Highwire Contractor Participation Agreement
THIS CONTRACTOR PARTICIPATION AGREEMENT (“CPA” OR “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN HIGHWIRE, INC., A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 700 DISTRICT AVENUE, BURLINGTON, MA 01803 (“HIGHWIRE”), AND THE CUSTOMER. THE CUSTOMER 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”.
THIS AGREEMENT GOVERNS CUSTOMER’S ACCESS TO AND PARTICIPATION IN HIGHWIRE’S CONTRACTOR ASSESSMENT PLATFORM, PROGRAM, AND RELATED SERVICES.
THIS AGREEMENT IS ACCEPTED BY CUSTOMER UPON (i) CLICKING “I AGREE” (OR SIMILAR ACCEPTANCE MECHANISM) DURING ENROLLMENT, OR (ii) ACCESSING OR USING THE HIGHWIRE PLATFORM OR SERVICES. BY DOING SO, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.
IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND SUCH ENTITY.
HIGHWIRE MAY UPDATE OR MODIFY THIS AGREEMENT FROM TIME TO TIME UPON REASONABLE NOTICE TO YOU, INCLUDING BY POSTING UPDATED TERMS ON THE HIGHWIRE PLATFORM OR WEBSITE. CUSTOMER’S CONTINUED USE OF THE PLATFORM AFTER SUCH NOTIFICATION CONSTITUTES ACCEPTANCE OF THE UPDATED AGREEMENT.
THIS AGREEMENT WAS LAST UPDATED ON MAY 12, 2026. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT (“EFFECTIVE DATE”). CUSTOMERS CAN VIEW THE MOST CURRENT VERSION OF THE CPA AT ANY TIME AT WWW.HIGHWIRE.COM/TERMS.
1. ACCESS TO THE HIGHWIRE PLATFORM AND PROGRAM
1.1 Overview of the Program
Highwire has developed and operates a Contractor Assessment Safety Program (the “Program”), a cloud-based platform designed to provide data-driven insights into contractor safety, risk, and performance.
As part of the Program, contractors and subcontractors (collectively, “contractors,” including Customer) submit certain prescribed safety, financial, and related information to Highwire. Highwire combines such information with other generally available information and applies its proprietary algorithms, methodologies, and computer programs (collectively, the “Highwire System”) to generate safety and/or financial assessments of participating contractors (the “Assessments”).
The Program is intended to support more informed decision-making by providing a consistent and scalable framework for evaluating contractor risk and qualifications. Assessments, together with certain underlying information, may be made available to persons or entities designated by Customer, including owners, general contractors, insurers, and other authorized third parties (“Clients” or “Authorized Recipients”), for purposes of evaluating contractors for work and making related business decisions.
As a participant in the Program, Customer will receive reports indicating the results of its Assessments and, in Highwire’s discretion, related information. In addition, Customer will have access to functionality within the Program that enables it to upload and manage certain training certificates and insurance certificates, receive reminders regarding upcoming expirations of such materials, and maintain a centralized profile of its qualifications and related information.
Because Highwire’s Assessments may incorporate criteria established by individual Clients and vary based on Client-specific requirements, Customer will not be provided with financial Assessment results.
Highwire may enhance, modify, or update the Program, the Highwire System, or the Assessments from time to time in its discretion, including by modifying the criteria, methodologies, or data sources used to generate Assessments.
2. CUSTOMER RESPONSIBILITIES
2.1 Submission of Information and Participation
In order to participate in the Program, you agree to submit all required safety and financial information in the format specified in the Highwire Platform. You further agree to designate Authorized Recipients within the Platform, and you acknowledge that all such Authorized Recipients are approved by you to receive your Assessments and your detailed safety and financial information. 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 your Assessments. Notwithstanding the foregoing, if a Client has paid the Applicable Fee on your behalf (as provided in Paragraph 5.2 below), 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 said Applicable Fee.
2.2 Designation of Authorized Recipients
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 7 hereof. Notwithstanding the first sentence of this Paragraph, 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).
2.3 Accuracy and Representations
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. 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.
3. CUSTOMER DATA AND USE OF INFORMATION
3.1 Use of Submitted Information
You understand and agree that the detailed safety and financial information that you submit, along with other nonconfidential information such as OSHA record-keeping documents, and Experience Modification Rating, will be used by Highwire to create Assessments of your safety and financial status, For purposes of this CPA, a “Client” includes an owner, general contractor, insurer, or other person or entity that has a legitimate and lawful interest in the 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”) includes obligations to respect your Confidential Information and the Confidential Information of Highwire, as provided for in Paragraph 7 hereof.
In addition to the 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) may be made available to all Clients in the Highwire Platform to enable Clients to identify and engage contractors, including the Customer. Such information is acquired and updated by Highwire through an array of methods, including via the Platform, via email or verbally from a Client, via web search, etc. 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 allowed for in Paragraph 5.2.
3.2 Aggregated Information
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 Customer (“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.
3.3 Privacy and Security
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 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 and/or begin using the Highwire Platform.
3.4 License to Submitted Information
Customer hereby grants to Highwire, for the term of this CPA, a limited, worldwide, non-exclusive, transferable, and sublicensable (also in multiple tiers) license to use, duplicate, display, and distribute all 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.
4. USE OF ASSESSMENTS
4.1 Use of Assessments
The Authorized Recipients are authorized to use Assessments and related information in their evaluations of contractors (including the Customer) and in determining whether to employ and/or permit you to be engaged to participate in their projects.
4.2 Restrictions of Use
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.
4.3 Disclaimer of Responsibility and Disclosure
Highwire is not responsible for improper treatment or disposition of information by recipients or for violations of such agreements with Highwire by such recipients. 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.
5. FEES AND PAYMENT
5.1 Applicable Fees
The annual fee payable to permit Customer to participate in the Program and to allow you to access the Highwire System shall be the applicable fees assessed at the time of enrollment in the Program, based on what specific Assessment package a Client requires of you (the “Applicable Fee”). When you select a Client or Clients during enrollment or add them later as a new connection from within your account, the price you pay will be based on the Assessment package required by the selected Client(s). Pricing for each Assessments package is tiered based on Customer’s size, determined by your employee headcount.
5.2 Payment Terms
Such Applicable Fee shall be due and payable to Highwire at the time of Customer enrollment and may be paid either (i) directly by you or (ii) indirectly on your behalf by a Client.
If, partway through either the Initial Term or Renewal Term, the Customer adds a new Client, 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).
The Customer’s participation in the Program is contingent upon payment and the Customer’s Assessment(s) will only be available to Client(s) during paid Initial and/or Renewal Terms.
No refunds are available, except in the case of termination of this CPA, as provided in Paragraph 11.4 of this CPA.
5.3 Taxes
Customer 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 Customer 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 Customer furnishes to Highwire a valid, governmentally issued written tax exemption certificate.
5.4 Currency and Payment Processing
All fees are stated and payable in U.S. Dollars (USD) unless otherwise expressly specified. Customer is responsible for payment of all fees in the currency invoiced.
If Customer elects to pay in a currency other than USD, or if payment is processed in a currency different from Customer’s billing currency, Highwire’s 3rd-party payment processor or the Customer’s financial institution may apply currency conversion rates and fees. Highwire does not control and is not responsible for any such conversion rates, foreign exchange fees, or additional charges imposed by payment providers or financial institutions.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Highwire Ownership
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 Customer. 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.
6.2 License to Customer
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 the Customer, 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.
6.3 Use of Customer Identity
In describing Customer’s participation in the Highwire Program, Highwire is authorized to display (in list format) Customer’s full business name and logo.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information
“Confidential Information” for Highwire, covers the Program, the Highwire System, Highwire’s Trade Secrets. “Confidential Information” for Customer, shall include Customer’s financial information, Customer’s Trade Secrets, and other information uploaded by Customer in written or tangible form that is conspicuously marked as “CONFIDENTIAL,” “PROPRIETARY,” or “SECRET” or with a designation conveying a similar meaning.
“Confidential Information” also includes:
(i) 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;
(ii) 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; and,
(iii) 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.
“Disclosing Party” means either of the parties to this CPA that discloses or otherwise furnishes to the other party its Confidential Information.
“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.
“The term “Trade Secrets” has the meaning assigned it by the Uniform Trade Secrets Act, as adopted by the Commonwealth of Massachusetts.
7.2 Obligations of the Receiving Party
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.
7.3 Notification
The Receiving Party will promptly notify the Disclosing Party in writing of any verified unauthorized disclosure, use, misuse, or misappropriation of the Confidential Information of the Disclosing Party that may come to the Receiving Party’s attention.
7.4 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; and
(ii) in the case of Highwire, to the Customer’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.
7.5 Exceptions
The restrictions and limitations do not apply to information that is publicly known, becomes public without fault, or was already known, or is required to be disclosed by law, whether under an order of a court or government tribunal or other legal process, provided:
(i) 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.
8. WARRANTIES AND DISCLAIMERS
8.1 Disclaimer of Warranties
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.
8.2 Disclaimer of Implied Warranties
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.
9. INDEMNIFICATION
9.1 Customer Indemnification Obligations
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.
9.2 Costs and Expenses
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.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages
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.
10.2 Liability Cap
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. TERM AND TERMINATION
11.1 Term and Renewal
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. The Initial Term and the Renewal Terms, collectively, are referred to herein as the “Term.”
11.2 Termination for Convenience
This CPA may be terminated for any reason or no reason upon 60 days’ advance notice from either party to the other party. Notice of nonrenewal shall be furnished by either party 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.
11.3 Termination for Cause
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.
11.4 Refunds Upon Termination
No refunds are available to the Customer unless:
(i) Highwire terminates the Program;
(ii) Highwire terminates this CPA without cause; or
(iii) Customer 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).
11.5 Survival
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 3, 4, 6 through 10, and 12 through 14 of this CPA.
12. GENERAL PROVISIONS
12.1 Compliance with Laws
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.
12.2 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 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.
12.3 Independent Contractors
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.
12.4 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.
12.5 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.
12.6 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.
12.7 Entire Agreement; Interpretation
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.
In this CPA, the following guides to interpretation shall apply:
(i) Words in the singular shall encompass the plural and vice versa.
(ii) Words of one gender will be held to include the other genders as the context requires.
(iii) “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.”
(iv) A reference to a law includes any amendment or modification to such law and any rules or regulations issued thereunder.
(v) 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.
(vi) 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.
(vii) 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.
(viii) All references to “$” or “dollars” herein mean U.S. dollars.
(ix) 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.
(x) 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.
(xi) 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.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 Governing Law; Venue; Waiver
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.
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.
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.
14. INTERNATIONAL TERMS
If you, the Customer, 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 shall be overruled and rendered ineffective and unenforceable to the extent of such conflict or inconsistency.
Customer 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.
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 Customer, no copy or translation of this CPA need be filed, registered, or deposited with any office, agency, or instrumentality within Customer’s country of domicile.
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.
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.
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.
The arbitral panel shall not act or decide as an amiable compositeur and shall be guided solely by applicable principles of law and equity.
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.
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.
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.
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.
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.
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.
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.
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.