Last Updated on January 16, 2019
1.1 License Grant. Subject to Client's compliance with this Agreement, including Client's timely payment of all Fees (as such term is defined in Section 3.1), Wisely hereby grants to Client during the Term (as such term is defined in Section 10.1) (a) a non-exclusive, worldwide, non-transferable, non-sublicensable license to (a) in the case of the Software, install, reproduce, and use the Software on Client's systems, networks, and devices and (b) in the case of the Services, access and use the Services, each of (A) and (B) in connection with the agreed-upon use case between Wisely and Client in the Statement of Work and not to exceed the number of active user IDs and passwords ("Access Credentials") granted by Wisely. Wisely may modify the Solution from time to time, so long as such modification(s) do not materially reduce the Solution's performance or capabilities. Wisely will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client, any of Client’s guests (each, a “Customer” and collectively, “Customers”), or any other third party may incur as a result of modifications to the Solution in accordance with this Section 1.1.
1.3 Ownership. Wisely, its suppliers and/or licensors own all worldwide right, title and interest in and to the Solution, including all trademarks, logos, and other intellectual property rights included in the Solution (the "Wisely IP"). Except for the licenses expressly granted to Client in Section 1.1, Client shall not acquire or claim any right, title or interest in or to the Wisely IP, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the Solution is licensed, not sold, to Client.
1.4 Suspension of Access. Notwithstanding anything to the contrary in this Agreement, Wisely may temporarily suspend Client's access to any portion or all of the Solution if: (a) Wisely reasonably determines that there is a threat or attack on the Solution; (b) Client's use of the Solution disrupts or poses a security risk to the Solution or to any other customer or vendor of Wisely; (c) Client is using the Solution for fraudulent or illegal activities; or (d) any vendor of Wisely has suspended or terminated Wisely's access to or use of any third-party services or products required to enable Client to access the Solution (any such suspension described in subclause (a), (b), (c), or (d), a “Service Suspension”). Wisely shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Solution following any Service Suspension. Wisely shall use commercially reasonable efforts to resume providing access to the Solution as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Wisely will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any third party may incur as a result of a Service Suspension, and if a Service Suspension is caused by (i) Client’s breach of this Agreement and/or (ii) subsections (b) or (c) of this Section 1.4, then Client shall still be obligated to pay Fees during the pendency of such Service Suspension.
1.5 Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Wisely by mail, email, telephone, or otherwise, suggesting or recommending changes to the Wisely IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Wisely is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to Wisely on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Wisely 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, although Wisely is not required to use any Feedback.
2.1 Client Content. Client shall be responsible for providing Wisely with any Client Content necessary to implement and operate the Wisely System in accordance with each applicable Statement of Work, which Client Content may include, without limitation, business information about the Client and its transactions with its consumers. In addition, Client shall provide Wisely with all trademarks, logos and such other images and branding materials (“Client Logos”) necessary for Wisely’s operation, marketing, or white-label branding of the System or any Client- specific version of a Consumer App or the Client App, as specified in an applicable Statement of Work. Wisely shall not be responsible or liable for any delay or failure in performing its obligations under this Agreement that is caused by Client’s delay in or failure to provide complete and accurate Client Data.
2.2 Client Responsibilities.
2.2.1 Client Logos. Client is responsible for providing Wisely with all trademarks, logos, service marks, images, branding materials and other identifiers of Client (collectively, "Client Logos").
2.2.2 Client Materials. Client is responsible, and will retain full responsibility, for: (a) all materials or information (including, without limitation, any documents, specifications, or content) provided by or on behalf of Client, whether or not in connection with the Solution (the "Client Materials"); (b) Client's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services ("Client Systems"); (c) the security and use of its Access Credentials; (d) training and supervising its employees and other personnel in the use of the Solution; and (e) all access to and use of the Solution directly or indirectly by or through the Client Systems, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Client hereby grants to Wisely a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display, transmit, and create derivative works of Client Materials solely in connection with performing the Services.
2.2.3 Messages. Client may, through the Solution, send a variety of messages, communications, and other information (collectively, "Messages") to Customers who have elected to receive Messages or who have provided their contact information to Client directly. Wisely is not involved in, and shall bear no responsibility for, Messages, except for providing the Solution that facilitates the creation, delivery, and management of such Messages. Without limiting the foregoing, Client is wholly responsible for Messages, including, without limitation, for (a) the content thereof and (b) honoring any Customer privacy choices and terms (if any) included in such Messages.
2.2.4 Safeguards. Client will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Solution; and (b) control the content and use of Client Materials, including the uploading or other provision of Client Materials to the Solution.
2.2.5 Compliance with Applicable Privacy Laws. Client will use the Solution in compliance with all applicable privacy and consumer protection laws including, without limitation, applicable data privacy laws, laws related to text messaging and email communication, the Telephone Consumer Protection Act of 1991 and any amendments or supplements and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any amendments or supplements thereto, including, without limitation, applicable data privacy laws, laws related to text messaging and email communication, the Telephone Consumer Protection Act of 1991, and any amendments or supplements and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any amendments or supplements thereto ("Applicable Privacy Laws"). If Wisely receives a request from a Customer or correspondence from a data protection authority with respect to the storage, use, handling, sharing, and/or other treatment of Customer Data (as defined below), or a Customer otherwise contacts Wisely to exercise Customer's rights under Applicable Privacy Laws (including, for clarity and if applicable, the European General Data Protection Regulation) (a "Request"), then Wisely, as a data processor under Applicable Privacy Laws, will cooperate with, and provide reasonable assistance to, Client, as a data controller under Applicable Privacy Laws, in connection with such Request.
2.2.6 Customer Terms. Client is wholly responsible for any end user terms it enters into with its Customers and Wisely will not be a party to such agreements, nor will Wisely incur any liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client, any Customer, or any third party may incur in connection with such agreements.
3.1 Fees. Client shall pay Wisely the (a) initial fees for the Solution set forth on the Statement of Work (the "Initial Solution Fee") in advance prior to Wisely's delivery of the Solution, (b) subscription fees for the Solution (the "Subscription Fee") in advance at the beginning of each Term and (c) fees for Professional Services (the "Professional Services Fees," and, collectively with the Initial Solution Fee and the Subscription Fee, the "Fees") as set forth in the Statement of Work on the due date(s) specified therein (or, if Professional Services Fees are invoiced instead of specified in a Statement of Work, on the due date(s) specified in the invoice, and if no due date(s) are specified, then no later than thirty (30) days after Client's receipt of an invoice for such Professional Services Fees). Client acknowledges and agrees that Wisely's delivery of the Solution is expressly conditioned on Client furnishing the Initial Solution Fee in advance. Wisely may assess a late payment fee of 1.5% of all Fees past due (or, if the maximum rate under applicable law is less than 1.5%, then the maximum rate under applicable law).
3.2 Changes. Wisely may change the Fees by providing Client with sixty (60) days' prior written notice. If Client does not agree to any such change in Fees, Client may terminate this Agreement and Client's use of the Solution will cease as of such date. Client's failure to terminate this Agreement prior to the effective date of the change in Fees shall constitute Client's acceptance of such change.
3.3 No Refunds; Authorizations. All Fees are non-refundable, regardless of earlier termination or expiration of this Agreement, and shall be paid in U.S. Dollars. Client shall pay any applicable sales, use, value added, surtax and personal property taxes, duties, fees and other governmental assessments or charges arising out of this Agreement and the transactions contemplated in this Agreement, excluding taxes based on Wisely’s income. In addition to Wisely's suspension rights in Section 1.4 and Wisely's right to charge a late payment fee in Section 3.1, Wisely may suspend Client's access to the Solution if Client is ten (10) or more business days past due on Fees.
4.2 Wisely Data. Wisely owns all right, title, and interest in and to all data and information related to Client's and Customers' use of the Solution (except Customer Data) and may aggregate, use, disclose, compile, distribute and publish statistical and/or analytical data regarding the performance, provision, and operation of the Solution (including, without limitation, by aggregating and anonymizing Customer Data) (collectively, "Wisely Data"). Wisely hereby grants to Client during the Term a non-exclusive, revocable, non-transferable, non-sublicensable right and license to use such Wisely Data solely for Client's internal business purposes.
5.1 Definition. "Confidential Information" means any and all information and data disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") under this Agreement, which includes, without limitation, information (tangible or intangible, written or oral) regarding the Disclosing Party's technology, patents, patent applications, developments, inventions, designs, drawings, techniques, research, know-how, specifications, products, product plans, services, pricing, Customer information, marketing information, regulatory information, reports, user data, sales data, other data and analysis, Solution (including source and object code), computer systems configurations, formulas, agreements with third parties, current or future strategic information, current or future business plans, processes, policies or practices, employee information, and other business and technical information, that (a) is marked “confidential” or “proprietary” at the time of disclosure by the Disclosing Party, or (b) by its nature or content is reasonably distinguishable as confidential or proprietary to the Disclosing Party. Confidential Information may also include information of a third party that is in the Disclosing Party's possession under an obligation of confidentiality and is disclosed to the Receiving Party under this Agreement. For clarity, and without limiting the foregoing, the Solution is Confidential Information of Wisely.
5.2 Obligations of Confidentiality. The Receiving Party agrees not to use any Confidential Information for any purpose other than to exercise its rights and perform its obligations under this Agreement. The Receiving Party shall not disclose or permit disclosure of any Confidential Information to third parties or to employees of the Receiving Party, other than directors, officers, employees, consultants and agents of the Receiving Party ("Representatives") who are required to have the information to exercise the rights in or perform the obligations under this Agreement. The Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such Confidential Information. Such measures shall include, without limitation, taking the highest degree of care that the Receiving Party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. The Receiving Party is responsible for any breach of the confidentiality provisions of this Agreement by its Representatives. The Receiving Party agrees to notify the Disclosing Party in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information that may come to the Receiving Party's attention. The obligations of this Section 5.2 shall survive expiration or termination of this Agreement for a period of three (3) years from such termination or expiration; provided, that the obligations of the Parties regarding the use, protection and confidentiality of Confidential Information that constitutes a trade secret of the Disclosing Party shall survive the termination or expiration of this Agreement for so long as such Confidential Information remains a trade secret of the Disclosing Party.
5.3 Exceptions. The obligations of the Receiving Party under Section 5.2 shall not apply to any Confidential Information that the Receiving Party can prove: (a) was previously known to the Receiving Party without an obligation of confidentiality; (b) was acquired by the Receiving Party from a third party which was not under an obligation to not disclose such information; (c) is or becomes publicly available through no fault of Receiving Party; or (d) the Disclosing Party gave written permission to the Receiving Party for disclosure, but only with respect to such permitted disclosure.
5.4 Compelled Disclosures. In the event the Receiving Party receives a subpoena or other validly issued administrative or judicial process demanding the Confidential Information, the Receiving Party shall give the Disclosing Party prompt written notice of any disclosure of the Confidential Information that, in the opinion of its counsel, appears to be required by law, so that the Disclosing Party may assert any defenses to disclosure that may be available. If the Disclosing Party fails to obtain a protective order or other appropriate remedy, the Receiving Party shall furnish only that portion of Confidential Information that is legally required to be disclosed and any such Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally-compelled disclosure.
5.5 Return of Confidential Information. Any Confidential Information shall be promptly returned, deleted, or destroyed (with certification of such deletion or destruction) by the Receiving Party within ten (10) days after the earlier of (a) termination of this Agreement or (b) the written request of the Disclosing Party.
6.1 Of Each Party. Each party hereby represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required by it hereunder; and (b) the execution of this Agreement and the performance by such party of its obligations and duties hereunder, do not and shall not violate any agreement to which such party is otherwise bound.
6.3 Wisely Solution Warranty. Wisely warrants that for a period of thirty (30) days from the delivery of the Solution, the Solution shall substantially perform the material functions described in any included documentation and materials describing the Solution's functionality, when used in accordance with such documentation and materials. The sole liability of Wisely (and its suppliers/licensors), and Client's sole remedy, for any failure of the Solution to conform to the foregoing warranty, is for Wisely to do one of the following (at Wisely's sole discretion): (a) modify, or upgrade, the Solution so that it conforms to the foregoing warranty; (b) replace Client's copy of the Solution with a copy that conforms to the foregoing warranty; or (c) terminate the license with respect to the non-conforming Solution and refund the Fees paid by Client for such non-conforming Solution. All warranty claims must be made by written notice to Wisely on or before the expiration of the warranty period.
6.4 Wisely Services Warranty. Wisely warrants that it shall perform the Support Services, if any, in a good and workmanlike manner consistent with applicable industry standards. As Client's sole and exclusive remedy and Wisely's entire liability for any breach of the foregoing warranty, Wisely shall, at its sole option and expense, promptly re-perform any Support Services that fail to meet the limited warranty set forth in this Section 6.4 or refund to Client the Fees paid for non-conforming Services.
7. Warranty Disclaimers. EXCEPT AS SET FORTH IN SECTION 6 ABOVE, THE SOLUTION AND PROFESSIONAL SERVICES ARE PROVIDED "AS-IS" WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND WISELY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WISELY DOES NOT WARRANT THAT USE OF THE SOLUTION OR SUPPORT SERVICES SHALL BE UNINTERRUPTED, ERROR FREE, OR SECURE, OR THAT ANY DEFECTS SHALL BE CORRECTED.
8. Indemnification. Client shall indemnify, defend and hold harmless Wisely and its officers, directors, employees, agents, and assigns against any third party claims, actions, proceedings, damages, losses, judgments, settlements, costs and/or expenses (including attorneys' fees) ("Claim") arising from: (a) any violation of Applicable Privacy Laws and Practices or non-fulfillment of any offers made in the Messages, or other offers of goods or services (including, without limitation, promotional offers) made by Client to a third party using the Solution; (b) Client's breach or alleged breach of this Agreement (including, without limitation, Client's breach or alleged breach of any representations, warranties, or covenants herein); (c) any Client Materials and/or Client Logos, including Wisely's compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by Wisely; or (d) Client's violation of any agreement it has with any Customer. Wisely reserves the right to assume sole control of the defense and/or settlement of the Claim.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) WISELY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOLUTION OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) WISELY'S TOTAL CUMULATIVE LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO WISELY FOR THE SOLUTION IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER WISELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT WISELY WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
10.1 Term. Unless earlier terminated as provided below, this Agreement will commence on the Effective Date and will continue for the initial term specified on the Statement of Work ("Initial Term"). If automatic renewal is selected on the Statement of Work, this Agreement shall automatically renew for the term specified in the Statement of Work (each, a "Renewal Term" and together with the Initial Term, the "Term"), unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
10.2 Termination for Convenience. Client may terminate this Agreement in its sole discretion, for any reason or for no reason, upon sixty (60) days' written notice to Wisely; provided, however, that Client's termination under this Section 10.2 will not relieve Client of its obligation to pay all Fees, which are non-refundable and non-cancelable.
10.3 Termination. Either Party may terminate this Agreement in the event of the other Party's material breach if the breach is not cured by such breaching Party within thirty (30) days after the breaching Party receives notice of the breach from the non-breaching Party.
10.4 Consequences of Termination. Upon any expiration or termination of this Agreement, the rights and licenses granted to Client hereunder shall automatically terminate, and Client agrees to immediately cease using the Solution and to return or destroy all copies of any Wisely Confidential Information in Client's possession or control and certify the completion of such return or destruction in accordance with Section 5.5. Upon termination of this Agreement, Wisely shall have no obligation to refund any Fees or other amounts received from Client during the Term.
10.5 Survival. Sections 3 through 11 shall survive any expiration or termination of this Agreement. In addition, any accrued and outstanding payment obligations shall survive any expiration or termination of this Agreement.
11.1 Marketing. Wisely reserves the right to use Client's name and all Client Logos in promotional, marketing and presentation materials for the purposes of marketing the Solution and promoting Wisely, as well as in communications with investors (current or prospective) or with third parties with which Wisely does (or seeks to do) business.
11.2 Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both parties.
11.3 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent; provided, that Wisely may freely assign or transfer this Agreement to an affiliate or to a successor of all or substantially all of Wisely's assets or business to which this Agreement relates, whether by stock or asset purchase, merger, operation of law, or otherwise. Any attempted assignment or delegation in violation of the foregoing, except as expressly set forth herein, shall be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each Party's respective successors and assigns.
11.4 Law and Venue. This Agreement shall be governed by the laws of the State of Michigan, without regard to its choice or conflicts of laws provisions. Any claim or action arising out of or relating to this Agreement shall be brought in the state or federal courts sitting in Ann Arbor, Michigan.
11.5 Drafter. No party shall be deemed the drafter of this Agreement, and both parties acknowledge that they had sufficient time to have this Agreement reviewed by counsel and that this Agreement shall be deemed to have been jointly prepared by the parties. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator shall not construe this Agreement, or any provision hereof, against any party as drafter.
11.6 Waiver. The failure of either Party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party's right to enforce such provisions or exercise such option.
11.7 Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by email, delivered by overnight delivery service, or mailed by certified or registered mail, postage prepaid, return receipt requested. If notice is given in person or by courier, it shall be effective upon receipt; if notice is given by confirmed email or facsimile during normal business hours of recipient, it shall be effective upon receipt (or the next business day if after normal business hours); if notice is given by overnight delivery service, it shall be effective two (2) business days after deposit with the delivery service; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
11.8 Severability. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
11.9 Counterparts. This Agreement may be executed in one or more counterparts and by exchange of signed counterparts transmitted by electronic transmission, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.