This agreement was last updated on May 30, 2018
These Terms of Service (the “Agreement”) are by and between Wyng, Inc., with offices at 55 West 21st Street, Floor 3, New York, NY 10010 (“Wyng”) and the Campaign Operator (the “Campaign Operator”) referenced below.
By clicking a box indicating acceptance or by executing an Order that references this Agreement, Campaign Operator agrees to be bound by all the terms and conditions in this Agreement.
1. SCOPE OF AGREEMENT
Wyng develops, markets and licenses Wyng Applications pursuant to a software as a service methodology (the “Services”). Campaign Operator desires to license such Services. Certain specific terms and conditions with respect to the Services shall be set forth in each applicable Order.
2.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control means direct or indirect ownership or control of more than fifty (50%) percent of the voting interests of the subject entity.
2.2. “Barred Personal Data” means a Participant’s personally-identifiable information that consists of: (i) a government-issued identification number, (ii) health, genetic, biometric record or data, (iii) a financial or bank account number, credit or debit card number, with or without any personal identification number or password that would permit access to the individual’s account. A Participant’s name, age, email address, and/or mailing address alone are not Barred Personal Data.
2.3. “Campaign” means any marketing campaign or digital website offered by Campaign Operator by use of the Services, including contests, sweepstakes, promotions, quizzes, content galleries, interactive widgets, and other types of web sites and applications.
2.4. “Campaign Analytics” means business intelligence data about one or more Campaigns generated by use of the reporting or tracking capabilities of the Services.
2.5. “Campaign Design Materials” means content which Campaign Operator elects to display as part of the “look and feel” of a Campaign, including text, video, artwork, graphics (including logos or trademarks), photography, audio (including music), code, and hypertext links. Campaign Design Materials exclude Campaign Participation Data and Campaign Analytics.
2.6. “Campaign Limitations” means the limitations on Services set forth in the Documentation or an Order, including duration of Campaigns, the number of Campaigns, maximum number of Participants in Campaigns, or the number of Users who may access Wyng Applications to operate Campaigns.
2.7. “Campaign Operator” means the person, entity or Affiliate identified in an Order as a party to this Agreement.
2.8. “Campaign Operator Data” means Campaign Participation Data, Campaign Analytics, and Campaign Design Materials.
2.9. “Campaign Participation Data” means (i) the data created by Participants interacting with the Services (such as visits, clicks, shares, votes, responses, and form submissions); (ii) content from Participants (such as photos, videos, or text); and (iii) any content from Third Party Sites stored in the Services related to Participants (such as Twitter or Instagram content). Campaign Participant Data may include Participant Personal Data.
2.11. “Documentation” means the then-current online user instructions, help files, and technical support content made available by Wyng as part of the user interface for the Services.
2.12. “Effective Date” means the effective date of this Agreement as set forth on the Order.
2.13. “Hosting Environment” means the hardware, software and networks used by Wyng to host the Services.
2.14. “Order” means the Wyng ordering document that references this Agreement.
2.15. “Participant” means an individual who participates in a Campaign in any way, including by visiting a web page, submitting a form, sharing content, etc.
2.16. “Participant Personal Data” means all individually identifiable information created, collected, stored, transmitted or processed pursuant to the services performed under this Agreement, but excludes Barred Personal Data, and also excludes individually identifiable information of Wyng’s or Campaign Operator’s own employees and agents.
2.17. “Services” mean certain designated Wyng Services set forth on an Order.
2.18. “Special Categories of Personal Data” means information that is afforded special protection under US law or the EU General Data Protection Regulation, including without limitation racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union affiliations, information concerning sex life or orientation, and information or content concerning children. For the purpose of this Agreement, Special Categories of Personal Data excludes Barred Personal Data.
2.19. “Sub-Processor” means any third-party engaged by Wyng that is actively involved in processing Personal Data on behalf of Wyng to conduct the services under this Agreement.
2.20. “Subscription Term” means the period during which the Services are licensed by Campaign Operator as set forth on the Order.
2.21. “Third Party Sites” means applications and services operated by a third party (e.g., Facebook, Instagram, Twitter, Snapchat, Pinterest, YouTube, etc.) which Participants may interact with as part of a Campaign.
2.22. “Usage Data” means aggregated data concerning the use of the Wyng Applications and Hosting Environment that does not identify or permit identification in any way of any individual.
2.23. “User” means any individual authorized by Campaign Operator to access and use the Services on the Campaign Operator’s behalf. Users are not Participants.
2.24. “Wyng APIs” means the application programming interfaces and/or software development kits set forth on the Order and/or included with the Wyng Applications and any associated code or documentation provided by Wyng.
2.25. “Wyng Applications” means the then-current software applications provided by Wyng that are identified in an Order, including any updates and the Documentation.
2.26. “Wyng Data Processing Addendum” means the Wyng standard contract governing transfer and processing of Participant Personal Data of EU residents, which may be found here: https://info.wyng.com/data-processing-addendum.
3. LICENSE OF SERVICES
Subject to the terms and conditions of this Agreement, Wyng hereby grants to Campaign Operator during the Subscription Term the non-exclusive and non-transferable right to access and use the Services solely for Campaign Operator’s business purposes and for the purposes set forth in this Agreement. All right, title to and interest (including all intellectual property rights) in the Services remains exclusively with Wyng. During the Subscription Term, Wyng will deliver the Wyng Applications and provide any updates to the Applications that Wyng makes generally available.
Campaign Operator acknowledges and consents that Wyng may engage with Sub-Processors to deliver the Applications and conduct the Services under this Agreement. Wyng will provide a current list of Sub-Processors to Campaign Operator, on request.
4. RESTRICTIONS ON USE
Campaign Operator shall not, and shall not permit any third party to, except as expressly set forth in this Agreement, (i) sell, resell, lease, time share or transfer the Services for the benefit of any third party; (ii) use the Services to collect, store, transmit or process any Barred Personal Information; (iii) knowingly or negligently send, store, publish or transmit through the Services any malicious or misleading content or code, including without limitation viruses, trojan horses, phishing routines, or other routines intended to intercept any data or personal information of another party; (iv) use the Services in a manner that exceeds the Campaign Limitations; (v) remove or alter any copyright, trademark or other notices included in the Services; (vi) use the Services except as expressly permitted in this Agreement; (vii) use the Services to conduct, publish or disclose any competitive benchmarking tests or analysis; (viii) use the Services to disparage, malign or impugn any third party; (ix) interfere with or disrupt the integrity, security or performance of the Services; (x) attempt to gain unauthorized access to the Services or related systems or networks; (xi) access the Services in order to build a competitive product or service; (xii) attempt to reverse engineer the Services, or (xiii) knowingly or negligently circumvent or defeat security features of the Wyng Applications or Wyng APIs (for example: by exposing or publishing private passwords or access tokens).
5. CAMPAIGN OPERATOR’S RESPONSIBILITIES
5.1. Design and Operation of Campaign. Campaign Operator is solely responsible for all activities required to design and operate the Campaign, including but not limited to (i) the creative design of a Campaign; (ii) configuring the Services to implement the Campaign parameters; (iii) obtaining any needed rights to creative assets or other content used in Campaign; (iv) operating each Campaign in accordance with the Documentation, the Order, applicable laws, and the terms and conditions of applicable Third Party Sites; (v) establishing and clearly communicating Campaign Terms to Participants; (vi) issuing all communications to Participants regarding the Campaign; and (vii) where applicable, selecting winners and obtaining at its cost all prizes. Campaign Operator is responsible for the compliance of Users with all provisions of this Agreement.
5.3. Transfer of Participant Personal Data Across National Borders. Campaign Operator acknowledges and agrees that all Campaign Operator Data including Participant Personal Data will be stored and processed by Wyng in the USA. If Campaign Operator reasonably expects to collect Participant Personal Data of individuals outside the USA, Campaign Operator agrees to take any necessary steps to ensure the lawful transfer of Participant Personal Data across national borders, the terms of which may be outlined in a separate agreement. Possible arrangements for the transfer of Participant Personal Data across national borders may include, without limitation, adoption by Campaign Operator of the Wyng Data Processing Addendum, or other contractual data protection clauses that have been put in place between Wyng and Campaign Operator that provide adequate protection, as determined by Applicable Law. Campaign Operator acknowledges that Wyng may block transfer of Participant Personal Data across national borders if it determines no adequate protection exists.
5.4. Collecting and Processing Special Categories of Personal Data. Campaign Operator shall not use the services to collect, store, transmit or process any Special Categories of Personal Data, unless explicit consent is obtained from Participants in a manner consistent with applicable law, including where applicable article 9 of the EU General Data Protection Regulation.
5.5. Usage for Third Parties. If Campaign Operator uses the Services to operate Campaigns on behalf of any third-party person or entity not a party to this Agreement, Campaign Operator is solely responsible for obtaining all necessary approvals from third-party for such use, and ensuring use of Services and handling of Participant Personal Data by third-party is in compliance with all provisions of this Agreement.
6. WYNG DATA SAFEGUARDS
Wyng will use commercially reasonable efforts to maintain administrative, physical and technical safeguards for the protection, confidentiality and integrity of Campaign Operator Data. Campaign Operator acknowledges certain security features in the Wyng Applications are capable of being circumvented or defeated by Users (for example sharing passwords, disclosure of access tokens for Wyng APIs, inclusion of insecure custom code in Campaigns), and certain security features are dependent on and controlled by Third Party Sites on which the Wyng Applications rely (for example, access tokens for Third Party Site APIs).
7. VIRUS AND MALWARE DETECTION
Each party agrees to implement and maintain reasonable and commercially-available technical safeguards to detect and prevent the introduction of computer viruses and other malware.
8. DATA USE
8.1. Use of Campaign Design Materials. Campaign Operator grants Wyng a limited, non-exclusive, royalty-free, worldwide license to host, display, and transmit the Campaign Design Materials commencing on the date Users upload or publish the Campaign Design Materials using the Services. Campaign Operator is solely responsible for selecting, acquiring the rights to, monitoring, retrieving and disposing of all Campaign Design Materials.
8.2. Use of Campaign Participation Data. Campaign Operator grants Wyng a limited, non-exclusive, royalty-free, worldwide license to use Campaign Participation Data as necessary to provide the Services, including but not limited to the right to store and use Campaign Participation Data to: (a) generate and display Campaign Analytics to Users, (b) process Participant entries and (c) issue communications to Participants via email or by posting on Third Party Sites, only if and as initiated by Users.
8.4. Retention of Participant Personal Data. Wyng agrees to retain Participant Personal Data created or received on behalf of Campaign Operator for only as long as necessary to conduct the Services under this Agreement, or as may otherwise be required under Applicable Law.
8.5. Return/Destruction of Participant Personal Data. Within a reasonable time following termination of this agreement, or earlier upon written request by Campaign Operator, Wyng agrees to permanently destroy all Participant Personal Data created or received pursuant to this Agreement, to the extent permitted by law.
8.6. General Data Obligations. Campaign Operator is solely responsible for the collection, accuracy, legality, and appropriateness of all Campaign Operator Data. Wyng is not responsible for any Campaign Operator Data which is delayed, lost, or altered during transmission across networks not owned and/or operated by Wyng or its agents. Excepting destruction of Participant Personal Data as provided in 8.5, Wyng has no duty to retrieve or dispose of Campaign Operator Data, unless disposal is requested by Campaign Operator or the legal owner of the Campaign Operator Data in writing.
10. ORDERING, FEES AND PAYMENT TERMS AND TAXES
10.1. Ordering. Either Campaign Operator or Campaign Operator Affiliates may purchase licenses of the Services by executing an Order. If a Campaign Operator Affiliate is a party to an Order, all references in this Agreement to Campaign Operator will apply to such Affiliate. All Orders are deemed incorporated into this Agreement.
10.2. Fees and Payment. Campaign Operator will pay all fees specified in an Order. Unless otherwise stated in an Order: (i) fees are quoted and payable in United States dollars; (ii) fees are payable for the entire Subscription Term; (iii) Services licensed cannot be decreased during the relevant Subscription Term; and (iv) payment obligations are non-cancellable and non-refundable. Unless otherwise specified in an Order, all undisputed amounts are payable in full thirty (30) calendar days after the invoice date. Certain fees may be payable by credit card as set forth in the Order. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
10.3. Payment Disputes. If Campaign Operator asserts a good faith dispute of any amount invoiced by Wyng, Campaign Operator must notify Wyng in writing of the dispute, in reasonable detail, no later than the payment due date. Failure to issue written notice of a disputed invoice prior to the applicable payment due date will result in the invoiced amounts being overdue. The parties will cooperate diligently to resolve the dispute within a reasonable time.
10.4. Taxes. Campaign Operator will be responsible for all sales, use and other similar taxes resulting from Campaign Operator’s license or use of the Services, other than taxes based on Wyng’s income or revenues. Campaign Operator will not withhold any taxes from any amounts due to Wyng.
11. PROPRIETARY RIGHTS
11.1. Wyng Ownership. Campaign Operator does not acquire any right, title or interest in or to any Services, the Hosting Environment or Wyng Confidential Information, except as expressly set forth in this Agreement. Wyng does not grant any right, license or interest in the Services or in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now or in the future by Wyng. All applicable rights to the Services and/or such patents, copyrights, trademarks, and trade secrets are and shall remain the exclusive property of Wyng. Wyng shall have the sole and exclusive right to license the Services to its customers, resellers, distributors or other third parties at its sole option. Wyng, in the performance of its obligations hereunder, may use its Confidential Information, including but not limited to its software programs, methodologies and/or processes. Wyng shall retain all right, title to and interest in its software programs, methodologies and/or processes.
11.2. Campaign Operator Ownership. Wyng does not acquire any right, title or interest in or to any Campaign Operator Data or Campaign Operator Confidential Information, except as expressly set forth in this Agreement.
11.3. Usage Data. All Campaign Operator Data is, or shall be, and shall remain the property of Campaign Operator and shall be deemed Confidential Information of Campaign Operator, with the exception of any Campaign Design Materials that Users upload or publish using the Services. Wyng may accumulate and aggregate anonymous statistical and related data in order to monitor and measure the performance and functionality of its Services, to develop new products and/or Services, or to analyze or benchmark the usage and performance of the Services.
12. WARRANTIES; DISCLAIMERS
12.1. Mutual Warranties. Each party warrants that: (i) the individual executing this Agreement is duly authorized; and (ii) it has obtained and will maintain during the term of this Agreement all necessary permits, licenses and authorizations.
12.2. Wyng Limited Warranty. Wyng warrants that during the Subscription Term the Services will substantially conform with Wyng’s then-current applicable specifications and Documentation. In the event of a breach of this limited warranty during the Subscription Term, Wyng shall, at its expense, modify, replace and/or repair any defective Services. Wyng shall have no obligations pursuant to this limited warranty in the event that the Services have been modified by Campaign Operator or a third party not authorized by Wyng, or the Services are not used pursuant to the terms and conditions of this Agreement or in compliance with the applicable Wyng specifications or Documentation.
12.3. Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN SECTION 14 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY WYNG AND ITS SUPPLIERS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, WYNG AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT. WYNG DOES NOT WARRANT (I) THAT THE HOSTING ENVIRONMENT OR SERVICES ARE ERROR FREE OR WILL MEET CAMPAIGN OPERATOR’S OR PARTICIPANTS’ SPECIFIC NEEDS, OR OBTAIN A PARTICULAR BUSINESS RESULT; (II) THAT CAMPAIGN OPERATOR, USERS OR PARTICIPANTS WILL BE ABLE TO ACCESS THE SERVICES WITHOUT INTERRUPTIONS; OR (III) THAT THE SERVICES OR THE HOSTING ENVIRONMENT ARE NOT SUSCEPTIBLE TO INTRUSION OR COMPUTER VIRUS INFECTION.
WYNG ASSUMES NO LIABILITY WITH RESPECT TO SECURITY INCIDENTS OR ERRORS CAUSED BY (i) USERS’ CIRCUMVENTION OR DISABLEMENT OF SECURITY FEATURES; (ii) USERS’ FAILURE TO MAINTAIN THE CONFIDENTIALITY OF THEIR PASSWORDS; (iii) THIRD PARTY SITES; OR (iv) UNFORESEEN CAUSES NOT REASONABLY PREVENTABLE BY WYNG. CAMPAIGN OPERATOR BEARS ALL RISK WITH RESPECT TO THE COLLECTION OF ANY BARRED PERSONAL INFORMATION OR ANY INFRINGING, LIBELOUS, UNLAWFUL OR TORTIOUS MATERIAL IN THE CAMPAIGN OPERATOR DATA, INCLUDING MATERIAL HARMFUL TO CHILDREN. THE SERVICES ARE NOT DESIGNED AS COMPLIANCE TOOLS, AND WYNG MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES COMPLY WITH APPLICABLE LAWS OR REGULATIONS. CAMPAIGN OPERATOR IS RESPONSIBLE FOR ENSURING ITS USE OF SERVICES AND PARTICIPANT PERSONAL DATA COMPLIES WITH APPLICABLE LAWS OR REGULATIONS.
13.1. Indemnification by Wyng. Wyng will, at its expense, defend Campaign Operator and pay any damages or settlement awarded or approved by a court of final jurisdiction arising out of any third-party claim, suit or action against Campaign Operator alleging that the Services, infringe, violate or misappropriate such third party’s United States trade secret, copyright or patent rights.
In the event that the Services are or are likely to become the subject of a claim of infringement, then Wyng, at its sole option and expense, shall (i) modify the Services or so that they are non-infringing, but functionally similar; (ii) procure for Campaign Operator the right to continue to use the allegedly infringing Services; or (iii) if neither of the foregoing are commercially reasonable, terminate this Agreement, direct Campaign Operator to cease use of the allegedly infringing Services and refund on a pro-rata basis any prepaid Services fees as of the effective date of termination.
Wyng shall have no obligation of indemnification as set forth herein if (i) the claim is based upon any combination of the Services with equipment, software or services not provided by Wyng if such claim would have been avoided but for such combination; (ii) the Services have been modified by a party other than Wyng or its authorized representatives; (iii) Campaign Operator continues use of the allegedly infringing Services after written notice to cease such use; (iv) the claim is based upon unauthorized use of the Services by Campaign Operator, Users or Participants; or (v) if the claim is based upon the breach by Campaign Operator of the terms and conditions of this Agreement.
13.2. Indemnification by Campaign Operator. Campaign Operator will, at its expense, defend Wyng and pay any damages or settlement awarded or approved by a court of final jurisdiction arising out of any third party claim, suit or claim against Wyng: (i) alleging that the Campaign Design Materials infringe, violate or misappropriate such third party’s United States trade secret, trademark, copyright, privacy or publicity rights; (ii) resulting from a dispute between Campaign Operator and a Participant; (iii) resulting from Campaign Operator’s failure to adhere to the terms and conditions of applicable Third Party Sites; or (iv) resulting from Campaign Operator’s failure to comply with all applicable laws and regulation that govern collection and use of Personal Data.
13.3. Conditions. The parties’ obligations under this Section are conditioned upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s) at the indemnifying party’s request and expense. The indemnifying party shall not settle or consent to an adverse judgment that imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party, not to be unreasonably withheld. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 19 (Limitation of Liability), and are the sole obligations of the indemnifying party and exclusive remedies in the event of an applicable third-party claim.
For purposes of this Agreement, the term “Confidential Information” shall mean any proprietary or confidential information of a party hereto (the “Disclosing Party”) disclosed to the other party hereto (the “Receiving Party”), before, on or after the Effective Date and furnished in any form, including written, oral, visual, or electronic form and/or in any other media or manner. Confidential Information includes all proprietary technologies, know-how, trade secrets, discoveries, inventions and any other intellectual property (whether or not patented), analyses, compilations, Services, software programs, methodologies, processes, business, financial or technical information and other materials prepared by either party, containing or based in whole or in part on any such Confidential Information. The terms, conditions and existence of this Agreement shall be deemed Confidential Information.
Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of a breach of this Agreement, (ii) is already known by the Receiving Party at the time of disclosure as evidenced by the Receiving Party’s written records, (iii) becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it on a non-confidential basis, or (iv) was or is independently developed by or for the Receiving Party without reference to the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records. In the event the Receiving Party is required to disclose such Confidential Information pursuant to law, regulation or court or administrative order, prior to making any such legally required disclosure, the Receiving Party shall notify in writing the Disclosing Party as soon as is practicable under the circumstances in order that the Disclosing Party may seek a protective order.
The Receiving Party agrees that it will not use the Disclosing Party’s Confidential Information except in connection with the performance of its obligations hereunder and will not disclose the Disclosing Party’s Confidential Information to any third party other than its employees who have a need to know such Confidential Information and are advised of the terms and conditions of this Section and agree to be bound by the terms and conditions of this Section. The Receiving Party shall treat and protect such Confidential Information in the same manner as it treats its own Confidential Information of like character, but with not less than reasonable care.
Upon written request of the Disclosing Party, the Receiving Party shall immediately cease its use of the Disclosing Party’s Confidential Information and within thirty (30) days either return or destroy (and certify as to such destruction) all Confidential Information, including any copies thereof. The obligations of this Section shall continue for a period of three (3) years after termination or expiration of this Agreement. Notwithstanding the foregoing, the obligations of confidentiality with respect to a trade secret of Wyng shall continue for so long as Wyng protects such trade secret as a trade secret pursuant to the laws of the State of New York in the United States of America.
The Receiving Party will promptly inform the Disclosing Party of any verified unauthorized disclosure of the Disclosing Party’s Confidential Information, including any verified breach of security of the Services or Hosting Environment resulting in the unauthorized disclosure of Participant Personal Data or Campaign Operator Data. The parties will cooperate to implement prompt measures to mitigate further unauthorized disclosures. Wyng may, without Campaign Operator’s consent, communicate with law enforcement personnel, service providers, insurance providers, and other relevant personnel to resolve or address such incident, but will not issue communications to Participants without prior notification to and approval of Campaign Operator (unless prohibited by law). Campaign Operator will not make any public statement or issue any public communication regarding any incident described in this Section, without Wyng’s prior written consent, except as required by law.
15. SUPPORT SERVICES
If specified in the Order, Wyng shall provide during the Subscription Term its then-current support and customer success services of the types specified in the Order. Wyng shall use commercially reasonable efforts to make the Services available 99.5% of the time, excluding (i) periods during a Subscription Term in which Campaign Operator is not logged into the Services or running a Campaign, (ii) planned downtimes; and (iii) unscheduled downtime caused by circumstances beyond Wyng’s or its Sub-Processor’s reasonable control.
16. PROFESSIONAL SERVICES
Wyng, at the request of Campaign Operator, may provide certain Wyng professional services with respect to eligible Wyng Services at Wyng’s then-current charges pursuant to a mutually agreed upon and executed Statement of Work.
17. OTHER CUSTOMERS
Campaign Operator acknowledges that Wyng may, directly or indirectly, be retained by or associated with persons, corporations, partnerships or other entities that may compete with Campaign Operator. Campaign Operator will not object to or claim that such relationships alone constitute a breach of this Agreement, provided that Wyng will continue to observe its confidentiality obligations to Campaign Operator hereunder.
18. LIMITATION OF LIABILITY
EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS OR CAMPAIGN OPERATOR’S LICENSE OBLIGATIONS SET FORTH IN SECTIONS 3 (LICENSE OF SERVICES) AND SECTION 4 (RESTRICTIONS ON USE), IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS OR CONTRACTORS BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC LOSS) ARISING FROM ANY CAUSE OF ACTION OR LEGAL THEORY, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR ANY OTHER ECONOMIC LOSSES, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS OR CAMPAIGN OPERATOR’S LICENSE OBLIGATIONS SET FORTH IN SECTIONS 3 (LICENSE OF SERVICES) AND SECTION 4 (RESTRICTIONS ON USE), THE MAXIMUM LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS FOR INDEMNIFICATION, BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WILL IN NO CIRCUMSTANCE EXCEED THE FEES PAID OR OWED TO WYNG BY CAMPAIGN OPERATOR IN THE PAST TWELVE (12) MONTHS UNDER THIS AGREEMENT.
Wyng may, with or without prior notice, suspend access to the Services if any amounts owed by Campaign Operator are thirty (30) or more days overdue; Wyng reasonably concludes that Campaign Operator, Users, or Participants are using the Services in denial of service attacks or spamming; illegal or misleading activity; breach of the terms and conditions of this Agreement; or actions causing immediate and material harm to Wyng or other third parties.
Wyng may suspend access to the Services if it is named as a party to a claim or receives notice of any alleged infringement of third party rights resulting from Campaign Operator Data. Campaign Operator agrees to promptly remove any offending content and Wyng, within twenty-four (24) hours of such notice, may take down such Campaign Operator Data. Wyng will use commercially reasonable efforts to limit suspension only to the affected Users, Participants or Campaign. Campaign Operator agrees that Wyng will not be liable to Campaign Operator or any third party for any damages if Wyng exercises any of its rights as permitted by this Section. Wyng may also suspend access to the Services if Campaign Operator exceeds any Campaign Limitations.
20. TERM AND TERMINATION
20.1. Term. The term of this Agreement shall commence on the Effective Date in the Order and continue until terminated in accordance with its terms.
Unless otherwise specified in an Order, the Subscription Term will automatically extend for additional periods of the same duration unless terminated by either party hereto upon written notice not later than thirty (30) days prior to the expiration of the then-current term.
20.2. Termination for Cause. Either party may terminate this Agreement (i) if the other party breaches any material obligations under this Agreement and such breach is not cured within thirty (30) days after written notice of such breach; or (ii) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to an assignment for the benefit of creditors, insolvency, receivership or liquidation.
20.3. Effect of Termination. Upon termination of this Agreement, all Services licenses will terminate immediately, and Campaign Operator will no longer have access to Campaign Operator Data.
Upon Campaign Operator’s written request within thirty (30) days after the date of termination, Wyng will make accessible to Campaign Operator all Campaign Operator Data in the format in which it is generally available through the user interface in the Services.
After such thirty (30) day period, Wyng shall have no obligation to provide any Campaign Operator Data and may permanently delete all Campaign Operator Data in its systems or in its possession or control, including Campaign Design Materials and Campaign Analytics.
Within a reasonable period of time following such thirty (30) day period, Wyng will securely and permanently dispose of all Participant Personal Data in its systems or in its possession or control, unless legally prohibited.
In the event of a termination of this Agreement by Wyng for breach by Campaign Operator of this Agreement, or termination of this Agreement by Campaign Operator without cause, Campaign Operator shall not be eligible for a refund of any prepaid Services fees and shall pay any applicable fees due prior to the effective date of termination.
In the event Campaign Operator terminates this Agreement for cause, Wyng will provide Campaign Operator with a pro-rata refund of any prepaid Services fees, as of the effective date of termination.
Any expiration or termination of this Agreement shall not modify or alter any right or obligation of a party hereto which arose prior to such expiration or termination.
21.1. Independent Contractor. The relationship of the parties is that of independent contractors and nothing in this Agreement is intended to create or shall be construed as creating between the parties the relationship of joint venturers, co-partners, employer/employee or principal and agent. Neither party shall have any responsibility for the hiring, termination or compensation of the other party’s employees or contractors or for any employee benefits with respect to any such employee. Neither party shall attempt to create any obligation or make any representation on behalf of or in the name of the other party.
21.2. Headings. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.
21.3. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the United States and the State of New York, excluding its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The state and federal courts located in Borough of Manhattan, New York City, New York, shall have exclusive jurisdiction to adjudicate any dispute relating to this Agreement, and each party irrevocably consents to the exclusive jurisdiction of such courts.
21.4. Publicity. Wyng may reference Campaign Operator’s name and Campaigns in Wyng’s marketing materials, including without limitation Wyng’s website. Campaign Operator grants Wyng a limited, royalty-free, revocable, worldwide license to refer by hypertext link and/or screenshot to any of Campaign Operator’s current or past publicly-available Campaigns developed by use of the Services.
21.5. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Campaign Operator shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of Wyng, which shall not be unreasonably withheld. Wyng, at its sole option and without the consent of Campaign Operator, may assign its rights with respect to monies due or becoming due and may assign this Agreement in the event of a merger, consolidation or the sale of all or substantially all of Wyng’s assets or stock.
21.6. Notices. Any notice or other communication under this Agreement given by any party to any other party will be in English, in writing and will be deemed properly given when sent to the intended recipient by certified letter, receipted commercial courier or electronically receipted facsimile or e-mail transmission to the respective addresses set forth in the Order. Either party may from time to time change such address by giving the other party notice of such change in accordance with this Section.
21.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
21.8. Force Majeure. Except for payment obligations, neither party will be liable to the other party for any loss, injury, delay, expenses or damages arising out of any cause or event not within its reasonable control including fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, Internet or telecommunications failures.
If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the Agreement for its convenience.
21.9. Federal Government Provisions. If any Services are acquired by or on behalf of an agency or instrumentality of the United States Government, the following provisions apply: Government technical data and software rights related to the Wyng Applications include only those rights customarily provided to the public and solely as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
21.10. Use by Agencies. If Campaign Operator is an agency or marketing services provider (“Agency”), and is licensing the Services for the purpose of running a Campaign for a company (“Brand”), (i) Agency is solely responsible for obtaining all necessary approvals with respect to Agency’s operation of such Campaign; and (ii) Agency will ensure that the Brand is bound by terms and conditions with the Agency no less restrictive than the terms and conditions set forth in this Agreement.
21.11. Use by Users. All rights and obligations under this Agreement are solely by and between Wyng and Campaign Operator. Wyng assumes no duty or obligation to User with respect to the Services or any representation, warranty or covenant set forth in this Agreement.
21.12. Severability. If any term of this Agreement is declared invalid or unenforceable by a court or other body of competent jurisdiction, the remaining terms of this Agreement shall remain in full force and effect.
21.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
21.14. Entire Agreement, Amendment and Waiver. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior and contemporaneous agreements, representations and understandings, whether oral or written, with respect to the subject matter hereof. Each party acknowledges that it has not relied upon any promise, representation or statement of the other party except as expressly set forth herein. Failure by either party to insist upon strict compliance with any term of this Agreement in any one or more instances will not be deemed to be a waiver of its rights to insist upon such strict compliance with respect to any subsequent failure.