Highwire Contractor Participation Agreement

This Contractor Participation Agreement (“CPA”) is entered into to be effective as of [DD-MM-YYYY] (the “Effective Date”) by and between HIGHWIRE, INC., A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 700 DISTRICT AVENUE, BURLINGTON, MA 01803 (“HIGHWIRE”), AND [COMPANY NAME] (“COMPANY”).The Company is sometimes hereinafter referred to with second person personal pronouns such as “ you” or “yours.” Highwire is sometimes referred to herein with first person personal pronouns such as “we,” “us,” and “our.”

Highwire has developed and operates a Contractor Assessment Safety Program (the “Program”), pursuant to which contractors and subcontractors (referred to herein generally as “contractors”) submit certain prescribed safety and financial information to Highwire. Such information, along with generally available information, being used by Highwire, together with its array of proprietary algorithms and computer programs (collectively, the “Highwire System”), to create safety and/or financial assessments (“Assessments”) of participating contractors, including the Company. Such Assessments are furnished to and used by the persons or entities designated by the participating contractors, including Company, for purposes of evaluating contractors for work as further detailed in Paragraph 3 below.

Company desires to be a part of the Highwire System and desires to participate in the Program, and Highwire desires to have Company become a part of the Highwire System and to participate in the Program.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto, intending legally to be bound, agree as follows:

1. Binding Effect.
1. DO NOT USE OR ATTEMPT TO USE ANY OF THE PRODUCTS OR SERVICES OFFERED BY US, WHETHER THROUGH A WEBSITE OR OTHERWISE, UNTIL YOU HAVE CAREFULLY READ THIS CPA, INCLUDING ALL OF ITS TERMS AND CONDITIONS. Please understand that, by using www.Highwire.com (the “Site” or the “Platform”) or any of the products or services provided by us, including any of the products or services offered on www.Highwire.com, you (on behalf of yourself as an individual as well as on behalf of the Company) are agreeing to be bound by the following terms and conditions of this CPA. If you do not wish to be bound by this CPA or any provisions set forth on the Site, please discontinue all use of our products or services. Preferably, send us a termination or cancellation notice, as provided for in Paragraph 2(a) hereof.
2. We expressly reserve the right to change the Terms and conditions of this CPA (as well as any other provisions that may be contained on the Site) from time to time upon reasonable notice to you, including via electronic notification or notification on the Site. It is your responsibility to review this CPA and the Site from time to time and to familiarize yourself with any modifications. Your continued use of the Site or any of our products or services after notification of such modifications will constitute acknowledgment of the modifications and agreement to abide and be bound by such modified provisions, including modifications of this CPA. You can review the most current version of the CPA at any time at www.Highwire.com/terms.
3. This CPA will become or has become binding upon you at the time you checked “I Agree” on the enrollment form that allowed you access to the Highwire System. The CPA consists of this document and each document linked hereto. Your affirmation of agreement hereto includes your agreement to each of the documents linked hereto (as well as any modifications thereof). Therefore, you are encouraged carefully to review both this document and all the documents linked hereto before clicking the “I Agree” button. Ancillary or supplementary documents furnished by you purporting to modify, disclaim, waive, or amend any of the provisions of the CPA (including all its linked component parts) are hereby rejected and rendered entirely ineffective unless signed by one of our duly authorized officers.
2. Term and Termination.

1. This CPA commences with the Effective Date and continues, unless sooner terminated as provided herein, for a period of one year (the “Initial Term”). This CPA will automatically renew for successive one-year periods (each a “Renewal Term”) unless this CPA is earlier terminated as provided herein or either you or we furnish a notice of nonrenewal no more than 60 days and no fewer than 30 days prior to the expiration of the Initial Term or any Renewal Term, as applicable. The Initial Term and the Renewal Terms, collectively, are referred to herein as the “Term.”
2. This CPA may be terminated for any reason or no reason upon 60 days’ advance notice from either party to the other party.
3. This CPA will terminate automatically upon termination of the Program by Highwire.
4. Either party may terminate this CPA if the other party is in default under or breaches any of the material provisions of this CPA, provided that the non-breaching party furnishes to the breaching party notice of the breach and offers a cure period of thirty (30) days. If the breaching party timely and acceptably cures the noticed breach, then this CPA will continue as though no breach and no notice of breach had occurred. If, however, the breaching party fails timely and acceptably to cure the noticed breach, then this CPA will automatically terminate at the conclusion of the thirty-day cure period without other or further notice or action by the non-breaching party.
5. No refunds are available to the Company unless (i) Highwire terminates the Program; (ii) Highwire terminates this CPA without cause pursuant to Paragraph 2(b) hereof; or (iii) Company terminates this CPA because of the breach of a material provision of this CPA that is not timely and acceptably cured by Highwire. Your sole compensation and Highwire’s entire liability for the matters referenced in Clauses (i) through (iii) hereof shall be a refund of the balance of your pre-paid unused annual fees pro-rated in accordance with the percentage of the annual period remaining in your current term (whether the Initial Term or a Renewal Term).
6. Paragraphs of this CPA that are to survive termination or expiration of this CPA, whether expressly or by implication, shall survive. Such surviving paragraphs shall include Paragraphs 9 through 12, 14, and 16 through 19 of this CPA.
7. The annual fee payable to permit Company to participate in the Program and to allow you to access the Highwire System shall be the applicable fees shown on Highwire’s pricing schedule (the “Applicable Fee”) in effect as of the time of the Effective Date for the Initial Term and on the commencement of each Renewal Term for all Renewal Terms. Such Applicable Fee shall be due and payable to Highwire as provided in Paragraphs 8(b) and 8(c) hereof and may be paid either (i) directly by you or (ii) indirectly on your behalf by a third party, a Client. If, partway through either the Initial Term or Renewal Term, you add a new connection (whether a new trade, a new Client, or otherwise), you will incur a pro-rated charge based on the said additional connection or connections and the then Applicable Fee, albeit pro-rated to the end of the Initial Term or Renewal Term, as appropriate.

3. Obligations of Company.

1. In order to participate in the Program, you agree to submit all information prescribed by Highwire to us in the required format and designate the Clients (as defined in Paragraph 3(b), below), in general, owners, general contractors, and insurance companies. You acknowledge that all such Clients are authorized to receive your Assessments and your detailed safety and financial information (“Authorized Recipients”). You may add or delete Authorized Recipients and update your information at any time although it may take approximately five business days for such changes to be reflected in the Highwire System. Notwithstanding the foregoing, if a Client has paid the Applicable Fee on your behalf (as provided for in clause (ii) of Paragraph 2(g) hereof), such Client may continue to hold the status of an Authorized Recipient (and have access to your Assessments and your detailed safety and financial information for the full term covered by the payment of the said Applicable Fee). 
2. No detailed safety or financial information will be shared with a Client unless/until you explicitly designate that Client as being entitled to receive such information (an “Authorized Recipient”). For purposes of this CPA, a “Client” includes only an owner, general contractor, insurer, or other person or entity that has a legitimate and lawful interest in Assessments generated by the Highwire System and that has entered into an agreement with Highwire to procure and license the aforementioned Highwire services as a Client with Highwire, such agreement (a “Client Agreement”) to include obligations to respect your Confidential Information and the Confidential Information of Highwire, as provided for in Paragraph 17 hereof. Notwithstanding the first sentence of this Paragraph 3(b), if a Client has paid your Applicable Fee, such Client will be automatically designated an Authorized Recipient and will be entitled to access your detailed safety or financial information for the full term covered by the payment of the said Applicable Fee (whether the Initial Term or a Renewal Term). 
3. In addition to the nonconfidential information you furnish to us, certain other nonconfidential information (e.g., trade(s), scope of services, point(s) of contact, geographic region(s) covered, telephone numbers (mobile and otherwise), and physical address/location) will be available to all Clients in the Highwire system, such information being acquired and updated through an array of methods, including verbal, email, application, web search, from a Client, etc. Availability of such information allows Clients to extend invitations to any contractor (including Company) enrolled in the Highwire system. Notwithstanding the foregoing, none of your detailed safety or financial information will be shared with a Client unless/until (i) you explicitly designate that Client as an Authorized Recipient or (ii) such Client is deemed to be an Authorized Recipient by virtue of having paid your Applicable Fee, all as detailed in Paragraph 3(b) above.
4. You represent and warrant (i) that the information you submit to Highwire on Highwire’s website and otherwise is (and will continue to be) true, accurate, and complete; (ii) that all policies, procedures, and documentation uploaded into the Highwire applications are accurate, were developed in substantial part by your company personnel, and fairly represent how your business will operate at sites, projects, and facilities; and (iii) that the information you submit to Highwire (including on Highwire’s website) contains no restricted information such as protected health information pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”), Highwire not being a Business Associate or Covered Entity under HIPAA.
5. You covenant and agree that you will not share with Highwire (in any way) any information that constitutes PHI under HIPAA or that is not permitted to be shared by applicable federal or state privacy or similar laws. 

4. Use of Information.

1. YOU UNDERSTAND AND AGREE THAT (I) THE INFORMATION YOU SUBMIT ALONG WITH OTHER NONCONFIDENTIAL INFORMATION (SUCH AS, OSHA RECORD-KEEPING DOCUMENTS, EXPERIENCE MODIFICATION RATING, AND INFORMATION OF THE TYPE IDENTIFIED IN PARAGRAPH 3(C), ABOVE) WILL BE USED BY HIGHWIRE TO CREATE ASSESSMENTS OF YOUR SAFETY AND FINANCIAL STATUS; (II) THE AUTHORIZED RECIPIENTS WILL RECEIVE SUCH ASSESSMENTS FROM HIGHWIRE AND WILL HAVE ACCESS TO THE INFORMATION SUBMITTED BY YOU AND CERTAIN OTHER INFORMATION; AND (III) CLIENTS WILL RECEIVE (IN ADDITION TO THE INFORMATION AND ASSESSMENTS REFERENCED ABOVE) LIMITED INFORMATION (E.G., COMPANY OR ENTITY NAME, TRADE(S), THE SCOPE OF SERVICES, POINTS OF CONTACT, GEOGRAPHIC LOCATION, AND CONTACT INFORMATION), TO ENABLE SUCH CLIENTS TO EXTEND INVITATIONS TO ANY CONTRACTOR (INCLUDING COMPANY) ENROLLED IN THE HIGHWIRE SYSTEM, THE HIGHWIRE NETWORK, OR INVITED BY A CLIENT THROUGH THE HIGHWIRE REGISTRATION PROCESS.
2. Highwire may de-identify and aggregate any information submitted by you and other contractors in a way that it does not contain identifiable confidential information of the Company (“Aggregated Information”). Highwire owns all such Aggregated Information and may use it for any purpose and communicate it to any third party without any obligation to you. Aggregated Information is anonymous information and is no longer Personal Information subject to data protection laws or regulations.
3. Highwire’s Information Security Management System (ISMS) is ISO 27001 compliant. As such, Highwire takes specific precautions to protect your data and the Assessments as outlined in Highwire’s Privacy Policy, which can be found at https://www.highwire.com/privacy-policy. In addition, Highwire has developed a specific EEA Privacy Notice for Contractors located in the European Economic Area, Great Britain, or Switzerland, which can be found at https://www.highwire.com/eea-privacy-notice. The aforesaid Privacy Policy and EEA Privacy Notice (together with a Cookie Policy, a Data Processing Addendum, and the current list of Sub-processors linked thereto) are incorporated herein by reference and made a part of this CPA as fully and completely as though their contents appeared on the face hereof. You are, therefore, encouraged to read the said Privacy Policy, EEA Privacy Notice, and all items attached or linked thereto before you check “I Agree” on Highwire’s enrollment form.
4. You hereby grant to Highwire, for the term of this CPA, a limited, world-wide, non-exclusive, transferable, and sublicensable (also in multiple tiers) license to use, duplicate, display, and distribute all of the information submitted by you to Highwire, including all intellectual property and other rights therein and thereto. Such grant, however, is limited to that necessary to deliver Highwire’s services, to operate the Highwire System, and to allow you to take part in the Program.

5. Use of the Assessments.

1. The Authorized Recipients are authorized to use Assessments and related information in their evaluations of contractors (including the Company) and in determining whether to employ and/or permit you to be engaged to participate in their projects.
2. Authorized Recipients have agreed with Highwire to use the Assessments and contractor-specific data only for their internal purposes and not to share the Assessments or the information you submit with parties outside their review teams. Review teams may include Construction Managers, General Contractors, and Insurance Representatives.
3. Highwire is not responsible for improper treatment or disposition of information by information recipients or for violations of such agreements with Highwire by such recipients.
4. Both Highwire and the Authorized Recipients may disclose your safety information when required by law or in order to prevent or mitigate dangerous or potentially dangerous situations.

6. Obligations of Highwire.  Highwire will provide you with reports indicating the results of your Assessment and, in Highwire’s discretion, related information. In addition, as a participant in the Program, Highwire will provide you with: (i) the ability to upload certain training certificates and insurance certificates; (ii) reminders about when such certificates are about to expire; and (iii) related information. (See program details at www.Highwire.com) Because Highwire’s Assessments use diverse criteria provided by individual Clients, you will not be provided with any financial Assessment results.

7. Uses of Reports and Website Content.

1. You may download, view, copy, and print reports and certificates provided to you by Highwire, subject to the following: (i) the reports may be used solely for participation in the Program and informational, non-commercial purposes and (ii) the reports (including the Assessments) may not be modified or altered in any way or shared with any third party other than an Authorized Recipient as part of your participation in the Program.
2. You may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit, or distribute any information from the Highwire website in whole or in part without the express written authorization of Highwire.
3. Elements of Highwire websites are protected by copyright, trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part, and no name, logo, image, graphic, sound, phrase, or other source identifying item that is confusingly or deceptively similar to any element of any Highwire website may be used by Company. No name, logo, image, graphic, sound, phrase, source identifying item, or other content from any Highwire website may be copied or retransmitted unless expressly permitted in writing by Highwire.
4. Strictly limited to what is necessary to take part in the Program and use Highwire’s products and services as permitted by this CPA, Highwire grants to you, for the term of this CPA, a limited, world-wide, non-exclusive, non-transferable, and non-sublicensable license to use Highwire’s reports, website content, and other parts of the Highwire System for which, under this CPA, you are allowed access and rights of use, including all intellectual property and other rights therein and thereto. In describing a Contractor’s participation in the Highwire Program, Highwire is authorized to display (in list format) Contractor’s full business name and logo.

8. Program Participation Cost.

1. In order to participate in the Program, a charge (payable once per year) applies. The amount thereof, the Applicable Fee, is set forth on Highwire’s then-current Pricing Schedule. Click here for the current Pricing Schedule and payment instructions. As indicated in Paragraph 2(g), the Applicable Fee may be paid either by Company or by a Client, acting on behalf of Company.
2. The cost for participation in the Program (as shown on the Highwire pricing schedule) is payable on the Effective Date for the Initial Term. For each Renewal Term, the cost of participation in the Program will be as shown on the Highwire pricing schedule as of the commencement of each Renewal Term and shall be due and payable on the first day of each Renewal Term.
3. If, partway through either the Initial Term or Renewal Term, the Company adds a new connection (whether a new trade, a new Client, or otherwise), you will incur a pro-rated charge based on the said additional connection or connections and the then Applicable Fee, albeit pro-rated to the end of the Initial Term or Renewal Term, as appropriate. The pro-rated charge shall be due and payable on the first day of the new connection (whether a new trade, a new Client, or otherwise).
4. The Company’s participation in the Program is contingent upon payment and the Company’s Assessment(s) will only be available to Client(s) during paid Initial and/or Renewal Terms. Payments due hereunder will be considered delinquent if not paid in full as of the forty-fifth (45th) day following the specified due dates. Payments that are past due, at our election, may bear a late charge of the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law.
5. No refunds are available, except in the case of termination of this CPA, as provided in Paragraph 2(e) of this CPA. 
6. The charges shown on the Highwire pricing schedule do not include any taxes or assessments of any kind or character. Company shall be responsible for all taxes and assessments (other than Highwire’s income taxes) with respect to any payments to be made to Highwire hereunder, and all such payments shall be accompanied by payment in full of all local, state, provincial, national, and federal sales, use, VAT, and other like taxes and assessments (i) owed by Company or (ii) for which Highwire is obligated by law to collect from payors and remit to the applicable governmental authorities on account of amounts payable hereunder. In this regard, invoices from Highwire may include any and all such taxes or assessments. Highwire will waive collection of such taxes and assessments only where Company furnishes to Highwire a valid, governmentally-issued written tax exemption certificate. 

9. Warranties.

1. Neither Highwire nor any of its licensors, contractors, employees, representatives, and Clients makes any representations or warranties about the Highwire System, the Program, the accuracy or suitability of the Assessments, or any information, content, documents, reports, and related graphs, charts, and graphics furnished by Highwire or published on any Highwire website (“Website Content”). The Assessments are created by Highwire using information provided by you, nonconfidential information generally available, and algorithms and formulae (embedded in computer programs) the efficacy of which are matters of judgment. Highwire has no means of checking the accuracy of such information and does not do so, and Highwire cannot and does not guarantee the efficacy of the algorithms and formulae used to create the Assessments and, as a consequence, cannot be responsible for the accuracy of the Assessments. THEREFORE, YOUR PARTICIPATION IN THE PROGRAM IS SOLELY AT YOUR OWN RISK AND ALL ASSESSMENTS, REPORTS, AND WEBSITE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, whether expressed or implied.
2. Highwire and its licensors, contractors, and Clients hereby disclaim all representations and warranties with regard to the Program, the Highwire System, the Assessments, reports, and the Website Content. THE SAID DISCLAIMERS INCLUDE ALL EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, THE IMPLIED WARRANTY OF MERCHANTABILITY, AND THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, AND QUIET ENJOYMENT.

10. Limitations of Liability.

1. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL HIGHWIRE OR ITS LICENSORS , CONTRACTORS, REPRESENTATIVES, EMPLOYEES, OR CLIENTS BE LIABLE TO YOU (OR TO ANY PERSON CLAIMING OR ATTEMPTING TO CLAIM THROUGH YOU) FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES; ANY INCIDENTAL, CONSEQUENTIAL, OR LIKE DAMAGES; OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, REPUTATION, BUSINESS OR PROFITS, WHETHER IN AN ACTION OF EQUITY, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH PARTICIPATION IN THE PROGRAM, USE OR FUNCTIONING OF THE HIGHWIRE SYSTEM, THE ASSESSMENTS AND REPORTS, THE USE OR PERFORMANCE OF ANY HIGHWIRE WEBSITE AND THE WEBSITE CONTENT, OR PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES AVAILABLE OR PURPORTEDLY AVAILABLE UNDER THIS CPA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND AND AGREE THAT THE ASSESSMENTS, REPORTS, AND WEBSITE CONTENT COULD INCLUDE TECHNICAL INACCURACIES, ERRORS, OR OMISSIONS. ALTHOUGH CHANGES ARE PERIODICALLY MADE, HIGHWIRE AND ITS LICENSORS, CONTRACTORS AND CLIENTS MAY, BUT ARE NOT OBLIGATED TO, MAKE IMPROVEMENTS AND/OR CHANGES IN THE INFORMATION, SERVICE(S), PRODUCT(S), AND/OR THE PROGRAM DESCRIBED HEREIN AT ANY TIME.
2. WITHOUT LIMITING OR RESTRICTING, IN ANY WAY, THE FOREGOING DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS, UNDER NO CIRCUMSTANCES WILL HIGHWIRE OR ANY OF ITS LICENSORS, CONTRACTORS, CLIENTS, REPRESENTATIVES, EMPLOYEES, OR OTHER CONTRACTORS BE LIABLE TO YOU (OR ANY PERSON CLAIMING, OR ATTEMPTING TO CLAIM, THROUGH YOU) FOR AN AMOUNT IN EXCESS OF THE FEES PAID TO HIGHWIRE IN CONNECTION WITH USE OF THE HIGHWIRE SYSTEM AND PARTICIPATION IN THE PROGRAM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST DATE ON WHICH YOU NOTIFIED HIGHWIRE OF THE FACTS ALLEGEDLY GIVING RISE TO HIGHWIRE’S ALLEGED LIABILITY.

11. Indemnification.

1. To the fullest extent permitted by law, you shall indemnify against, hold Highwire harmless from, and (at Highwire’s option) defend Highwire against any claim, cause of action, complaint, or suit or administrative proceeding, including any proceeding, investigation or claim by a private individual or entity, self-regulatory organization, state or federal department, agency, or commission, (collectively, an Action) against Highwire; any of its affiliates, licensors, contractors, and Clients; and their respective directors, officers, agents, employees, successors, and assigns (collectively, the Indemnitees) arising out of or in connection with: (i) an assertion that the information, content, or other materials or products or services provided or made available by you, or the use thereof, may infringe any patent, copyright, trademark, or other intellectual property rights of any individual or entity; constitute a misappropriation of any individual or entity’s confidential information or Trade Secrets; or contain any libelous, defamatory, disparaging, pornographic, or obscene materials; (ii) an assertion that an Assessment or any information provided in connection with an Assessment is inaccurate or otherwise defective; (iii) any breach by you of your obligations under this CPA; and (iv) your use of any Highwire website, including the information, content, services, and/or products provided therein or thereby.
2. You shall indemnify and hold harmless the Indemnitees from and against any and all damages, costs, liabilities, and attorneys’ fees incurred in defending and/or resolving such Action. Your indemnification and defense obligations under this CPA shall be at your sole cost.

12. Compliance with Laws; Export Control. You will comply with all laws and regulations relating to your participation in the Program, including those relating to export and import, privacy, and personal data protection. Highwire’s obligation to fulfill this CPA is subject to the proviso that it is not prevented by any impediments arising out of national and international foreign trade or customs requirements, including embargoes or other sanctions. This CPA is subject to all United States laws and regulations as may be enacted, amended, or modified from time to time regarding the export from the United States of all or any part of the Highwire System (including the computer programs included therein), products, services, technology, or any derivatives thereof.

13. Assignment. You shall not assign this CPA without the prior written consent of Highwire. Highwire may freely assign this CPA to its Affiliates; to its or their successors-in-interest or successors-in-title in the event of a change of control, merger, consolidation, or equity acquisition; or to the purchaser of all or substantially all of the assets that comprise the Program and the Highwire System. For purposes of this CPA, an “Affiliate” of a party is any person or entity that controls such party, is controlled by such party, or is under common control with such party. This CPA shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective parties hereto.

14. Governing Law; Jurisdiction; Severability; No Waiver.

1. This CPA shall be governed by, and construed in accordance with, the substantive laws of the Commonwealth of Massachusetts (U.S.A.) without regard to its conflict of laws principles. The parties expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods. You hereby (i) submit to the exclusive jurisdiction of any state court sitting in Middlesex County, Massachusetts or federal court sitting in Boston, Massachusetts for the purpose of any action arising out of, or relating to, this CPA; and (ii) irrevocably waive, and agree not to assert by way of motion, defense or otherwise, in any such action, any claim that you are not subject personally to the jurisdiction of such courts. (b) If any provision of this CPA is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be enforced to the maximum extent possible under applicable law, and the remaining provisions of this CPA shall continue in full force and effect to the maximum extent permissible without being impaired or invalidated in any way.
2. Any failure to enforce any provision of this CPA shall not constitute a waiver thereof or of any other provision hereof. Waivers, to be effective, must be in writing and duly executed by an officer of the entity charged with furnishing the waiver.

15. Force Majeure. Neither party shall be liable under this CPA by reason of any failure or delay in the performance of its obligations under this CPA on account of riots, insurrections, fires, floods, storms, explosions, epidemic, pandemic, acts of nature, acts of terrorism, war, governmental action, earthquakes, or any other cause that is beyond the reasonable control of such party (“Force Majeure”). If, however, such delay suspends performance of this CPA for more than sixty (60) days, either party has the right to terminate this CPA at its discretion.

16. International Provisions

If you, the Company, are an entity organized under the laws of any country that is outside the United States of America (or  any state or province therein), then the following provisions shall apply, and any provisions found elsewhere in this CPA that are in conflict with or are inconsistent with the provisions of this Paragraph 1 shall be overruled and rendered ineffective and unenforceable to the extent of such conflict or inconsistency. 

1. Company represents and warrants that it is not an agency of, controlled by, or owned (in whole or in part) by any governmental entity, agency, or instrumentality anywhere in the world. 
2. This CPA shall be executed in English only, and American English shall be the governing language of this CPA and all documents related hereto and of all transactions between the parties. In order to be enforceable against Company, no copy or translation of this CPA need be filed, registered, or deposited with any office, agency, or instrumentality within Company’s country of domicile.
3. Any dispute, controversy, or claim arising out of or relating or pertaining to this CPA or relating or pertaining to any aspect of the relationship of the parties, (including any dispute relating to the existence, interpretation, breach, or termination hereof or thereof) shall be finally resolved by arbitration administered by and under the rules of the International Center for Dispute Resolution (“ICDR”).  Notwithstanding the foregoing, nothing herein shall be interpreted to require either party to submit the matter of termination of this CPA to arbitration prior to exercising its right of termination, as provided herein.
1. Unless otherwise agreed by the parties, the arbitral panel shall consist of three (3) arbitrators, one to be appointed by each party and the third (3rd) to be appointed by the two (2) arbitrators appointed by the parties.  If a party fails to appoint an arbitrator within fifteen (15) calendar days after any such dispute, controversy, or claim has been referred to arbitration hereunder, then, in such event, the other party may request the ICDR to appoint an arbitrator for the party failing to make such appointment.  If the third arbitrator has not been appointed within thirty (30) calendar days after any such dispute, controversy, or claim has been referred to arbitration hereunder, then, in such event, either party hereto may request the ICDR to appoint such third (3rd) arbitrator.
2. The arbitration proceedings, all documents submitted therein, and the award of the arbitral panel shall be in the English language.  The arbitration proceedings shall be held in Boston, Massachusetts, United States of America.  The arbitral panel shall apply such rules of procedure as it thinks appropriate in the circumstances; provided, however, that both parties shall be entitled to representation by counsel, to appear and present written and oral evidence and argument, and to cross-examine witnesses presented by the other party.
3. The arbitral panel shall not act or decide as an amiable compositeur, and shall be guided solely by applicable principles of law and equity. 
4. The arbitral award shall be in writing (in English) and the arbitral panel shall provide written reasons for its award.  The award of the arbitral panel shall be final and binding upon the parties hereto, absent fraud or clear legal error.
5. The fees, costs, and charges of the arbitration process, including attorney’s fees, shall be awarded by the arbitral panel among the parties in such amounts as may seem appropriate to such panel.
4. The following provisions relating to service of process shall apply to any litigation matters that may arise under this CPA, any matter related thereto, or the enforcement of any arbitral or other award made pursuant to this CPA.
1. Each party irrevocably and unconditionally consents to service of process upon it in any proceeding brought to obtain interim injunctive relief pursuant to the terms hereof or any proceeding brought to recognize and enforce an arbitral award hereunder, by mailing copies of any notice or pleadings thereof by registered international airmail, recognized international courier, or international express mail, postage prepaid, return receipt requested, to it at its address specified herein.  The foregoing shall not limit the right of either party to serve process in any other manner permitted by applicable law and shall not limit the ability of either party to bring any such proceeding or to obtain execution of any judgment rendered in any such proceeding in any other jurisdiction in which the other party or any of its property or assets may be found.
2. Each party specifically hereby waives any claim or right it may have by statute, treaty, or law to contest the jurisdiction or venue of any United States state or federal court in any action or proceeding, for interim relief or to enforce an arbitral award, instituted by the other party pursuant to this CPA, including any claim that might be asserted under the Foreign Sovereign Immunities Act of the United States, the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
3. Each party specifically waives any claim of forum non conveniens and specifically consents to jurisdiction and venue in the United States District Court for the District of Massachusetts for any actions instituted pursuant to the terms hereof, provided that such court has subject matter jurisdiction.  If such court does not have subject matter jurisdiction, then jurisdiction and venue in the Middlesex Superior Court shall be deemed to be courts with proper venue. 
4. Final judgment on an arbitral award rendered against either party in any action or proceeding relating in any way to this CPA or any other agreement between the parties shall be conclusive and may be enforced, to the extent permitted by applicable law, in any other jurisdiction within or outside the United States of America by suit on the judgment, a certified copy of which judgment shall be conclusive evidence thereof, or by such other means provided by applicable law.
5. Language. This CPA shall be executed in English only, and American English shall be the governing language of this Agreement and all documents related hereto and of all transactions between the parties hereto.
6. Currency. All payments to be made by either party to the other party shall be in United States Dollars.  Transactions in other currencies giving rise to payment obligations on the part of either party shall be converted to United States Dollars using the most recent conversion factors published online by the Federal Reserve Bank of the United States, found at http://www.federalreserve.gov/RELEASES/h10/update/, or such other URL on which the Federal Reserve Bank may post official conversion factors, or by using such other conversion factor as may be mutually agreed upon by both parties.

17. Confidentiality.

1. “Confidential Information,” for Highwire, covers the Program, the Highwire System, Highwire’s Trade Secrets, and the information specified in Paragraph 16(b) hereof. “Confidential Information”, for Company, shall include Company’s financial information, other information uploaded by Company (if marked in accordance with Clause (A) of Paragraph 16.b.iii hereof), Company’s Trade Secrets, and the information described in Paragraph 16(b) hereof. 
2. “Confidential Information” also includes: 
1. Business or technical information pertaining to equipment, computer programs, algorithms, designs, processes , procedures, methods, tests and experiments, test results, results from experimentation, technical documentation and information, and product and service plans, specifications, and strategies; business methods and practices; marketing plans, cost and pricing information, and financial information; information relating to existing, previous, and potential suppliers, customers, employees, contractors, and consultants; and inventions, methodologies and formulations, patent applications, Trade Secrets, and other proprietary or other know-how; 
2. Information that the Receiving Party knew or should have known was secret, proprietary, or confidential information of the Disclosing Party or that a reasonable person would consider, from the nature of the information and circumstances of disclosure, to be the confidential or proprietary information of the Disclosing Party;  
3. Information that (A) if Disclosed in written or other tangible form, is conspicuously marked as “CONFIDENTIAL,” “PROPRIETARY,” or “SECRET” or with a designation conveying a similar meaning or (B) if Disclosed orally or in some other intangible form, is identified  as confidential at the time of disclosure and is later described in a written memorandum (which memorandum shall also be considered Confidential Information) (1) that describes the information, sets forth the circumstances of disclosure (including the time and place of disclosure), and identifies  the persons present and (2) that is furnished to the Receiving Party within ten (10) days following disclosure;
3. “Disclosing Party” means either of the parties to this CPA that discloses or otherwise furnishes to the other party its Confidential Information.
4. “Receiving Party” means a party to this CPA that receives, is exposed to, or otherwise discovers or learns of the Confidential Information of the other party hereto, the Disclosing Party. 
5. “The term “Trade Secrets” has the meaning assigned it by the Uniform Trade Secrets Act, as adopted by the Commonwealth of Massachusetts.
6. The Receiving Party shall hold the Confidential Information of the Disclosing Party in confidence, disclose it to no one (except as permitted herein), and use such Confidential Information only for activities or undertakings related to the discharge of such party’s  obligations hereunder.  The Receiving Party, in addition, shall take all reasonable measures to safeguard, protect the secrecy of, and avoid prohibited or unauthorized disclosure or use of the Confidential Information of the Disclosing Party.  The security measures to be used to prevent the Confidential Information of the Disclosing Party from becoming impermissibly accessed, known, or used or from falling into the public domain or into the possession of any unauthorized persons shall be no less stringent than the measures the Receiving Party uses to safeguard the Receiving Party’s own confidential and proprietary information and Trade Secrets, but in no event shall such measures be less stringent than those reasonable under the circumstances, given the nature of the information.  
7. Notification.  The Receiving Party will promptly notify the Disclosing Party in writing of any unauthorized disclosure, use, misuse, or misappropriation of the Confidential Information of the Disclosing Party that may come to the Receiving Party’s attention.  
8. Use Restriction.  The Receiving Party will use the Confidential Information of the Disclosing Party only for purposes of discharging its responsibilities under the Program and this CPA.  
9. Permitted Disclosure.  the Receiving Party shall not disclose any Confidential Information of the Disclosing Party except (i) to the Receiving Party’s employees and its legal, tax, accounting, and financial advisors who have a reasonable need to know, who have been advised about the confidential and restricted nature of the Confidential Information, and who are bound under written obligations of confidentiality, care, and nonuse comparable to the obligations under this Paragraph 16 and (ii) in the case of Highwire, to the Company’s Authorized Recipients, provided that such Authorized Recipients are bound under written covenants of confidentiality, care, and nonuse comparable to the obligations under this Paragraph 16.  
10. REPRODUCTION.  The Receiving Party will not reproduce (regardless of form or media) the Confidential Information of the Disclosing Party except as reasonably required to discharge the Receiving Party’s obligations under the Program and this CPA. 
11. EXCEPTIONS.  The restrictions and limitations of Paragraph  16(e) through Paragraph 16(i) do not apply to information, notwithstanding its character as Confidential Information, if: 
1. Such information, as of the Effective Date, is publicly and generally known or is otherwise in the public domain; 
2. Such information, after the Effective Date, comes into the public domain or otherwise becomes publicly and generally known as a result of no act, omission, fault, or wrongdoing on the part of the Receiving Party; 
3. Such information was already known (through proper means) by the Receiving Party and subject to no restrictions on use or disclosure; 
4. Such information is required to be disclosed by law, whether under an order of a court or government tribunal or other legal process, provided (A) that the Receiving Party has given the Disclosing Party prompt notice of such disclosure requirement so that the Disclosing Party may seek an appropriate protective order; (ii) the Receiving Party cooperates fully (at Disclosing Party’s cost) in resisting compelled Disclosure or in seeking and obtaining a protective order; and (iii) that the information disclosed is no more than that covered by the applicable legal requirement.

18. Entire Agreement; Interpretation.

1. This CPA, including the accompanying/linked documents, constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the parties hereto with respect to the subject matter hereof.
2. In this CPA, the following guides to interpretation shall apply:
1. Words in the singular shall encompass the plural and vice versa.
2. Words of one gender will be held to include the other genders as the context requires.
3. “Or” and “any” are not exclusive, and the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “but not limited to” or “without limitation.”
4. A reference to a law includes any amendment or modification to such law and any rules or regulations issued thereunder.
5. A reference to a person includes a natural person, an artificial person (such as a corporation, partnership, limited liability company, trust, or otherwise), and its permitted successors and assigns.
6. A reference in this CPA to an Article, Section, Attachment, Annex, Exhibit, or Schedule is to the referenced Article, Section, Annex, Exhibit, or Schedule of or to this CPA in its entirety, including subsections and subparagraphs thereunder.
7. The terms “hereof,” “herein,” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this CPA as a whole (including all of the attachments and addenda to this CPA) and not to any particular provision of this CPA.
8. All references to “$” or “dollars” herein mean U.S. dollars.
9. Each of the representations, warranties, covenants, and conditions contained herein is separate and not limited or satisfied by the existence, wording, or satisfaction of any other representation, warranty, covenant, or condition contained herein.
10. In computing any period of time under this CPA , the day of the act, event, or default from which such period begins to run shall be included.
11. A reference to “writing” or “written” includes a facsimile transmission, an email message, an electronic, magnetic, optical, or other embodiment that is capable of being perceived by the human eye, and any means of reproducing words in a tangible and permanently visible form.

19. No Third Party Beneficiaries. Nothing in this CPA, express or implied, is intended or shall be construed to confer on any person or entity other than the parties any right, remedy or claim, legal or equitable, and this CPA and all of its provisions are intended to be, and shall be, solely and exclusively for the benefit of the parties.

20. Notices. Notices to you under this CPA shall be sufficient if posted by Highwire on its website at www.Highwire.com or emailed to you. Notices to Highwire under this CPA shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to: Highwire, Inc., 700 District Avenue, Burlington, MA 01803.

21. Status of Parties. You and we are independent contractors and not partners or joint venturers. None of our employees will be considered to be your employees, and neither you nor any of your employees will be considered to be our employees. We and you are not jointly and severally liable for the actions, omissions, and statements of each other. You are not authorized to make statements or promises that are binding on us, and we are not authorized to make statements or promises that are binding on you.