Shearwater Cloud Terms of Service

Shearwater Research Inc. Terms of Service for Shearwater Cloud Last Updated: November 11, 2016. PLEASE CAREFULLY READ THESE TERMS OF SERVICE BEFORE REGISTERING FOR OR USING SHEARWATER CLOUD. THESE TERMS OF SERVICE ARE A BINDING CONTRACT THAT GOVERNS USE OF SHEARWATER CLOUD, EXEMPTS SHEARWATER RESEARCH AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES, AND CONTAINS OTHER IMPORTANT PROVISIONS. BY SUBSCRIBING FOR SHEARWATER CLOUD, AND EACH TIME YOU ACCESS OR USE SHEARWATER CLOUD, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO THE MOST CURRENT VERSION OF THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT AND AGREE TO THE MOST CURRENT VERSION OF THESE TERMS OF SERVICE, YOU MAY NOT SUBSCRIBE FOR, OR ACCESS OR USE, SHEARWATER CLOUD.

Introduction: These Terms of Service are a binding agreement between you and Shearwater Research Inc. (“Shearwater Research”) and govern your use of Shearwater Cloud and Shearwater Cloud Content and related matters. Each time you access or use Shearwater Cloud you acknowledge and signify that you have read, understood, and agreed to the most current version of these Terms of Service. If you do not accept and agree to the most current version of these Terms of Service, you may not access or use Shearwater Cloud.
Definitions:In these Terms of Service:
1. “Account”means an account for the use of Shearwater Cloud.
2. “Content”means text, information, graphics, photographs, images, audio, video, location data and other forms of data or communication.
3. “Shearwater Cloud Content”means: (i) Content that originates from Shearwater Research and its licensors and service providers (the “Shearwater Research Content”); (ii) Content submitted, posted, displayed, transmitted, or provided to or through Shearwater Cloud by third party service providers, including by Linked Services (“Third Party Service Content”); (iii) Content submitted, posted, displayed, transmitted, or provided to or through Shearwater Cloud by other users of Shearwater Cloud (“User Content”); and (iv) Content submitted, posted, displayed, transmitted, or provided to or through Shearwater Cloud by you for your own use or for use by other users of Shearwater Cloud (“Your Content”).
4. “Shearwater Cloud”means the various services (including location services, social media services, and media services) provided by Shearwater Research and accessible using Shearwater Cloud Software.
5. “Shearwater Cloud Software”means computer programs (including desktop computer software, applications for mobile phones and other mobile devices and software for Shearwater Research Devices) designed to interoperate with Shearwater Cloud and licensed by you from Shearwater Research.
6. “Linked Service”means an online service or site (such as social networking, photo sharing, location tracking, fitness tracking and messaging) operated by a third party to which you have subscribed and which you link to your Account.
7. “Shearwater Research Device”means a technology product manufactured by or on behalf of Shearwater Research that is compatible with Shearwater Cloud Software.
8. “User Device”means a personal computer, mobile phone or other mobile device that is owned or controlled by you and is compatible with Shearwater Cloud Software.
9. “Use”means any and all forms of use, including copy, reproduce, load, install, access, configure, reformat, modify, reformat adapt, alter, edit, change, delete, enhance, translate, adapt, host, store, backup, archive, combine with and incorporate into other works, create derivate works from, publish, publicly perform, publicly display, publicly distribute, distribute to the public, broadcast, exhibit, communicate to the public and otherwise fully exploit and use.
Other Agreements and Terms/Policies:
1. General:These Terms of Service are in addition to other agreements you may have with Shearwater Research, including agreements governing your purchase and use of Shearwater Research Devices and agreements governing your installation and use of Shearwater Cloud Software (collectively the “Device/Software Agreements”).
2. Software Downloads:For Your convenience, Shearwater Cloud may facilitate the downloading of computer software. All software available for download through Shearwater Cloud is owned by or licensed from Shearwater Research or third parties, and the downloading and use of the software is subject to the software license agreement applicable to the software. Shearwater Research has no control over, or responsibility or liability for, any third party software downloaded from or through Shearwater Cloud, and Shearwater Research make no representations, warranties or conditions regarding the third party software. Your downloading and use of third party software and your dealings with the suppliers of the software is at your own risk, and you may not make any claim against Shearwater Research arising out of, connected with, or relating to your downloading and use of any third party software obtained through Shearwater Cloud.
3. Conflicts/Priority:If there is a conflict or inconsistency between these Terms of Service and any Device/Software Agreements or Additional Terms/Policies, then: (i) the Additional Terms/Policies will take priority and govern regarding the specific service to which they apply; (ii) the Device/Software Agreements will take priority and govern regarding the specific Shearwater Research Device or Shearwater Cloud Software to which they apply; and (iii) these Terms of Service will take priority and govern regarding Shearwater Cloud and Shearwater Cloud Content.
Changes to Terms of Service:Shearwater Research in its discretion may change these Terms of Service or Additional Terms/Policies at any time, without any prior notice to you, by posting the changed Terms of Service on the Shearwater Research website at https://www.shearwater.com/downloads/other-downloads/. The changed Terms of Service are effective immediately upon posting on the Shearwater Research website, unless the amended Terms of Service expressly state otherwise. It is your responsibility to check the “Last Updated” date at the top of these Terms of Service and review any changes since the previous version. By using Shearwater Cloud after these Terms of Service or Additional Terms/Policies have been changed, you signify your acceptance and agreement to the changed Terms of Service or Additional Terms/Policies (as applicable). You may not change, supplement or amend these Terms of Service or Additional Terms/Policies in any manner.
Restrictions/Changes/Availability:Shearwater Cloud may contain technologies that restrict or limit the use or functionality of Shearwater Cloud and Shearwater Cloud Content (including based on time or location). Shearwater Research in its discretion and for its sole convenience may change, suspend, discontinue, modify, restrict, remove, delete, disable, cancel or terminate any or all Shearwater Cloud (including Your Content), or limit your access to or use of any or all Shearwater Cloud (including Your Content), at any time without notice or liability to you or any other person. Shearwater Cloud and Shearwater Cloud Content may be interrupted or unavailable from time to time, including for routine (scheduled) and emergency (unscheduled) maintenance, upgrades and repairs or due to the failure of telecommunications links and infrastructure that are beyond the control of Shearwater Research, all without notice or liability to you or any other person.
Eligible Users:
1. Eligibility:In order to use Shearwater Cloud you must be of legal age (the age of majority) in the jurisdiction in which you live (which in most jurisdictions is either 18 or 19 years of age) and capable of forming a binding contract under applicable law (including the laws of the jurisdiction in which you are located). By applying for an Account or otherwise using Shearwater Cloud, you represent and warranty that you are eligible to use Shearwater Cloud as set forth in this section 6(a) and that you are not prohibited from using Shearwater Cloud by applicable law (including the law of the jurisdiction in which you are located) or otherwise.
2. Youth and Children:If you are under 13 years of age (or equivalent minimum age in the relevant jurisdiction), then you may not use Shearwater Cloud. If you are older than 13 years of age (or equivalent minimum age in the relevant jurisdiction) but under the legal age (the age of majority) in the jurisdiction in which you live (which in most jurisdictions is either 18 or 19 years of age), then your parent or legal guardian may apply for an Account on your behalf and authorize you to use that Account and Shearwater Cloud under their supervision. In those circumstances, your parent/guardian is fully responsible and liable for your compliance with these Terms of Services and for your use of Shearwater Cloud.
3. Disqualification:You may not use Shearwater Cloud if you do not accept these Terms of Service, if you have breached these Terms of Service, if your permission to use Shearwater Cloud has been suspended or terminated by Shearwater Research, if these Terms of Service as they apply to you have been terminated or if you are located in a jurisdiction where access to or use of Shearwater Cloud is unlawful. Notwithstanding the foregoing or any other provision of these Terms of Service, Shearwater Research reserves the right in its discretion and for its sole convenience to refuse to provide Shearwater Cloud to you or any other person.
Permitted Use:Subject to these Terms of Service and all applicable laws, you may use Shearwater Cloud and Shearwater Cloud Content for your own lawful, personal use for non-commercial purposes only, only in the manner expressly permitted by Shearwater Cloud and Shearwater Cloud Software, and subject to the restrictions and requirements specified in these Terms of Service, including all applicable Additional Terms/Policies (including the Shearwater Cloud Acceptable Use Policies which are available on the Shearwater Website. Use of Shearwater Cloud for any other purpose or in any other manner is strictly prohibited.
Legal Compliance/Location/Language:You are solely responsible and liable for ensuring that your interaction with users of Shearwater Cloud and your use of Shearwater Cloud and Shearwater Cloud Content (including all of Your Content) complies with all applicable laws, including the laws of the jurisdiction in which you are located. Shearwater Research makes no representation or warranty that Shearwater Cloud is appropriate or available for use in any particular location. Shearwater Cloud and Shearwater Cloud Content are not available in all languages or in all countries.
Restrictions/Prohibitions:You may not: (a) use Shearwater Cloud in any manner or for any purpose except as expressly permitted by these Terms of Service; (b) use Shearwater Cloud for a commercial or business purpose (whether or not for profit) or for the benefit of any other person; (c) use Shearwater Cloud to violate any applicable law (including a law in the jurisdiction in which you are located); (d) use Shearwater Cloud in a way that interferes with or disrupts the integrity or performance of Shearwater Cloud or related systems or networks, or to attempt to gain unauthorized access to Shearwater Cloud or related systems or networks; (e) license, sublicense, grant, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, copy, reproduce, distribute, imitate, publish, republish, translate, repost, publicly display, public perform, transmit, distribute, create any interest in, commercially exploit, or otherwise give or make available or permit access or use of Shearwater Cloud to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge; (f) index, crawl, catalogue, mirror, frame, scrape, cache, or otherwise collect or mine data (including the names or contact information of other users of Shearwater Cloud Service) from Shearwater Cloud for any purpose whatsoever and using any technologies, tools or methods (including robots, spiders, crawlers, or other automatic devices, programs or methodologies) whatsoever; (g) except as and only to the extent expressly permitted by these Terms of Service or applicable law, adapt, alter, change, enhance, modify, improve or translate Shearwater Cloud , create derivative works from or based on Shearwater Cloud , merge, embed or combine Shearwater Cloud with any other service, software or materials, or reverse engineer, disassemble, decompile, convert into human readable format, or otherwise attempt to access or derive the source code of, the software or other technologies used to provide Shearwater Cloud ; (h) use Shearwater Cloud to upload, transmit, or distribute any virus, worm, “Trojan Horse”, or other code or routine that manifests contaminating or destructive properties that may damage, harm, detrimentally interfere with, or otherwise adversely affect Shearwater Cloud or any computer system, hardware, software, equipment or services or any related data; (i) alter, attempt to circumvent, destroy, obscure, conceal, modify, or remove any notices (including proprietary rights notices), proprietary codes or locks, means of identification, digital rights tools or management information, technological protection measures, security or control measures, or agreements on, in or in relation to Shearwater Cloud ; (j) use multiplexing or pooling software or similar technologies in connection with Shearwater Cloud; (k) develop software applications for internal use with Shearwater Cloud; (l) attempt to gain unauthorized access to or use of Shearwater Cloud or any related computer system, network, hardware, software, equipment, service or data (including by hacking or password mining) or attempt to circumvent the ordinary navigational structure, technical delivery systems or display of Shearwater Cloud or attempt to access or use Shearwater Cloud by any means that is not purposely made available to you by Shearwater Research; (m) test or tamper with the security of Shearwater Cloud or attempt to interfere with the proper functionality, operation or performance of Shearwater Cloud or any other person’s use of Shearwater Cloud ; (n) access or use Shearwater Cloud to: (i) create a competitive product or service, or a product or service using similar ideas, features, functions or graphics; (ii) copy any ideas, features, functions or graphics of Shearwater Cloud ; or (iii) monitor or assess the availability, performance or functionality of Shearwater Cloud for any other benchmarking or competitive purposes; or (o) authorize, assist, encourage or enable any other person to do any of the foregoing or to use Shearwater Cloud in a way that would constitute an infringement of the rights of Shearwater Research or any other person or a breach of these Terms of Service if it were done by you.
Monitoring:Shearwater Research is not obliged to monitor the use of Shearwater Cloud (whether posted or transmitted publicly or privately), but Shearwater Research reserves the right to do so in Shearwater Research’s discretion (including for the purpose of operating Shearwater Cloud, verifying compliance with these Terms of Service or to comply with applicable laws or an order or requirement of a court, law enforcement authority, administrative or regulatory agency or other governmental body) without notice or liability to you or any other person.
Accounts/Credentials:
1. General:To access and use certain features and services of Shearwater Cloud you must register with Shearwater Cloud, have a valid and subsisting Account, and use a valid user name and password that complies with Shearwater Research’s technical requirements and all applicable Additional Terms/Policies (collectively “Credentials”). Without limiting the foregoing or any other provision of these Terms of Service, you will not use a user name that: (i) is the name of another person with the intention of impersonating that person; (ii) misappropriates, infringes or violates the rights of any other person or any applicable law; or (iii) is offensive, vulgar, obscene or otherwise in bad taste.
2. Restrictions:You may have only one (1) Account. Your Account and Credentials are personal to you, and may not be shared with any other person. You may not create an Account for anyone else. You are fully responsible and liable for maintaining the confidentiality of your Credentials and for any and all use and misuse of your Account and Credentials (including all transactions using your Account or Credentials) and for all resulting loss, damage and liability. You may not disclose your Credentials to any other person or permit any other person to use your Account or Credentials.
3. Notices:You will immediately notify Shearwater Research’s customer care by email to info@shearwater.com if you discover any unauthorized use of your Account or you know or suspect that your Credentials have been lost or stolen or become known to or used by any other person.
4. Reliance/Verification:Shearwater Research may act upon any communication that is given through your Account or by using your Credentials. Shearwater Research is not under any obligation to verify the actual identity or authority of any person using your Account or Credentials, but Shearwater Research in its discretion may at any time require verification of the identity of any person seeking to access your Account and may deny access to and use of your Account and Shearwater Cloud if Shearwater Research is not satisfied with the verification.
5. Suspension/Termination:Shearwater Research in its discretion may cancel or suspend your Account or reject, revoke or require that you change or renew your Credentials at any time without notice or liability to you or any other person, including if your Account is inactive or if your Credentials fail to comply with these Terms of Service. If your Account is suspended, cancelled or terminated by Shearwater Research, you may not create another Account without Shearwater Research’s express prior written consent.
Linked Services:
1. General:For your convenience, Shearwater Cloud may enable you to link your Account to other online services to which you have previously subscribed, such as social networking, photo sharing, messaging and other web services (each a “Linked Service”). You may link your Account only to your own personal account for a Linked Service and only if permitted by the terms of service or other agreement that governs your use of the Linked Service. To activate and operate a link between your Account and a Linked Service, you may be required to provide us with your account information (including your username, password or other credentials) for the Linked Service. By linking a Linked Service to your Account, you expressly authorize Shearwater Research to collect, retain and use your account information for the Linked Service on your behalf and as your agent in order to provide you with access to the Linked Service through your Account and Shearwater Cloud.
2. Cancellation:You may cancel a link between your Account and a Linked Service at any time using the account provisioning tools made available through Shearwater Cloud or Shearwater Cloud Software. Shearwater Research may cancel a link between your Account and a Linked Service at any time without notice or liability to you or any other person.
3. Compliance/Responsibility:You are solely responsible for your selection and use of a Linked Service. Your access to and use of a Linked Service through Shearwater Cloud and the information, data and other content available through the Linked Service are subject to these Terms of Service and the terms of service or other agreements that govern your use of the Linked Service. You will ensure that your use of a Linked Service and the information, data and other content available through the Linked Service complies with the terms of service or other agreements that govern your use of the Linked Service and all applicable laws. Linked Services are independent from Shearwater Research, and Shearwater Research does not endorse, and has no responsibility or liability for or control over, Linked Services. Your use of Linked Services and your dealings with the owners or operators of Linked Services are at your own risk, and you will not make any claim against Shearwater Research arising from, connected with, or relating to your use of Linked Services or your dealings with the owners or operators of Linked Services.
Third Party Services:
1. General:For your convenience, Shearwater Cloud may provide you with access to services (including location-based services, social networking and social media services) provided by third parties (each a “Third Party Service”). Your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from Shearwater Research, and Shearwater Research does not endorse, and has no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not make any claim against Shearwater Research arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services.
2. Legal Notices:Your access to and use of certain Third Party Services are subject to the applicable legal notices, each of which is incorporated into and forms part of these Terms of Service.
Users and User Content:Shearwater Research is not obligated to screen or verify, and does not guarantee, the identity or background of any user of Shearwater Cloud. Shearwater Research is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any User Content (whether posted or transmitted publicly or privately), including information about other users of Shearwater Cloud. Some User Content be may offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. Shearwater Research has no responsibility or liability for or control over the conduct of users of Shearwater Cloud. You are solely responsible for your selection and use of User Content and your interactions with other users of Shearwater Cloud, and you interact with other users of Shearwater Cloud and access and use User Content at own risk. You will not make any claim against Shearwater Research arising from, connected with, or relating to your interactions with other users of Shearwater Cloud or your use of User Content. You will ensure that you take reasonable precautions (including conducting appropriate background checks) and exercise the utmost personal care in all interactions with other users of Shearwater Cloud, particularly if you disclose personal or financial information to other users of Shearwater Cloud or agree to meet in person with other users of Shearwater Cloud.
Third Party Service Content:Shearwater Research is not obligated to screen, monitor or edit, and does not guarantee the accuracy, veracity or completeness of, any Third Party Service Content (whether posted or transmitted publicly or privately). Some Third Party Service Content be may offensive, indecent or otherwise objectionable, and may or may not be identified as containing explicit language or adult oriented content. Shearwater Research has no responsibility or liability for or control over Third Party Service Content or the providers of Third Party Service Content. You are solely responsible for your selection and use of Third Party Service Content and your interactions with the providers of Third Party Service Content, and you interact with those persons and access and use Third Party Service Content at own risk. You will not make any claim against Shearwater Research arising from, connected with, or relating to your use of Third Party Service Content or your interactions with providers of Third Party Service Content.
Accurate Information:To register with Shearwater Cloud, create an Account, or use certain aspects of Shearwater Cloud, you are required to provide certain information about yourself (including your name, email address and other contact information), and certain authorizations or instructions. You represent and warrant that all information you provide is true, accurate, current and complete, and that you will update the information from time to time so that it remains true, accurate, current and complete. Shearwater Research will rely on the information that you provide. Shearwater Research is not under any obligation to verify the truth, accuracy, currency or completeness of any information you provide, but Shearwater Research may do so in its discretion, and you hereby consent to Shearwater Research making reasonable inquiries and investigations as Shearwater Research considers appropriate to verify the information you provide. You hereby authorize Shearwater Research to use, retain and disclose the information you provide as reasonably necessary to provide Shearwater Cloud and Shearwater Cloud Content to you and to otherwise perform Shearwater Research’s obligations and exercise Shearwater Research’s rights under these Terms of Service. You are and will remain solely responsible and liable for all loss, damage and liability (including additional costs) that you, Shearwater Research or any other person may incur as a result of your submission of any false, incorrect or incomplete information, your failure to promptly update your information if it changes, or other breach of your obligations under this section 16. Shearwater Research may create and permanently retain records of all information and instructions you provide, your use of Shearwater Cloud and Shearwater Cloud Content, and all communications between you and Shearwater Cloud.
Your Content:
1. Responsibility/Compliance:Without limiting the generality of any other provision of these Terms of Service, you are solely responsible and liable for Your Content and for ensuring that Your Content complies with the restrictions and requirements set forth in these Terms of Service (including all Additional Terms/Policies) and all applicable laws (including the laws of the jurisdiction in which you are located).
2. Content License/Waiver:You hereby grant and agree to grant to Shearwater Research and its suppliers, service providers and licensees a non-exclusive, world-wide, unrestricted, transferable, sub licensable, royalty-free, fully paid-up, perpetual, irrevocable right and license to Use and to authorize other persons (including other users of Shearwater Cloud) to Use Your Content, using any and all media and technologies now in existence or developed in the future, for the purpose of providing Shearwater Cloud and Shearwater Cloud Content to you and other users of Shearwater Cloud. You hereby unconditionally and irrevocably waive and agree to waive in favour of Shearwater Research and its successors, assigns and licensee all moral rights and rights of authorship and attribution that you have or may have in, to, or associated with Your Content (the “Content License/Waiver”).
3. Representation/Warranty:You represent and warrant to Shearwater Research that: (i) you own Your Content or otherwise have all requisite rights, licenses, permissions, consents, powers, authorizations, approvals and waivers to Use Your Content and grant the Content License/Waiver; and (ii) the creation, possession and Use of Your Content will not misappropriate, infringe or violate any rights (including privacy rights, personality rights, publicity rights, contract rights, and intellectual property rights, including copyrights, moral rights and trademark rights) of any other person, breach any duty or obligation (contractual or otherwise) owed by you to any other person, or violate any applicable laws.
4. Review/Removal and Deletion:Shearwater Research is not obligated to review any of Your Content, but Shearwater Research in its discretion may do so without notice or liability to you or any other person. Shearwater Research in its discretion may reject, refuse to accept or post, remove or delete any of Your Content as Shearwater Research considers appropriate, including if you breach these Terms of Service or if Shearwater Research considers Your Content to violate these Terms of Service (including applicable Additional Terms/Policies), without notice or liability to you or any other person. You may remove certain sections of Your Content from Shearwater Cloud by using the tools provided by Shearwater Cloud, but in certain instances some of Your Content (e.g. posts or comments) might not be completely removed and copies of Your Content might continue to exist and be accessible by other persons through Shearwater Cloud or otherwise (including by persons who have previously downloaded or otherwise copied Your Content). Shearwater Research is not responsible or liable for any removal or deletion of Your Content.
5. Retention by Shearwater Cloud:For greater certainty, and notwithstanding the foregoing in this section 17 or any other provision of these Terms of Service, Shearwater Research may include copies of Your Content in Shearwater Research’s archives and back-up systems and may permanently retain copies of Your Content for legal compliance and administrative purposes.
Shearwater Research Privacy Policy:The Shearwater Cloud Service collects data relating to your use of the Shearwater Cloud Service, which data may include information regarding the location of the devices you use to access the Shearwater Cloud. For further information, see Shearwater Research’s privacy policy at www.shearwater.com.
Proprietary Rights in Shearwater Cloud/Content:
1. Ownership:Shearwater Cloud is protected by Canadian and international intellectual property rights and laws, including copyright and trademark. As between you and Shearwater Research: (a) Shearwater Cloud is owned solely by Shearwater Research and its licensors; (b) Your Content is owned solely by you; (c) User Content is owned solely by the individual who posts or otherwise makes the User Content available through Shearwater Cloud; and (d) Third Party Service Content is owned solely by the third party service provider who posts or otherwise makes the Third Party Service Content available through Shearwater Cloud. Your use of Shearwater Cloud does not transfer to you any right, title or interest in, to or associated with Shearwater Cloud, User Content or Third Party Content.
2. Trademarks:Shearwater Research, Shearwater Cloud, NERD, DiveCAN, and related logos are registered or unregistered trademarks, service marks and trade names owned or licensed by Shearwater Research. Other product and company names and logos appearing on Shearwater Cloud may be registered or unregistered trademarks, service marks or trade names of their respective owners. Any use of the trademarks, service marks or trade names appearing on Shearwater Cloud is strictly prohibited, and nothing on Shearwater Cloud is or will be construed as granting, by implication, estoppel or otherwise, any license or right to use any of those trademarks, service marks or trade names.
3. Feedback:If you give to Shearwater Research any feedback (including any comments, ideas or suggestions for corrections, enhancements or improvements) regarding Shearwater Cloud , then Shearwater Research and its successors, assigns and licensees may use the feedback for any and all purposes (including to support, maintain and improve Shearwater Cloud, Shearwater Cloud Content and other Shearwater Research products and services) without providing any compensation or attribution to you or any other person.
4. Reservation:All rights not expressly granted by these Terms of Service are reserved by Shearwater Research.
Confidentiality:You acknowledge that all non-public information concerning Shearwater Cloud and Shearwater Cloud Content (the “Confidential Information”) is the proprietary and confidential information and trade secrets of Shearwater Research and its suppliers, licensors and service providers. Both during and after the term of these Terms of Service, you will hold all Confidential Information in confidence, you will use the Confidential Information only in connection with your use of Shearwater Cloud and Shearwater Cloud Content in accordance with these Terms of Service, and you will prevent any unauthorized use or disclosure of the Confidential Information.
Technical Requirements:You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including Shearwater Research Devices and User Devices), software and services (including Internet access and mobile data services) necessary for your use of Shearwater Cloud and Shearwater Cloud Content and all data used in connection with Shearwater Cloud and Shearwater Cloud Content.
Technical Support:Shearwater Research is not obligated to provide technical support regarding Shearwater Cloud, but may do so in its discretion. Your use of Shearwater Research’s technical support regarding Shearwater Cloud is governed by these Terms of Service.
Data Storage/Backup:Even though Shearwater Cloud may store Your Content in accordance with these Terms of Service, Shearwater Cloud is not data storage or backup services. Shearwater Research is not responsible or liable for any loss or damage to Your Content. You are solely responsible for maintaining current and complete backup copies of Your Content using your own systems and services. If your Account is terminated, Shearwater Research in its discretion may immediately permanently delete and destroy all copies of Your Content stored in Shearwater Cloud without notice or liability to you or any other person.
Communications:You authorize Shearwater Research to: (a) accept communications it receives from you by means of Shearwater Cloud Software and Shearwater Cloud as if those communications had been given directly by you in writing and signed by you; and (b) respond to your communications through Shearwater Cloud Software and Shearwater Cloud, by email, by using a messaging functionality included in Shearwater Cloud or using other means of communication. Communications you send to Shearwater Research are not effective unless and until they are actually received and processed by the responsible Shearwater Research representative. Shearwater Research may refuse to process any communications sent to Shearwater Research, or may reverse the processing of any communications sent to Shearwater Research, at any time in Shearwater Research’s discretion, and without notice or liability to you or any other person, including if Shearwater Research believes the communication to be fraudulent or unlawful or defective, inaccurate or incomplete due to a technical malfunction.
Complaints/Enforcement:
1. Complaints:Complaints regarding Shearwater Cloud Content, copyright infringement, unauthorized use of personal information, misconduct by users of Shearwater Cloud or other matters may be made using the processes and procedures prescribed by Shearwater Research from time to time and available on the Shearwater Research website..
2. Enforcement:Shearwater Research is not under any obligation to enforce these Terms of Service or take other legal measures on your behalf against any other person (including another user of Shearwater Cloud). Shearwater Research reserves the right to respond to complaints as Shearwater Research considers appropriate in its discretion, all without notice or liability to you or any other person.
3. Disputes:Shearwater Research is not responsible or liable for monitoring or resolving disputes between you and any other user of Shearwater Cloud.
DISCLAIMERS, LIABILITY EXCLUSIONS/LIMITATIONS, AND INDEMNITY:
1. GENERAL DISCLAIMER:YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, YOU INSTALL AND USE SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE AT YOUR OWN RISK, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, SUITABILITY, PERFORMANCE, ACCURACY AND EFFORT RESTS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO: ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, SECURITY, TIMELINESS, TITLE, TRUTHFULNESS, QUIET ENJOYMENT, UNINTERRUPTED SERVICE, OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY SHEARWATER RESEARCH TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, SHEARWATER RESEARCH DOES NOT REPRESENT OR WARRANT THAT SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS OR DEFICIENCIES IN SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE WILL BE CORRECTED, OR THAT SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE WILL BE COMPATIBLE OR OPERATE WITH ANY COMPUTER OR DEVICE, THIRD PARTY SOFTWARE OR SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF SHEARWATER RESEARCH OR ANY SHEARWATER RESEARCH REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE. IF YOU ARE DISSATISFIED WITH SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE, YOUR SOLE REMEDY IS TO CEASE USING SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE.
2. BETA VERSION DISCLAIMER:WITHOUT LIMITING THE GENERALITY OF SECTION 26(a), IF SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE IS IDENTIFIED AS A “BETA VERSION”, THEN THE SERVICES, CONTENT OR SOFTWARE (AS APPLICABLE) IS STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION IS INTENDED TO WORK. SHEARWATER RESEARCH RESERVES THE RIGHT TO NOT RELEASE A FINAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE OR LIABILITY TO YOU OR ANY OTHER PERSON.
3. DISCLAIMER FOR OTHER SERVICES AND CONTENT:WITHOUT LIMITING THE GENERALITY OF SECTION 26(a), YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF LINKED SERVICES, THIRD PARTY SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL, PROVISION AND USE LINKED SERVICES, THIRD PARTY SERVICES, THIRD PARTY SERVICE CONTENT AND USER CONTENT AT YOUR OWN RISK. SHEARWATER RESEARCH DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND WHATSOEVER (INCLUDING REPRESENTATIONS, WARRANTIES, AND CONDITIONS AS TO ACCURACY, COMPLETENESS OR TIMELINESS), WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING LINKED SERVICES, THIRD PARTY SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT. SHEARWATER RESEARCH DOES NOT CONTROL, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY LINKED SERVICES, THIRD PARTY SERVICES, THIRD PARTY SERVICE CONTENT OR USER CONTENT THAT YOU ACCESS THROUGH OR USE IN CONNECTION WITH SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE, OR FOR ANY RESULTING LOSS, DAMAGE OR LIABILITY.
4. DISCLAIMER FOR LOSS OF YOUR CONTENT:WITHOUT LIMITING THE GENERALITY OF SECTION 26(a), SHEARWATER RESEARCH IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, YOUR CONTENT, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
5. TECHNOLOGY DISCLAIMER:WITHOUT LIMITING THE GENERALITY OF SECTION 26(a), SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND SHEARWATER RESEARCH’S CONTROL, AND MAY NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE. SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND SHEARWATER RESEARCH IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE OR LOSS RESULTING FROM THOSE PROBLEMS.
6. NO HIGH RISK USE:SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT AND SHEARWATER CLOUD SOFTWARE) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE IS STRICTLY PROHIBITED.
7. RELEASE OF CLAIMS:YOU WILL NOT MAKE ANY CLAIM AGAINST ANY OF THE SHEARWATER CLOUD GROUP ARISING FROM. CONNECTED WITH OR RELATING TO ANY OF THE FOLLOWING: (I) YOUR DOWNLOADING OR USE OF ANY THIRD PARTY SOFTWARE OBTAINED THROUGH SHEARWATER CLOUD; (II) YOUR USE OF LINKED SERVICES OR YOUR DEALINGS WITH THE OWNERS OR OPERATORS OF LINKED SERVICES; (III) THIRD PARTY SERVICES OR YOUR DEALINGS WITH THE OWNERS OR OPERATORS OF THIRD PARTY SERVICES; (IV) YOUR INTERACTIONS WITH OTHER USERS OF SHEARWATER CLOUD OR YOUR USE OF USER CONTENT; AND (V) THIRD PARTY SERVICE CONTENT OR YOUR INTERACTIONS WITH PROVIDERS OF THIRD PARTY SERVICE CONTENT.
8. LIABILITY EXCLUSIONS/LIMITATIONS:NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF SERVICE OR ANY DEVICE/SOFTWARE AGREEMENTS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL SHEARWATER RESEARCH GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PERSONAL INJURY, EMOTIONAL DISTRESS, OR ANY DAMAGE OR LOSS OF ANY NATURE OR KIND (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE, LOSS OF PRIVACY, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) OR LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE (INCLUDING YOUR USE OR INABILITY TO USE SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE) OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION OF THESE TERMS OF SERVICE SHEARWATER RESEARCH GROUP IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL SHEARWATER RESEARCH GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE OR ANY RELATED MATTER EVER EXCEED THE AMOUNT OF CDN$50.00. THIS SECTION 26(h) APPLIES TO LOSS, DAMAGE AND LIABILITY HOWEVER CAUSED AND TO LIABILITY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, STATUTE AND STRICT LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY SHEARWATER RESEARCH OR ANY PERSON FOR WHOM SHEARWATER RESEARCH IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE YOU OR ANY OTHER PERSON FOR THE LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR SHEARWATER RESEARCH KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED.
9. EXCEPTIONS:THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THESE TERMS OF SERVICE MIGHT NOT APPLY TO YOU.
10. INDEMNITY:YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS SHEARWATER RESEARCH GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING LEGAL FEES), CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, OBLIGATIONS AND LIABILITIES (INCLUDING LEGAL FEES AND EXPENSES AND SETTLEMENT PAYMENTS) ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF SHEARWATER CLOUD, SHEARWATER CLOUD CONTENT OR SHEARWATER CLOUD SOFTWARE OR YOUR NEGLIGENCE, MISCONDUCT OR BREACH OF THESE TERMS OF SERVICE. NOTWITHSTANDING THE FOREGOING, SHEARWATER RESEARCH GROUP RETAINS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY THIRD PARTY CLAIM, COMPLAINT, DEMAND, ACTION, SUIT OR PROCEEDING WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE.
11. SHEARWATER RESEARCH GROUP:IN THIS SECTION 26, “SHEARWATER RESEARCH GROUP” MEANS SHEARWATER RESEARCH AND EACH OF SHEARWATER RESEARCH’S AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS AND REPRESENTATIVES, JOINTLY AND SEVERALLY.
Suspension/Termination:
1. Suspension:Shearwater Research in its discretion may at any time immediately suspend or restrict your Account and your permission to access and use Shearwater Cloud and Shearwater Cloud Content without notice or liability to you or any other person. Your permission to use Shearwater Cloud will be indefinitely suspended, immediately, automatically and without notice or liability to you or any other person, if you breach or otherwise fail to comply with these Terms of Service.
2. Termination:These Terms of Service as they apply to you are effective unless and until terminated. You may terminate these Terms of Service as they apply to you by permanently closing/deactivating your Account (using the procedures specified by Shearwater Research from time to time) and permanently ceasing to use Shearwater Cloud and Shearwater Cloud Content. Shearwater Research may terminate these Terms of Service at any time either by giving a notice of termination to you, permanently closing/deactivating your Account or otherwise denying you access to Shearwater Cloud.
3. Consequences of Termination:Upon termination of these Terms of Service, you will immediately cease using Shearwater Cloud and Shearwater Cloud Content. Notwithstanding any other provision of these Terms of Service, the obligations and liabilities you incur prior to termination of these Terms of Service will survive termination, and sections 6(c), 17, 19, 20, 23, 25, 26, 27(c) and 28 of these Terms of Service (and all other provisions of these Terms of Service necessary to their interpretation or enforcement) will survive termination and continue to apply and be binding upon you and Shearwater Research.
General Matters
1. Governing Law:These Terms of Service, Shearwater Cloud and Shearwater Cloud Content, the relationship between you and Shearwater Research, and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transaction Act.
2. Disputes:All disputes, controversies and claims arising under, out of, in connection with, or in relation to these Terms of Service, Shearwater Cloud, Shearwater Cloud Content, the relationship between you and Shearwater Research or any related matter or any legal relationship associated therewith or derived therefrom (collectively “Disputes”) will be referred to and finally resolved by binding arbitration under the Domestic Commercial Arbitration Rules of the British Columbia International Commercial Arbitration Centre (the “BCICAC”) by one arbitrator appointed in accordance with those rules. The arbitration will be private and confidential, and will be administered by the BCICAC in accordance with its rules. If the BCICAC is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act (British Columbia). The place of arbitration will be the City of Vancouver, British Columbia and the language used in the arbitration will be the English language. Any award rendered in an arbitration is final and binding and judgment on the award may be entered in any court having jurisdiction for its enforcement. Notwithstanding the foregoing in this section 28(b), you and Shearwater Research each hereby irrevocably submit and agree to the original and exclusive jurisdiction of the Supreme Court of British Columbia sitting in Vancouver, British Columbia in respect of all matters that are not properly subject to arbitration pursuant to this section 28(b), except that Shearwater Research in its discretion may bring legal proceedings against you in the Supreme Court of British Columbia or the competent courts of any other jurisdiction seeking injunctive relief (or similar urgent legal remedies) to enforce these Terms of Service and protect Shearwater Research’s rights in, to and associated with Shearwater Cloud and Shearwater Cloud Content. You and Shearwater Research each irrevocably waive all rights to trial by jury.
3. Notices:Shearwater Research may deliver notices under these Terms of Service to you by email to any email address that you provide to Shearwater Research (including when you subscribe for your Account). You are solely responsible for ensuring that your email addresses on file with Shearwater Research are and remain current and correct throughout the term of these Terms of Service, and you will promptly give notice to Shearwater Research of any change to your email addresses. You will give all notices under these Terms of Service to Shearwater Research in writing delivered by email to Shearwater Research at the following email address: info@shearwater.com.
4. Enforcement:You acknowledge and agree that your breach of any of sections 9 and 20 of these Terms of Service will result in irreparable harm, loss and damage to Shearwater Research and its licensors and affiliates for which Shearwater Research and its licensors and affiliates could not be adequately compensated by an award of monetary damages; and in the event of any actual or threatened breach of any of those sections by you, and in addition to all remedies available to Shearwater Research and its licensors and affiliates under these Terms of Service or otherwise, Shearwater Research will be entitled as a matter of right to judicial relief by way of a restraining order, interim, interlocutory or permanent injunction, or order for specific performance, and you will not oppose the granting of that judicial relief and hereby waive all defenses to the strict enforcement of these Terms of Service.
5. Force Majeure:Notwithstanding any other provision of these Terms of Service, Shearwater Research will not be liable for any delay in performing, or failure to perform, any of its obligations under these Terms of Service to the extent performance is delayed or prevented due to any cause or causes that are beyond Shearwater Research’s control. Any delay or failure of that kind will not be a breach of these Terms of Service by Shearwater Research, and the time for Shearwater Research’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
6. Miscellaneous:You and Shearwater Research are non-exclusive, independent contracting parties, and nothing in these Terms of Service or done pursuant to these Terms of Service will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between you and Shearwater Research. Upon request by Shearwater Research, you will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of these Terms of Service. No consent or waiver by Shearwater Research to or of any breach of these Terms of Service by you will be effective unless in writing and signed by Shearwater Research or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. Shearwater Research’s rights and remedies under these Terms of Service are cumulative and not exhaustive or exclusive of any other rights or remedies to which Shearwater Research may be lawfully entitled under these Terms of Service or at law, and Shearwater Research will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of these Terms of Service is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from these Terms of Service and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance these Terms of Service would fail in their essential purpose. You may not assign these Terms of Service or any of your rights or obligations under these Terms of Service. Shearwater Research in its discretion may assign these Terms of Service and any or all of Shearwater Research’s rights and obligations under these Terms of Service. Shearwater Research may Shearwater Cloud subcontractors to perform Shearwater Research’s obligations under these Terms of Service. The provisions of these Terms of Service will endure to the benefit of and be binding upon you and Shearwater Research and your respective successors, permitted assigns and personal representatives.
7. Interpretation:In these Terms of Service: (i) “Terms of Service” and other similar terms refer to these Terms of Service as a whole (including the Additional Terms/Policies incorporated by reference into these Terms of Service) and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of these Terms of Service or any of its provisions; (iii) words importing the singular number only include the plural and vice versa; (iv) words importing a gender include both genders; (v) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (vi) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vii) “law” includes common law, equity, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (viii) “discretion” or any variation thereof means the relevant party’s sole, absolute and unfettered discretion.
8. Complete Agreement/Governing Language:These Terms of Service set forth the entire agreement between you and Shearwater Research regarding the subject matter of these Terms of Service, and supersede all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of these Terms of Service. These Terms of Service may not be modified, except by a written agreement that expressly states that it is an amendment to these Terms of Service and is signed by Shearwater Research. Shearwater Research has expressly requested and required that these Terms of Service and all related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s'y rapportent soient rédigés en anglais. Subject to applicable law, any non-English translation of these Terms of Service provided by Shearwater Research is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of these Terms of Service will take priority and govern.

If you have any questions or comments regarding these Terms of Service, please contact Shearwater Research’s Customer Care at info@shearwater.com.