“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all electronic data or information, submitted by Customer to the wise.io Platform.
"Customer-Developed Feature Engineering" means any enhancements to the Customer Data developed by the Customer.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Users” means individuals who are authorized by Customer to use the wise.io Platform and who have been supplied user identifications and passwords by Customer (or by wise.io at Customer’s request). Only employees and contractors of Customer performing services for Customer may be Users.
Wise.io grants to you, during the subscription Term, the nontransferable, nonexclusive, worldwide right to use the proprietary software Application and other technology available from Wise.io (the "Software") and all linked pages, content and components (collectively, the "Services"), all solely for your own internal business operations and subject to the terms of the Agreement.
3.1 Wise.io Responsibilities
3.2 Customer Responsibilities
4.1 Fees.Customer shall pay all fees specified in the Cover Sheet or otherwise agreed to by Customer in writing (collectively, “Fees”). Except as otherwise specified herein, payment obligations are non-cancelable and Fees paid are non-refundable.
4.2 Travel Expenses. If Customer requires any wise.io personnel to travel to a location more than 50 miles from wise.io’s principal place of business in connection with wise.io’s performance of Services hereunder, Customer shall reimburse wise.io for all documented travel-related expenses incurred by wise.io in connection therewith (“Travel Expenses”).
4.3 Invoicing and Payment. Annual Fees, PSP Service Fees and Platform License Fees shall be invoiced annually in advance. Monthly Overage Fees shall be invoiced monthly in arrears based on Customer’s Case-Day-volume for that month. Other Fees (e.g., for Services provided other than pursuant to the Proactive Support Program) and Travel Expenses shall be invoiced monthly in arrears unless otherwise agreed by the parties. Unless otherwise stated in the Cover Sheet, Fees and Travel Expenses are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to wise.io and notifying wise.io of any changes to such information.
4.4 Overdue Charges. If any Fees invoiced hereunder are not received by wise.io by the due date, then such Fees shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.5 Suspension of Access. If any Fees owing by Customer is 30 days or more overdue, wise.io may, without limiting its other rights and remedies, suspend Customer’s access to the wise.io Platform and Services until such amounts are paid in full.
4.6 Payment Disputes.wise.io shall not exercise its rights under the “Overdue Charges” or “Suspension of Access” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.7 Taxes.Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively,“Taxes”). Customer is responsible for paying all Taxes associated with its payments hereunder. If wise.io has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides wise.io with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, wise.io is solely responsible for taxes assessable against it based on its income, property and employees.
4.8 Audit. Wise.io shall have the right, during normal business hours and upon at least 5 days prior notice, to audit Customer’s records relating to Customer’s activities pursuant to this Agreement in order to verify that Customer has paid to wise.io the correct amounts owed under this Agreement and otherwise has complied with the terms of this Agreement. The audit shall be conducted at wise.io’s expense, unless the audit reveals that Customer has underpaid the amounts owed to Wise.io by 5% or more in any quarter, in which case Customer shall reimburse wise.io for all costs and expenses incurred by Wise.io in connection with such audit. Customer shall promptly pay to wise.io any amounts shown by any such audit to be owing plus interest as provided in Section 3.4.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, wise.io reserves all rights, title and interest in and to the Wise.io Platform and Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. Customer shall not (i) permit any third party to access the wise.io Platform except as permitted herein, (ii) create derivative works based on the Wise.io Platform except as permitted herein, (iii) copy, frame or mirror any part or content of the wise.io Platform, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the wise.io Platform, or (v) access the wise.io Platform in order to (a) build a competitive product or service or (b) copy any features, functions or graphics of the Wise.io Platform.
5.3 Customer Data and Customer-Developed Feature Engineering. Customer hereby authorizes Wise.io to use any Customer Data and Customer-Developed Feature Engineering in connection with making the Wise.io Platform available to Customer and rendering Services to Customer. Subject to the limited rights granted by Customer hereunder, wise.io acquires no right, title or interest under this Agreement in or to any Customer Data or Customer-Developed Feature Engineering (excluding any potion thereof that includes or is based on, in whole or in part, the wise.io Platform, with respect to which wise.io retains all rights, title and interest under Section 5.1), including any intellectual property rights therein.
5.4 Suggestions. wise.io shall have a royalty-free, worldwide, irrevocable, perpetual licenseto use and incorporate into wise.io Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the wise.io Platform.
5.5 Federal Government End Use Provisions. Wise.io provides the wise.io Platform, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the wise.io Platform include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with wise.io to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; Confidential Information of Wise.io shall include the wise.io Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) was independently developed by the Receiving Party or (v) although derived by the Receiving Party from Confidential Information of Disclosing Party, is computer software code or tools (including algorithms) that are not unique to the Disclosing Party’s business and have general applicability separate and apart therefrom (for example algorithms that allow computers to evolve behaviors based on empirical data supplied by the Disclosing Party as part of its Confidential Information).
6.2 Protection of Confidential Information.The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement (including the Cover Sheet) to any third party other than its Affiliates and to its and their legal counsel, accountants and financial advisors without the other party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.1 Mutual Warranties. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1 Indemnification by wise.io.wise.io shall defend Customer against any claim, demand, suit or proceedingmade or brought against Customer by a third party alleging that the use of the wise.io Platform (other than any Customer-Developed FE Process) as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives wise.io written notice of the Claim Against Customer, (b) gives wise.io sole control of the defense and settlement of the Claim Against Customer (provided that wise.io may not settle or defend any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) provides to wise.io all reasonable assistance, at wise.io’s expense. In the event of a Claim Against Customer, or if wise.io reasonably believes the wise.io Platform may infringe or misappropriate, wise.io may in its discretion and at no cost to Customer (i) modify the wise.io Platform so that it no longer infringes or misappropriates the intellectual property rights of a third party, without breaching wise.io’s warranties hereunder, (ii) obtain a license for Customer’s continued use of the wise.io Platform in accordance with this Agreement, or (iii) terminate this Agreement upon 30 days’ written notice and refund Customer any prepaid Fees covering the remainder of the Term after the effective date of termination.
8.2 Indemnification by Customer.Customer shall defend wise.io against any claim, demand, suit or proceeding made or brought against wise.io by a third party alleging that the Customer Data or any Customer-Developed FE Process, or that Customer’s use of the wise.io Platform in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against wise.io”), and shall indemnify wise.io for any damages, attorney fees and costs finally awarded against wise.io as a result of, or for any amounts paid by wise.io under a court-approved settlement of, a Claim Against wise.io; provided that wise.io (a) promptly gives Customer written notice of the Claim Against wise.io, (b) gives Customer sole control of the defense and settlement of the Claim Against wise.io (provided that Customer may not settle or defend any Claim Against wise.io unless it unconditionally releases wise.io of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s expense.
8.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
9.1 Limitation of Liability.NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE OR EITHER PARTY’S OBLIGATIONS UNDER THE “MUTUAL INDEMNIFICATION” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES ARISING FROM A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER THE “CONFIDENTIALITY” SECTION ABOVE, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.1 Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.2 Refund or Payment upon Termination. Upon any termination for cause by Customer, wise.io shall refund Customer any prepaid fees covering the remainder of the Term after the effective date of termination. Upon any termination for cause by wise.io, Customer shall pay any unpaid fees covering the remainder of the Term after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to wise.io for the period prior to the effective date of termination.
10.3 Surviving Provisions. The sections of this Agreement titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
11.1 Export Compliance. The wise.io Platform, other wise.io technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each of wise.io and Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the wise.io Platform in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
11.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.3 Publicity. Neither party will issue any press release or other public statement regarding this Agreement or the relationship of the parties hereunder without the prior written consent of the other party. Notwithstanding the foregoing, wise.io may identify Customer as a wise.io customer on wise.io’s website without obtaining Customer’s prior written consent thereto.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to wise.io shall be addressed to the attention of each party at the address for that party set forth on the Cover Sheet. Either party may update its address for receipt of notice by providing written notice thereof to the other party pursuant to this section.
11.6 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this section shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in San Francisco County, California, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
11.10 Entire Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between these Standard Terms and those in a Wise.io Work Order or Sales Order, the terms of the Wise.io Work Order or Sales Ordershall prevail.
Questions. If you have any questions about the Terms and Conditions, please feel free to contact us by email at email@example.com.
Effective Date. These Terms and Conditions are effective as of May 1, 2014.