This agreement ("Agreement") is between WizeHive, Inc. ("WizeHive") and the client or customer organization (the "Company") specified in the accompanying online or printed Registration, Software & Services Work Order or statement of work for the provision of Services (the "Software & Services Work Order" or "Order") and consists of these terms and conditions along with the terms of each Software & Services Work Order executed or submitted by Company. All Services provided under any Order shall be governed by and subject to this Agreement. In the event of any conflict or inconsistency between the terms and conditions below and the terms of any Order, the terms of such Order shall govern solely with respect to the Services provided under such Order.
2. Access to and Use of Services
2.1 Subject to the provisions of the Agreement, including all exhibits, schedules and supplements hereto, WizeHive hereby grants to Company a limited, non-transferable, non-sublicensable and non-exclusive license, during the term of this Agreement, to access and use the Services in accordance with each Order. In this Agreement, WizeHive "Services" means the Wizehive.com and Zengine.com website and all related contents, apps, products and services, WizeHive, Zengine and other software, applications, interfaces and source code which WizeHive authorizes Company to use through the Wizehive.com or Zengine.com website or otherwise, and any professional, technical or support services offered by WizeHive in connection therewith.
2.2 The Services will be used solely by the Company business unit(s) stated on the Software & Services Work Order by no more than the number of Company employees and contractors if a limit has been specified ("Company Users") and for only the specific Projects (as defined below) authorized. Company agrees to take commercially reasonable steps to prohibit Company Users from (i) posting Company Data in violation of applicable law, regulation or the intellectual property rights of any third party; and (ii) using the Services in any manner that could result in: (A) physical or other injury to an Company User or any other person or entity; (B) commission of a crime or tort; (C) harm to the integrity of the Services or unauthorized access to data or accounts of third party users or clients; or (D) posting of information or content that is unlawful, abusive, racially or ethnically offensive, defamatory, infringing, illegal, invasive of personal privacy or publicity rights, harassing, libelous or threatening.
2.3 Company may not resell or otherwise transfer or allow the use of the Services, or any part thereof, directly or indirectly, by or for the benefit of, any other person or organization (including, without limitation, Company’s other business units and Company’s present and future parents, subsidiaries and affiliates) without the prior written approval of WizeHive.
2.4 As between the parties, WizeHive owns and shall retain all rights, title, and interest in and to the Services, all components thereof, including without limitation all related applications, user interface designs, processes, software and source code, and any and all future enhancements or modifications thereto howsoever made, and all intellectual property rights therein. WizeHive™ and Zengine™ are trademarks of WiveHive. Company may not: (i) copy, alter, modify or adapt any component of the WizeHive Services, including without limitation, translating, decompiling, reverse engineering, disassembling or creating derivative works from the Services or any related intellectual property of WizeHive, (ii) use the Services to develop or assist any other person to develop a product or service to replace or compete with the Services, or (iii) make any component of the Services available to any other person or organization directly or indirectly, for any of the foregoing or for any other use not expressly authorized under a Software & Services Work Order, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement.
2.5 WizeHive does not own any data, information or material that Company or Company Users submit to the Services in the course of using the Services ("Company Data"). In the event this Agreement is terminated (other than by reason of Company’s breach), WizeHive will make available to Company any Company Data then maintained under any subscription or other fee-based Order, upon written request within 30 days after termination. Company has sole responsibility for the accuracy, quality, legality, appropriateness and intellectual property ownership or right to use of all Company Data. WizeHive does not pre-screen Company Data but it shall have the right (but not the obligation) to refuse or to remove any Content that violates the Acceptable Use Policy or is deemed objectionable by WizeHive.
2.6 WizeHive may provide Company with user IDs and passwords for each Company User. Company Users may use the WizeHive Services only through such user IDs and passwords. Company is entirely responsible for maintaining the confidentiality of user IDs and passwords. Company is entirely responsible for any and all activities which occur under each user ID and password. Company agrees to immediately notify WizeHive of any unauthorized use of an account or any other breach of security known to Company.
2.7 As between the parties, Company solely shall be responsible for any and all commitments and obligations to Visitors arising in connection with any Project (as defined below). Company shall ensure the purpose, content and operation of each Project complies with all applicable laws and regulations governing the subject matter of each such Project, and neither the publication of Company Data nor collection or use of User Data in connection with any Project violates any applicable law, regulation or third party right. As used in this Agreement "Project" means any application, contest, scholarship, program, project, transaction or other business process managed by Company in whole or in part using the Services. "Visitors" means any individuals other than Company Users who use the Services to access Company Data or participate in a Project. "User Data" means any information or data that can be used to identify, contact, or locate any single Visitor or Company User, including, without limitation, email addresses, IP addresses, geotags, login credentials, names, mailing addresses and phone numbers. Company acknowledges and agrees that, unless otherwise agreed in writing by WizeHive, Company Data and User Data shall not include or be associated with any Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended (“HIPAA”), and Company shall not upload or permit Company Users or Visitors to upload PHI to the Services except in accordance with a separately written and executed HIPAA-compliant business associate agreement between Company and WizeHive.
3.1 Company shall pay to WizeHive the charges and fees as set forth in each Software & Services Work Order. All fees and charges exclude applicable taxes and are quoted and payable in U.S. dollars.
3.2 Initial payment for the Services is due on the effective date of each Order or as otherwise agreed between the parties. Initial setup, professional services, monthly, quarterly or annual subscription fees will also be paid in the method and in the timeframe agreed in the Order. In the event any fees or charges are not timely paid, without prejudice to any other remedies it may have, WizeHive may suspend any or all Services upon notice to Company until payment in full is received. All amounts due under this Agreement will be paid by Company in full without any withholding, set-off, counterclaim or deduction. Company will promptly pay all federal, state, and local sales, use, value-added, personal property, and other taxes of a similar nature arising as a result of this Agreement, except for taxes on WizeHive’s net income.
3.3 All payment obligations are non-cancelable and all amounts paid are non-refundable. Unless otherwise specifically stated in the Order, professional service hours purchased must be utilized within six months of payment or thereafter expire. Company is responsible for paying for all Company User licenses ordered for the entire license term, as indicated in the applicable Order ("License Term"), whether or not such user licenses are actively used. WizeHive reserves the right to modify its fees and charges as of the start of any License Term or renewal thereof, and to introduce new charges at any time new features are added, upon at least 90 days prior notice to Company, which notice may be provided by e-mail. Company shall treat any pricing terms not publicly available at the WizeHive website as WizeHive Confidential Information.
4.1 This Agreement shall commence on the date of the first Software & Services Work Order and continue in effect while any performance by either party remains to be completed under any Order subject to termination in accordance with subsection 4.2. Except as otherwise expressly provided in any Order, upon termination of this Agreement, all Services shall cease and Company will discontinue use of the Services.
4.2 Either party may terminate this Agreement immediately upon written notice if the other party: (i) becomes the subject of a petition in bankruptcy which is not withdrawn or dismissed within 60 days thereafter; (ii) makes an assignment for the benefit of creditors; or (iii) breaches any material obligation under this Agreement (including but not limited to payment obligations) and fails to cure such breach within 30 days after delivery of notice thereof by the non-breaching party.
4.3 Unless otherwise specified in an Order, each Order will automatically renew at the end of its initial term for successive one year renewal terms, unless either party notifies the other in writing at least 60 days prior to the applicable renewal date of such party’s election to cancel renewal. Unless otherwise agreed in writing by the parties, upon renewal of an Order, the annual subscription price and payment terms will remain the same.
5.1 Each of WizeHive and Company warrants to the other that it has the right to enter into and perform this Agreement.
5.2 Company represents and warrants to WizeHive that (i) the Company Data may be licensed to WizeHive as stated in and contemplated by this Agreement, (ii) the Company Data does not infringe the rights of any Company Data Providers or any third parties, and (iii) the Company's conduct of each Project and storage, use, copying, modification and distribution of Company Data and User Data currently comply and will continue to comply with all applicable laws, decrees, directives, legislative enactments, orders, ordinances, regulations, rules or other binding requirements of or by any governmental authority.
6. Disclaimers and Limitations of Liability
6.1 COMPANY ACKNOWLEDGES AND AGREES THAT THE WIZEHIVE SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. NEITHER WIZEHIVE, NOR ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, OR LICENSORS (COLLECTIVELY, THE "WIZEHIVE PARTIES") MAKE, AND THEY HEREBY SPECIFICALLY DISCLAIM, ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, TIMELINESS, QUALITY, OR ACCURACY.
6.2 THE PARTIES SHALL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO EACH OTHER, THEIR RESPECTIVE USERS, VISITORS, CUSTOMERS OR ANY THIRD PARTY, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST DATA, LOST SAVINGS OR LOST REVENUES (COLLECTIVELY "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT SHALL THE LIABILITY OF THE PARTIES TO EACH OTHER OR ANY THIRD PARTY, WHETHER ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EXCEED THE AGGREGATE AMOUNT PAID BY COMPANY HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.1 By Company. In the event of any claim, suit or action by any third party against the WizeHive Parties arising out of or related to: Company’s provision of any data or information to WizeHive (including any of the Company Data); Company's use or provision of User Data; Company’s breach of this Agreement or breach of any agreement, commitment or obligation to any Visitor or other third party; or Company’s violation of any law, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding requirement of or by any governmental authority, Company, at its expense, shall defend such claim, suit or action, and shall indemnify and hold harmless the WizeHive Parties from and against any reasonably incurred expenses (including legal fees) and all damages assessed, awarded and/or fined by a court or other tribunal of competent jurisdiction in connection therewith.
7.2 By WizeHive. Subject to Company’s obligations under Section 7.1, in the event of any claim, suit or action by any third party against Company for infringement under the copyright laws of the United States attributable to the software, contents or other works comprising the WizeHive Services, WizeHive, at its expense, shall defend such claim, suit or action and shall indemnify and hold harmless Company from and against any and all damages assessed, costs, liabilities and expenses (including attorney fees) awarded, and/or by a court of competent jurisdiction. in connection therewith provided that the claim: (i) does not arise from any modification to the WizeHive Services made by Company or any other third party; and (ii) does not arise from the combination of the WizeHive Services with other products or services not supplied by or recommended by WizeHive. This Section 7.2 shall be Company’s sole and exclusive remedy for any infringement actions regarding the subject matter hereunder.
7.3 Indemnification Procedures. The parties’ obligations under Section 7.1 (By Company) and Section 7.2 (By WizeHive) shall be contingent on the indemnified party giving the indemnifying party prompt written notice of a claim, provided, however, that failure of a party to give prompt notice shall not relieve the indemnifying party from its obligations under this Agreement unless the indemnifying party’s ability to defend or the defense is materially prejudiced by such failure. The indemnified party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying party shall have the right to assert any defenses, causes of action or counterclaims arising from the subject of the claim available to the indemnified party and its affiliates, and shall also have the right to negotiate a settlement of the claim, subject to the indemnified party’s prior written consent to the extent such settlement affects the rights or obligations of the indemnified party, which shall not be unreasonably withheld or delayed. The indemnified party shall provide the indemnifying party with reasonable assistance, at the indemnifying party’s expense.
8. Confidential Information
8.1 Confidential Information. Each party agrees that information concerning the other’s party business (including that of all corporate affiliates and subcontractors) is "Confidential Information" and proprietary to that party and shall be maintained in confidence and not disclosed, used or duplicated, except as described in this Section. Confidential Information may include, without limitation, information relating to and identified with customers, financial information, business strategy, intellectual property, software and software documentation, data, inventions, know-how, processes, information related to the party’s current, future, and proposed products and services, and the terms of this Agreement. Company Data shall be treated as Company Confidential Information.
8.2 The receiving party may use Confidential Information only in connection with performance under this Agreement. Except for performance of this Agreement and each Order, the receiving party shall not copy the disclosing party’s Confidential Information or disclose such Confidential Information to persons who do not need such Confidential Information in order to perform under this Agreement.
8.3 Each party shall maintain an appropriate information security program and adequate administrative and physical safeguards to prevent the unauthorized disclosure, misuse, alteration or destruction of Confidential Information, and shall promptly inform the other party of any security breach or other incident involving possible unauthorized disclosure of or access to Confidential Information. Confidential Information shall be returned to the disclosing party upon request.
8.4 Exceptions to Confidential Information. The limitations on disclosure or use of the Confidential Information shall not apply if the Confidential Information: (i) was already known to the receiving party, other than under an obligation of confidentiality, at the time of disclosure by the other party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the other party; (iii) becomes generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of this Agreement; or (iv) was disclosed to the receiving party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information. WizeHive undertakes no obligation to Company, Company Users or Visitors to maintain HIPAA-compliant data security systems or procedures, unless and to the extent otherwise agreed by the parties under a separately executed written business associate agreement. Notwithstanding anything to the contrary in this Agreement but subject to the requirements of HIPAA and other applicable laws, WizeHive may use aggregated data, including, without limitation, Company Data if it is anonymized in such a way as to reasonably protect its associated identity.
8.5 Required Disclosure. If the receiving party is required by law to disclose the disclosing party’s Confidential Information, the receiving party may do so without breaching this section, but shall first, if legally permissible, provide the disclosing party with prompt notice of such pending disclosure so that the disclosing party may seek to contest or limit such disclosure, and the receiving party shall provide reasonable assistance to the disclosing party therefore.
9. Dispute Resolution
9.1 This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
9.2 Any controversy or claim relating to this Agreement that is not settled by the parties and is not the subject of an action for preliminary or permanent injunctive relief shall be determined by binding arbitration before a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the "AAA"). Any hearings required by the arbitrator or agreed to by the parties will be held in Philadelphia, Pennsylvania, U.S.A. If the parties fail to appoint an arbitrator within thirty (30) days, the AAA shall select the arbitrator promptly thereafter. Each party shall pay its own out-of-pocket fees (including attorney’s fees) and one-half the arbitrator's fees. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. The parties agree that all such controversies or claims, including any negotiations, evidence and settlement terms, shall be treated as Confidential Information of WizeHive under the confidentiality provisions of this Agreement, except that the award entered in any court need not be filed under seal.
9.3 Company acknowledges that in the event of a breach by Company of the licensing or confidentiality provisions of this Agreement, WizeHive will suffer irreparable injury not compensable by money damages for which WizeHive will not have an adequate remedy at law and therefore WizeHive will be entitled (in addition to money damages) to injunctive or other equitable relief to prevent or curtail any breach thereof, threatened or actual. Each party hereby consents to the exclusive jurisdiction of, and venue in, any Federal or State court of competent jurisdiction located in Montgomery County, Pennsylvania, for the adjudication of any request for injunctive relief hereunder.
10.1 This Agreement supersedes all prior oral or written negotiations and discussions of the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. No modification. amendment, supplement, or waiver of any of the provisions hereof shall be binding upon any party hereto unless made in writing and signed by the duly authorized officer of the parties hereto. This Agreement may not be assigned by Company without the prior written consent of WizeHive, and any attempt to do so shall be null and void. This Agreement may be assigned by WizeHive without the consent of Company. If any provision hereof shall for any reason be declared to be void or illegal, the enforceability of this Agreement or any other provision hereof shall not be affected. In addition, the parties agree that such void or illegal provision shall be construed in a manner designed to effectuate its purpose to the fullest extent enforceable under applicable law. All remedies set forth in this Agreement are cumulative and in addition to and not in lieu of any other remedy the party may have at law or in equity. No legal action, regardless of its form, related to or arising out of this Agreement, may be brought by either party more than two (2) years after the cause of action first accrued. Neither party shall be responsible for any delay or failure in performances resulting from acts wholly beyond its control. Such acts shall include, without limitation, an act of God, an act of war or terrorism, a riot, an epidemic, fire, flood, or an act of government. Notwithstanding any expiration or termination of this Agreement, the rights and obligations set forth in paragraphs 2.4, 5.2 and 6 through 10 shall survive such termination and remain in full force and effect.
10.2 WizeHive may identify you (by name and logo) as a WizeHive customer on WizeHive’s website and on other promotional materials.
10.3 The parties are independent contractors with respect to each other, and neither shall be deemed an employee, agent, partner or legal representative of the other for any purpose or shall have any authority to create any obligation on behalf of the other. No third-party beneficiary rights are granted as a result of or pursuant to this Agreement. Any notice required under this Agreement shall be in writing and may be delivered by email, fax, courier or certified mail, return receipt requested to the address indicated in the Order or such new address sent to the other party in accordance with this Section 10.3.