Terms Of Service

Freepoint Technologies Inc.

Terms Of Service

Freepoint Technologies Inc.

These Terms of Service (these “Terms of Service”) constitute a binding agreement made between FreePoint Technologies Inc. (“FreePoint”, “we” or “us”) and you (“Customer”, “you” or “your”) that govern your access to and use of the Services, as defined below. If you do not agree to these Terms of Service, you may not use the Services.

BY CLICKING ON THE “I ACCEPT” BUTTON OR BY SIGNING THE SUBSCRIPTION AGREEMENT, YOU AGREE THAT YOU ARE BOUND BY THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT USE OUR SERVICES.

If you are accepting these Terms of Service on behalf of a corporation or other entity, you represent and warrant to FreePoint that you have authority to bind the corporation or other entity. By accessing and using the Services, you represent and warrant that (a) you are of the age of majority in your jurisdiction and have the right, authority, and capacity to enter into these Terms of Service, (b) have read and understand These Terms of Service, and (c) you will abide by all of the terms and conditions of these Terms of Service.

You understand that it is a condition of using the Services that you agree to these Terms of Service, and your continued access to the Services is conditioned on your compliance with these Terms of Service.

……1. Definitions. When used in these Terms of Service, the following terms have the meanings set out as follows:

(a) “Aggregated Statistics” means anonymized and/or aggregated data and information relating to Customer’s use and Authorized User’s use of the Services, including statistical and performance information relating to the provision and operation of the Services.

(b) “Authorized User” means Customer and Customer’s employees, consultants, contractors and agents who are authorized by Customer to access and use the Services under Customer’s rights under these Terms of Service and for whom Customer has purchased access rights to the Services under these Terms of Service.

(c) “Customer Data” means, other than Aggregated Statistics, any information, data and other content, in any form or medium, that is submitted, posted or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services.

(d) “FreePoint IP” means the Services and any documentation, training content, support information, and software accessible through the Website or provided as a part of the Services, and all other intellectual property and similar intangible property provided to Customer or any Authorized User in connection with the Services. For the avoidance of doubt, FreePoint IP includes the Aggregated Statistics but does not include the Customer Data.

(e) “Privacy Policy” means our privacy policy, available online at https://shiftworxmes.com/privacy-policy/

(f) “Services” means the various services that FreePoint offers to our customers as further described on our Website and include installation services and Professional Services, as defined in Section 7.

(g) “Subscription Agreement” means any written agreement between you and FreePoint that provides pricing, term, and details of the services being provided by FreePoint that is signed by an authorized representative of FreePoint and Customer.

(h) “Third-Party Products” means any software, hardware, services, or any other products, content, website or other services that are owned by third parties and incorporated into, accessible through, or used to access or provide additional functionality to the Services, including without limitation, any of the Monnit and Telit Devicewise products.

(i) “Website” means, collectively, our websites located at https://shiftworxmes.com, https://getfreepoint.com, https://sw.getshiftworx.com, and https://auth.getshiftworx.com

……2. Access and Use.

(a) Access to and Use of Services. Subject to and conditioned on the payment of the Fees and compliance with all other terms of these Terms of Service:

(i) FreePoint hereby grants you a revocable, non-exclusive, non-transferrable limited right to access and use the Services during the Term;

(ii) FreePoint hereby grants you a revocable, non-exclusive, non-transferrable limited licence for Customer and Authorized Users to use the FreePoint IP; and

(iii) where use of the Services may require or include the use of downloadable software, FreePoint hereby grants you a revocable, non-transferrable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as a part of the Services

all being limited solely for your internal business operations by Authorized Users and for no other purposes.

(b) Access Credentials. FreePoint shall authorize those Authorized Users that you designate (and for whom you have paid the required Fees for pursuant to your subscription) to access the Services on the terms and conditions set out in these Terms of Service. You may be asked to select, or FreePoint may provide, a username and password for each Authorized User, or such other access credentials as FreePoint may determine (collectively, “Access Credentials”). FreePoint may change or require a change to any Access Credentials from time to time, and will take commercially reasonable efforts to inform you of any such change or required change. Access Credentials are strictly confidential, and you and each Authorized User agrees to keep such Access Credentials strictly confidential and not share or disclose them to any other person. You shall immediately notify FreePoint of any unauthorized disclosure of Access Credentials.

(c) Account Use. The provided services are solely for access and use by Authorized Users and you are responsible for and liable for any breach of these Terms of Service by (a) any Authorized User or (b) any person who gains access to the Services through the use of the Access Credentials assigned to you or any Authorized User. You agree to ensure that each Authorized User is advised of and understands the terms of these Terms of Service and agrees to be bound by it. You shall not and shall not permit any Authorized Users to use the Services, any component of the Services, or any of the FreePoint IP for any purpose or use beyond the scope of the limited use rights granted under these Terms of Service. Without limiting the generality of the foregoing, you will not, directly or indirectly, and will not permit any Authorized User to (i) copy, modify or create derivative works of any of the FreePoint IP, including the Services or any software component of the Services; (ii) rent, lease, lend, sell, licence, sublicence, assign, distribute, publish, transfer or otherwise make available the Services, or any Access Credentials except as expressly provided for in these Terms of Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to gain access to any software component of the Services in whole or in part; (iv) remove any proprietary notices from the Services or any FreePoint IP; or (v) use the Services or any of the FreePoint IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other intangible property right or any other right of any person, or that violates any applicable law, regulation or rule.

(d) Aggregated Statistics. FreePoint may monitor Customer’s and Authorized User’s use of the Services and collect and compile Aggregated Statistics related to Customer’s and Authorized User’s use of the Services, including compiling Aggregated Statistics based on Customer Data. As between you and FreePoint, FreePoint will own all right, title and interest in and to the Aggregated Statistics. You agree that FreePoint may make Aggregated Statistics publicly available in compliance with applicable law, and may use Aggregated Statistics in any manner permitted under applicable law, so long as the Aggregated Statistics do not identify Customer or any of Customer’s Confidential Information.

(e) Customer Data. You hereby grant to FreePoint a non-exclusive, royalty free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with the Customer Data as may be necessary or required for FreePoint to provide the Services to you, and a non-exclusive, perpetual, royalty-free, worldwide license to reproduce, distribute, modify and otherwise use and display any Customer Data incorporated into the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms incorporated into these Terms of Service or any applicable law. You are solely responsible for the development, content, operation, maintenance and use of the Customer Data. You hereby represent and warrant to us that the Customer Data shall not infringe the rights of any third party, including privacy rights and intellectual property rights, and that use of the Customer Data with the Services is not contrary to any applicable law, including applicable privacy laws and intellectual property laws. You acknowledge and agree that FreePoint may, but shall not be obligated to, store Customer Data in its back up systems and, notwithstanding any provisions of these Terms of Service to the contrary, retain such Customer Data in accordance with FreePoint’s back-up and retention policies.

(f) Reservation of Rights. FreePoint expressly reserves all rights not expressly granted to Customer under these Terms of Service. Except for the limited access rights and licences granted under these Terms of Service, nothing in these Terms of Service grants to Customer or any third party, whether by implication, waiver, estoppel or otherwise, any intellectual property rights or any other right, title or interest in or to the FreePoint IP.

(g) Suspension. Notwithstanding anything to the contrary in these Terms of Service, FreePoint may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Services if: (i) FreePoint reasonably determines that (A) there is a threat or attack on any of the FreePoint IP, the Services, or the Customer Data of any of FreePoint’s other customers; (B) Customer’s or any other Authorized User’s use of the FreePoint IP disrupts or poses a security risk to the FreePoint IP, the Services or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the FreePoint IP for fraudulent or illegal activities; (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) FreePoint’s provision of the Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of FreePoint has suspended or terminated FreePoint’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 3(d) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension“). FreePoint shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. FreePoint shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. FreePoint will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.

(h) Third Party Products. The Services may permit or require access to Third-Party Products. For the purposes of these Terms of Service, such Third-Party Products are subject to their own terms and conditions that are presented to you by the third parties, through the Services or the Website, or otherwise. If you do not agree to the terms of the Third-Party Products, you should not install, access, or use the Third-Party Products. FreePoint is not responsible for any Third-Party Products. If your Services include use of Telit Devicewise products, you agree to be bound by the Telit End-User License Agreement found here: https://docs.devicewise.com/Content/LegalNotice/Gateway-Software-License.htm

(i) Use Contrary to Law. You represent and warrant to FreePoint that your use of the Services is not contrary to any applicable law, including any export restriction laws of Canada or the United States of America.

  1. Fees and Payment.

(a) Fees. In consideration of the Services, Customer shall pay to FreePoint the fees for the Services (the “Fees”) at FreePoint’s then current rates, unless otherwise provided for in a Subscription Agreement. FreePoint may increase its rate from time to time, with such rate to take affect at the start of the next Renewal Term, subject to any express limitation set out in a Subscription Agreement. Notwithstanding the language of any Subscription Agreement, no set or fixed Fees will be valid for more than 3 years from the date such Subscription Agreement is executed, and any Renewal Term following such Subscription Agreement shall be at FreePoint’s then-current fees, unless otherwise agreed to in a fresh Subscription Agreement.

(b) Taxes. All Fees and other amounts payable by Customer under these Terms of Service are exclusive of applicable taxes and similar assessments, including without limitation, HST and applicable sales and value added taxes.

(c) Payment. Customer shall pay FreePoint all fees and other amounts payable under these Terms of Service in full and when due without any set off, withholding, counterclaim or deduction of any kind whatsoever. Unless otherwise provided for in a Subscription Agreement: (i) all Fees and other amounts payable under these Terms of Service are due and payable annually in advance; (ii) if you are a Canadian resident, the currency of the Fees will be Canadian dollars; and (iii) if you are not a Canadian resident, the currency of the Fees will be in United States of America Dollars.

(d) Late Payment and Interest. If Customer fails to pay about any amounts payable under these Terms of Service when due, in addition to any other remedies that may be available to FreePoint at law:

(i) FreePoint may charge interest on any past due amounts equal to the commercial lending prime interest rate charged by FreePoint’s primary Canadian bank, plus 5% per annum, calculated daily and compounded monthly;

(ii) Customer shall reimburse FreePoint for all reasonable out-of-pocket costs, including legal fees on a full indemnity basis, court costs, and collection agency fees that FreePoint may incur in collecting any amounts outstanding or otherwise enforcing its rights under these Terms of Service;

(iii) if such failure continues for 10 days following notice of outstanding payment, FreePoint may suspend performance of the Services until all past due amounts and interest have been paid in full, without incurring any obligation or liability to Customer or any other person.

  1. Term and Termination.

(a) Term. These Terms of Service begin on the day that FreePoint provides you with access to the Services and shall terminate on the day that falls 12 months after that day, unless a Subscription Agreement between you and FreePoint specifies a longer or shorter length of time (the “Initial Term”). Upon expiry, these Terms of Service shall automatically renew as provided for in Section 4(b) (each a “Renewal Term”, and each Renewal Term and Initial Term, context may require, is a “Term”).

(b) Renewal Term. At the end of each Term, whether an Initial Term or any Renewal Term, the Term will automatically renew for a Renewal Term of 12 months, unless terminated by either party on not less than 30-days’ notice before the end of the then-current Term. Fees for each Renewal Term will be at FreePoint’s then-current rates, which FreePoint may change from time to time.

(c) Subscription Agreement Limitations. Notwithstanding any written Subscription Agreement to the contrary, no Initial Term shall exceed 3 years, and no Renewal Term shall exceed 2 years, and no Subscription Agreement shall contain an obligation on FreePoint in excess of 3 years.

(d) End of Life Notices for Products and Services.

(i) In this sub-section 4(d), a “Material Product or Service” means a substantial part of a product or service that we offer, which we will determine in our sole and exclusive determination; and “End of Life” means, with respect to a referenced Material Product or Service, that we have ceased, or intend to cease, to offer, support or otherwise make available the referenced Material Product or Service permanently.

(ii) While you acknowledge and agree that the termination notice periods set out in Section 4(e) are sufficient and reasonable, in the event that we decide to End of Life a Material Product or Service to which you are a subscriber, we will undertake commercially reasonable efforts to provide you with 12 months notice, which we will deliver to the most recent billing email address that we have for you on file. For the absence of doubt, we may make updates, patches, bug fixes, amendments and other changes to the functionality, interface, operations and/or other features of Material Products or Services in the ordinary course of business without notice to you.

(e) Termination.

(i) Either party may terminate these Terms of Service on notice to the other party not less than 30 days before the end of the then current Term, as applicable.

(ii) Either party may terminate these Terms of Service on written notice to the other party if the other party breaches these Terms of Service and such breach is incapable of cure, or being capable of cure remains uncured for 30 days after the non-breaching party provides the other party with notice of the breach.

(iii) At any time following the expiry of the Initial Term, FreePoint may terminate these Terms of Service for any reason on 120 days written notice to you, and such notice shall be deemed to be reasonable and sufficient. In the event that FreePoint terminates these Terms of Service pursuant to this Section 4(d)(iii), FreePoint shall refund any Fees that you have actually paid to FreePoint in advance for Services that were to be provided by FreePoint following the date of such termination.

(iv) Either party may terminate these Terms of Service effective immediately on written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay or fails to pay its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(v) If Customer defaults in the payment of any charges due under these Terms of Service and fails to remedy to cure such default within ten days after receiving written notice specifying such default, then FreePoint may, by giving Customer at least fifteen (15) days prior written notice thereof, terminate these Terms of Service and suspend or terminate access to the Services.

(f) Effect of Termination.

(i) Survival of Provisions. The following provisions of these Terms of Service will survive the expiry of the Term and any termination of these Terms of Service: Sections 1 (Definitions), 4(e) (Effect of Termination), 8 (Proprietary Rights), 10 (Limited Warranty and Warranty Disclaimer), 11 (Limitations of Liability), 12 (Dispute Resolution), 13 (Governing Law), 14 (Choice of Forum), 15 (Severability), 17 (Indemnity), 18 (Publicity), 19 (Privacy) 20 (Entire Agreement; Amendments), 21 (Miscellaneous), and any other Section that by its express terms, nature, or context is intended to survive any such termination or expiry.

(ii) Payment of Fees. In the event that you terminate these Terms of Service before the end of the Initial Term or any Renewal Term or otherwise contrary to these Terms of Service, in addition to any rights that FreePoint may have at law, the Fees shall not rebate, and you will remain liable to FreePoint for any outstanding Fees payable for the balance of the Term.

(iii) Ownership and Return of Equipment. Any equipment leased to you by FreePoint to enable the Services (“Equipment”) shall at all times remain the sole and exclusive property of FreePoint throughout the Term and following expiry or earlier termination. Notwithstanding that FreePoint shall own any Equipment, you shall be entirely liable for the costs of any damage or destruction to such Equipment and shall ensure all Equipment is insured for its full replacement cost. Forthwith following expiry of the Term or earlier termination, you shall return all Equipment to FreePoint in good condition, reasonable wear and tear excepted. For the absence of doubt, Equipment provided by FreePoint shall be deemed to be leased as a part of the Services unless an invoice or Subscription Agreement expressly identifies purchased equipment. FreePoint shall not be responsible for equipment that is not leased Equipment.

(iv) Downloadable Software. Upon termination of these Terms of Service, all licenses for the FreePoint IP shall immediately terminate, and you shall immediately delete and destroy any and all copies of any downloadable software.

  1. Privacy and Security. The Services are hosted on third party hosting service provider systems and are subject to our Privacy Policy, incorporated herein by reference. FreePoint and its third party service providers undertake commercially reasonable efforts to ensure the security and confidentiality of Customer Data; however, FreePoint specifically and expressly disclaims any representation and warranty with respect to the security of the system. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of your privacy, confidential information and property.
    ……
  2. Proprietary Rights.

(a) Ownership of IP. As between FreePoint and Customer, FreePoint retains all right, title and interest in and to the Services and the FreePoint IP. With respect to Third-Party Products, the third party owners retain all right, title and interest in and to the intellectual and intangible property rights associated with the Third-Party Products. Customer retains all right, title and interest in and to the Customer Data.

(b) Output Licence. FreePoint grants you a perpetual, unlimited, worldwide, fully-paid, royalty-free license to copy, use and make derivative works of the Output of the Services. “Output” means all information available, reported, downloaded or otherwise compiled from Customer’s use of the Services and presented to Customer through the Services, including without limitation data, images, and reports generated by or for the Customer by the Services. For the absence of doubt, the Output licence does not extend to use of FreePoint’s name, product names, trademarks, source or compiled code, patents, or copyrights in the Services or software.

(c) Feedback. If Customer or any of its employees or contractors or any Authorized User sends or transmits any communications or materials to FreePoint, whether by mail, email, telephone, or otherwise, suggesting or recommending changes to the FreePoint IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), FreePoint is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to FreePoint on Customer’s behalf, and on behalf of its employees, contractors, Authorized Users, and/or agents, all right, title, and interest in, and FreePoint is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although FreePoint is not required to use any Feedback.

……7. Professional Services. From time to time, you may request, and we may agree to provide, certain professional services (“Professional Services”). All of our Professional Services are subject to these Terms of Service and such additional terms as follows:

(a) FreePoint will not perform any Professional Services unless such Professional Services are detailed in a statement of work document (each, a “SOW”) that is signed by an authorized representative of FreePoint and Customer. Each SOW shall contain (i) a detailed description of the Professional Services and the deliverables, if any, that will be delivered under the SOW; (ii) the date that the Professional Services will begin, and the length of time or termination date that the Professional Services will end; (iii) the fees for the Professional Services, which will be deemed to be Fees within the meaning of these Terms of Service; (iv) any criteria for completion; and (v) such other terms and conditions as may apply to the Professional Services, which shall not be inconsistent with these Terms of Service.

(b) Customer shall, in a timely manner, (i) fully cooperate with FreePoint in performing the Professional Services; (ii) respond promptly to all requests for direction, information, approvals, authorizations, or decisions necessary for FreePoint to provide the Professional Services; (iii) provide such information or materials as Service Provider may request to carry out the Professional Services; (iv) ensure all Customer equipment is running, in good working order, and suitable for the purposes for which it is used; (v) obtain all necessary licenses, approvals, permits, consents, software, and hardware; (vi) maintain and insure all Customer equipment, software and materials in good condition in accordance with FreePoint’s instructions. If FreePoint’s performance of the Professional Services is hampered, prevented, or delayed by any act or omission of Customer, its employees, agents, contractors, or consultants, FreePoint will not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Customer.

(c) If either party wishes to change any SOW, such party shall submit details of the requested change to the other party in writing (each, a “Change Order”). FreePoint shall advise Customer with a written estimate of (i) the likely time required to implement the change and the effect on the schedule; (ii) any variation to the fees or other charges resulting from the change; (iii) the likely effect of the change on the Professional Services; and (iv) any other impact the change may have on the Professional Services (collectively, the “Written Estimate”). If the Change Order is at the request of FreePoint, FreePoint shall include the Written Estimate with the Change Order. If the Change Order is at the request of Customer, FreePoint will provide the Written Estimate within 10 business days after receipt of the Change Order. Upon receipt of the Written Estimate, the parties will reasonably promptly negotiate and agree on the terms of any change and finalize the Change Order. No Change Order will be binding unless mutually agreed in writing and signed by an authorized representative of each party.

(d) Unless otherwise specified in the SOW, fees will be exclusive of materials and the Professional Services will be provided on a time and materials basis at FreePoint’s then-current rates for the Professional Services and Customer will reimburse FreePoint for its actual out-of-pocket costs, plus a 15% management fee. FreePoint may increase its rates from time to time. FreePoint will issue invoices for Professional Services on a monthly basis in arrears and all such amounts will be due and payable when received and deemed to be “Fees” within the meaning of these Terms of Service. All fees, rates, and amounts, whether in the SOW or otherwise, are exclusive of taxes.

(e) Customer will reimburse FreePoint for all reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services that have been approved in advance by Customer.

(f) FreePoint will provide the Professional Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Section 9. Customer will ensure that its facilities and systems are safe, well maintained, and insured at all times.

(g) All work product developed as part of the Professional Services shall remain FreePoint IP. With respect to work product generated through Professional Services, FreePoint hereby provides you with a limited, non-exclusive, non-transferable licence to use the work product throughout the world during the duration of the Term and subject to these Terms of Service.

(h) FreePoint expressly disclaims any representations or warranties with respect to any self-installed equipment or hardware. FreePoint may provide, for a fee, support for self-installed equipment or hardware.

……8. Limited Warranty and Warranty Disclaimer.

(a) Other than as expressly provided for herein, FreePoint makes no representations, warranties or guarantees, whether express or implied, and Customer accepts the Services and equipment on an “as is” basis. FreePoint makes no representations or warranties whatsoever with respect to any Third-Party Products and FreePoint expressly disclaims all representations and warranties with respect to Third-Party Products.

(b) Except as set out in Section 10(a), the Services and the FreePoint IP are “as-is” and FreePoint hereby disclaims all representations, warranties, and conditions, whether express or implied, statutory or otherwise. FreePoint expressly disclaims all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage or trade practice. FreePoint makes no warranty of any kind that the FreePoint IP, the Services, or any products or results of the use thereof will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.

……9. Limitations of Liability. IN NO EVENT WILL FREEPOINT BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER FREEPOINT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL FREEPOINT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO FREEPOINT UNDER THESE TERMS OF SERVICE IN THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

……10. Dispute Resolution. If any dispute or controversy arises between you and FreePoint relating to or arising from these Terms of Service or the relationship between you and FreePoint (each, a “Dispute”), the Dispute will be resolved in accordance with this Section 12, as follows:

(a) Waiver of Class Action and Jury Rights. BY ACCEPTING THESE TERMS OF SERVICE, YOU AND FREEPOINT HEREBY EXPRESSLY WAIVE THE RIGHT TO ANY TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. YOU AND FREEPOINT EACH AGREE THAT CLAIMS WILL ONLY BE BROUGHT IN YOUR AND FREEPOINT’S INDIVIDUAL CAPACITIES AND NEITHER OF YOU NOR FREEPOINT WILL BRING A CLAIM AS A PART OF A CLASS, WHETHER AS LEAD PLAINTIFF, MEMBER, REPRESENTATIVE, OR OTHERWISE. YOU ALSO AGREE THAT ANY DISPUTE ARISING BETWEEN YOU AND FREEPOINT WILL BE RESOLVED INDIVIDUALLY BETWEEN YOU AND FREEPOINT IN ACCORDANCE WITH THIS SECTION 12.

(b) Negotiation. Before resorting to arbitration, each of you and FreePoint will try to resolve the Dispute through negotiation in good faith. The complaining party (the “Complainant”) will first provide the other party (the “Respondent”) with a written notice of the dispute (a “Notice of Dispute”). The Notice of Dispute will include (i) the full legal name and contact information of the Complainant, (ii) describe the nature and basis of the claim or dispute in detail, and (iii) set out the specific relief that the Complainant is seeking. If FreePoint is the Complainant, FreePoint will send any Notice of Dispute to your billing address on file and to the last email address that you have provided to us. If you are the Complainant, you will send the Notice of Dispute to the address of FreePoint’s headquarters, which can be found in Section 21, prepaid, by registered mail or nationally recognized courier, with proof of receipt requested. The effective date of the Notice of Dispute will be the day that we receive it, if sent to us, or the day that we send it by email if sent to you.

(c) Binding Arbitration. If the parties to the Dispute are unable to reach a mutually acceptable resolution within 21 days of the start of the negotiations on some or all of the issues in Dispute, then the remaining issues in Dispute shall be finally resolved by means of binding arbitration, which arbitration shall be conducted by one arbitrator in accordance with the Arbitration Act, 1991 (Ontario) or International Commercial Arbitration Act (Ontario), as applicable, in effect at the time of arbitration, except as may be modified herein or by agreement of the parties. The arbitration will be conducted under the Arbitration Rules of the ADR Institute of Canada.

(d) Location of Arbitration. The seat of the arbitration shall be the city of London, Ontario, Canada, and the arbitration may be conducted virtually or electronically upon the request of the Complainant or the Respondent, or by decision of the arbitrator. The language of the arbitration shall be English. Any deadlines provided for herein may be adjusted by agreement of the parties.

(e) Appointment of Arbitrator. If the parties are unable to agree as to an arbitrator, each party shall appoint an arbitrator and the appointed arbitrators shall conclusively select the arbitrator who shall arbitrate. Any arbitrator shall be experienced and qualified to resolve commercial disputes under the laws of Ontario and will be a senior litigator licensed to practice in Ontario or retired Ontario judge.

(f) Enforceability/Law. Any question that must be put to a court pertaining to a Dispute shall be put to the courts of Ontario located in London, Ontario. If this Section 12 is found to be unenforceable in whole or in part, then the exclusive jurisdiction and venue provisions of Sections 13 and 14 shall govern. Any decision of the arbitrator shall be final and not subject to appeal except on a question of law. Any decision or order of the arbitrator may be entered into any court of competent jurisdiction.

……11. Governing Law. These Terms of Service and all related documents, and all matters arising out of or relating to these Terms of Service, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule.

……12. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever that is not resolved in accordance with Section 12, shall be instituted in the courts of the Province of Ontario located in London, Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document in accordance with the notice provisions of Section 21 shall be effective service. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each party acknowledges and agrees that any controversy that may arise under these Terms of Service is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury.

……13. Severability. If any provision of these Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.

……14. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached these Terms of Service, for any failure or delay in performing its obligations under these Terms of Service (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

……15. Indemnity. You agree to indemnify and hold FreePoint, its subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from, any loss, liability, claim, or demand, including reasonable legal fees on a full indemnity basis, arising out of or related to your use of the Services in violation of these Terms of Service and/or arising from a breach of these Terms of Service and/or any breach of your representations and warranties set forth above.

……16. Publicity. You grant FreePoint the right to identify you and use your name and logo to identify you as a user in promotional material. You may withdraw this consent at any time by written request via email to info@getFreePoint.com and we will remove your name and logo from any and all promotional material within a commercially reasonable period of time.

……17. Privacy. We take your privacy seriously and follow our Privacy Policy, which can be found at https://shiftworxmes.com/privacy-policy/ and is incorporated by reference into these Terms of Service. The Privacy Policy may be amended and updated from time to time on the terms set out in the Privacy Policy. You acknowledge that the Services are stored and provided on servers that may be located inside and outside Canada, including in countries that may have different laws than Canada. You agree that you are responsible for any personal information in Customer Data, and represent and warrant to us that the Customer Data is compliant with all applicable law, including applicable privacy laws and intellectual property laws.

……18. Entire Agreement; Amendments.

(a) These Terms of Service, together with the written Subscription Agreement, if any, constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No terms attached to any purchase order, order confirmation, or invoice, shall alter these Terms of Service.

(b) In the event of any discrepancy or disagreement between the terms of a Subscription Agreement and these Terms of Service, the terms of these Terms of Service shall govern to the extent of the discrepancy or disagreement.

(c) FreePoint may amend these Terms of Service at any time by posting the amended Terms of Service to this web page. We will undertake commercially reasonable efforts to notify you of any change to these Terms of Service by email at your last billing email address on file at least 60 days prior to the amendment becoming effective, and, notwithstanding any provision to the contrary, you may terminate these Terms of Service by notice to us at any time prior to the expiry of the 60 day notice period. Your continued use of the Service following the expiry of the notice period shall be deemed to be your irrevocable acceptance of the amendment.

……19. Miscellaneous. Any notices to us must be sent to our corporate headquarters address as follows:

FreePoint Technologies Inc.

Attention: Legal and Compliance

1074 Dearness Drive

London, Ontario, Canada N6E 1N9

and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. We may provide any notice under these Terms of Service by sending it by email to the last billing email address that we have for you on file. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of these Terms of Service by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. These Terms of Service are personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign these Terms of Service and to delegate any of its obligations hereunder. Notwithstanding anything to the contrary, no party will be deemed as a third-party beneficiary to these Terms of Service. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.

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“Feature rich management system with exceptional ROI. Easily deployable by anyone with reasonable ability to follow directions. Dashboard visuals require less setup than many other systems and are focused on real business needs. The price is extremely affordable, and you’re not forced to use proprietary hardware beyond that which is needed to communicate to the cloud backend.”

“Feature rich management system with exceptional ROI. Easily deployable by anyone with reasonable ability to follow directions. Dashboard visuals require less setup than many other systems and are focused on real business needs. The price is extremely affordable, and you’re not forced to use proprietary hardware beyond that which is needed to communicate to the cloud backend.”

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