PLEASE READ BEFORE USING REWIND
Rewind Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN THIRD BLINK SOFTWARE INC. D/B/A/ REWIND ("REWIND"), AND CUSTOMER (THE "CUSTOMER" OR “YOU”) AND IS EFFECTIVE AS OF THE DATE THAT YOU PURCHASE A REWIND SUBSCRIPTION PLAN FOR THE SOFTWARE (DEFINED BELOW). THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN REWIND AND CUSTOMER AND GOVERNS THE USE OF THE SOFTWARE (DEFINED BELOW). BY PURCHASING A SUBSCRIPTION AND INSTALLING THE SOFTWARE, CUSTOMER HEREBY AGREES TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE THE AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
DefinitionsIn addition to any capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
- “Subscription Fee” means the monthly fees payable by Customer for the use of the Software as set forth on the Pricing Page of the Website;
- “Business Day” means a weekday in the Province of Ontario, excluding any statutory holidays observed in the Province of Ontario;
- “Rewind Website” means the website owned and operated by Rewind, located at rewind.io;
- “Services” means the copying, encryption, back-up and restoration of Customer Content for Customer’s Store performed by the Software are is more fully described in Section 2.01, below;
- “Cloud Service” means software that is provided via the Internet and is operated by Customer;
- “Software” means the Rewind software program in object code format including back-up tools, dashboards, end user application, data analysis software, interfaces to third party systems and all Software Enhancements that are made available from time to time;
- "Software Enhancements" means an update to the Software that includes new product features that change the basic character or structure of the Software or its functional use or operation; and
- “Website” means the website through which Customer operates Customer’s Store.
2. SERVICES AND DATA STORAGE
2.01 Services. The Software provides a back-up solution for Customers Cloud Service. The Software will make calls to the Cloud Service platform using its API in order to copy Customer Content from the Website, encrypt the data and store the Customer Content in the Rewind cloud-based vault (the “Rewind Vault”), which is encrypted at rest, Each time a change is detected in the Customer Content, a new version of the Customer Content will be created and stored in the Rewind Vault. The Software will create a backup of Customer Content once per day, and Customer may also choose to manually create a backup of the Customer Content at any time. If any Customer Content is lost, deleted or Compromised, Customer can access and retrieve any version of the Customer Content saved in the Rewind Vault up to the previous twelve (12) months and restore the Customer Content on the Website. Customers have the option to restore specific items of Customer Content or Customer may restore all Customer Content on the Store/Website. When the Software restores the Customer Content, Customer will be asked to grant the Software permission to write content on the Website. If Customer does not grant the Software permission, the Software will not be able to restore Customer Content on the Website/Store. Additionally, certain subscription plans will have additional features, as are more fully described on the subscriptions page of the Rewind Website. For example, with the exception of the Rewind Basic subscription, the Software will create real-time back-ups of changes to Customer products, orders and collections as such changes occur on the Customer Store/Website.
2.02 Changes to Software. Rewind may make Software Enhancements from time to time in its sole discretion in order to improve the Software and enhance the Customer experience.
2.03 Data Storage. All Customer Content (including all versions of the Customer Content) that is stored in the Rewind Vault is encrypted at rest and stored in the Rewind Vault for a period of up to twelve (12) months, and thereafter is deleted in accordance with Rewind and its service provider’s standard deletion policies. Rewind uses commercially reasonable, industry standard security measures to protect Customer Content, and all transmissions of Customer Content between Cloud Service and Rewind and Rewind and the Rewind Vault occur on secured connections. Customer understands and agrees, however, that despite such efforts Customer Content may be accessed by unauthorized persons when communicated across the internet, and Customer acknowledges and Agrees that Rewind shall not be responsible for any interference with Customer Content or security breaches arising from or attributable to the Internet.
3. Grant of Licenses
3.01 License Grant by Rewind. Subject to the terms and conditions of this Agreement, including the timely payment of the Subscription Fees, Rewind hereby grants to Customer a non-exclusive, non-transferrable, internal license to download and install the Software. The Software may be used by Customer to back-up Customer’s Store so that Customer Content can be recovered and restored to the Store in the event that any of the Customer Content is deleted from the Website, corrupted, moved or otherwise compromised.
3.02 Customer Responsibilities. Customer will be solely and exclusively responsible or all activity of Customer during its use of the Software and Services. Customer is solely responsible for all Customer Content backed-up by the Software, and Customer is responsible for obtaining all necessary consents, permissions and licenses required in order for Rewind to provide the Services, and for Customer to grant the licenses granted pursuant to section 3.04, below.
3.03 Restrictions. Customer understands and agrees that only Rewind will have the right to maintain, improve and enhance the Software. Except as otherwise expressly permitted in this Agreement, Customer shall not and shall not permit any other individual or entity to: (a) customize, modify or create any derivative works of the Software or Rewind Materials; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (d) violate any applicable law, rule, regulation or order, including without limitation, laws governing the personal information and privacy; (e) redistribute, encumber, sell, rent, lease, sub-license or otherwise transfer rights to the Software; (f) copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part; or (g) access or use the Software to create a product that is similar to and/or competitive with the Software, unless specifically authorized in writing to do so by Rewind.
3.04 Customer License to Customer Content. Customer hereby grants to Rewind a non-exclusive, non-transferrable license to access, copy, modify, translate, store, reproduce and display the Customer Content (including the right to collect Customer Content from Cloud Service) solely for the purpose of providing the Services.
3.05 Feedback. Rewind shall have a royalty-free, worldwide, transferrable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Software and Services.
4. Ownership of Intellectual Property
4.01 Ownership of Customer Content. As between Customer and Rewind, Customer and/or Customer’s licensors own all right, title and interest in and to the Customer Content, and except for the license granted in Section 2.03 above, nothing in this Agreement shall be construed so as to transfer any ownership rights in the Customer Content to Rewind.
4.02 Intellectual Property Rights of Rewind. The Software is licensed and not sold. Rewind retains all right, title and interest in and to the Software including all associated manuals, specifications, bulletins, and any other technical documents and materials (the "Rewind Materials" or “Licensed Materials”), including all intellectual property rights in the Software and Rewind Materials, all copies and derivative works thereof. Customer acknowledges and agrees that the Software, Rewind Materials, Software Enhancements (if any) and all intellectual property rights therein, including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to the Software, Rewind Materials and Software Enhancements and all modifications, changes, enhancements, or additions thereto (collectively, “Rewind IP”), are owned by Rewind and its licensors.
Confidential Information: As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), that is designated in writing as confidential as well as the Product Generated Data, the Licensed Materials, the functionality of the Software, and the terms and conditions of this Agreement, including but not limited to the pricing and purchase terms of the Product or any part thereof. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. This Section 4.04 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of the court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request or order for such disclosure so that the Disclosing Party has the opportunity to seek a protective order to prevent the disclosure of its information, and Receiving Party shall comply with any such protective order.
6. Subscription Fees and Payments
6.01 Subscription Fees. The Subscription Fees for the Software vary depending on the subscription plan chosen by Customer on subscribing for the Software and Services. Subscription Fees are payable monthly be Customer. Subscription Fees will be due and payable in full, including any applicable taxes, in accordance with the terms of Cloud Service Invoice.
6.02 Taxes. The Subscription Fees listed on the Rewind Website are exclusive of taxes. Customer is responsible for paying all taxes association with the Subscription Fee, including provincial, municipal, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, use or withholding taxes.
7. Term and Termination
7.01 Term. This Agreement commences as of the date Customer accepts these terms and purchases a subscription plan. This Agreement shall run for an initial term of one (1) month (the “Initial Term”) after which it shall automatically renew for successive one (1) month terms, unless the customer uninstalls the application from their Cloud Service.
7.02 Termination for Convenience. Subject to Subsection 6.04 (Survival) hereof, the parties may terminate this Agreement for convenience immediately by giving notice of termination to the other party: (a) Upon thirty (30) days’ prior written notice; or (b) the mutual agreement of Customer and Rewind.
7.03 Termination for Cause. Subject to Subsection 6.04 (Survival) of this Agreement, either party may terminate this Agreement immediately by giving notice of termination to the other party in the event of: (a) any material breach or non-performance, including non-payment, by the other party if such breach remains uncured fifteen (15) days after receiving notice of the breach from the non-breaching party; or (b) the bankruptcy or insolvency of either party;
7.04 Survival. Sections 1 (Definitions), 4 (Ownership of Intellectual Property), 5 (Confidentiality), 7.04 (Survival), 7.05 (Effect of Termination), 8 (Warranty, Liability, Indemnification), and 9 (General) of this Agreement shall survive termination of this Agreement, and shall continue in full force and effect thereafter.
7.05 Effect of Termination. If this Agreement is terminated by either party for any reason, the Customer Content will be stored in the Rewind Vault for a period of thirty (30) days after the effective date of termination, and thereafter will be deleted by Rewind.
Warranty, Indemnification and Liability
8.01 Without in any way limiting Customer's other rights and remedies, Rewind covenants and agrees and represents and warrants that the Software will be free from defects and errors that have a materially adverse effect on the Software’s functions; (b) Rewind does not warrant, that the functions performed by the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free. (c) Rewind represents and warrants that to Rewind’s knowledge: (i) the Software does not infringe any patent, copyright or trademark or violate the trade secret or other proprietary rights of any third party; (ii) Rewind owns or has exclusive or non-exclusive rights in all patents, copyrights, trademarks, trade secrets and other proprietary rights in and to the Software necessary to grant the licenses herein; and (iii) Rewind possesses the legal right and authority to execute and perform this Agreement. (d) Customer represents and warrants that: (i) It has the legal right and authority to execute and perform this Agreement; and (ii) It has obtained and any all necessary consents, permissions and licenses required to grant the licenses herein (including without limitation, consents from Customer’s customers to collect and disclose personal information such as names, shipping information, email addresses and order history).
8.02 Disclaimer of Warranty: Except as set forth in this Agreement, there are no other warranties or conditions of any kind, including without limitation, the warranties that the Software is free of defects, of merchantable quality or fit for a particular purpose. This disclaimer of warranty constitutes an essential part of this Agreement. No use of the product is authorized under this Agreement except under this disclaimer.
8.03 Limitation of Liability. To the maximum extent permitted by applicable law, in no event will Rewind, its agents and affiliates or its suppliers, licensors, or resellers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the product, including, without limitation, damages for loss of goodwill, computer failure or malfunction, damage to data or Customer systems, cost of procuring replacement products, loss of profit, business interruption or any and all other commercial or economic damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort (including negligence) or otherwise) on which the claim is based. Rewind is not responsible for any liability arising out of the collection, retention, use and disclosure by Customer of Customer Content. Excluding its obligations set forth in Section 8.05 (Indemnification), Rewind’s cumulative liability to the Customer or any other party for damages for any cause whatsoever will be limited to no more than the Subscription Fees paid by Customer under this Agreement in the twelve (12) month period prior to the first claim.
8.04 Force Majeure: Neither party shall be liable for any delay or failure in performance due to such acts of God, earthquake, labor disputes, strikes, shortages of supplies, riots, war, fire, epidemics, or transportation difficulties, to the extent not in control of such party. The obligations and rights of the excused party shall be extended on a week to week basis, provided, however, that a delay of sixty (60) days shall entitle the other party to terminate this Agreement without liability.
8.05 Indemnification (a) Rewind Indemnification. Rewind shall, at its own expense, defend Customer and its and their respective officers, directors, employees, consultants and agents (collectively, the “Customer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Customer Indemnitees alleging that the Software (excluding the Customer Content) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed by Rewind in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Customer Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for the defense and indemnification to be provided by Rewind pursuant to this Section 7, Customer shall: (i) provide Rewind with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give Rewind sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with Rewind, at Rewind’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This Section 8 sets forth the entire liability of Rewind and the exclusive remedy of Customer for patent, copyright or other proprietary or intellectual property right infringement or misappropriation. (b) Mitigation. If an IP Claim has occurred, or in Rewind’s opinion is likely to occur, Rewind may, at its election and expense, either obtain for Customer, the right to continue using the applicable Software or replace it with a comparable software or service or modify the Software so that it become non-infringing. If neither of the foregoing alternatives is reasonably available, Customer agrees to discontinue use of the applicable portion of the Software, and may in its sole discretion terminate the Agreement upon written notice to Rewind and receive a pro-rata refund of the Subscription Fees that were paid in advance, if any, in respect to time periods after the date of any such termination. (c) Exclusions. Rewind shall have no obligations or liabilities to any of the Customer Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the Services by Customer; (ii) any combination of the Services with any technology, service or data provided by anyone other than Rewind, provided that such IP Claim would not have arisen but for such combination; or (iii) any modification of the Services by anyone other than Rewind, provided that such IP Claim would not have arisen but for such combination. (d) Customer Indemnification. Customer shall, at its own expense, defend Rewind, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the Rewind Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Rewind Indemnitees arising from or relating to (i) the Customer Content (a “Customer-related Claim”) and shall indemnify and hold the Rewind Indemnitees harmless from and against any settlement amounts agreed by Customer in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Rewind Indemnitees by a court of competent jurisdiction in any Customer-related Claim. As conditions for the defense and indemnification to be provided by Customer, Rewind shall: (i) provide Customer with prompt written notice of any Customer-related Claim and copies of relevant documentation regarding any Customer-related Claim for which indemnification may be sought; (ii) give Customer sole control of the defense and settlement of such Customer-related Claim; (iii) cooperate fully with Customer, at Customer’s expense, in the defense or settlement of such Customer-related Claim; and (iv) not settle any Customer-related Claims or admit liability in respect to any Customer-related Claims.
9.01 Severability. If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
9.02 Assignment: Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on and shall inure to the benefit of the parties, their successors and permitted assigns.
9.03 Export Control. The Software may be subject to the export and import laws of the United States and other countries. Customer agrees to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software and Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software or Services for any purposes prohibited by United States or Canadian law.
9.04 Governing Law and Venue. This Agreement shall be governed by the laws of the Province of Ontario and the law of Canada applicable therein, without regard to its conflicts of laws provisions. The parties hereby agree to attorn to the exclusive jurisdiction of the courts of the Province of Ontario, in the city Ottawa, Ontario. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.05 Publicity. Rewind shall be entitled to disclose and publicize, in the form of customer lists and on its web site, marketing materials and otherwise, the identity of the Customer as a client of Rewind, and to display the Customer’s logo on its web site.
9.06 Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement may be amended only in writing signed by both parties. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. The relationship between Rewind and Customer is that of independent contractors and neither Customer nor its agents shall have any authority to bind Rewind in any way. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
9.07 Compliance with Laws. In performing under this Agreement, the parties shall comply with all applicable laws and regulations of any federal, state, provincial or local government entity.
This policy was last modified on April 27th, 2017.