Effective date: July 2018
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY WAGGL, INC. (“WAGGL”). BY SIGNING A WAGGL ORDER FORM WHICH REFERENCES THESE TERMS AND CONDITIONS (AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MASTER LICENSE AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (TOGETHER WITH THE ORDER FORM, THE “AGREEMENT”). PROVISION OF THE SERVICES (AS SET FORTH IN THE ORDER FORM) IS CONDITIONED ON, AND CUSTOMER’S USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THE AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND THE ORDER FORM, THE ORDER FORM SHALL CONTROL.
1. SERVICES AND SUPPORT
- Subject to the terms and conditions of this Agreement, Waggl will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at Waggl’s sole discretion, for any purpose deemed appropriate by Waggl. Waggl will use reasonable efforts to give Customer prior written notice of any such modification.
- Waggl will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Waggl reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Waggl.
- Subject to the terms hereof, Waggl will provide reasonable support to Customer for the Services from Monday through Friday during Waggl’s normal business hours.
- The parties may agree from time to time to have Waggl perform certain additional services (“Additional Services”), by describing such Additional Services and any fees therefor on a separate, mutually-executed Statement of Work which references this Agreement (each, an “SOW”, which upon mutual execution, will be incorporated into and form a part of the Agreement). Any applicable fees for such Additional Services will be set forth in, and payable in accordance with, the applicable SOW (which shall be paid in accordance with Section 5 below). If Waggl provides Additional Services beyond those agreed in an SOW (including, without limitation, in excess of any hours estimate set forth therein), Customer will pay Waggl at its then-current hourly rates for professional services.
2. RESTRICTIONS AND RESPONSIBILITIES
- Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. If Waggl authorizes Customer to distribute any such application to its end user content customers (“End Users”), Customer may do so only after effectively binding such End Users to the applicable End-User Software Agreements provided by Waggl for the benefit of Waggl.
- Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Specifically, but without limitation, Customer will comply with the notice, “opt out” and other provisions of the following California laws: California Business and Professions Code Sections 17538.4 and 17538.45.
- Customer will cooperate with Waggl in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Waggl may reasonably request. Customer will also cooperate with Waggl in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
- Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Waggl.
- Customer hereby agrees to indemnify and hold harmless Waggl against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Waggl has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Waggl may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
- Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Waggl is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Waggl does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
- The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it [without restriction] by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Waggl may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
- Customer acknowledges that Waggl does not wish to receive any Proprietary Information from Customer that is not necessary for Waggl to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Waggl may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
- Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
- Except as expressly set forth herein, Waggl alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Waggl. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Waggl is hereby granted a non-exclusive, royalty-free, perpetual, irrevocable right to use (including copying, distributing, and otherwise fully exploiting) (i) survey questions and design, responses to surveys, and survey metrics (e.g., response rate, response type, etc.) resulting from Customer’s use of the Services for Waggl’s internal analysis purposes only, and (ii) any data in a form that does not identify Customer. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
- Waggl may obtain and process certain content and data provided by or on behalf of Customer (“Content”) to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If Waggl receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Waggl may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Waggl from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
- Waggl shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Waggl is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Waggl will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Waggl, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Waggl, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Waggl from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Waggl’s indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
- Customer will pay Waggl the applicable fees as set forth on the Order Form (the “Fees”). Unless stated otherwise in the Order Form, the applicable annual fee shall automatically increase by ten percent (10%) upon each renewal of this Agreement. If Customer’s use of the Services exceeds any capacity or other limitations set forth on the Order Form (the “Service Capacity”), Customer will be invoiced at the end of each calendar or contract year for the excess usage over the Service Capacity, at the rate set forth on the Order Form (or, if not specified, at Waggl’s then-current list prices), and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Waggl for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the payment schedule and the method of payment as set forth on the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice and shall be made by ACH payment. All Fees under this Agreement are nonrefundable.
- Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Waggl’s net income) unless Customer has provided Waggl with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
- Subject to earlier termination as provided below, this Agreement is for the term as specified in the Order Form (the “Initial Term”) plus any Renewal Terms (defined below) (together, the “Service Term”). Unless stated otherwise in the Order Form, following the Initial Term, this Agreement will automatically renew for successive renewal terms of one (1) year each (each, a “Renewal Term”) unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
- In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Waggl represents and warrants that it will not knowingly include, in any Waggl software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Waggl fails to comply with the warranty in this Section, Customer may promptly notify Waggl in writing of any such noncompliance. Waggl will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
THE SERVICES AND WAGGL PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. WAGGL (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL WAGGL (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF WAGGL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF WAGGL, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO WAGGL HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Waggl are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Waggl’s prior written consent. Waggl may freely transfer and assign any of its rights and obligations under this Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Waggl in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Waggl will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Waggl. Waggl is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, and Customer hereby grants Waggl the right to use Customer’s name and logo on Waggl websites and applications and in marketing and promotional material.