Terms of Service

Last Updated: October 17, 2019

Beside the official version of these Terms of Service, we have put a simplified commentary entitled "TL;DR", short for "Too Long, Didn't Read" to assist you in your comprehension of these Terms. However, it is the "Terms of Service" which govern your access and use of the Services not the commentary set out in "TL;DR" or included in other similar explanations which are provided for informational purposes only and do NOT include all of the information in the Terms of Service. You should always read the full text of the Terms of Service and not just the "TL;DR" commentary or other explanations.

TL;DR

• We may change the Terms of Service or Privacy Policy over time.
• You must pay for your subscription to have access to certain features.
• We will do our best to fix any issues related to our service but have no obligation to fix absolutely every issue.
• You accept the risk of unauthorized access to your accounts outside our control.
• We can suspend or terminate your account at any time and will do our best to properly notify you in the event this happens.
• You are responsible for keeping your account safe at all times.
• You must comply with all applicable laws while using our service.
• You must not use our service to infringe on anyone's rights or commit fraud using our service.
• You are solely responsible for the data you pass through our service and should not pass in anything illegal.
• You must pay your invoices within 30 days or be subject to collection with interest. If overdue in excess of 30 days we reserve the right to remove your access to our service.
• You are responsible for all confidential information.
• We retain the right of our intellectual property of the service and grant you a license to use it.
• You own your data and we will only use it to provide you our own service.
• Either of us can terminate this agreement with 30 days notice or if there is a material breach of the contract.
• We give you this service "as is" without responsibility for errors, outages, or third party problems on services we may depend on.
• We do not accept any liability for losses incurred with the use of our product
• We accept a maximum of $100 in claims against this agreement
• You waive your right to a trial and accept arbitration
• You must bring a claim to our attention within 12 months of it happening
• You agree to use Canadian Law in British Columbia to settle claims

IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).

This Agreement creates a binding legal agreement between you (“Customer”) and Frequency Technologies Inc. with a principal place of business at 725 Granville Street, Suite 400, Vancouver V7Y 1G5 (“Frequency”). BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as Frequency’s Privacy Policy located at [https://frequencyapp.com/privacy](https://frequencyapp.com/privacy) (the “Privacy Policy”), as it may be amended from time to time in the future. Frequency may update this Agreement or the Privacy Policy at any time, without notification to you, and you should review this Agreement and the Privacy Policy from time to time by accessing the Service. Your continued use of the Service will be deemed irrevocable acceptance of any such revisions, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.

DEFINITIONS.

As used in this Agreement: “Confidential Information” means all information regarding Frequency’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that Customer knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement. “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Service or provided by Customer to Frequency as part of the Service. “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Frequency that describe the features, functionality or operation of the System. “Fees” is defined in Section 4. “Order Form” means collectively the order documents representing the initial subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time-to-time) that, upon execution, are incorporated in and made a part of this Agreement from time-to-time. “Service” means the on-line service delivered by Frequency to Customer using the System, as made available by Frequency from time-to-time as specified in the Order Form. “System” means the technology, including hardware and software, used by Frequency to deliver the Service to Customer in accordance with this Agreement. “UserID” is defined in Section 3.1. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.

THE SERVICE.

Subscription to the Service.

Conditional on Customer:

• complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; and
• cooperating with the reasonable requests of Frequency
• Frequency hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. (d) Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Frequency constitutes a binding contract between those parties.
• Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Frequency with respect to future functionality or features.

Support.

Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Frequency shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Frequency will not have an obligation to provide a correction for all such nonconformities.

Internet Security Disclaimer.

Customer acknowledges and agrees that Frequency exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Frequency’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.

Limitation, Suspension or Termination of Access.

In addition to other rights and remedies of Frequency under this Agreement, Frequency may suspend, terminate or limit (in Frequency’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to:

• prevent damage to, or degradation of the integrity of the System or any of Customer’s systems;
• comply with any law, regulation, court order or other governmental request or order; or
• otherwise protect Frequency from harm to its reputation or business.
• Frequency will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Frequency will restore Customer’s access to the Service when Frequency determines the event has been resolved. Nothing in this Agreement will limit Frequency’s right to take any action or invoke remedies, or will act as a waiver of Frequency’s rights in any way with respect to any of the foregoing activities. Frequency will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.4.

CUSTOMER’S USE OF THE SERVICE.

Access and Security Guidelines.

Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Frequency for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Frequency of any actual or suspected unauthorized use of the Service. Frequency may require that a UserID be replaced at any time.

Customer Responsibilities and Restrictions.

Customer will, at all times, comply with all applicable local, state, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:

• use the Service other than as permitted by this Agreement;
• use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
• use the Service in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
• use the Service in a manner that is libelous or defamatory, harmful to minors in any way, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
• use the Service in a manner that is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Frequency;
• use the Service to impersonate a Frequency employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity;
• if your subscription for or use of the Service involves the use of an account for any third party site or service (each, a “Third Party Account”), directly or indirectly use such Third Party Account in a manner that is in contravention of the terms of use applicable to such Third Party Account;
• sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
• copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
• use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service maliciously; or
• interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.

Customer Data.

Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that:

• infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or
• contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Frequency may take remedial action if Customer Data violates this Section 3.3, however, Frequency is under no obligation to review Customer Data for accuracy or potential liability.

FEES, PAYMENT AND SUSPENSION.

As consideration for the subscription to the Service, Customer will pay Frequency the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on a monthly basis and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less. Customer shall reimburse Frequency for all expenses (including reasonable attorneys’ fees) incurred by Frequency to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Frequency’s net income. Frequency reserves the right (in addition to any other rights or remedies Frequency may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.

CONFIDENTIAL INFORMATION.

Obligation.

Customer agrees

• to hold the Confidential Information in strict confidence,
• to limit access to the Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and
• not to use the Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, Customer will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that Customer gives Frequency prior written notice of such disclosure in order to permit Frequency to seek confidential treatment of such information.

Exceptions.

The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which

• is or becomes a part of the public domain through no act or omission of Customer,
• was in Customer’s lawful possession prior to the disclosure, as shown by Customer’s competent written records,
• is independently developed by Customer without reference to the Confidential Information, as shown by Customer’s competent written records, or
• is lawfully disclosed to Customer by a third party without restriction on disclosure.

OWNERSHIP.

System and Technology.

Customer acknowledges that Frequency retains all right, title and interest in and to the System and all software, materials, formats, interfaces, information, data, content and Frequency proprietary information and technology used by Frequency or provided to Customer in connection with the Service (the “Frequency Technology”), and that the Frequency Technology is protected by intellectual property rights owned by or licensed to Frequency. Other than as expressly set forth in this Agreement, no license or other rights in the Frequency Technology are granted to the Customer, and all such rights are hereby expressly reserved by Frequency. Frequency shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.

Customer Data.

Customer retains all right, title and interest in and to the Customer Data. Frequency will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Frequency all necessary licenses in and to such Customer Data solely as necessary for Frequency to provide the Service to Customer. Frequency will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Frequency will access and use such Customer Data only as required to perform requested services on behalf of Customer.

TERM AND TERMINATION.

Term.

The term of this Agreement will commence on the Effective Date and will continue indefinitely, unless otherwise agreed to in the Order Form, until terminated by either party as set forth in this Section 7.

Termination for Convenience.

Either party may terminate this Agreement for any reason by giving the other party at least [thirty (30) days’] prior written notice.

Termination for Default.

Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within [thirty (30) days] after written notice of such breach.

Effect of Termination.

Upon the termination of this Agreement for any reason,

• any amounts owed to Frequency under this Agreement before such termination will become immediately due and payable; and
• Customer will return to Frequency all property (including any Confidential Information) of Frequency in its possession or control.

DISCLAIMER OF WARRANTIES.

THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FREQUENCY TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. FREQUENCY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. FREQUENCY DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, FREQUENCY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

FREQUENCY IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY FREQUENCY, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY FREQUENCY.

THE SERVICES ARE OFFERED AND CONTROLLED BY FREQUENCY FROM ITS FACILITIES IN CANADA. FREQUENCY MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

INDEMNITY.

Customer agrees to indemnify, defend and hold harmless Frequency and its affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost or liability (including reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement or the Service, including without limitation in relation to:

• Customer’s use, non-use or misuse of the Service;
• Customer’s violation or alleged violation of this Agreement;
• Customer’s violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein; or
• an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property rights or other rights of a third party or otherwise causes harm to a third party.

Frequency reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Frequency and Customer agrees to cooperate with Frequency’s defense of these Claims. Customer agrees to not settle any matter without the prior written consent of Frequency. Frequency will use reasonable efforts to notify you of any such Claims upon becoming aware of them.

LIMITATION OF LIABILITY.

The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

Amount.

FREQUENCY’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF: (A) [$100] (B) THE TOTAL AMOUNT OF FEES RECEIVED BY FREQUENCY’S UNDER THIS AGREEMENT IN THE [TWELVE MONTHS] IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL FREQUENCY’S’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

Type.

IN NO EVENT SHALL FREQUENCY BE LIABLE TO CUSTOMER FOR ANY

• SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
• LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL,
• BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR
• PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.

IN NO EVENT SHALL FREQUENCY’S BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

No Jury Trial.

CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

No Participating in Class Action.

CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

Limitation of Time.

Customer agrees that it will not bring a claim under or related to this Agreement more than twelve (12) months from when such claim first arose.

GENERAL PROVISIONS

Publicity.

Frequency may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Frequency to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Frequency and user of the Service.

Assignment.

Customer may not assign this Agreement to a third party without Frequency’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Frequency may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.

Arbitration.

Except for any dispute related to the intellectual property rights of a party, any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved through arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be one (1).

Choice of Law.

This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

Notices.

Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Frequency, by email at b@frequencyapp.com or by certified mail at Segev LLP, of 6th Floor - 905 West Pender Street, Vancouver, BC, V6C 1L6 or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.

Entire Agreement.

This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.

Severability and Waiver.

In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.