document is called a “Statement of Work”). Each Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained in this Agreement.
9.1.2. Designated Contacts: We will each designate in the Statement of Work one or more individuals who will serve as the point(s) of contact between us for all matters relating to the Data Services to be performed under that Statement of Work and we may change the designated contacts from time to time.
9.2. Data Services Payment Terms:
9.2.1. Data Services Fees: You will pay us fees for our performance of Data Services, either according to the Awele Price List, if you have chosen a standard Data Services package listed there, or calculated in accordance with the terms set out in the applicable Statement of Work.
9.2.2. Payment Terms: Unless otherwise agreed, we will invoice you on or after the last day of a calendar quarter (or on another schedule otherwise agreed with you) for all applicable fees for the Data Services performed in that calendar quarter. You agree to pay all invoices within 21 days of the date of the invoice.
9.3.1. Disclaimer: We will use commercially reasonable efforts to provide the Data Services in a timely manner and free of errors. However, you are responsible for the data that you provide to us both before and after it has been processed through Data Services. You must check the accuracy of your data after engaging Data Services. For example, if we convert and import a freight tariff for you, you should check that the resulting Quotes or rates are accurate. We expressly disclaim any and all liability arising from or related to any errors in the data that occur as a result of our provision of Data Services.
9.3.2. Protection of Data: All data you provide in the context of Data Services is Customer Content for the purposes of this Agreement. However, Awele will retain ownership of any reusable templates we create which do not contain any pricing information, including templates for reading the structure of carrier-specific tariffs, or templates for reading and writing shipper-specific tenders, and carrier surcharges which are not customer specific (“Template Data”). Template Data is not Customer Content.
- Mutual Non-Disclosure Agreement
10.1. Confidential Information. “Confidential Information” means: (i) Awele Materials and Awele Content; (ii) Customer Content; (iii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
10.2. Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure. In addition, if a company sets up a Business Account and associates Authorized Users’ Accounts with the Business Account as contemplated in Section 5.1, Customer Content will be accessible by all associated Account holders via the Awele Platform and Awele Services, subject to the Awele Platform settings created by the Business Account holder. Similarly data may be shared between linked Business Accounts of affiliated businesses.
10.3. Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
10.4. Order Details. Not everything has to be secret, right? Please remember that inter-business documents which are used for business purposes such as Quotes, Orders, Invoices and Receipts and relevant communications will be shared between the applicable Buyers and Sellers as part of the functionality of the Awele Services.
- General Use
11.1. Acceptable Use. You agree not to do any of the following in connection with your use of the Awele Services:
11.1.1. Post, upload, publish, submit or transmit any Customer Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
11.1.2. Use, display, mirror or frame the Awele platform or any individual element within Awele, Awele’ name, any Awele trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;
11.1.3. Access, tamper with, or use non-public areas of the Awele Platform or Awele computer systems;
11.1.4. Attempt to probe, scan or test the vulnerability of any Awele system or network or breach any security or authentication measures;
11.1.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Awele or any of Awele’ providers or any other third party (including another user) to protect Awele or Awele Content;
11.1.6. Attempt to access or search Awele, Awele Content or Customer Content, or download Awele Content or Customer Content from Awele through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Awele or other generally available third-party web browsers;
11.1.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
11.1.8. Interfere with, or attempt to interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing Awele;
11.1.9. Collect or store any personally identifiable information from Awele or regarding other users of the Awele Services without their express permission;
11.1.10. Impersonate or misrepresent your affiliation with any person or entity;
11.1.11. Violate any applicable law or regulation; or
11.1.12. Encourage or enable any other individual to do any of the foregoing.
11.2. Our Enforcement Rights. Although we’re not obligated to monitor access to or use of Awele or to review or edit any Customer Content, we have the right to do so for the purpose of operating the Awele Platform, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements, or to improve the user experience. We reserve the right but are not obligated to remove or disable access to any Customer Content, or any Account, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Customer Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects Awele. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may also use third parties, including collection agents, to help us enforce this Agreement.
11.3 Compliance. We comply with all applicable laws and expect Awele Buyers and Sellers to do the same. By entering into this agreement you undertake to comply with all applicable laws, rules, and regulations, including without limitation sanctions, anti-corruption, anti-money laundering, and tax laws in your performance of this Agreement.
- Digital Millennium Copyright Act (DMCA)
Awele respects copyright law and expects its users to do the same. It is our policy to terminate in appropriate circumstances Account holders and users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
If you’re a Seller, SaaS Subscriber or E-commerce Provider, during the term of this Agreement and for one year following termination, you will maintain complete and accurate books and records regarding your use of Awele Services. During this time, we have the right to inspect and audit such books and records for the purpose of confirming your compliance with the terms of this Agreement. Any audit will be conducted by a reputable firm of certified public accountants during regular business hours and in a manner that minimizes interference with your normal business activities. Don’t worry – we won’t examine records relating to your business generally, independent of your use of the Awele Services. If we discover any payment error in the audit, the party in whose favor the error was made will pay the other the amount of the error. We will pay for the audit unless the audit uncovers payment errors in our favor of five percent (5%) or more of the total amount of Seller Fees or SaaS Subscription Fees paid by you to us under this Agreement. In this case, you must pay for the cost of the audit and all our related expenses.
14.1. Term. This Agreement will commence when you accept its terms, and unless terminated earlier in accordance with the terms of this Agreement will remain in force and effect for as long as we are providing Awele Services to you.
14.2. Termination of Accounts. We may terminate your access to and use of the Awele Platform, including your Business Account or Account, at our sole discretion, upon 90 days notice. However, given the importance of maintaining the integrity of our platform for all users, if we have reason to suspect abuse or a substantial breach of this agreement, we may terminate your Account at any time at our sole discretion and will only provide notice if we feel it is reasonable and feasible to do so. Other than for SaaS customers with a term of agreement date in their purchase order which shall remain binding for the full defined term, you may cancel your Account at any time by sending an email to us at firstname.lastname@example.org or by using the cancellation feature on the Site or in the Awele App. As noted above, you can cancel your use of the SaaS Services at any time upon written notice to us, but your access to the SaaS Services will only be terminated at the end of the Billing Period immediately following the Billing Period in which you cancel.
14.3. Effect of Termination. Upon the expiration or termination of this Agreement, you will no longer be able to access and use Awele or Awele Services and each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control.
14.4. Orders that are Still in Process. If you are a Seller, in the event that upon the expiration or termination of this Agreement, Buyer has a copy of a valid unexpired Quote from you, and wishes to place an Order, or the performance of Freight Services under an Order made through the Awele Platform is ongoing, the expiration or termination of this Agreement will not affect the terms of such Quote or Order. Sellers are obligated and agree to carry out the Freight Services specified in such Order to completion in accordance with the terms of the agreement between the Seller and Buyer for the Order in question and Buyers are obligated and agree to fulfil their obligations under such Order, including payment obligations to us pursuant to Section 7.5(a).
14.5. Survival. The rights and obligations of the parties contained in the following Sections will survive termination of this Agreement or any Statement of Work: 5.2 (Intellectual Property); 5.3 (Data Maintenance and Backup Procedures); 6.3(a) (SaaS Subscriber Customer Portal); 7.4 (Disputes with Sellers); 8.3 (Disputes with Buyers); 8.5 (Non-Circumvention); 9.3(a) (Data Services Disclaimer); 10 (Mutual Non-Disclosure Agreement); 11.2 (Our Enforcement Rights); 13 (Audit); 14(c) (Effect of Termination); 14(d) (Orders that are Still in Process); 14(e) (Survival); 15 (Warranties); 16 (Indemnity) and 17 (Limitation of Liability).
- Disclaimer of Warranties
THE AWELE PLATFORM AND AWELE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT USING AWELE OR AWELE SERVICES WILL RESULT IN HIGHER NUMBERS OF CUSTOMERS OR INCREASED REVENUE FOR YOU OR YOUR BUSINESS. WE MAKE NO WARRANTY THAT THE AWELE PLATFORM OR AWELE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
You will indemnify, defend and hold Awele and its officers, directors, employees, and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of Awele or Awele Services, (ii) the use of any of your Authorized Users or SaaS Subscriber Customers of Awele or Awele Services (if applicable), (iii) your Customer Content, or (iv) your violation of this Agreement.
- Limitation of Liability
NEITHER AWELE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE AWELE SERVICES OR AWELE PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE AWELE SERVICES OR AWELE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AWELE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION WILL APPLY TO YOU TO THE DEGREE ALLOWED BY LAW.
IN NO EVENT WILL AWELE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE AWELE SERVICES OR AWELE PLATFORM EXCEED THE AMOUNT YOU HAVE PAID TO AWELE FOR USE OF THE AWELE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE COMMERCIAL AGREEMENT BETWEEN AWELE AND YOU.
18.1. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. We may assign or transfer this Agreement without restriction or your consent to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
18.2. No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
18.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Canada, excluding its body of law controlling conflict of laws. Any disputes will be resolved exclusively by binding arbitration in Edmonton, Alberta, Canada.
18.4. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
18.5. Notices. Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement will be given: (i) via email; or (ii) by posting to the Awele Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to Awele should be sent to email@example.com.
18.6. Waiver. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.
18.7. Entire Agreement. This Agreement constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter.
18.8. Language. This Agreement may be translated from time to time for your convenience, but the English language version of the Agreement is the binding version.