This agreement is made by and between GetWFM (“WFM”), and the Customer (“Customer”.)
The Customer desires to subscribe to WFM’s Service (“Service”) and WFM desires to provide access to the Customer on the terms and conditions set forth herein. By accessing the Service Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by it.
"Customer Data" means any electronic data or information submitted by Customer through use of the Service or other channel.
"Documentation" means user manuals, books, online materials, specifications forms or otherwise provided by WFM.
"Fees" means the fees paid by Customer for the Service.
"Subscription Administrator" means the individual assigned by Customer having responsibility for all administrative and billing matters relating to Customer's use of the Service.
"Term" means the duration of this Agreement.
"Users" means Customer's employees, representatives, consultants, contractors or agents, or others added to the Service.
“Order Form” means the document describing the number of users and Fees due by customer.
Subject to the terms of this Agreement, WFM hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the WFM Service by the number of Users for which Customer has paid the applicable Fees, in accordance with the Documentation and solely for Customer's internal business purposes.
WFM shall use commercially reasonable efforts to: (a) maintain the security of the Service; (b) provide regular (once daily) backups for the Customer Data; and (c) make the Service generally available 24/7 (24 hours a day, 7 days a week), except for: (i) planned downtime, which shall be any period outside of the hours of 9:00 to 17:00, Eastern Time, Monday through Friday, for which WFM uses commercially reasonable efforts to give eight (8) hours or more notice that the Service will be unavailable; and (ii) downtime caused by circumstances beyond WFM's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within WFM's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. Customer is solely responsible for providing, at its own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service.
WFM has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Service at reputable third party Internet service providers and hosting facilities. "Appropriate Security Measures" means commercially reasonable technical, physical and procedural controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by WFM, whether by accident or otherwise. However, Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform Services and Customer Data. Accordingly, WFM cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
Customer will not use its access to the Service to: (a) access or copy any data or information of other users; (b) harvest, collect, gather or assemble information or data regarding other users; (c) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (d) harass or interfere with another user's use and enjoyment of the Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in its use of the Service.
Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. WFM may take remedial action if Customer Data violates this Section; however, WFM is under no obligation to review Customer Data for accuracy or potential liability.
Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Service; (b) interfere in any manner with the operation of the Service or; (c) allow a third party to access the Service or transfer to a third party any of Customer's rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau; (d) copy, modify or make derivative works based on any part of the Service; (e) create Internet "links" to or from the Service, or "frame" or "mirror" any of WFM's content which forms part of the Service (other than on Customer's own internal intranets); or (f) otherwise use the Service in any manner that exceeds the scope of use permitted under this agreement.
As consideration for the subscription to the Service provided by WFM under this Agreement, Customer will pay WFM the Fees set forth in the applicable Order Form. All Fees will be billed on an annual or monthly basis and are due within thirty (30) days of receipt of invoice, unless stated otherwise in the Order Form. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement. WFM reserves the right (in addition to any other rights or remedies WFM may have) to discontinue the Service and suspend all of Customer's access to the Service if any Fees are more than thirty (30) days overdue, until such amounts are paid in full. Customer shall ensure that its Subscription Administrator maintains complete, accurate and up-to-date Customer billing and contact information with WFM. WFM reserves the right to increase the Fees applicable within reason annually.
Customer acknowledges that WFM retains all rights, title and interest in and to the Service and all software, materials, formats, interfaces, information, data, content and WFM proprietary information and technology used by WFM or provided to Customer in connection with the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or learned as a result of Customer's use of the Service, and that said materials are protected by intellectual property rights owned by or licensed to WFM. Other than as expressly set forth in this Agreement, no license or other rights are granted to the Customer, and all such rights are hereby expressly reserved by WFM.
Customer retains all right, title and interest in and to the Customer Data. Customer grants to WFM all necessary licenses in and to such Customer Data solely as necessary for WFM to provide the Service to Customer or as required by law. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service.
Term will begin on the Effective Date and continue for the period of time specified in the initial Order Form. Thereafter, this Agreement will automatically renew for successive Terms, unless one of the parties gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term.
Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to WFM under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property of the other party in its possession or control. WFM agrees that upon any early termination of this Agreement, WFM will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by WFM, at WFM’s discretion) for a reasonable time period after termination. Thereafter, WFM may remove all Customer Data from the Service and all Customer access to or use of the Service will be immediately suspended. The rights and duties of the parties under Sections 4, 5, 6.2, 7, 8, 9 and 10 will survive the termination or expiration of this Agreement.
WFM makes no warranty concerning the Service and Customer acknowledges that WFM's sole obligation with regard to the Service is to use commercially reasonable efforts to meet the service levels described in Section 2.3 hereof. ACCORDINGLY, THE SERVICE AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY WFM AND ITS SUPPLIERS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WFM AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WFM DOES NOT WARRANT THAT THE SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, NOR COMPLETELY SECURE.
WFM will have no liability to Customer for any action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF WFM AND THE EXCLUSIVE REMEDY OF CUSTOMER AGAINST WFM OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
If any action is instituted by a third party against WFM: (a) arising out of or relating to the use of the Service (including claims by any customer or business partner of Customer) by Customer; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of WFM and shall pay all damages attributable to such claim which are finally awarded against WFM or paid in settlement of such claim.
As a condition of the foregoing indemnification obligations, the indemnified party will: (a) inform the indemnifying party of a claim as soon as reasonably practicable after the indemnified party receives notice of the claim; (b) permit the indemnifying party to assume direction and control of the defense of the claim (including the right to settle solely for monetary consideration); and (c) cooperate as requested by the indemnifying party (at its expense) in the defense of the claim. The indemnified party shall have the right to participate, at its expense, in the defense of any claim that is subject to indemnification as set forth in this Section 8.
EXCEPT WITH RESPECT TO WFM'S INDEMNITY OBLIGATION PURSUANT TO SECTION 8.1, WFM’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISNG FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT) OR THE SERVICE WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO WFM BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER'S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST WFM WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL WFM BE LIABLE FOR SPECIAL, INCIDENTAL, DIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SERVICE, EVEN IF WFM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
WFM and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and WFM, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within five (5) days of submittal. Customer agrees to allow WFM to use Customer's name in customer lists and other promotional materials describing Customer as a customer of WFM and a user of the Service.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without WFM's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. WFM may assign this Agreement without Customer's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and WFM may subcontract certain aspects of the WFM Service to qualified third parties, provided that any such subcontracting arrangement will not relieve WFM of any of its obligations hereunder.
This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec, Canada without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or provincial court sitting in Montreal, Quebec (provided, however, that nothing in this Agreement will prevent WFM from seeking injunctive relief to enforce the terms of this Agreement in any competent venue or jurisdiction), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
Except as provided in Section 8.1, the parties' rights and remedies under this Agreement are cumulative. Customer acknowledges that the Service contains valuable trade secrets and proprietary information of WFM, that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to WFM for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and waives any requirement by WFM for posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the physical address set forth in the initial Order Form. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), or (c) sent by recognized air courier service.
In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
This Agreement, together with any related Order Forms is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.