Last Modified: Feb 3, 2022
MASTER SAAS
SERVICES AGREEMENT
WIIISDOM (“LICENSOR” OR ‘WE”) WILL PROVIDE CERTAIN SERVICES TO YOU AS THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN SUBSCRIPTION QUOTATION, ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH LICENSOR THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM LICENSOR. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND LICENSOR. BY ENTERING INTO A WRITTEN SUBSCRIPTION QUOTATION, ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH LICENSOR THAT REFERENCES THE AGREEMENT BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
Licensor and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Authorized Reseller means any third party reseller, distributor or channel partner that has been authorized by Licensor to resell the Services to Customer.
1.3 Confidential Information has the meaning given to it in Section 4.1.
1.4 Customer means the person or entity that enters into a Order Form, or similar ordering document with Licensor that expressly references this Agreement.
1.5 Customer Data means all Data made available by the Customer or its Users to Licensor or otherwise provided by Customer or its Users in connection with the provision of the Services.
1.6 Data means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
1.7 Documentation means the documentation for the Subscription Service generally supplied by Licensor to assist its customers in the use of the Subscription Service, including user and system administrator guides and manuals and other written materials.
1.8 Implementation Services means the configuration, the onboarding, and implementation of the Subscription Service set forth and described on an Order Form.
1.9 Licensor Data means all Data made available by Licensor to Customer in connection with the Customer’s use of the Services.
1.10 Losses has the meaning given to it in Section 9.1.
1.11 Order Form means each quotation, order form or similar ordering document signed by duly authorized representatives of both Parties (or Customer and an Authorized Reseller as the case may be) which references this Agreement, identifies the specific Subscription Service and any Implementation Services ordered by Customer, sets forth the prices for the Subscription Service and Implementation Services and contains other applicable terms and conditions.
1.12 Services means the Subscription Service and any Implementation Services provided by Licensor pursuant to Section 2.1 hereof.
1.13 Subscription Service means Licensor’s proprietary subscription-based software solutions known as Wiiisdom Ops and further described on the applicable Order Form including all related technical support.
1.14 Users mean individuals who are authorized by the Customer to use the Services, and, with respect to the Subscription Service, who have been supplied passwords by the Customer (or by Licensor at the Customer’s request). Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.
2. SERVICES
2.1 Services. Licensor shall provide the Customer with the specific Services specified on an Order Form. In the event of a conflict between the terms set forth in an Order Form and this Agreement, the terms set forth in this Agreement will control, unless an Order Form makes specific reference to the section of this Agreement that is to be amended in the Order Form. Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Order Form will apply only for purposes of that Order Form, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Order Form. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Licensor regarding future functionality or features.
2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Licensor hereby grants to the Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party. The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (a) that only authorized Users are permitted to use the Subscription Service; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use and/or access.
2.3 Licensed Volume. The Customer acknowledges that access and use of the Subscription Service is licensed to the Customer for use up to the number of Users and on the license type (Enterprise or Professional) as set forth on the applicable Order Form (the “Volume Limitations”). In the event that the Subscription Service is used in excess of the Volume Limitations then the Customer shall be obligated to pay Licensor for such excess at Licensor’s then current rates. For the avoidance of doubt, licenses are granted on an authorized User basis and may be reassigned between uniquely identified individual Users over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple Users and the total number of Users who can use the Subscription Service must not exceed the number of licenses purchased and accepting the terms of a modified Order Form in order to remain in compliance with the terms of this Agreement.
2.4 Affiliates. Subject to the terms of the Order Form, the Customer may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. Any license restrictions set forth on an Order Form shall be deemed to apply to both the Customer and its Affiliates. By way of example, if an Order Form limits use of the Subscription Service to twenty (20) Users, then the use by the Customer and its Affiliates, when aggregated together, shall not exceed a total of twenty (20) Users.
2.5 Technical Support. As part of the Subscription Service, Licensor shall provide technical support services to Customer in accordance with the additional terms on Appendix A attached hereto.
3. FEES; PAYMENT TERMS
3.1 Fees. The Customer agrees to pay Licensor for Services provided and expenses incurred on the basis and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form fees are paid annually in advance and payment shall be due within thirty (30) days after receipt of Licensor’s invoice and shall be made in the currency specified in the Order Form. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by Licensor in connection with any Services rendered. For purchases made by Customer from an Authorized Reseller, Customer agrees to pay the Authorized Reseller the fees as agreed to with the Authorized Reseller in accordance with any payment terms agreed to by Customer and such Authorized Reseller. After the first year of the Term, Licensor may increase subscription fees no more than once per year in an amount equal to the percentage increase in the Customer’s country Consumer Price Index for the immediately preceding calendar year. In the event the Customer’s country Consumer Prices Index is negative, the Licensor’s subscription fees will not be reduced. In the USA it will be the All Urban Consumer Price Index (CPI-U, U.S. city average, all items, not seasonally adjusted).
3.2 Disputed Charges. If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Licensor on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement.
3.3 Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Licensor and any taxes or obligations imposed upon Licensor under federal, state and local wage laws.
4. CONFIDENTIALITY
4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
5. WARRANTIES
5.1 Subscription Service Warranty. Licensor warrants that during the term of any Order Form for the Subscription Service, the Subscription Service will conform, in all material respects, with the Documentation. Licensor does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. Licensor makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Licensor will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Licensor with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form and this Agreement.
5.2 Data Security. Licensor agrees to use appropriate safeguards and comply with all applicable data protection laws, to prevent use or disclosure of the Customer Data other than as provided for by this Agreement. Licensor agrees to implement industry standard physical safeguards, technical safeguards and policy, procedure and documentation requirements that reasonably and appropriately protect the confidentiality, integrity and availability of the Customer Data.
5.3 No Other Warranty. LICENSOR DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
6. LIMITATION OF LIABILITY
6.1 Consequential Damage Exclusion. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
6.2 Limitation of Liability. The total cumulative liability of Licensor to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Customer to Licensor under the Order Form for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.
6.3 Personal Injury or Death. Nothing in this Agreement limits a Party’s liability for death or personal injury caused by its negligence.
7. TERM
7.1 Term. This Agreement will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Form for the Subscription Service shall be set forth on the Order Form. Licensor reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 60 days prior to the then current renewal date of the Order Form. Licensor reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Order Form entered into after the date such new Agreement goes into effect.
7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Licensor shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. Customer shall pay Licensor for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Within thirty (30) days following termination, the Customer may retrieve the Customer Data in accordance with established and reasonable system access procedures. After such period, Licensor will have no further obligation to store and/or make available the Customer Data and may delete the same.
8. OWNERSHIP; USE OF DATA; OBLIGATIONS
8.1 Subscription Service. The Customer acknowledges and agrees that as between Licensor and the Customer, all right, title and interest in and to the Subscription Service (excluding any Customer Data) and including all modifications and configurations, all Licensor Data and all of Licensor’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Licensor in providing the Subscription Service and all derivatives thereof are and shall remain Licensor’s or its licensors’. The Licensor name, all Licensor logos, and the product names associated with the Subscription Service are trademarks of Licensor or third parties, and no right or license is granted to use them. The Customer shall not remove any Licensor trademark or logo from the Subscription Service. During the term of this Agreement, Licensor grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Licensor Data solely in connection with the Customer’s permitted use of the Subscription Service. Licensor shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from the Customer’s use of the Subscription Service) provided, however, that Licensor shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with the Customer or any of its Users.
8.2 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Licensor a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer. Upon termination of the Subscription Service, Licensor shall make such Customer Data available to the Customer in a mutually agreed upon format. The Customer is solely responsible for all Customer Data. Licensor does not guarantee the accuracy, integrity or quality of such Customer Data. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
8.3 Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited. Without Licensor’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party. The Customer shall be liable for any breach of this Agreement by any of its Users. In addition to Licensor’s other remedies hereunder, Licensor reserves the right upon notice to the Customer to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement.
8.4 Privacy Policy. Licensor may process personal data collected via the Software for the purposes of maintaining and improving the Software and providing support related to the Software. Processing may include measuring and analyzing Customer usage of the Software, and conducting surveys related to the Software.
For information about Licensor’s data protection practices, please read Licensor’s privacy policy at https://wiiisdom.com/terms-privacy-policy/. This policy explains how Licensor treats Customer personal information, and protects Customer privacy, when Customer uses the Software or Licensor websites.
9. INDEMNIFICATION
9.1 Licensor Indemnification. Subject to Section 9.3 below, Licensor will indemnify, defend and hold the Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against the Customer or any of its Affiliates alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, (b) use of the Services after Licensor notifies the Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Customer Data, (d) modifications to the Services made other than by Licensor (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services with software or equipment which was not provided by Licensor, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Licensor with the Customer’s custom requirements or specifications if and to the extent such compliance with the Customer’s custom requirements or specifications resulted in the infringement. If the Services are held to infringe, Licensor will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such claim without cost to the Customer; (b) to replace the Services with non-infringing Services without loss of any material functionality or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Form and refund to the Customer any prepaid unused fees paid to Licensor for the infringing Services. The rights and remedies granted the Customer under this Section 9.1 state Licensor’s entire liability, and the Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
9.2 Customer Indemnification. Subject to Section 9.3 below, the Customer shall indemnify, defend, and hold Licensor and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Licensor or any of its Affiliates that arises out of or results from a claim alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party.
9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
10. GENERAL
10.1 Entire Agreement. This Agreement, including all appendices and Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Except as set forth in Section 7.1, only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Licensor. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.2 Assignment. This Agreement shall be binding upon and for the benefit of Licensor, the Customer and their permitted successors and assigns. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement and all Order Forms as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Licensor may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Licensor shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
10.3 Governing Law/Jurisdiction Specific Terms: Depending on the Customer location, some of these jurisdiction specific terms will apply. They will also explain which Wiiisdom entity the Customer is contracting with and which laws will govern the relationship between the Parties (specific terms on Appendix B attached hereto).
10.4 Disputes. Any disputes between the Parties arising out of this Agreement shall be resolved as follows: Members of the senior management of both Parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation. Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the Parties. If the dispute is not resolved by mediation or the Parties are unable to agree on a mediator, then such dispute will be subject to the exclusive jurisdiction defined in the Exhibit B, and each party hereby consents to the personal jurisdiction thereof.
10.5 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
10.6 Relationship of the Parties. Licensor and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
10.7 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
10.8 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) by email upon conformation that the electronic mail was received by the recipient and (iv) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form. Either Party may change its address by giving written notice of such change to the other Party.
10.9 Modifications to Subscription Service. Licensor may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.
10.10 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
10.11 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
APPENDIX A TECHNICAL SUPPORT
(a) Description of technical support services:
- HOTLINE. Licensor will provide a hotline associated with the Subscription Service, consisting of a website that permits Customer to open tickets online.
- ERRORS vs BUGS. Licensor will assess Errors and Bugs in the Subscription Service. Upon discovery of any Error, Customer shall promptly use the hotline website to open a ticket and provide Licensor with a comprehensive written description of the Error, as well as such additional information as Licensor may reasonably request to assist with the verification and resolution of the Error.
- DEFINITIONS:
- An “Error” means a reported and verifiable failure of the Subscription Service that has a significant adverse effect on the Subscription Service’s functionality and on the Customer’s operations.
- A “Bug” shall be anything that has an adverse effect on the Subscription Service’s functionality, but is not significantly adverse to be characterized as an Error.
- ERROR FIX. After Customer has supplied the foregoing information, if Licensor then verifies the existence of an Error, then Licensor will use commercially reasonable efforts to provide an Error Fix in such time and in such manner as is reasonable in light of the type of nonconformity. For example, if a work-around is available, Licensor will ask Customer to use that work-around pending any Error Fix.
- BUG FIX. If Licensor verifies the existence of a Bug, Licensor will add it to its list of Bugs that may be addressed with a Bug Fix by its next scheduled revision or new release to the Subscription Service.
- DEFINITIONS:
(b) Limitations on support:
- Customer must use its support account to submit in writing to the Licensor’s support website (https://support.wiiisdom.com/) all requests for enhancements, bug fixes or error fixes.
- Licensor reserves the right to decide whether or not to undertake development of “Enhancements”, meaning changes or additions to the Software requested by Licensee but outside the scope of this Agreement. If the Licensor agrees to undertake development of Enhancements, it will use reasonable efforts in the nature of professional services and under a separate written agreement providing for scope, fees, costs and other applicable elements. Enhancements will carry no warranty (other than title) unless expressly agreed in writing by Licensor.
The Subscription Service’s support will include:
* Responses to technical questions
* Troubleshooting of technical issues
* Bug fixes
A detailed Scope of Support presentation is available for download on the Licensor support website (https://support.wiiisdom.com/). This presentation explains exactly what is included and what is not included.
APPENDIX B
JURISDICTION SPECIFIC TERMS
Depending on your location, some of these Jurisdiction-Specific Terms will apply to you.
CONTRACTING ENTITY; APPLICABLE LAW; NOTICE
Your physical address will determine (a) the Wiiisdom entity entering into this Agreement, (b) the address to which you should direct notices under this Agreement, (c) the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and (d) the courts that have jurisdiction over any such dispute or lawsuit, as set out in the table below. For this Agreement, ‘Customer Location’ means your shipping or physical address.
Customer Location |
Wiiisdom Contracting Entity |
Address for Notices |
Governing Law |
|---|---|---|---|
| USA | Wiiisdom USA, Inc. | 53 State Street, Suite 500, Boston MA 02109 USA Email: legal@wiiisdom.com | Laws of the State of Delaware in the USA |
| Canada | Les Solutions Wiiisdom Canada Inc | 900-1000 rue De La Gauchetière Ouest Montréal, QC H3B 4W5 Canada Canada Email: legal@wiiisdom.com | Laws of the State of Quebec in Canada |
| United Kingdom | Wiiisdom UK LTD | Number 22, Mount Ephraim, Tunbridge Wells, Kent, TN4 8AS United Kingdom Email: legal@wiiisdom.com | Laws of England & Wales |
| France | Wiiisdom France SAS | 63 Place Saint-Hubert, 59800 Lille France Email: legal@wiiisdom.com | Laws of France |
If you are located in a geographic region that does not fall into one of the designations described above, then you are contracting with Wiiisdom France SAS.