Terms of Use
Last updated January 5, 2023
Welcome! We’re thrilled you’ve chosen to use Designware, and we hope you love it. Please read these terms before starting, as they include important information about your rights. We’ve included descriptive section headers, and annotations in boxes, which have no legal effect but make it easier to understand the text. If you have any suggestions on how we can improve these terms, please email us.
Designware is a SaaS product supported by a cloud persistency service which lets you create and publish professional and beautiful apps and websites (“Designware” or the “Service(s)”), and includes our website located at designware.io. Designware is provided by Industry Corporation, an Ontario company (“Company”, “we”, or “us”).
By accessing and using Designware in any way, you agree without reservation to comply with these Terms of Use, our Privacy Policy, and any other legal notices, guidelines, or additional terms and conditions specified by us from time to time and posted to Designware. If you do not agree to the terms of this Agreement, you may not access or use Designware. Designware may integrate with other third party services. Please be aware that your activities on each of these platforms may be subject to additional terms for that particular platform.
We may, in our sole discretion and for any reason, modify, supplement or amend these Terms of Use without any notice or liability to you or any other person, by posting revised Terms of Use on our website located at designware.io. Your continued use of Designware signifies your acceptance of any revised Terms of Use, so check back frequently to read the most recent version of these Terms of Use.
If you have questions regarding this Agreement or about Designware, please contact us by email at support@designware.io.
1. Eligibility
a) Age. Designware is available only for individuals aged 16 years or older. If you are under age 16, or under the legal age of majority where you reside if that jurisdiction has an older age of majority, then you agree to review these Terms of Use with your parent or guardian to make sure that both you and your parent or guardian understand and agree to these Terms of Use. You agree to have your parent or guardian review and accept these Terms of Use on your behalf. If you are a parent or guardian agreeing to these Terms of Use for the benefit of a child under the legal age of majority in your jurisdiction, then you agree to and accept full responsibility for that child’s use of Designware, including all financial charges and legal liability that they may incur. We may, in our sole discretion, refuse to offer Designware to any person or entity and change the eligibility criteria for using Designware at any time.
b) Corporate Usage. If you are entering into these Terms of Use on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its affiliates, and all users who access Designware through your account to these Terms of Use, in which case the terms “you” or “your” shall refer to such entity, its affiliates, and users associated with it. If you do not have such authority, or if you do not agree with these Terms of Use, you must not accept these Terms of Use and you may not use Designware. You further agree that you assume all responsibility and liability in connection with your use of Designware on behalf of such a company or other legal entity, and you shall be solely responsible for all disputes, if any, that arise due to your use of Designware on behalf of such a company or other legal entity.
You’ll only use Designware if you’re old enough (or have your parent’s or guardian’s permission). If you’re using Designware on behalf of an organization, this agreement applies to the whole organization.
2. Your Account
a) Login Credentials. In order to use the Designware platform, you will register and create a user account by providing your full name, email address, and password as login credentials, and ensure they are correct and complete at all times (editing them in the Manage Profile menu within Designware if required). We recommend using a strong password with uppercase, lowercase, number, and symbol characters. You are responsible for maintaining the confidentiality of your login credentials and won’t disclose them to any third party, nor will you use the login credentials of any third party. You are responsible for any and all activity that occurs through your account. If you suspect any unauthorized use of your account, you will notify us immediately. We will, in accordance with our Privacy Policy and Data Security Policy, keep login credentials confidential. All login names and passwords remain the property of the Company, and may be cancelled or suspended at any time by the Company without notice or liability to you or any other person. The Company is not under any obligation to verify the actual identity or authority of the user of any login name or password.
b) Emails. By providing us with your email address, you consent to us sending to your email address Designware-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as notices of new Designware features, which you may opt out of by following an ‘unsubscribe’ type of link at the bottom of those emails.
3. What We Own
a) Our System Content. Designware contains content, documentation, and software owned by our Company and its suppliers or licensors (“System Content”), including but not limited to: (i) code, text, user and visual interfaces, graphics, logos, images, videos, documentation, reports, materials, files, advertisements, works, works of authorship, or any other intellectual property contained in any such materials, (ii) the design, structure, arrangement, and “look and feel” of System Content, (iii) documentation relating to the operation and use Designware that is provided by us to you under this Agreement, as updated by us from time to time, and (iv) software products used in connection with Designware, which may include code that is licensed under third party license agreements, including open source, made available or provided with Designware, as applicable. Our Company, its suppliers, and licensors own and retain all rights, including all intellectual property rights, in and to Designware and the System Content. Designware and System Content are or may come to be protected by copyright, trademark, patent, trade secret, and other laws.
b) Our Intellectual Property. Other than as provided herein, we do not grant to you any license, express or implied, to the intellectual property of Designware or its licensors. Except as expressly provided in the Terms of Use or with our express written permission, no part of Designware and no System Content may be copied, reproduced, sold, republished, transmitted, displayed, performed, reposted, visited or otherwise distributed for public or commercial purposes. Subject to the terms and conditions of this Agreement, we provide you with a non-exclusive, revocable license to use Designware, as expressly permitted by the features and functionality of the Service and the Terms of Use. We may terminate this license at any time for any reason or no reason. Without limiting the generality of the foregoing, (i) all content included on the designware.io website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of the Company or its content suppliers and protected by Canadian and international copyright laws. The compilation of all content on this website is the exclusive property of the Company and protected by Canadian and international copyright laws. All software used on this website is the property of the Company or its software suppliers and protected by Canadian and international copyright laws; and (ii) designware.io, and all other related trademarks and design marks displayed on designware.io (collectively, the “Trademarks”) are registered and common law trademarks of the Company. Other trademarks and design marks appearing on this website are trademarks of their respective owners. Nothing contained on designware.io should be construed as granting, by implication or otherwise, any license or right to use any trademarks, including the Trademarks, except with the express written permission of the Company or the other party that may own the applicable trademarks.
c) Any Feedback. We are entitled to modify or update Designware from time to time in order to adapt technically, to change menu interfaces or layouts or visualizations, or to expand or limit functionality in a way that does not materially alter Designware. If you directly or indirectly send information to us, including feedback, comments, requests or suggestions, you grant us a perpetual, sub-licensable, royalty-free, transferable license to use, modify, and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information.
d) Usage Analytics. We may collect analytical data about you and your Audience in order to provide Designware, prepare and analyze statistics, produce reports, and improve and customize Designware. We own all rights in and to any analytical data collected through the Service, including data on yours and your Audience’s usage, habits, trends, and other patterns within the Services and Published Works (notwithstanding that you retain the “right to be forgotten” per our Privacy Policy. We use this data in order to generate anonymous reports, logs, and data, for both you and us, regarding the Service. We have the right to use and disseminate all data during or after the existence of your Account for any purpose including without limitation to develop and improve Designware and to create and distribute reports and other materials, provided that you and your Audience are anonymized in such reports and other materials. You represent and warrant that you have the full power, authority, and all rights necessary to grant us the licenses granted to us under this Agreement and you agree to indemnify, defend, and hold us harmless from and against any damages, losses, liabilities and expenses (including reasonable attorneys’ fees) relating to a claim by any member of your Audience that the collection and/or use of such analytical information by us in connection with Designware infringes such Audience member’s rights.
We own Designware because we worked hard to make it, and we continue to work on it—sometimes using your feedback. Modifications are usually made to expand Designware’s functionality with new features. We also own any analytical data collected through our services for things you’d expect, like creating analytics reports for you in the dashboard.
4. Your User Content
a) Definition of User Content. The data, files, content, settings, and other works that you upload to, add to, integrate, generate, edit, and configure on our Service are “User Content”. User Content shall be inclusive of its necessary and respective patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
b) Licenses & Rights. You represent and warrant that (i) you own or have all necessary licenses, rights, consents, permissions, and waivers required to create, record, submit, use, and publish User Content in connection with Designware, including for content accessed from third party service integrations within Designware, (ii) that User Content on our Services and the licenses granted to us under this Agreement do not and will not violate the rights of any person or organization, and (iii) no payments of any kind shall be due by us to any person or organization for the user or distribution of User Content. You acknowledge that User Content may require consents, licenses, and waivers from: (i) copyright owners; (ii) public performance rights collection organizations; and (iii) the owners of musical compositions and sound recordings embodied in User Content. In addition, you are responsible for paying all applicable royalties, fees, and other amounts owing to any organization or person in connection with the use of any User Content.
c) We Can Distribute It. As between you and us, you retain all rights or ownership as applicable in and to your User Content. By applying, uploading, selecting, integrating, displaying, editing, or publishing User Content to or through Designware, you grant us a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, sub-licensable, and transferable license to use, reproduce, modify, distribute, display, create derivative works from, and perform User Content in connection with our Services, throughout the word in any media, now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence, and you waive any and all moral rights in the User Content. This license is necessary for Designware to perform our Services. For example, without the right to modify User Content, Designware would not be able to format User Content to satisfy technical requirements for optimal playback across various screen resolutions, operating systems, and hardware devices. This license allows us to: (i) deliver User Content in accordance with the preferences you set when utilizing our Services; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze, and create algorithms and reports based on access to and use of User Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivative works of, promote, copy, store, and/or reproduce (in any form) User Content on or through our Services; and (iv) utilize User Content to test Designware's internal technologies and processes. You also grant us and allow us to grant each end-user of Published Works a non-exclusive license to view, hear, and experience User Content through our Services. We reserve the right to retain (but not display, distribute, or publish) server copies of User Content that have been removed or deleted from our Services.
d) It’s Your Responsibility. Designware is a passive conduit of any User Content. You are exclusively responsible for all User Content and the consequences of submitting and publishing User Content through Designware, and understand and agree that Designware is a public platform and other users may search for, see, use, and/or re-post any User Content that you make publicly available through Designware. We do not verify the accuracy, quality, content, or legality of User Content. We may, but are under no obligation to, monitor, view, or analyze any User Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with applicable laws. Designware will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with User Content.
5. Your Published Works
a) Publishing Apps & Websites. The purpose of using Designware is to ultimately publish, compile, export, or download your projects, including User Content, as software applications or websites that are runnable on various operating systems and their respective hardware devices, and together these software applications and websites as presented or distributed to or used by anyone outside of the Services located at dashboard.designware.io are “Published Works”. Any natural persons accessing your Published Works at any time together constitute your “Audience(s)”.
b) Definitions & Source Code. For the avoidance of doubt, Published Works include (i) published application builds or versions, (ii) published websites, including websites generated as previews or general websites on a designware.io subdomain (but does not include the designware.io subdomain addresses themselves), (iii) published progressive web apps (PWAs), as downloaded from your published websites or otherwise distributed, and (iv) all source code provided by us within Published Works, necessary for the running, loading, rendering, updating, reporting, and other mechanics of Published Works. You permit us to update such source code automatically from time to time, with or without your knowledge, generally for the purposes of bug fixes, enhancing functionality, and new versioning. You may not decompile, reverse engineer, or otherwise attempt to discover the source code of the Published Works belonging to you or anyone else.
c) You Own It. As between you and us, you retain all rights or ownership as applicable in and to your Published Works and to deal in the Published Works without restriction, including the rights to use, copy, modify, merge, publish, distribute, sublicense, commercialize, and/or sell copies of the Published Works, and to permit persons to whom the Published Works are furnished to do so. Published Works require Designware services for ongoing hosting, updating, and other management activities, subject to the terms and conditions of this Terms of Use and all licenses granted herein.
d) Ownership Claims. In cases where Designware projects have more than one contributing user at any point in time, the Published Works shall be owned by and on a basis mutually agreed by such contributing users, and we shall not be obligated to determine the detail or validity of ownership therein.
e) Disclaimer. PUBLISHED WORKS ARE PROVIDED "AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL WE BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS, LOST PROFITS OR LOST SAVINGS), WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH PUBLISHED WORKS OR THE USE OR OTHER DEALINGS IN PUBLISHED WORKS. THE COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENCY, RELIABILITY OR SUITABILITY OF THE PUBLISHED WORKS. THE COMPANY AND OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE FOR, ANY DAMAGES TO, OR ANY VIRUSES AFFECTING YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF OR YOUR DOWNLOADING OF ANY PUBLISHED WORKS OR ANY MATERIALS, DATA, TEXT, IMAGES, VIDEOS OR AUDIO THEREOF.
6. Your Obligations to Your Audience
a) You’re Responsible For Audience Information. We are a ‘service provider’ to you, and you are a ‘customer’ of us irrespective of whether you pay fees to obtain the Services. We do not have a direct relationship with your Audience, and therefore we are not responsible for how you handle Audience information. You may have additional obligations under local law other than those described in this Terms of Use, and they may be more restrictive than this Terms of Use. Use of Designware does not ensure compliance with such laws, nor are we responsible for your compliance with such laws.
b) Security Protocols. You will use all reasonable efforts to protect information collected from your Audience via your use of Designware, including any personal information obtained from unauthorized access or use. In the event you discover that the Audience information collected by you has been breached, compromised, or inadvertently exposed to non-authorized third parties, you shall notify us promptly of such a breach or exposure including the root cause, remediation steps, and compensating controls to ensure such a breach does not occur in the future. You are responsible for providing notification to your Audiences, third parties, or authorities under the applicable breach notification statutes and any other applicable data protection laws. You acknowledge that you are solely responsible for any personal injury or property damage arising from or relating to your use of any Services.
c) Consent Collection. You acknowledge and agree that you are solely responsible for providing any required notices and obtaining all required consents from Audiences in connection with any use of the Services and in conjunction with the ‘Usage Analytics’ section above. Your notice and consent must be compliant with all applicable data protection and security laws and regulations. Without limiting the foregoing, before collecting or using any Audience information, you must provide adequate notice of the Audience information you collect, how it will be used and/or shared, and obtain any necessary consents required under the applicable data protection laws and regulations. You agree to comply with all data protection laws and regulations (including those applying to an Audience’s personal information) in connection with your access and use of the Services.
d) Your Privacy Policy. You will provide and adhere to a privacy policy for your Published Works in conjunction with your use of the Services that: (i) complies with all applicable laws, rules, and regulations, (ii) is conspicuously displayed to all Audiences, and (iii) clearly and accurately describes to Audiences what information you collect (such as login information, contact form data, cookies, etc.) and how you use and share such information (including for marketing and advertising) with us and other third parties.
e) Privacy Requests. You will respond to any Audiences wishing to exercise their privacy rights, under the applicable law, as it relates to any information collected via your use of Designware. For example, if Audiences located in certain jurisdictions may exercise a ‘right to be forgotten’ (or ‘erasure’) to the information you have collected about them, you shall comply with their request as required by applicable law. For clarity, you are directly responsible (or, the ‘data controller’) for the information processed by your use of the Services, including any information processed via third-party applications available on the Services. We are not a data controller to such information and are not responsible for responding to Audiences on your behalf. To the extent we receive a request from an Audience or authority about your use of the Services, we will notify you as permitted by law.
7. Things You Can't Do
a) Exploitation & Infringement. You shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share our Services or System Content or any components of them available for access by third parties; (ii) create derivative works based on or otherwise modify Designware Services or System Content; (iii) disassemble, reverse engineer or decompile our Services or System Content or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of our Services or any software, documentation or data related to or provided with our Services; (iv) access our Services or System Content in order to develop a competing product or Service; (v) use our Services or System Content to provide a Service for others; (vi) remove or modify a copyright or other proprietary rights notice on or in our Services or System Content; (vii) use a computer or computer network to cause physical injury to the property of another; (viii) violate any applicable law; (ix) disable, hack or otherwise interfere with any security, digital signing, digital rights management, or verification or authentication mechanisms implemented in or by Designware Services; (x) intentionally include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from our Service; (xi) intentionally cause a computer to malfunction, regardless of how long the malfunction persists; (xii) alter, disable, or erase any computer data, computer programs or computer software without authorization, (xiii) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any manual process to access, acquire, copy, or monitor any portion of the Service or any System Content or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service, (xiv) attempt to gain unauthorized access to any portion of the Service or any System Content, or any systems or networks connected to the Service, by hacking, password “mining”, or any other illegitimate means, (xv) probe, scan, or test the vulnerability of the Service or any System Content, or any system or network connected to the Service, (xvi) reverse look-up or trace any information of any other user or visitor or otherwise use the Service for the purpose of obtaining information of any other user or visitor, (xvi) transmit spam, chain letters, or other unsolicited email, (xvii) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure, (xviii) upload invalid data, viruses, worms, or other software agents through the Service, (xix) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide, or attempt to hide your identity, (xx) disclose any information that you do not have the consent to disclose (such as confidential information of others, including their personally identifiable information), (xxi) use any device, software, or process to interfere with, or attempt to interfere with, the proper working of the Service or any System Content, or any systems or networks connected to the Service, or with any other person’s use of the Service, (xxii) conduct, engage in or otherwise process Audience information or data to analyze individuals or groups of natural persons for unlawful or discriminatory purposes, or (xxiii) use the Service or any System Content for any purpose that is unlawful or prohibited by this Terms of Use. Any unauthorized use of the Service or any System Content may violate copyright, trademark, and other applicable laws and could result in criminal or civil penalties.
b) Prohibited Content. You agree that you will not upload or use in connection with our Services any prohibited content including, without limitation, User Content that: (i) may create a risk of harm, loss, damage, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, to any animal, or to any property, (ii) may constitute or contribute to a crime or tort, or contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets), or furthers or promotes criminal activity or provides instructional information about illegal activities, (iii) contains any information or content that you know to be or that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, harassing, bullying, humiliating to other people (publicly or otherwise), libellous, threatening, or otherwise objectionable, (iv) is predatory in nature or seeks to harm or exploit children, by personally identifying them or otherwise, (v) includes any information or content to which you have not obtained any necessary rights or permissions to use accordingly or to make available under any law or under contractual or fiduciary relationships, (vi) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights, or any other rights of any person, or contains material that violates or invades the intellectual property rights (or rights of privacy or publicity) of any third party, (vii) contains any information or content that you know is not correct and current, or (viii) generally consists of unwanted spam, phishing, or trolling actions or communications. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending User Content without prior notice, terminating or suspending their account or access to our Services, and/or reporting such User Content or activities to law enforcement authorities.
8. Plans & Billing
a) Subscription Plans. Subject to your compliance with this Agreement, we grant you a non-exclusive, worldwide right to access and use restricted Designware features, abilities, and product licenses during the term set out in a project subscription plan you choose, with the respective fees. An active subscription plan will automatically renew at the end of its current monthly or annual term for one additional term equal in length to the initial term, unless you modify or cancel the subscription plan in advance of the expiry of the current term (to avoid being billed for a subsequent term). Each subscription plan defines specific Service usage limits including, without limitation, access to certain Designware features. You agree to use the Services within the usage limits set out in the respective subscription plan.
b) Billing. Fees are payable on or before the anniversary of the respective subscription plan term. By default, we collect all payments by automated direct charge to the subscription plan’s currently assigned payment method (i.e. a credit card). Unless otherwise specified by us, fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such applicable taxes, levies, or duties, even if such amounts are not listed on a subscription plan. You agree to pay all fees in the currency identified in the respective subscription plan. All fees are non-cancellable and non-refundable unless otherwise defined in this Agreement and are based on Services purchased and not actual usage. To be really clear, you are not entitled to a refund in the event of unused Service.
c) Pricing. Subscription plan renewal pricing will be the same as the prior subscription plan term unless we give you advance notice of a pricing change. We reserve the right to change our fees and to institute new charges at any time (including for any renewal), upon notice to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. Your use of Designware following such notification constitutes your acceptance of any new or increased fees.
d) Declines & Chargebacks. If at any time we record a decline, chargeback, or other rejection of a charge of any payable fees for Services, this will be considered as a breach of your payment obligations hereunder, and your use of the Services or a part of the Services or your account may be automatically disabled or terminated. Your use of the Services or part of the Services will not resume until you correct the payment issue, and pay any applicable fees in full, including any fees and expenses incurred by us and/or any third party service for each decline or chargeback received including fees for Services provided prior to the decline chargeback, and handling and processing fees. Unpaid fees are subject to interest at a rate of 1.5% per month on the outstanding balance, or the legal maximum interest rate, whichever is lower, plus all reasonable expenses of collection, in addition to any other remedies Designware may have.
9. Third Party Services
9. Third Party Services
a) Third Party Services. Designware contains features or functions designed to interact and integrate with software, applications, APIs, or services that are provided by a person or organization other than Designware (“Third Party Services”). For the avoidance of doubt, Third Party Services exclude Services whereby Designware has subcontracted its responsibilities hereunder. To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use Designware, you may be required to grant us access to your accounts to such Third Party Services. You expressly permit us to share User Content to and in conjunction with Third Party Services and their providers. Third Party Services may import or export data related to your account, activity, User Content, Published Works, and otherwise gather data from you and your Audience.
b) Disclaimer. We are not responsible for any Third Party Services or for any act or omission of any third party. Designware does not own, operate or endorse any Third Party Services and we do not warrant any Third Party Services. You agree to assume all risks and liabilities associated with the use of any Third Party Services. Third Party Services are operated independently of us and we do not guarantee the availability of any Third Party Services. If the provider of any such Third Party Services ceases to make those Third Party Services available for interoperation with Designware, we may cease providing such features or functionality without entitling you to any refund, credit, or other compensation. You agree to use Designware only in compliance with the terms and conditions associated with any Third Party Services. We advise you to check the terms of use and privacy policies for all Third Party Services to ensure compliance and determine how they may use your information.
c) Data Transmission. If you use Third Party Services, your data may be transmitted outside of Designware or Published Works, and the provider of Third Party Services may be able to obtain access to User Content through Designware’s application programming interfaces (APIs). This may result in the disclosure, modification, or deletion of User Content by Third Party Services provider. A Third Party Services provider and its agents may collect and use data pertaining to your configuration and use of Third Party Services. We are not responsible for any transmission, collection, disclosure, modification, use, or deletion of User Content, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.
10. Third Party Content
10. Third Party Content
a) Websites & Apps. We may provide links to third party websites and apps. We do not recommend or endorse the content of any third party website or app, nor are we responsible for the content of such websites and apps and we do not make any representations or warranties regarding their content or accuracy. Your use of third party websites and apps is at your own risk and subject to the terms and conditions of use for such website or app. You expressly release us from any and all liability arising from your use of any third party website or app.
b) Persons For Hire. We may post lists of third parties like consultants, agencies, developers, designers, and system integrators for hire. These lists are purely for information purposes and we do not endorse, work with, recommend, or guaranty any of these third parties or the accuracy or completeness of the work done by such third parties. You agree that is your responsibility to vet such a third party before you work with them and that you assume all liability for any work done by them. We shall make a good faith effort to investigate third parties who receive multiple complaints from multiple users, but we do not guarantee that they will investigate such complaints brought forth by users.
c) Content & Templates. We may post a list of contents or templates created by users of the Service. These templates are not created by us. While we make a good faith effort to vet the templates that are posted on Designware, we do not endorse or guarantee the quality of these templates. If a problem arises with a template, it is the responsibility of the creator of such template to offer technical support. Such creator assumes all responsibility and liability in connection with your use of the template.
d) Opinions. We are not responsible for and do not necessarily hold the opinions expressed by our users, content contributors, and third parties. Such opinions and other statements are theirs alone. Content created by users or third parties is the sole responsibility of such users or third parties and its accuracy and completeness are not endorsed or guaranteed. You acknowledge that by providing you with the ability to view and post content through our Service, we are not undertaking any obligation or liability relating to the content. Our Company and its affiliates, successors, assigns, employees, agents, directors, officers, and stockholders (i) do not undertake or assume any duty to monitor Designware for inappropriate or unlawful content and (ii) assume no responsibility or liability which may arise from the content thereof, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, profanity, fraud, or misrepresentation. You understand and agree that you may be exposed to content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of such content. We reserve the right, but have no obligation, to monitor disputes between you and other users. Notwithstanding the foregoing, we reserve the right to block or remove content, communications, postings, or materials at any time in our sole discretion.
11. System Mechanics
a) Subcontractors. We may use third party subcontractors to provide limited parts of Service from time to time, including data storage and processing and content delivery. You consent to us subcontracting these Services to subcontractors, provided that we shall ensure that such subcontractors comply with the applicable terms of this Agreement.
b) Content Preservation. We may preserve and store your account, User Content, and Published Works and/or disclose your account, User Content, and Published Works if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any User Content violates the rights of any person or organization; or (iv) protect the rights, property, or personal safety of Designware, Audiences, or the public.
c) Content Deletion. At the expiration of a subscription plan’s term, we shall have the right to remove or delete all of the respective User Content and remove access to part of the Service at any time. You acknowledge and agree that archived versions of the Service may include archived copies of User Content which may be retained by us for an archive cycle. If your account or User Content or any Services related to your account are cancelled (whether at your request or at our discretion), it may cause or result in the loss of certain content, features, or capacity of your account, including any User Content, data, or other usage data retained therein. We shall not be liable in any way for such loss, or for saving a backup of your account, User Content, or related data.
d) System Maintenance. We use commercially reasonable efforts to ensure that availability of Designware will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, availability cannot be guaranteed. Also, access to Designware may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or features. We will attempt to limit the frequency and duration of any such suspension or restriction and will use commercially reasonable efforts to alert or notify in the event of any scheduled or non-scheduled suspension of the Service. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
e) Service Availability. We are constantly innovating and finding ways to provide our users with new features and services. Therefore, we may, without prior notice, change the Service, add features, stop providing the Service or features of the Service to you or to users generally, or create usage limits for the Service. We may permanently or temporarily terminate, downgrade, suspend, or prohibit your access to the Service without prior notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason. Upon termination of your use of the Service, you continue to be bound by this Agreement.
12. Privacy
Our Privacy Policy applies to the use of Designware and its terms are made a part of the Terms of Use by this reference. You have read the Privacy Policy and you agree that the terms of that policy are reasonable. You understand that by using Designware you consent to the collection, use, and disclosure of your Personal Information and anonymized and aggregated data as set forth in our Privacy Policy, and to have your Personal Information collected, used, transferred to, and processed in Canada, the Netherlands, or other countries. We cannot guarantee that unauthorized third parties will never be able to defeat our security measures. You acknowledge that you provide your information at your own risk.
13. Publicity
Unless you otherwise declare in writing to us, and provided that you have released publicly-available Published Works, you permit us to list you as a user and to use your standard logo (in colour or monochrome), and any works that you may have created using our Services including your Published Works and User Content, for our promotional and marketing use.
14. Limitation of Liability & Indemnification
THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, CURRENTNESS, FREEDOM FROM INTERRUPTION, VIRUSES OR OTHER DEFECT, AND NON-INFRINGEMENT.
YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SERVICE OR ANY CONTENT IS TO STOP USING THE SERVICE OR ANY SUCH CONTENT. IN NO EVENT SHALL WE OR OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR CONTENT PROVIDERS (OUR “AFFILIATES”) BE LIABLE FOR (i) ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, AND (ii) LOSS OF USE, DATA, BUSINESS, REVENUE, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), AS RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE OR THE SYSTEM CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR OUR AFFILIATES ARE ADVISED ON THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL INFORMATION, INCLUDING PERSONAL INFORMATION OR FINANCIAL INFORMATION, STORED THEREIN; (IV) ANY ERRORS, MISTAKES, LOSSES, DAMAGE OR UNAUTHORIZED ACCESS RESULTING FROM THE USE OF THIRD PARTY APPLICATIONS BY YOU, BY YOUR AUDIENCES, OR BY US ON YOUR BEHALF; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VIII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WE, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING ONE DOLLAR.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify, and hold us and our Affiliates harmless from and against any demands, loss, liability, claims, or expenses (including attorneys’ fees) made against us by any third party due to or arising out of or related to (i) your User Content; (ii) use of Designware (including any e-commerce activities); (iii) any claims by, on behalf of or against your Audiences; (iv) your violation of any law or regulation or the rights or good name of any third party; (v) any claims from tax authorities in any country in relation to operations, including without limitation your sales to individual consumers (including distance sales) and other operations for which we may be held jointly and severally liable; and (vi) violation of these Terms of Use, or violation of any rights of another.
15. Copyright Protection Claims
a) Copyright Claims. We respect the intellectual property of others, and expect our users to do the same. If you believe, in good faith, that any materials provided on or in connection with Designware infringe upon your copyright or other intellectual property rights, please send the following information to support@designware.io with the subject line ‘Copyright Takedown Request’. Please include in the message (i) your name, phone number, email address, and physical address, (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed and explanation of why you think the infringement has taken place, (iii) specific locations where we can find the alleged infringement, such as a website URL or the URL to download an app, (iv) specific locations where the original or authorized copy of the copyrighted work exists, physical or virtual, (v) a statement by you, made under the penalty of perjury, that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law, that the information in your notice is accurate, and that your are the copyright owner or authorized to act on the copyright owner’s behalf, and (vi) an electronic signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest (which can be in a file attachment).
b) Repeat Infringement. In accordance with the Copyright Act of Canada and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, the memberships of users who are deemed to be repeat infringers. We may also at our sole discretion limit access to Designware and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
c) Counter-Claims. If you believe that content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content, you may send a written counter-notice containing the following information to us. Please include in the message (i) your name, phone number, email address, and physical address, (ii) identification of the content that has been removed or to which access has been disabled and the specific location (such as a URL) at which the content appeared before it was removed or disabled, (iii) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content, and (iii) a statement that you consent to the jurisdiction of this Agreement’s governing law and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
d) Continued Copyright Usage. If a counter-notice is received by us, we will send a copy of the counter-notice to the original complaining party informing that person that the respective content may be replaced or restored in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, after 10 business days after receipt of the counter-notice, at our sole discretion.
16. Dispute Resolution
a) Initial Negotiation. To expedite resolution and reduce the cost of any dispute, controversy, or claim related to this Agreement (“Dispute”), we and you agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to us. Our address for such notices is Industry Corporation, 205-871 Victoria St. N., Kitchener, Ontario, Canada, N2B 3S4.
b) Binding Arbitration. If we and you are unable to resolve a Dispute through informal negotiations, all claims arising from use of Designware (except those Disputes expressly excluded below) shall be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted before the Canadian Arbitration Association in Waterloo, Ontario, in English, pursuant to the general Canadian Arbitration Association Rules for Arbitration and in accordance with the Arbitration Act (Ontario). Arbitration may be held in person, through the submission of documents, by phone, or online. The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and us may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
c) Exceptions. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or provincial court located within Waterloo, Ontario, Canada with respect to any dispute related to the actual or threatened infringement, misappropriation, or violation of a party’s intellectual property or proprietary rights.
d) No Class Actions. You and us agree that any arbitration will be limited to the Dispute between our you and us individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND US ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and us otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
e) Legal Fees. In any action to enforce the Terms of Use, the prevailing party shall be entitled to attorneys’ and accountants’ fees and costs. You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.
f) Remedies & Waivers. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees, and expenses. No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future, or other waiver.
17. Miscellaneous
a) Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada. Any action or proceeding arising from or relating to this Agreement may only be brought in the courts located in Waterloo, Ontario, Canada and each party irrevocably submits to such exclusive jurisdiction and venue, and waives any objection to such jurisdiction or venue. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention and cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement. No cause of action arising hereunder or relating hereto may be brought more than two (2) years after it first occurs.
b) Severability. These Terms of Use will be severable. In the event that any provision is determined to be unenforceable or invalid, that provision will nonetheless be enforced to the fullest extent permitted by applicable law, and that determination will not affect the validity and enforceability of any other remaining provisions of these Terms of Use.
c) Headings. The headings used in these Terms of Use are included for convenience only and will not limit or otherwise affect these Terms of Use.
d) International Usage. Although Designware may be accessible worldwide, we make no representation that Designware or the materials on Designware are appropriate or available for use in your location, and accessing Designware from territories where its use is illegal is prohibited. Those who access or use Designware from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. You may not use Designware if you are a resident of a country embargoed by Canada, or are a foreign person or entity blocked or denied by the Canadian government.
e) Entire Agreement. These Terms of Use, together with those incorporated or referred to in these Terms of Use, constitute the entire agreement between us pertaining to the subject matter of these Terms of Use, and supersede any prior agreements, understandings, negotiations and discussions, whether electronic, oral or written, regarding the subject matter of these Terms of Use, and may not be amended or modified except by the Company as set out above. There are no representations, warranties or other agreements between us, express or implied, in connection with the subject matter of these Terms of Use, except as specifically set out in these Terms and Conditions or in those incorporated or referred to in these Terms and Conditions. No party has been induced to enter into these Term of Use in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included in these Terms of Use or in those incorporated or referred to in these Terms of Use.
f) Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
g) Relationship & Agreement. The parties hereto are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship. The Terms of Use represent the entire agreement between you and us with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. The Terms of Use shall be binding upon and inure to the benefit of the parties and their respective successors and lawful assigns. In the event of any conflict between this Agreement and any other legally binding contract between you and us, this Agreement shall govern first. In instances where this Agreement is made available in more than one language, the then-current English language version shall supersede all other versions. If any part of this Agreement becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that part will not affect the legality, validity or enforceability of the rest of the Agreement.
h) No Waiver. Any failure by us to enforce or exercise any provisions of the Terms of Use shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.
i) Force Majeure. Notwithstanding your obligation to pay fees for Designware, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labour disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the internet or a portion of it.
j) Electronic Communications. When you visit designware.io or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
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