These Terms of Service (together with any Services Order Forms, this “Agreement”) governs the use of all technology and services that a Client accesses and/or receives from Wismo Inc. (“WISMO”). Client and WISMO are referred to individually as a “Party” and collectively as the “Parties.”
These Terms of Service are effective as of October 20, 2020 for all customers agreeing to these Terms of Service for the first time. Please be aware that by continuing to use WISMO’s Services after October 20, 2020, you are accepting these updated terms. However, if you have a separate, written terms of service agreement with WISMO, then those terms apply.
Definitions
“Affiliate” means any entity the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party, or by an entity which owns or controls a Party, as applicable.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes publicly available through no fault of the recipient.
“Client Data” means any information or data which Client inputs into the Customer Experience Portal or provides to WISMO for inputting into the Customer Experience Portal.
“Customer Experience Portal” means WISMO’s proprietary system through which Clients may provide their customers with an enhanced post-purchase experience, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of WISMO, Client, or any third party.
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by WISMO to Client regarding the use or operation of the Customer Experience Portal.
“Marks” means a Party’s corporate or trade name, trademarks, service marks, logos, domain names or other identification of such Party.
“Term” means the period that includes the Initial Services Term as well as any renewal periods defined in this Agreement.
1. Services
1.1. From time to time, the Parties may execute one or more services order forms that describe the services and the deliverables WISMO will provide to Client. Each SaaS Services Order Form will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. Should any conflict arise between the terms of the SaaS Services Order Form and this Agreement, the SaaS Service Order Form will control to the extent of the conflict. This Agreement, together with any Saas Services Order Forms constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
1.2. WISMO will host, operate and maintain the Customer Experience Portal on servers operated and maintained by or at the direction of WISMO. WISMO will modify Client’s interface to the Customer Experience Portal to align with Client’s branding and Marks, provided that WISMO agrees to comply with Client’s Marks usage policies and ongoing instructions and supervision with respect to Client’s Marks.
1.3. Client will cooperate in providing WISMO with accurate Client Data. Client will be responsible for obtaining and maintaining at Client’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required for Client to access the Customer Experience Portal.
2. Changes to these Terms. WISMO may update these Terms of Service from time to time. Your continued access or use of the Services on or after the effective date of the changes constitutes your acceptance of any updates.
3. Access to WISMO Software. During the Term, Client will receive a nonexclusive, non-assignable, royalty-free, worldwide right to access the Customer Experience Portal for the purposes of receiving the Services, subject to the terms of this Agreement. Client acknowledges that this Agreement is a software as a service and WISMO will not be delivering copies of its software to the Client. Nothing in this Agreement confers any title or interest in the Customer Experience Portal to the Client.
4. License to Client Marks. Client grants WISMO a royalty-free, non-exclusive, non-transferable, non-sublicensable, limited term license to use Client’s Marks solely for the purpose of modifying the appearance of Client’s interface to the Customer Experience Portal to incorporate Client’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. The license in this paragraph is limited to the duration of this Agreement. The provisions of this paragraph do not convey any title or ownership interest in Client’s Marks to WISMO.
5. Fees and Taxes.
5.1. Client will pay WISMO the Services Fees set forth in the Services Order Forms. The Fees will be paid in advance on the date specified in the Services Order Forms and on the first day of any Renewal Term. All Fees are non-refundable except as expressly provided in this Agreement. All undisputed amounts payable to WISMO under this Agreement will be due as specified in the applicable Services Order Forms or, if not specified in the applicable Services Order Forms, within thirty (30) days from receipt of an invoice. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
5.2. Client will, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on WISMO’s net income. Client agrees to indemnify, defend, and hold WISMO, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such taxes, duties or assessments.
6. Client Data. As between Client and WISMO, Client will retain all ownership, right, and title (including all intellectual property rights) in and to Client Data and Client’s Marks. Client grants WISMO a limited, worldwide, non-transferable, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Client Data solely in order to enable WISMO to make the Customer Experience Portal available for Client’s use pursuant to this Agreement. Notwithstanding anything to the contrary, WISMO may also aggregate and anonymize data on the Customer Experience Portal and use and retain that data for product improvements and aggregated platform metrics.
7. Warranties. WISMO warrants to Client that during the Term, the Customer Experience Portal will operate substantially in accordance with the terms of the Documentation. The warranty in this paragraph will not apply to performance issues caused by (i) factors outside of WISMO’s reasonable control; (ii) any improper actions or inactions of Client or any third parties under Client’s control; (iii) Client Data; (iv) Client’s operating environment or equipment; or (v) third party software requested by Client to be integrated with the Customer Experience Portal.
8. Term. Each Saas Services Order Form will have an initial term, and will automatically renew for additional periods equal to the Initial Service Term unless a Party provides written notice of its intention not to renew at least thirty (30) days prior to expiration of the current term (any such renewal term a “Renewal Term,” and together with the Initial Term, the “Term”). These Terms of Service will remain in effect while any Services Order Forms are in effect. Should the Services Order Form expire prior to the expiration or termination of these Terms of Service and the Parties do not enter into a new Services Order Form within 180 days, this Agreement will automatically terminate.
9. Termination. Either party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty days. In the event that the Client terminates this Agreement before the end of the Term for reasons other than a breach by WISMO, the Client will pay WISMO an early termination fee. This fee will be equal to the monthly cost of the Services, in addition to any amounts owed to WISMO up to the date of termination. This early termination fee compensates WISMO for the administrative costs and losses associated with the early termination of the Services and is not a penalty.
10. Effect of Termination. If the Agreement is terminated, then: (i) each Party will return or destroy all Confidential Information of the other Party upon request, (ii) Client’s access to use the Customer Experience Portal will immediately cease; (iii) all Fees owed by Client to WISMO will be immediately due; provided if Client terminates for cause, WISMO will refund to Client a pro rata amount of any Fees paid up-front based on the remainder of the Term.
11. Confidentiality. The recipient will not disclose the other Party’s Confidential Information, except to its Affiliates, employees, agents or professional advisors (“Representatives”) who need to know it and who have agreed in writing to keep it confidential. Recipient will be responsible for any breach of this Section by its Representatives. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable law, judicial or governmental investigation or proceeding; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure.
12. Marketing Materials. Client agrees (i) that WISMO may identify Client as a customer and use Client’s logo on https://wismolabs.com/, in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile or case study for use by WISMO on WISMO.com for promotional purposes.
13. Privacy Policy and Data Protection. The terms of WISMO’s Data Processing Addendum (available by request made part hereof (“Data Processing Addendum” or “DPA”) shall apply when Personal Data, as defined in the DPA, is processed pursuant to this Agreement. Additionally, Personal Pata may be disclosed in accordance with the Privacy Policy. Client acknowledges that understands how WISMO collects, stores, uses and discloses Personal Data.
14. Disclaimer; Limitation of Liability EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 6 (WARRANTIES), WISMO MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. WISMO SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY SO, THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, OR BREACH OF SECTION 10 (CONFIDENTIALITY): (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE; AND (B) NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID OR OWED BY COMPANY TO WISMO UNDER THIS AGREEMENT DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
15. Indemnity. The Client indemnifies WISMO against any liability, claim, proceeding, cost, or expense arising from any actual or alleged claim by a third party that any Client Data infringes the rights of that third party.
16. Governing Law. This Agreement is governed by, and interpreted and enforced in accordance with, the laws of the Province of Ontario and the applicable laws of Canada. The Parties attorn to the exclusive jurisdiction of the courts of the province of Ontario.
17. Severability. If any provision of this Agreement is held invalid or unenforceable, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
18. Survival. The following Sections will survive expiration or termination of this Agreement: 6, 11, 12, 13, 14, and 15.