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Widewail, Inc. (“Widewail”) will provide services (“Services”) to the customer (“Customer”) subject to these Terms of Service (the “Terms”). Customer and Widewail may be referred to in these Terms individually as a “Party” or collectively as the “Parties.”
By signing an Order (defined below) for the Services, Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order(s), constitutes the entire agreement between Widewail and Customer (the “Agreement”). Widewail reserves the right to revise these Terms from time to time, which will be updated at https://www.widewail.com/tos. Any changes will be effective upon posting the revised version of these Terms.
IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT USE THE SERVICES.
1.1 Restrictions. Any and all rights not expressly granted to Customer herein are reserved by Widewail. Customer shall not (a) use the Services or other Widewail materials for any purpose not expressly permitted herein; or (b) copy, modify, customize, rent, lease, loan, or sublicense any of the Services or other Widewail materials except as otherwise provided for herein.
1.2 Widewail Invite Video. If Customer has purchased a subscription to Widewail Invite Video, the following terms also apply: (a) Widewail grants Customer a license to view, display, and download any photos, video or other content ("Media") submitted by Customer's consumers through Widewail Invite Video during the term in the applicable Order; (b) Customer shall only use and access Widewail Invite Video in compliance with all applicable laws and regulations and Widewail's Community Guidelines posted in Widewail Invite Video. Widewail grants to Customer a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, sublicenseable and transferable right and license to use, reproduce, modify, display, perform, prepare derivative works of, and distribute all Media that has been downloaded from the Widewail library during the term of the applicable Order. Widewail reserves the right, at any time and without prior notice, to remove Media from Widewail Invite Video at its discretion for any reason or no reason. Customer shall indemnify and hold Widewail harmless against any claims or costs, including attorneys' fees, arising from the use or distribution of any Media obtained by Customer through Widewail Invite Video.
2.1 Approved Access. During the Term (defined below), Customer will provide Widewail with suitable access, credentials, and information to provide the Services generally. If Customer is purchasing Widewail Engage or Engage Plus, such access includes, but is not limited to, the ability to access and provide Replies, which access may be provided through use of an API, approved login credentials, or some other method agreed to by the parties (“Approved Access”). Customer grants to Widewail the right and license to use each Approved Access to monitor the Reputation Data and provide Replies (as defined in the applicable Order). If Customer is purchasing Widewail Invite and/or Widewail Invite Video, Customer shall provide to Widewail Customer’s consumers' personal information solely as necessary to provide Widewail Invite and/or Widewail Invite Video.
2.2 Trademarks. Customer hereby grants to Widewail the right to use any intellectual property (such as trade names, trademarks, images, and logos) of the Customer necessary to provide the Services.
2.3 Customer Responsibilities. Customer is solely responsible for (and Widewail has no responsibility to Customer or any third party for): (a) any third-party accounts associated with Reputation Data and the Approved Access, including, but not limited to, compliance with any terms and conditions and any payment or fees required for such account; (b) regularly reviewing Replies, if applicable, and other content deployed through the Services to ensure all information posted (i) is accurate, up to date, and acceptable, and (ii) complies with all laws, rules and regulations, including, but not limited to, all federal, state and industry-specific online advertising (or similar) laws, regulations and guidelines; and (c) compliance with applicable law, including the Telephone Consumer Protection Act, as such relates to Customer’s use of the Services. Customer shall be solely liable for any fines or other penalties imposed relating to any non-compliance with the Agreement or applicable laws.
2.4 Statistical Data. Notwithstanding anything to the contrary in the Agreement, Widewail may (and Customer hereby grants to Widewail the right to) de-identify and aggregate any data collected by or through the Services and utilize in perpetuity such aggregated anonymized statistical data for any reasonable business purpose.
4.1 Term. The Agreement shall commence on the Effective Date set forth in the Order and continue for the Initial Term identified in the initial Order. The Agreement will automatically renew for successive Renewal Terms, unless either Party provides written notice of termination at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as applicable.
4.2 Termination. Either Party may terminate the Agreement (and in the case of Widewail cease providing the Services) if the other Party is in breach of any material provision of the Agreement (including Customer’s failure to pay any invoiced fees) and fails to cure such breach within thirty (30) days of written notice by the non-breaching Party. Either Party may immediately terminate the Agreement (and in the case of Widewail immediately cease providing the Services) upon the occurrence of the following: (i) use by Customer of the Services in a manner that is illegal or fraudulent or in violation of the Agreement; or (ii) the other Party becomes insolvent, files a bankruptcy petition, becomes the subject of an involuntary bankruptcy petition, makes a general assignment for the benefit of creditors, a receiver is appointed for its business, property or assets by a court of competent jurisdiction and such appointment is not dismissed within thirty (30) days, or such Party ceases to conduct business.
4.3 Effect of Termination. Upon the termination or expiration of the Agreement, all rights and licenses granted to Customer herein shall terminate, and Widewail shall cease providing the Services. In addition, each Party shall promptly return and deliver to the other or destroy (and, upon the request of the other, certify the destruction of) all Confidential Information (as defined in Section 5) of the other Party in its possession or control, except that Widewail may retain copies of such materials on its systems for archival purposes, including through automated backups in the ordinary course of business; provided that such retained Confidential Information shall continue to be bound by its obligations of confidentiality.
4.4 Survival. Upon expiration or termination of the Agreement, Sections 4.3 (“Effect of Termination”), 5 (“Confidential Information”), 6 (“Intellectual Property”), 8 (“Disclaimer of Warranty”), 9 (“Limitations of Liability”), and 10 (“Miscellaneous”) will survive in accordance with their terms.
7.1 Each Party hereby represents and warrants to the other as follows: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party.
7.2 Widewail hereby represents and warrants to Customer that the Services performed by Widewail for Customer will be of professional quality conforming to generally accepted industry standards. As Widewail’s sole responsibility, and Customer’s exclusive remedy, in the event of any material failure to meet such standard, Widewail shall cause the service to be re-performed at no cost to Customer or, if unable to do so, shall refund any fees paid by Customer for the particular services.
7.3 Customer hereby represents and warrants that (a) it has full and adequate rights to grant to Widewail all rights and licenses provided to Widewail under the Agreement, including, but not limited to, those outlined in Section 2 and (b) Customer has obtained all required prior consents of consumers prior to using Widewail Invite and/or Widewail Invite Video.
10.1 Independent Contractor. The Parties agree that they are independent contractors pursuant to the Agreement. Nothing in the Agreement creates a partnership, employer-employee relationship or a joint venture between the Parties.
10.2 No Assignment. The Agreement shall be binding upon the parties’ respective successors and permitted assigns. Neither Party may assign the Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party; provided that Widewail may assign the Agreement in connection with the sale, merger, consolidation or other similar transaction involving the transfer of substantially all of the assets or ownership interests to a third party.
10.3 Notices. Except as otherwise provided herein, all notices shall be in writing and shall be deemed to be delivered when received if sent by certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight courier. All notices shall be directed to the Parties at the respective addresses set forth on the first page of the Agreement or to such other address as either Party may, from time to time, designate by notice to the other Party (which particular notice may be by email).
10.4 Entire Agreement. The Order, together with these Terms, constitutes the entire agreement between Customer and Widewail relating to the Services. The Agreement supersedes all prior or contemporaneous agreements between the Parties concerning the subject matter of the Agreement.
10.5 Press Releases. Except as expressly set forth in Section 2.2 (“Trademarks”), neither Party shall issue any press release or announcement, use any of the other Party’s name or trademarks in promotional activity, or otherwise publicly announce or comment on the Agreement without other Party’s prior written consent.
10.6 Modifications. No modification, amendment, supplement to, or waiver of the Agreement hereunder shall be binding upon the parties unless made in writing and duly signed by both Parties.
10.7 Non-Waiver of Breach. No breach of any provision of the Agreement can be waived unless such waiver is in writing and signed by the waiving Party. Waiver by a Party or performance of any provision of the Agreement shall not invalidate the Agreement, nor shall it be deemed to be a waiver by such Party of any other provision.
10.8 Severability. If any portion of the Agreement is held to be invalid, illegal or unenforceable, that portion shall be severed from the Agreement, and the remaining provisions of the Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.
10.9 Governing Law. The Agreement is governed by and shall be construed and governed according to the laws of the State of Vermont without regard to conflicts of laws provisions or principles. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Vermont with respect to any matter arising hereunder or related hereto.
10.10 Force Majeure. Neither Party shall be liable to the other for any delay or failure to take any action required hereunder (except for payment of funds) if and to the extent such delay or failure is due to any cause beyond the reasonable control of such Party, as the case may be, including, but not limited to, terrorism, war, natural disaster, unavailability or shortages of labor, or equipment, failure or delays in the delivery of vendors and suppliers, power failure or internet disruption.
10.11 Headings. The headings contained in the Agreement are included for convenience only and shall be given no effect in the construction or interpretation of the Agreement.