This Polaris IQ Subscription Services Agreement (“Agreement”), effective as of the date Participant first accesses or uses the Service (the “Effective Date”), is by and between WPROMOTE, LLC (“Wpromote”), and the Participant (“Participant”). Wpromote and Participant may be referred to herein collectively as the “Parties” or individually as a “Party.” Parties agree that the terms of this Agreement will supersede any Master Services Agreement entered into by the Parties as they relate to Polaris.
1. Access and Use. Wpromote grants Participant (and its Authorized Users) a limited, non-exclusive, non-sublicensable, and non-transferrable right to access and use of Wpromote’s hosted, web-based software-as-a-service (“Polaris”), related object code, reference, user, technical guides or other documentation, software and any generally available updates, new versions, and upgrades, if any (collectively, the “Service”) in accordance with the terms contained in this Agreement. For purposes of this Agreement, “Authorized Users” means individuals (a) who are authorized by Participant to access and use the Service, and (b) who have been assigned unique log-in and passwords (“Access Credentials”) to access and use the Service.
2. Restrictions on Use. Participant agrees not to: (a) modify, copy, or create derivative works based on the Service, in whole or in part; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (c) interfere with or disrupt the integrity, security, functionality, or performance of the Service; (d) rent, sell, (sub)license, or otherwise distribute the Service; (e) remove any proprietary notices from the Service; (f) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (g) use the Service in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Participant is responsible and liable for all uses of the Service resulting from access provided by Participant, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Confidential Information. From time to time, Wpromote may disclose or
make available to Participant information about the Service, or other confidential, proprietary or sensitive information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Participant shall not disclose the Wpromote’s Confidential Information to any person or entity, except to Participant’s employees who have a need to know the Confidential Information for Participant to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Participant may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided, that Participant first have given written notice to Wpromote allowing Wpromote time to obtain a protective order.
3. Intellectual Property Ownership; Feedback.
3.1. Wpromote IP . Participant acknowledges that, as between Participant and Wpromote, Wpromote owns all right, title, and interest, including all intellectual property rights, in and to the Service or any and all intellectual property provided to Participant or any Authorized User in connection with the foregoing (”Wpromote IP”). Wpromote reserves all rights not expressly granted to Participant in this Agreement.
3.2. Participant Data. Wpromote acknowledges that, as between Wpromote and Participant, Participant, except as otherwise provided herein, owns all right, title, and interest, including all intellectual property rights, in and to information, data, and other content that is transmitted by or on behalf of Participant or an Authorized User through the Service (”Participant Data”). Participant hereby grants to Wpromote a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and
otherwise use and display the Participant Data and perform all acts with respect to the Participant Data as may be necessary for Wpromote to provide, improve, and fully exploit the Service.
3.3. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Wpromote may collect and compile data and information related to Participant’s use of the Service that is used by Wpromote in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service (”Aggregated Statistics”). As between Wpromote and Participant, all right, title, and interest in Aggregated Statistics, and all Intellectual property rights therein, belong to and are retained solely by Wpromote.
3.4. Feedback. If Participant or any of its Authorized Users, employees or contractors provides any communications or materials to Wpromote suggesting or recommending changes to the Wpromote IP (e.g., new features or functionality), or any comments, questions, suggestions, or the like (”Feedback”), Wpromote is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. All Feedback is and will be treated as non-confidential. Participant hereby assigns to Wpromote on Participant’s behalf, and on behalf of its Authorized Users all right, title, and interest in the Feedback, and Wpromote is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
4. Disclaimer of Warranties. THE WPROMOTE IP IS PROVIDED “AS IS” AND WPROMOTE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WPROMOTE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
5. Limitations of Liability. IN NO EVENT WILL WPROMOTE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WPROMOTE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL WPROMOTE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY PARTICIPANT TO ACCESS AND USE THE
SERVICE OR $50,000.
6. Term and Termination. The term of this Agreement begins on the Effective Date and will terminate immediately on Wpromote’s notice of termination to Participant. Upon expiration or earlier termination of this Agreement, Participant shall immediately discontinue use of the Wpromote IP. This Section 8 and Sections 2, 3, 4, 5, 6, 8, 10, 11, 12, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
7. Grant of Rights. Participant hereby agrees to participate in and cooperate with Wpromote in the creation and publication of one or more testimonials, case studies, white papers, success stories, press releases, social media or v/blog posts, or other digital, video, or print marketing and promotional collateral highlighting Participant’s experience with and results using the Service (“Collateral”). To effectuate the creation and publication of the Collateral, Participant grants Wpromote a non-exclusive, royalty-free, worldwide license to use Participant's name, logo, and description of Participant's use of the Service. Prior to publishing any Collateral featuring Participant, Wpromote shall: (a) provide Participant with a draft of the proposed Collateral for review; (b) allow Participant a reasonable period, not to exceed five (5) business days, to review and approve the Collateral or request changes; and (c) make reasonable efforts to accommodate Participant's requested changes or concerns. Wpromote agrees not to disclose any confidential information of Participant in these Collateral without Participant's prior written consent. Nothing in this Section shall be construed as an endorsement by Participant of the Service.
8. Fees and Payment. Participant shall pay all undisputed fees and charges to Participant’s account under the applicable Statement of Work or Order Schedule as invoiced by Wpromote. Unless otherwise stated in a Statement of Work or Order Schedule, amounts are due and payable within thirty (30) days after the date of the invoice. If Participant disputes any part of an invoice in good faith, Participant shall (a) provide Wpromote with notice and reasonable detail of the dispute before the invoice due date, and (b) pay the undisputed portion by the invoice due date as provided in this Agreement. Except as otherwise specified in an Order Schedule, (a) fees are quoted and payable in United States dollars, (b) fees are based on the Wpromote Service purchased as indicated in an Order Schedule or Statement of Work whether used or not, (c) payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided in this Agreement, and (d) the number of subscriptions rights purchased cannot be decreased during the relevant Subscription Term. Where Participant designates use of a third-party payment processor network (such as a payment agent), Participant is responsible for payment of all fees and charges associated with use of such network (including registration, participation, and payment processing fees) and Wpromote may invoice those fees with other fees due under this Section 6.1 or on a separate invoice.
9. Taxes. Fees are exclusive of all applicable taxes, levies, or duties, and Participant is responsible for payment of all those taxes, levies, or duties, excluding taxes based solely on Wpromote’s income. Participant shall pay all fees free and clear of, and without reduction for, any applicable transaction taxes, including but not limited to sales and use taxes, VAT, GST, gross receipts taxes, withholdings and other similar transactional charges (“Transaction Taxes”); Transaction Taxes imposed on payments of fees will be Participant’s responsibility, and Participant shall provide receipts issued by the appropriate taxing authority to Wpromote on request to establish that the Transaction Taxes have been paid. Wpromote may invoice Transaction Taxes as permitted in applicable law on an invoice. Wpromote reserves the right to determine Transaction Taxes based on Participant’s “bill to” or "ship to" address, or other information provided by Participant on location of Participant use of the Polaris Service. Participant is responsible for any taxes, penalties or interest that might apply based on Wpromote’s failure to charge appropriate tax due to incomplete or incorrect “bill to” or “ship to” location information provided by Participant. If Participant is exempt from Transaction Taxes, Participant shall provide proof of the exemption to Wpromote without undue delay upon execution of the applicable Order Schedule.
10. Effect of Nonpayment. Agreement and Participant’s access to the Polaris Service or Wpromote’s provision of Professional Services may be suspended or terminated if Participant fails to make timely payment of undisputed fees when due. Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus collection costs. Suspension will not relieve Participant’s obligation to pay amounts due. Upon termination of this Agreement, Participant shall pay the balance due on Participant’s account subject to the applicable provisions of this Agreement.
11. Term; Termination. This Agreement commences on the Effective Date of the applicable Statement of Work and, unless earlier terminated under the terms of this Agreement, shall continue for so long as there is a valid Order Schedule authorizing Participant’s use of the Polaris Service or a Statement of Work in effect. Unless stated otherwise in this Agreement, either party may terminate this Agreement (or any affected Order Schedule or Statement of Work) (a) upon the other party’s material breach that, if capable of remedy, remains uncured for thirty (30) days after written notice of breach, except that termination will take effect on notice of a breach.
12. Treatment of Participant Data After Expiration or Termination. Participant agrees that after termination or expiration of this Agreement, or termination or expiration of any Order Schedule or Statement of Work, Wpromote may immediately deactivate Participant’s account(s) associated with the Agreement or applicable Order Schedule(s). During the thirty (30) day period after termination or expiration, Wpromote shall grant a reasonable number of Authorized Users access to the Polaris Service for the sole purpose of retrieving any Participant Data that it wishes to retain and deleting any remaining Participant Data. After the 30-day period, Wpromote shall delete Participant’s account, including remaining Participant Data, if any, from the Wpromote Service unless legally prohibited.
13. Miscellaneous.
13.1. Data Protection. Wpromote and Participant agree that the Data Processing Agreement, a copy of which is available on request, applies to the Service. A list of third-party subprocessors is available upon request.
13.2. Third-Party Offerings. Wpromote may enable select products, services, websites, links, content, material, integrations, bots, and applications from independent third parties (companies or people who are not Wpromote) to host, interoperate, integrate, or otherwise work with the Service either natively and through various application programming interfaces or software development kits (each a “Third-Party Offering”). WPROMOTE MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY OFFERING, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ANY THIRD-PARTY OFFERING WILL (A) REMAIN AVAILABLE THROUGHOUT THE TERM OF THIS AGREEMENT; (B) BE ERROR-FREE OR RUN UNINTERRUPTED; (C) OFFER ANY PARTICULAR FEATURES OR PERFORMANCE; OR (D) MEET PARTICIPANT NEEDS. Wpromote does not license any intellectual property to you as part of any Third-Party Offering and is not responsible or liable to you or others for information or services provided by any third party unless otherwise expressly stated. You should review the third-party terms and privacy policies before acquiring, using, or accessing any Third-Party Offering.
13.3. Entire Agreement; Amendment; Waiver; Severability. This Agreement constitutes the sole and entire
agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner if any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.4. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington and County of New Castle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.5. Assignment. Participant may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Wpromote. Any purported assignment, transfer, or delegation in violation of this Section is null and void.
13.6. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.