SUBSCRIPTION AND SERVICES AGREEMENT
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Contractors” means independent contractors, licensors or subcontractors that assist Wirkn in the delivery of the Services.
“Customer Applications” means all software programs, that Customer uses on the cloud platform comprising part of the Subscription Services. Subscription Services do not fall within the meaning of Customer Applications.
“Customer Data” means all data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used with the Subscription Services.
“Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Professional Services.
“Documentation” means Wirkn’s product guides and other end user documentation for the Subscription Services available online and through the help feature of the Subscription Services, as may be updated by Wirkn from time to reflect the then-current Subscription Services.
“Order” or “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Wirkn and Customer from time to time, including any addenda and supplements thereto. Customer Affiliates may purchase Services subject to this Agreement by executing Orders hereunder.
“Professional Services” means fee-based migration, implementation, training or consulting services that Wirkn performs as described in an Order or SOW but excluding Support Services.
“Services” means the Subscription Services and Professional Services that Customer may purchase under an Order or SOW.
“Statement of Work” or “SOW” means a statement of work entered into and executed by the parties describing Professional Services to be provided by Wirkn to Customer.
“Subscription Services” means the cloud platform made available by Wirkn to Customer, the software made available by Wirkn to Customer online via the applicable customer logins and/or associated Support Services, as ordered by Customer under an Order, as applicable.“Subscription Term” means the term of Subscription Services purchased by Customer which shall commence on the start date specified in the applicable any Services Suspensions and will provide updates regarding resumption of availability of the Subscription Services following any Services Suspension. Wirkn will have no liability for any damage, liability, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Services Suspensions. Order and continue for the subscription term specified therein and any renewals thereto.
2. SUBSCRIPTION SERVICES
2.1. Provision of Subscription Services. Upon execution of an Order, Wirkn hereby grants Customer a limited, non-exclusive, non-transferrable, royalty free, non-assignable, revocable license to use the Subscription Services. For greater certainty, this license does not grant Customer any rights with respect to any third-party applications and/or products. Wirkn will make the Subscription Services available to Customer pursuant to this Agreement, the Documentation and the relevant Order Form during the Subscription Term, solely for Customer’s internal business purposes. Customer hereby acknowledges that Wirkn’s Affiliates and its Authorized Contractors may perform certain Services providedthat Wirkn remain fully liable for same and responsible for ensuring that any of Wirkn’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Customer’s use of the Subscription Services includes the right to access all functionality available in the Subscription Services during the Subscription Term. Wirkn reserves the right to update, upgrade, modify, change, improve, and/or redesign any Services at any time and may discontinue any of its Services provided it provides a minimum of six (6) months advance written notice to Customer. Any and all subsequent updates, upgrades, revisions and changes to the Services shall be governed by this Agreement. Subsequent updates, upgrades, enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge. For greater certainty, the purchase of Subscription Services is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements to the Subscription Services may be marketed separately by Wirkn and may require the payment of additional fees which shall be determined by Wirkn in its sole discretion. 2.2.Temporary Service Suspension. Wirkn may temporarily suspend Customer’s access to any portion of the Subscription Services if Wirkn reasonably determines that: (a) there is a threat or attack on the Subscription Services or other event that may create a risk to the Services, Customer or any other Wirkn customer; (b) Customer’s use of the Services or the Customer Data or Customer Application disrupts or poses a security risk to the Subscription Services or any other Wirkn customer, may harm the Services or any other Wirkn customer, or may subject Wirkn or any third party to liability; (c) Customer is using the Subscription Services for fraudulent or illegal activities or engaging in prohibited activities; or (d) Customer has failed to pay the applicable fees as set forth in the Fees and Payment Section (collectively, “Services Suspensions”). Wirkn will use commercially reasonably efforts to provide written notice to Customer of use, and (iv) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications.
2.3. Technical Support. During each Subscription Term, Wirkn will use reasonable efforts, either by telephone or electronically, to help Customer solve technical problems with use of the Services. Standard technical support is available between 8:00AM and 5:00PM EST. Customer may obtain additional support services from Wirkn by executing a SOW and paying applicable additional fees to Wirkn. It may not be possible for Wirkn to solve all problems or correct all errors in the Service. Wirkn’s technical support obligations are subject to Customer’s establishing technical contacts with knowledge about the Service and Customer’s use of the Services who are qualified to provide Wirkn information necessary for Wirkn to diagnose and remedy any problems. Failure to comply with this provision may result in longer response times.
2.4. Third-Party Software. As part of the Subscription Services, Wirkn may provide access to the third-party software (“Third-Party Software”) solely as an accommodation to Customer. Customer may choose to use any, all or none of the Third-Party Software at its sole discretion. Customer’s use of any Third-Party Software is subject to the applicable provider’s terms and conditions and any such terms and conditions associated with such use are solely between Customer and such third-party provider. Wirkn does not provide any support services for any Third-Party Software.
3. SECURITY AND PRIVACY
3.1. Security. Wirkn will use commercially reasonable security measures in providing the Services. Wirkn has implemented and will maintain appropriate technical and organizational measures to preserve the security, integrity, and confidentiality of Customer Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data. Wirkn does not represent or guarantee that the Service is compliant with any local, state, provincial, national or international laws or regulations that impose specific data security obligations with respect to the storage or processing of Customer Data. Customer is solely responsible for determining the suitability of the Service in light of such laws or regulations. Notwithstanding anything herein to the contrary, Customer is solely responsible for use of the Service and Customer Data by (a) users; (b) other persons to whom Customer or users give access to the Customer or Customer Data; and (c) any other persons who obtain access to the Service or Customer Data as a result of Customer’s failure to protect access credentials or to otherwise use reasonable security precautions, even if such use was not authorized by Customer.
4. CUSTOMER OBLIGATIONS 4.1.Responsibilities. Customer shall (i) access and use the Services in accordance with this Agreement, applicable laws and government regulations including but not limited to regulations in relation to privacy, international communications, and the exportation of technical or personal data, (ii) maintain the confidentiality and security of all credentials, including but not limited to, passwords, usernames and other identification; (iii)use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Wirkn promptly of any such unauthorized access or
use, and (iv) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications.
4.2. Customer Data. Customer hereby grants Wirkn the right to host, use, process, display and transmit Customer Data and any Customer Applications to provide the Services pursuant to and in accordance with this Agreement. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data. Customer acknowledges and agrees that Wirkn does not exercise any control over any of Customer Data in connection with the Service. Except as otherwise agreed in writing between the parties, Customer acknowledges and agrees that Wirkn will have no liability or responsibility for any Customer Data or Customer Application, including, but not limited to, liability for any data loss.
Customer is responsible for its legal and regulatory compliance in its use of any Subscription Services and shall make Wirkn aware in writing of any Customer Data processed, stored or transmitted through the Subscription Services for which specific obligations. If, in the course of providing Subscription Services, Wirkn agrees in writing to process such Customer Data and Customer has subscribed to any applicable Subscription Services, Wirkn shall process it only as permitted under this Agreement and in compliance with data protection legislation to which Wirkn is subject as a service provider.
4.3 Restrictions. Customer shall not and shall not permit its end users to (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription Services; (b) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (c) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services; (d) disclose any benchmark or performance tests of the Subscription Services; (e) store, distribute or transmit any spam, viruses, worms, Trojan horses, corrupted files, or other items of a destructive or disruptive nature; (f) store, distribute or transmit any data or any material during the course of use of the Subscription Services that is unlawful, illegal, harmful, threatening, defamatory, obscene, abusive or infringing of any rights or in any way not in compliance with applicable laws. Wirkn may immediately suspend or otherwise disable the Subscription Services to the extent necessary to disable access to any data or material that breaches the provisions of this Section. Customer hereby agrees to defend, indemnify and hold harmless Wirkn from and against all liabilities, fines, penalties, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) breach of Section 4; or (b) alterations or modifications to the Subscription Services not made by Wirkn; or (c) combination or use of the Subscription Services, with products, services, or materials not provided by Wirkn.
5. PROFESSIONAL SERVICES
5.1. Standard Professional Services. A description of Wirkn’s standard Professional Services offerings, including training, and workshops, may be found in the Documentation. Standard Professional Services may be identified in an Order without the need for issuance of an SOW.
5.2. Other Professional Services. For any non-standard Professional Services, Wirkn will provide Customer with Professional Services as set forth in the applicable SOW. Each SOW will include, at a minimum (i) a description of the Professional Services and any Deliverable to be delivered to Customer; (ii) the scope of Professional Services; (iii) the schedule for the provision of such Professional Services; and (iv) the applicable fees and payment terms for such Professional Services, if not specified elsewhere.
5.3. Change Orders. Changes to an SOW or Order Form will require, and shall become effective only when, fully documented in a written change order (each a “Change Order”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement.
5.4. Designated Contact and Cooperation. Each party will designate in each SOW an individual who will be the primary point of contact between the parties for all matters relating to the Professional Services to be performed thereunder. Customer will cooperate with Wirkn, will provide Wirkn with accurate and complete information, will provide Wirkn with such assistance and access as Wirkn may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the applicable SOW. If applicable, while on Customer premises for Professional Services, Wirkn personnel shall comply with reasonable Customer rules and regulations regarding safety, conduct, and security provided such requirements are communicated to Wirkn in writing at least five (5) days prior to the commencement of the Professional Services.
6. FEES AND PAYMENT
6.1. Fees. Customer shall pay all fees specified in each Order and SOW and any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order. Except as otherwise specified herein or in an Order or SOW (i) fees are payable in United States dollars, (ii) fees are based on Services purchased, regardless of usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, (iv) all Services shall be deemed accepted upon delivery, and (v) the Subscription Services purchased cannot be decreased during the relevant Subscription Term. Customer shall reimburse Wirkn for out-of-pocket expenses incurred by Wirkn in connection with its performance of Professional Services. Wirkn will provide Customer with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
6.2. Invoicing and Payment. Unless otherwise specified in an Order, fees for Subscription Services specified in an Order will be invoiced annually in advance, fees for overages will be calculated and invoiced monthly in arrears, and, unless otherwise set forth in an SOW, all fees and expenses for standard Professional Services as described in Section 5.1 shall be invoiced upon completion, and all fees and expenses for non-standard Professional Services as described in 5.2 will be invoiced monthly in arrears on a time and materials basis. Except as otherwise stated in the applicable Order or SOW, Customer agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) Wirkn reserves the right to suspend the Subscription Services upon thirty (30) days notice, until such amounts are paid in full, and (ii) Wirkn will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Wirkn will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
6.3. Taxes. Fees for Services exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, “Taxes“) arising from Wirkn’s provision of the Services hereunder, except any taxes assessed on Wirkn’s net income. If Wirkn is required to directly pay or collect Taxes related to Customer’s use or receipt of the Services hereunder, Customer agrees to promptly reimburse Wirkn for any amounts paid by Wirkn.
7. PROPRIETARY RIGHTS 7.1. Subscription Services. Except for the rights expressly granted under this Agreement, Wirkn and its licensors retain all right, title and interest in and to the Subscription Services and Documentation, including all related intellectual property rights therein. Wirkn reserves all rights in and to the Subscription Services and Documentation not expressly granted to Customer under this Agreement. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Wirkn.
7.2. Customer Data and Customer Applications. As between Customer and Wirkn, Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data and Customer Applications, including any intellectual property rights therein.Customer hereby grants Wirkn, its Affiliates and applicable Authorized Contractors all necessary rights to host, use, process, store, display and transmit Customer Data and Customer Applications solely as necessary for Wirkn to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Wirkn acquires no right, title or interest from Customer or Customer licensors hereunder in or to Customer Data and Customer Applications, including any intellectual property rights therein.
7.3. Deliverables. Excluding any property that constitutes Outside Property, any Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated Professional Services fees. Wirkn shall execute and, at Customer’s written request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Customer’s rights to the ownership of such Deliverables. For purposes of this Agreement, “Outside Property” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user-interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Wirkn possesses or owns prior to the commencement of Professional Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property. Outside Property shall also include any enhancements, modifications or derivatives made by Wirkn to the Outside Property while performing Professional Services hereunder, and any software, modules, routines or algorithms which are developed by Wirkn during the Subscription Term in providing the Professional Services to Customer, provided such software, modules, routines or algorithms have general application to work performed by Wirkn for its other customers and do not include any content that is specific to Customer or which, directly or indirectly, incorporate or disclose Customer’s Confidential Information.
7.4. Outside Property License. To the extent that Wirkn incorporates any Outside Property into any Deliverables, then Wirkn hereby grants Customer a limited, royalty-free, non-exclusive, non-transferable (subject to Section 14.11), without right to sublicense, license to use such Outside Property delivered to Customer solely as necessary for and in conjunction with Customer’s use of the Deliverables.
7.5 Feedback. Customer may from time to time provide suggestions, comments or other feedback to Wirkn with respect to any product, material, software or information provided by Wirkn (hereinafter “Feedback“). Customer agrees that all Feedback is and shall be entirely voluntary and shall not, absent separate agreement, create any confidentiality obligation for Wirkn. Wirkn shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind.
8. CONFIDENTIALITY 8.1. Definition of Confidential Information. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of this Agreement (including pricing and other terms set forth in all Order Forms and/or SOWs hereunder), related benchmark or similar test results, other technology and technical information, security information, security audit reports, and business and marketing plans, except provided Customer has provided prior written approval, t Wirkn may reference and use Customer’s name, logos and the nature of the Services provided hereunder in Wirkn’s business development and marketing efforts.
8.2. Exceptions. Confidential Information shall not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
8.3. Protection of Confidential Information. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (ii) limit access to Confidential Information of 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 a duty or obligation of confidentiality no less stringent than that set forth herein.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party’s cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Wirkn Representations & Warranties. Wirkn represents and warrants that (i) Wirkn has the legal authority to enter into this Agreement, (ii) it has the right to grant to Customer the use of the Subscriptions Services and Documentation, and (iii) Professional Services will be performed in a competent and workmanlike manner.
9.2. Remedies. For any failure of any Subscription Services or Professional Services, as applicable, to conform to their respective warranties, Wirkn’s liability and Customer’s sole and exclusive remedy shall be for Wirkn, in the case of a breach of the warranty set forth in Section 9.1(ii) the indemnity included pursuant to Section 10.1; or, in the case of a breach of the warranty set forth in Section 9.1 Wirkn may in its sole discretion may either(i) re-perform the affected Professional Services or (ii) refund any fees paid by Customer for the portion of Professional Services giving rise to the breach.
9.3. Customer Representations & Warranties. Customer represents and warrants that (i) it has the legal authority to enter into this Agreement; (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations; (iii) owns or has otherwise obtained all rights and permissions related to any Customer Data and such Customer Data does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. If applicable, Customer further warrants that it will provide all appropriate notices and has obtained all appropriate consents to transfer the data to Wirkn and allow its processing as necessary to provide the Services. 9.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WIRKN MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND WIRKN HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Wirkn. Wirkn shall indemnify, defend and hold Customer harmless from and against any final judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer“); provided that Customer (a) uses the Services in accordance with the terms and conditions of the Agreement, (b) promptly gives Wirkn written notice of the Claim Against Customer; (c) gives Wirkn sole control of the defense and settlement of the Claim Against Customer (provided that Wirkn may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (d) provides to Wirkn all reasonable assistance, at Wirkn’s expense. In the event of a Claim Against Customer, or if Wirkn reasonably believes the Subscription Services may infringe or misappropriate, Wirkn may in Wirkn’s sole discretion and at no cost to Customer (i) modify the Subscription Services, (ii) obtain a license for Customer’s continued use of Subscription Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for such Subscription Services and refund to Customer any prepaid fees covering the remainder of the term of such Subscription Services after the effective date of termination. Notwithstanding the foregoing, Wirkn shall have no obligation to indemnify, defend, or hold Customer harmless from any Claim Against Customer to the extent it arises from (i) Customer Data or Customer Applications, (ii) use by Customer after notice by Wirkn to discontinue use of all or a portion of the Subscription Services, (iii) use of Services by Customer in combination with equipment or software not supplied by Wirkn where the Service itself would not be infringing, (iv) or Customer’s breach of this Agreement.
10.2. Indemnification by Customer. Customer shall indemnify, defend and hold Wirkn harmless from and against any final judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Wirkn by a third party relating to (i) Customer Data or Customer Application, or (ii) a violation by Customer of its obligations as set forth in Section 4 (a “Claim Against Wirkn“); provided that Wirkn (a) promptly gives Customer written notice of the Claim Against Wirkn; (b) gives Customer sole control of the defense and settlement of the Claim Against Wirkn (provided that Customer may not settle any Claim Against Wirkn unless the settlement unconditionally releases Wirkn of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense. In the event of a Claim Against Wirkn, or if Customer reasonably believes the Customer Data or Customer Application may infringe or misappropriate, Customer may in Customer’s sole discretion and at no cost to Customer (i) modify the Customer Data or Customer Application, (ii) obtain a license for Wirkn’s continued use of Customer Data or Customer Application in accordance with this Agreement, or (iii) terminate the Wirkn’s license to use the Customer Data or Customer Application, and if applicable, remove the Customer Data or Customer Application from the Subscription Services, but in no event will termination relieve Customer from its obligation to defend and indemnify Wirkn as set forth herein. Wirkn agrees to abide by Customer’s decision and, if appropriate, use a different version of the Customer Data or Customer Application or stop using them.
10.3. Exclusive Remedy. This Section 10 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.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. OTHER THAN EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 10 (MUTUAL INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM AND/OR SOW IN THE 12 MONTHS PRECEDING THE APPLICABLE INCIDENT.
11.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL 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 WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the Effective Date and continues until otherwise terminated, by written agreement of the parties, in accordance with Section 12.3 or upon the expiration of the last Subscription Term or renewal thereof.
12.2. Renewal of Subscription Services. Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive one-year periods, unless and until terminated by either party in accordance herewith or unless either party provides written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term. Wirkn may increase pricing applicable to the renewal of any then-current Subscription Term by providing Customer with notice thereof, including by email, at least 45 days prior to the end of such term.
12.3. Termination. A party may terminate this Agreement (or, at such party’s option, the individual Order Forms or SOWs affected by the applicable breach), 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 same 30 day period, or (ii) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of an Order or SOW for cause by Customer and upon Customer’s written request, Wirkn shall refund, on a pro rata basis, any fees paid thereunder that cover the remainder of the applicable Subscription Term after the effective date of termination. Upon termination of an Order or SOW for cause by Wirkn, all amounts owed by Customer thereunder shall become due and payable. In no event shall any termination relieve Customer of the obligation to pay all fees payable to Wirkn for the period prior to the effective date of termination.
12.4. Data Portability and Deletion. Upon request made by Customer within 7 days of termination or expiration of the Subscription Services, Wirkn will make Customer Data and Customer Applications available to Customer for export or download as provided in the Documentation. At the end of such 7 day period, Wirkn will delete or otherwise render inaccessible any Customer Data and Customer Applications, unless legally prohibited. Wirkn has no obligation to retain the Customer Data for Customer purposes after this 7 day post termination period.
12.5. Survival. Section 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund upon Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION 13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth in the applicable Order Form or SOW, as such party may update such information from time to time, with, in the case of notices
sent by Customer, a copy sent to the Wirkn Legal Department at the address first set forth above. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer on the applicable Order.
13.2. Governing Law and Jurisdiction. Unless otherwise specified in an Order Form and/or SOW, this Agreement shall be governed by and construed in accordance with the laws of the Quebec without regard to the principles of conflicts of law thereof. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate province or federal court for the district encompassing the Company’s principal place of business.
13.3. Disputes & Arbitration. With regard to any dispute in relation to the interpretation or implementation of this Agreement, the parties shall negotiate in good faith to settle the dispute. If the dispute cannot be settled within thirty (30) days from the date any party issues written notice requesting settlement of a dispute through negotiation, each party has the right to submit the dispute to for arbitration according to the valid arbitration rules.
All disputes arising out of this Agreement shall be finally settled by final and binding arbitration in Montreal, Canada, before, and under the then current commercial arbitration rules of the Quebec Civil Code, subject to the additional limitations set forth herein. The arbitration shall be conducted by a single arbitrator appointed in accordance with such rules. The Parties agree that the decision of the arbitrator shall be final and binding. The arbitration hearing shall be held no later than three (3) months from the date of the notice from one Party to another Party of its intent to proceed to arbitration. Judgment on any decision made by the arbitrator may be entered and enforced in any court of competent jurisdiction. All fees and charges of the arbitrator shall be shared equally by the Parties unless otherwise specified by the arbitrator; each Party shall be responsible for the payment of all fees and expenses connected with the presentation of its respective case, provided that the arbitrator may in his/her discretion award to the prevailing Party the costs and expenses incurred by the prevailing Party in connection with the arbitration proceeding. The arbitration shall be confidential. The arbitrator shall not include any confidential information of the Parties in his/her arbitration decision or append any document which includes confidential information to his/her arbitration decision.
13.4. Injunctive Relief. Notwithstanding anything herein to the contrary, either party may seek from a court of competent jurisdiction interim, provisional or permanent relief in the form of a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief concerning any dispute. Without limiting the generality of the foregoing, Section 13.4 shall be specifically enforceable by both Parties
14. GENERAL PROVISIONS
14.1. Import and Export Compliance. Each party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations.
14.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement.
14.3. Use of Aggregate Data. Customer agrees that Wirkn may collect, use, and disclose data derived from the use of the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer, its users, Customer Data, or any third parties utilizing the Wirkn Services. 14.4. 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.
14.5 Marketing. Nothing in this Agreement shall prohibit either party from sending promotional materials, emails, texts, third-party offerings, or any other information (collectively “Marketing Materials”) on that party’s behalf, to a candidate who has registered for the Services provided that such communication is compliant with applicable law. Notwithstanding the foregoing, nothing herein shall allow a party to send Marketing Materials on behalf of the other party.
14.6. Non-Solicitation. Customer agrees that during the term of each Order Form and/or SOW and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed by Wirkn who participated in the performance of Services under the applicable Order Form and/or SOW. Nothing in this clause shall be construed to prohibit individual Wirkn employees from responding to public employment advertisements, postings or job fairs of Customer, provided such response is not prompted by Customer intentionally circumventing the restrictions of this Section.
14.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.8. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.9. Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labor difficulties, acts of God, explosions, fiber optic cable cuts, interruption or failure of telecommunication lines or digital transmission links (not caused by the obligated party), internet failures or delays, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
14.10. 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.
14.11. Assignment. Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and SOWs), 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. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.12. Electronic Signatures. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
14.13. Language. Les parties aux présentes ont exigé que le présent contrat ainsi que tous les documents et avis qui s’y rattachent et/ou qui en découleront soient rédigés en langue anglaise. The parties hereto have required that this Agreement and all documents and notices related thereto and/or resulting therefrom be drawn up in the English language.14.14. Entire Agreement. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any Order Form or SOW, the terms of such Order Form or SOW shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a PO, payment system, other order documentation or otherwise (excluding Order Forms and/or SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Last update: April 20, 2021