These WScore Subscription License Terms (the “Agreement”) is a binding agreement by and between WSCORE (“Provider”), and the customer (“Customer”) listed on any order form mutually executed by the parties (each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”).
WHEREAS, Provider develops and licenses access to the hosted software application subscription service(s) as described on the Order Form and as further described more fully herein (collectively, the “Service”), as well as certain related Equipment (as defined herein below); and
WHEREAS, Customer would like to subscribe to and access the Service and use the Equipment;
NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:
1.1. Service License Grant. Subject to the terms and conditions of this Agreement, Provider hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Term, solely by the number of authorized users as set forth on the applicable Order Form, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”). As and to the extent ordered via an Order Form, the Service may consist of one or more of the following:
“WScore” means the SaaS software platform known as WScore, that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under this Agreement.
1.2. Consulting Services. If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Provider may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service. Consulting Services may include, without limitation, installation services and/or training. Unless otherwise mutually agreed in the applicable SOW, all Consulting Services will be paid for and performed on a time and materials basis, at Provider’s hourly rates. Customer shall reimburse Provider for actual and reasonable travel and travel-related expenses incurred by Provider in connection with the Services or any Consulting Services provided hereunder.
1.3. Hardware and Equipment. This paragraph shall apply if and only if Customer obtains any hardware and/or equipment from Provider, as set forth on any Order Form (“Equipment”). Any such Equipment obtained by Customer from Provider, whether leased or purchased, shall be subject to the additional warranty terms set forth on Schedule 1 attached hereto and made a part hereof. Customer shall be responsible for risk of loss of all Equipment, starting from the time of initial delivery. If and to the extent the parties agree on any executed Order Form that Customer will purchase any Equipment from Provider (“Purchased Equipment”), then Customer shall take title to such Purchased Equipment only after payment in full of all amounts due and owing hereunder to Provider, including without limitation payment in full for all Equipment. Provider maintains ownership of, and a security interest in and to, all Purchased Equipment, until such time as all payments have been made by Customer of all amounts due and owing hereunder. If and to the extent the parties agree on any executed Order Form that Customer will lease any Equipment from Provider (“Leased Equipment”), then Customer shall be responsible for maintaining such Equipment and keeping it secure, in good working order, normal wear and tear excepted, and shall return any and all such Equipment in such condition immediately upon expiration or termination of this Agreement. If Customer fails to return such Equipment, Customer shall pay to Provider the full retail new cost for any such unreturned Equipment. Provider maintains ownership of, and a security interest in and to, all Leased Equipment, at all times. Customer shall not, and shall not permit any third party to, modify or make adjustments to the Equipment, or use the Equipment with sensors or other devices not provided by Provider, without Provider’s prior written approval.
2.1. Customer Data. Provider acknowledges and agrees that Customer shall own all title to and ownership of the Customer Data (defined below) and that Provider shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Provider’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of this Agreement, which Customer may input into the Service or Equipment. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Service or Equipment, which shall be considered Provider Data (defined below). If and to the extent necessary for operation of the Service or Equipment by Customer, Customer hereby grants to Provider a limited, non-exclusive license, during the Term, to use the Customer Data within the Service and Equipment in order to perform its obligations herein.
2.2. Provider Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Provider owns and shall at all times retain all rights in and to the Services and Equipment, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, Equipment, software and the Documentation, and all Provider Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Provider Technology”). Subject only to Section 2.1 above, Provider shall own all rights to any data in and/or derived from the Service or Equipment, including all data Provider incorporated therein, and all usage data, statistical data or aggregated data collected (collectively, “Provider Data”). Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Provider, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Provider Technology.
Customer shall pay to Provider in immediately available US dollars (USD) or UK pounds (GBP), as set forth in the Order Form, the applicable subscription and other fees in the amounts and timing as specified in any Order Form (the “Fees”). If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement. The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. Provider may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional Services or purchase additional equipment or consulting), but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using your account.
If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Provider may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service. Customer shall reimburse Provider for actual and reasonable travel and travel-related expenses incurred by Provider in connection with the Services or any Consulting Services provided hereunder.
The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Provider or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Provider that Customer has complied with these requirements; (c) Provider shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 – 11.
7.1 Intellectual Property Infringement. Provider shall (a) indemnify and hold Customer harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of any third party claim that the Service or Equipment infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer providing Provider with: (i) prompt notice of such claim (and in any event notice in sufficient time for Provider to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Provider at Provider’s expense. If Customer’s use of the Service or Equipment is, or in Provider’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Provider may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Provider shall not apply to the extent the alleged infringement arises out of the use or combination of the Service or Equipment with other non-Provider products, services, hardware, software or processes, or any unauthorized use of the Service or Equipment. In addition, Provider’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 8 below and shall be capped at and included within any calculation of direct damages under that Section. THIS SECTION 7 SETS FORTH PROVIDER’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, EQUIPMENT, OR ANY CONSULTING SERVICES.
7.2 Customer Indemnification Obligations. Customer shall indemnify and hold Provider harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content input into the Service or Equipment by or on behalf of Customer; (iii) any actual or alleged non-compliance by Customer with applicable laws and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including without limitation; or (v) Customer’s violation of Provider’s intellectual property rights, including any violation of Section 2.
EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF SECTIONS 2 OR 9 HEREOF, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM (IN ADDITION TO ANY FEES PAID BY CUSTOMER). ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, PROVIDER DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE OR EQUIPMENT AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE OR EQUIPMENT. Customer is responsible for all use of the Services AND EQUIPMENT by all end users, including, without limitation, as applicable, any employees, agents and customers. Customer is responsible for communicating the terms and limitations in this Agreement to any and all such end users, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON PROVIDER’S LIABILITY. ANY USE OF THE SERVICES OR EQUIPMENT BY ANY PARTY, INCLUDING CUSTOMER, IN ANY HIGH RISK APPLICATION (AS DEFINED BELOW) IS DONE AT THE USER’S OWN RISK, WITHOUT ANY WARRANTY. AS USED HEREIN, A “HIGH RISK APPLICATION” IS ANY USE WHERE THE FAILURE OF THE SERVICE OR EQUIPMENT COULD CAUSE SERIOUS RISK, INCLUDING RISK OF INJURY TO PERSONS OR PROPERTY, OR A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, EMERGENCY SERVICES, EMERGENCY WEATHER ALERTS, OR MILITARY APPLICATIONS. Provider is not, directly or indirectly, via the Services, Equipment or otherwise, providing any medical, legal, financial, or other advice subject to regulatory oversight, or acting as a doctor, lawyer, broker, insurance agent or broker or other regulated entity. Customer may use the Services and Equipment for informational purposes only, as an aid, but only as one information source among many, and not as the sole basis for making any decisions; Customer must use proper due diligence and use its own business judgment when making any decisions based on any information, analytics or reports derived from the Services or Equipment.
9.1. Confidential Information. Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service or Equipment (by whomsoever generated or communicated) will be considered Confidential Information of Provider. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
9.2. Return of Confidential Information. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this section.
9.3. Remedies. Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software within the Equipment in any form; (b) reverse engineer or otherwise derive the source code of the Service software or Equipment software or otherwise modify, reverse compile, disassemble, or translate the Service, Equipment, or create any derivative works thereof; or (c) use the Service or Equipment for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or Equipment or use it as a service bureau beyond the scope approved in writing by Provider; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or Equipment or attempt to gain unauthorized access to the Service or Equipment or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Provider’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the software or on any copies made in accordance with this Agreement; (i) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Provider’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Service, Equipment or Documentation, or on any copies made in accordance with this Agreement; (j) use, or authorize or permit the use of, the Service or Equipment except as expressly permitted herein; (k) use the Service or Equipment to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party. The Service and Equipment may be used only by Customer (i) for its internal business purposes and only for the direct benefit of Customer; (ii) only by the number of persons for whom a license fee has been paid, and all such use may only be by those persons using the Service and Equipment for the benefit of Customer in the course and scope of their employment, subject to the terms hereof; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws and in compliance with all Documentation and instructions provided by Provider. In order to access some features of the Service or Equipment, Customer may have to register or create an account. Customer may never use another’s account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Provider immediately of any breach of security or unauthorized use of its account. Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service or Equipment, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, Equipment or the content therein. To the extent the Service or Equipment allows uploading or posting of content or data, you will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights.
10.1. Evaluation License. If the Service or Equipment is licensed or leased on an evaluation trial basis, the term of such license or lease is thirty (30) days from the earlier of installation (if applicable) or first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Service or Equipment is intended solely for Customer to determine the compatibility of the Service or Equipment with Customer’s business needs, and only to be used in a non-production test environment. Provider has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and the service level commitments provided for elsewhere in this Agreement shall not apply, and any Service or Equipment provided for evaluation purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein.
11.1. Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section.
11.2. Assignment. Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Provider. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees. The Services shall at all times be hosted by or on behalf of Provider on a server environment of its’ choosing. Provider reserves the right to change the server environment from time to time as it may deem fit, or outsource hosting or other aspects of the Service in its sole discretion, so long as the Service continues to comply with the express requirements of this Agreement.
11.3. Publicity. Customer expressly grants Provider the right to include Customer in a list of customers on Provider’s website or other promotional material in relation to the Services or Equipment for marketing purposes. Customer can deny Provider this right at any time by submitting a written notice, requesting to be excluded from promotional material.
11.4. Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
11.5. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service or Equipment), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.
11.6. Entire Agreement; Construction. This Agreement and its Exhibits and Schedules, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing non-disclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in writing and signed by each party’s authorized representatives. No terms in any purchase order or other document delivered by Customer shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by Provider. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
11.7. Independent Contractors. The relationship of Provider and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
11.9. Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of England and Wales without regard to conflict of laws provisions. The courts sitting in England shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of or in connection with this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.