This Agreement was last updated on January 1, 2015
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity
1.2 “Authorized Reseller” means a party that Wyng has authorized to resell Subscriptions.
1.3 “Barred PII” means a User’s or Social User’s personally-identifiable information that consists of a User’s or Social User’s: (i) government-issued identification number of any kind, (ii) health, genetic, biometric record or data, (iii) financial or bank account number, credit or debit card number, with or without any required security code, access code or any personal identification number or password that would permit access to the individual’s financial account. A Social User’s name, age, email address, and/or mailing address alone are not Barred PII.
1.4 “Campaign” means a marketing campaign or other social media marketing event offered by Campaign Operator by use of the Wyng Applications, including without limitation, social media online contests, competitions, sweepstakes, or other promotions.
1.5 “Campaign Operator Data” means Campaign Participation Data, Campaign Analytics, and Campaign Design Materials.
1.6 “Campaign Participation Data” means (i) the data created by the actions of Social Users within the Wyng Application (such as casting a vote, or registering for a Campaign); (ii) content submitted to the Wyng Applications by Social Users in connection with their participation in a Campaign (such as photos submissions or essay content), which may include Social User PII; and (iii) any content from Third Party Sites stored in the Wyng Applications related to Social Users (data in (iii) only, “Third Party Participation Data”).
1.7 “Campaign Analytics” means business intelligence data about one or more Campaigns generated by use of the reporting or tracking capabilities of the Wyng Applications.
1.8 “Campaign Design Materials” means content which Campaign Operator elects to display as part of the “look and feel” of a Campaign, including but not limited to, text, video, artwork, graphics (including logos or trademarks), photography, audio (including music), hypertext links. Campaign Design Materials exclude Campaign Participation Data and Campaign Analytics.
1. 9 “Campaign Limitations” means the Campaign parameters for a Campaign set forth in the Documentation or Wyng pricing page or an Order, including but not limited to, duration of the Campaign, maximum number of Social Users for a Campaign, list of webpages within the Third Party Site on which Campaigns may be run.
1.10 “Campaign Operator” means the person, entity or Affiliate identified in an Order as a party to this Agreement.
1.11 “Campaign Terms” means the terms and conditions governing a Social User’s participation in a Campaign, including offer terms and eligibility requirements (such as, age and residency restrictions), entry requirements, rules and restrictions, consent to the collection and use of Social User PII.
1.12 “Content API” means Wyng’s “Visualizations” API noted on the Order Form or included with the relevant Wyng Application and any tools or associated documentation provided with the foregoing.
1.13 “Documentation” means the online user instructions and help files made available by Wyng as part of the user interface for the Wyng Applications, as such are updated by Wyng from time to time.
1.14 “Hosting Environment” means the hardware, software, networks and peripherals used by Wyng or its third party hosting provider to host the Wyng Applications.
1.15 “Wyng Applications” means the then-current, generally available versions of the social marketing software applications provided by Wyng that are identified in an Order, including any updates, upgrades, enhancements and other derivative works of the foregoing supplied in connection with a Subscription, including the Documentation.
1.16 “Order” means either (i) an Order Form, or (ii) in the absence of an Order Form, the online portal ordering process for the Wyng Applications.
1.17 “Order Form” means the ordering documents for the purchase of a subscription for the WyngApplications, and any ancillary services, if any, obtained from Wyng that are executed hereunder by the parties from time to time.
1.18 “Social User” means an individual who participates in a Campaign.
1.19 “Social User PII” means a Social User’s personally-identifiable information which Campaign Operator elects to collect in connection with a Campaign or in the creation of Campaign Analytics, but excludes Barred PII.
1.20 “Subscription” means Wyng’s hosting and associated maintenance and support services for the Wyng Applications for the period noted in an Order (“Subscription Term”).
1.21 “Third Party Sites” means Facebook, Twitter, Pinterest, or any other website operated by a third party other than Wyng on which the Campaign is run, or from which Third Party Participation Data is collected by use of the Wyng Applications.
1.22 “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 Wyng customer or person, including but not limited to, Campaign Operator, or any Users or any Social Users or of Campaign Operator’s Confidential Information or Campaign Operator Data: (i) as necessary for Wyng and its subcontractors to manage and operate the Hosting Environment generally (such as load balancing, infrastructure usage monitoring, security management, application performance monitoring and the like); (ii) for product research, development, testing and marketing purposes (such as least and most used applications by all Wyng customers, least and most used features or functions within an application, total number of Campaigns run by Wyng customers, total number of support requests associated with an issue, analysis of collective feedback for product development prioritization, and the like).
1.23 “User” means any individual authorized by Campaign Operator to access and use the Wyng Applications on the Campaign Operator’s behalf, and who is supplied user identifications and passwords for that purpose. Users are not Social Users.
2. FREE SERVICES
2.1. Wyng may from time to time, at no charge, permit Campaign Operator to use: (i) certain commercially available Wyng Applications to run Campaigns that qualify under the Campaign Limitations for free services (as set forth in Wyng’s self-service ordering portal, located at the URL https://www.wyng.com/wp-content/uploads/2016/10/2016-Pricing-Edition-Wyng-Updated-12.5.pdf), or (ii) certain pre-release Wyng Applications in connection with experimental testing by Campaign Operator of Wyng Applications (or features of an Wyng Application) that are not commercially available (both (i) and (ii) above are individually and collectively referred to as “Free Services”).
2.2. Campaign Operator may be charged fees for a Campaign that exceeds the qualifying Campaign Limitations for Free Services as set forth in Wyng’s self-service ordering portal located at the URL https://www.wyng.com/wp-content/uploads/2016/10/2016-Pricing-Edition-Wyng-Updated-12.5.pdf. In such event, Wyng will invoice, and Campaign Operator will pay fees equal to the then-current standard prices for fee-based Subscriptions at the level actually used by Campaign Operator. Wyng is not responsible for managing the Free Services on behalf of Campaign Operator to ensure qualifying Campaign Limitations are not exceeded. Payment of fees automatically terminates the applicability of this Section 2 to the purchased Subscriptions.w
2.3 FREE SERVICES ARE PROVIDED SOLELY AND EXCLUSIVELY ON AN “AS-IS” BASIS, WITHOUT WARRANTY, SUPPORT OR INDEMNITIES OF ANY KIND. CAMPAIGN OPERATOR ASSUMES AND UNCONDITIONALLY RELEASES WYNG FROM ALL RISKS ASSOCIATED WITH THE USE OF ANY FREE SERVICES.
2.4 WYNG MAY DISCONTINUE THE FREE SERVICES AT ANY TIME WITHOUT LIABILITY TO CAMPAIGN OPERATOR. WYNG’S ENTIRE LIABILITY IN CONNECTION WITH ANY USE OF THE FREE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT, AS TO ANY INDIVIDUAL CLAIM OR IN THE AGGREGATE, EXCEED $25. IF CAMPAIGN OPERATOR DOES NOT AGREE TO THE ALLOCATION OF RISK IN THIS SECTION, ITS SOLE RECOURSE IS TO IMMEDIATELY DISCONTINUE THE USE OF THE FREE SERVICES OR PURCHASE A PAID SUBSCRIPTION TO THE WYNG APPLICATIONS.
3. PURCHASED SERVICES
3.1. Provision of Subscriptions.
3.1.1. During the relevant Subscription Term, Wyng will:
(i) host or have its third party provider host the Wyng Applications;
(ii) implement updates and upgrades to the Wyng Applications that Wyng makes generally available to all customers as part of the Subscription;
(iii) except as described in 3.1.2 below,Wyng will either provide basic support through https://community.wyng.
(iv) use commercially reasonable efforts to make the purchased Wyng Applications available 99.5% of the time, excluding (1) periods during a Subscription Term in which Campaign Operator is not logged into the Wyng Applications or running a Campaign, (2) planned downtimes; and (3) unscheduled downtime caused by: (a) circumstances beyond Wyng’s or its contractors’ reasonable control, (b) changes in the Third Party Sites or the unavailability of Third Party Sites on which the Wyng Applications relies, if the unavailability originates with anyone other than Wyng, (c) circumstances entitling Wyng to suspend access to the Wyng Applications under Section 17.3 below, (d) a User’s failure to use the Wyng Applications in accordance with the Documentation.
3.1.2. Wyng will not provide support directly to Campaign Operator if Campaign Operator acquires Subscriptions through an Authorized Reseller that has assumed the obligation to provide support. In such event, terms and conditions for the provision of support will be between Campaign Operator and the Authorized Reseller, and except with respect to the reference to this Section 3.1.2, the substantive portion of Section 3.1.1(iii) is not applicable to Campaign Operator, nor enforceable by Campaign Operator against Wyng.
4. CAMPAIGN OPERATOR’S RESPONSIBILITIES
4.1. Campaign Operator is solely responsible for all activities required to design, review, approve, launch, operate and conclude the Campaign, including but not limited to:
(i) the creative design of a Campaign, including the selection, arrangement, review and approval of all Campaign Design Materials displayed as part of the look and feel of the Campaign;
(ii) configuring the Wyng Applications to implement the Campaign parameters selected by Campaign Operator, such as configuration of security settings, reporting settings for Campaign Analytics, custom fields to collect additional Campaign Participation Data or Social User PII;
(iii) operating each Campaign in accordance with the Documentation, the Order, laws applicable to the Campaign and/or Campaign Operator’s business or products or marketing activities, and the requirements and terms and conditions of relevant Third Party Sites;
(iv) establishing and administering enforceable Campaign Terms with Social Users as a condition to their participation in a Campaign, and which secure required consent to the collection and use of Social User PII;
(v) qualifying or disqualifying Social Users from Campaign participation;
(vi) issuing all communications and notifications to Social Users regarding the Campaign;
(vii) selecting winners; or
(viii) obtaining and awarding all prizes in connection with the Campaign, including all costs of procuring or delivering any prizes, associated insurance, taxes, and any other fees associated with the foregoing.
4.2. Campaign Operator is liable for the compliance of Users with all of the terms and conditions of this Agreement to the same extent assumed by Campaign Operator for itself under this Agreement.
5. RESTRICTIONS ON USE
Campaign Operator may not:
(i) sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit the Subscriptions or any Wyng Application for the benefit of any third party except as expressly permitted under this Agreement;
(ii) use the Wyng Applications to solicit, collect, transmit or process any Barred PII;
(iii) knowingly or negligently send, store, publish, post, upload or otherwise transmit through the Wyng Applications any viruses, trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(iv) use the Wyng Applications in a manner that exceeds the Campaign Limitations or otherwise materially interferes with or disrupts the integrity or performance of the Hosting Environment, or other users’ use of the Wyng Applications. In particular, Campaign Operator will provide Wyng notice if a Campaign will exceed the applicable Campaign Limitations, or reach peak volumes of 2,500 web page hits per minute or more, or exceed 100,000 web page hits per hour, or exceed any other technical parameters for the Wyng Application noted in the Documentation;
(v) attempt to gain unauthorized access to the Wyng Applications or the Hosting Environment;
(vi) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Hosting Environment or the Wyng Applications;
(vii) incorporate any data mining, robots or similar data gathering or extraction methods to the Wyng Applications;
(viii) access the Wyng Applications for the purpose of building a similar or competitive product or service;
(ix) copy, translate, modify, reverse engineer, reverse assemble, disassemble, or decompile the Wyng Applications or any part thereof or otherwise attempt to discover any source code of the Wyng Applications; or
(x) remove, obfuscate or alter any default disclaimers or copyright notices served by the Wyng Applications for display on the Campaign (such as footers) without Wyng’s prior knowledge and consent.
- USE OF THE CONTENT API
6.1 License to Use Content API.
Subject to the terms and conditions of this Agreement and payment of all applicable fees, Wyng grants Campaign Operator a revocable, non-sublicensable, non-exclusive, non-transferable, license during the application Subscription Term to use the Content API solely to enable Campaign Operator to develop a software application or interface to access and retrieve Campaign Participation Data from the relevant Wyng Applications in use by Campaign Operator and to filter and reorganize Campaign Participation Data. (“Campaign Operator Application”).
6.2 Restrictions on Use of Content API.
Campaign Operator will not:
(i) use Third Party Participation Data retrieved by use of the Content API and the Campaign Operator Application other than as authorized under this Agreement and the Third Party Site terms and conditions governing the retrieval, use, or display of such Third Party Participation Data;
(ii) distribute, modify, decompile, reverse engineer, commercialize (that is, sell, rent, trade or lease), or copy the Content API;
(iii) use the Content API in a manner that exceeds reasonable request volume for the Wyng Applications, or that constitutes excessive or abusive usage or that causes any security configuration in the Wyng Application to be disabled or circumvented;
(iv) allow third parties other than Users to access and use the Content API.
6.3. Third Party Site’s Additional Terms and Conditions.
To the extent Campaign Operator retrieves, uses, and/or displays Third Party Participation Data, Campaign Operator will strictly comply with all applicable terms and conditions of Third Party Sites, which may include, but is not limited to, the terms and conditions currently found at following URLs:
https://help.instagram.com/304689166306603; http://instagram.com/about/legal/terms/api/; https://dev.twitter.com/terms/api-terms; https://dev.twitter.com/terms/display-requirements ; https://developers.facebook.com/policy/; http://www.tumblr.com/docs/en/api_agreement; https://vine.co/privacy; https://vine.co/rules
These URLs are subject to change, and Campaign Operator is responsible for identifying and complying with all applicable then-current Third Party Site terms and conditions in connection with its retrieval, use and display of Third Party Participation Data.
6.4. Access Tokens.
Wyng will provide Campaign Operator with relevant access and authentication codes for the Content API (“Access Tokens”) that permit Campaign Operator to access Wyng’s databases within the relevant Wyng Applications to retrieve Third Party Participation Data. The Access Tokens, and Campaign Operator’s access to the databases may be revoked by Wyng in accordance with Section 17.3, and for any violation of Section 5, or in the event Wyng’s access to any Third Party Site is revoked.
6.5. API Call Limitations.
The number of Content API calls Campaign Operator will be permitted to make during any given period may be limited. Wyng will determine Content API call limits based on various factors, including the anticipated volume of use associated with the Campaign Operator Application.
6.6. Modification of the Content API.
Wyng may modify the Content API, number of permitted API calls, the Wyng Application databases, the permitted uses under this Agreement, or any of the benefits and/or features provided in connection with Campaign Operator’s use of the Content API at any time with or without notice to Campaign Operator. Modifications may affect the Campaign Operator Application and may require Campaign Operator to make changes to the Campaign Operator Application at its own cost to continue to be compatible with or interface with the updated Content API. Wyng is not liable to Campaign Operator for errors or malfunctions in the Content API resulting from the foregoing.
6.7. Ownership of Campaign Operator Application; Hosting and Support Responsibility for Campaign Operator Application. Campaign Operator retains all rights, title and interest in and to the Campaign Operator Application. Wyng retains all rights, title and interest in and to the Content API. Campaign Operator is solely responsible for hosting the Campaign Operator Application and the Subscription does not include any obligation on the part of Wyng to support or host the Campaign Operator Application.
6.8. Non-Assert Clause. Campaign Operator understands and agrees that the Content API is licensed on a non-exclusive basis to Campaign Operator and to other customers of Wyng. Campaign Operator agrees not to use any patents to prevent third parties from developing applications using the Content API, and covenants not to assert against Wyng or other Wyng customers or developers using the Content API any patent reading on the Campaign Operator Application that was reduced to practice by Campaign Operator in exercising the rights or licenses in or to the Content API granted by Wyng pursuant to this Section 6.
6.9. Disclaimer of Content API. THE CONTENT API IS PROVIDED SOLELY AND EXCLUSIVELY ON AN “AS-IS” BASIS, WITHOUT WARRANTY,OF ANY KIND. CAMPAIGN OPERATOR ASSUMES AND UNCONDITIONALLY RELEASES WYNG FROM ALL RISKS ASSOCIATED WITH THE USE OF THE CONTENT API.
7. DATA SAFEGUARDS
7.1 Wyng Application Data Safeguards. Wyng will use diligent efforts on an ongoing basis to maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Campaign Operator Data. Campaign Operator understands and agrees that certain security features in the Wyng Applications are: (i) capable of being configured or disabled by Users, or (ii) dictated by Third Party Sites on which the Wyng Application relies (for example, single sign on password policies).
7.2 Disclaimer of Liability Related To Security Incidents.
(1) WYNG ASSUMES NO LIABILITY WITH RESPECT TO SECURITY INCIDENTS OR ERRORS IN THE WYNG APPLICATIONS CAUSED BY:
(i) USERS’ DISABLEMENT OR INCORRECT CONFIGURATION OF SECURITY FEATURES WITHIN THE WYNG APPLICATIONS OR THE THIRD PARTY SITE OR ANY OTHER SYSTEM OR SOFTWARE NOT SUPPLIED BY WYNG AS PART OF THE SUBSCRIPTION;
(ii) USERS’ FAILURE TO UPDATE OR IMPLEMENT WYNG APPLICATION SECURITY POLICIES WHEN PROMPTED (FOR EXAMPLE, UPDATING A PASSWORD, OR ESTABLISHING PASSWORD SECURITY QUESTIONS);
(iii) USERS’ FAILURE TO MAINTAIN THE CONFIDENTIALITY OF THEIR PASSWORDS, ACCESS TOKENS, OR THE SECURITY CONFIGURATIONS IMPLEMENTED BY CAMPAIGN OPERATOR;
(iv) THE PROVIDER OF THE THIRD PARTY SITE, OR ANY SERVICE PROVIDERS EMPLOYED BY CAMPAIGN OPERATOR;
(v) CIRCUMVENTION OF WYNG APPLICATION SECURITY FEATURES OR EXPLOITATION OF WEAKNESSES BY USERS OR SOCIAL USERS; OR
(vi) UNFORESEEN CAUSES NOT REASONABLY PREVENTABLE BY WYNG BY USE OF REASONABLE ADMINISTRATIVE, PHYSICAL AND TECHNICAL SAFEGUARDS FOR THE PROTECTION, CONFIDENTIALITY AND INTEGRITY OF CAMPAIGN OPERATOR DATA IN WYNG’S OR ITS AGENTS’ POSSESSION OR CONTROL.
(2) WYNG ASSUMES NO OBLIGATION OR LIABILITY WHATSOEVER WITH RESPECT TO CAMPAIGN OPERATOR DATA THAT: (1) CONSTITUTES BARRED PII, OR (2) IS LOST, MODIFIED, ERASED OR CORRUPTED AS A RESULT OF ACTIONS INITIATED BY USERS IN THEIR USE OF THE WYNG APPLICATIONS OR THIRD PARTY SITE.
8. HOSTING ENVIRONMENT DATA SAFEGUARDS
Wyng currently engages Amazon Web Services (“AWS”) to supply and operate the Hosting Environment. AWS publishes information regarding its security controls at https://aws.amazon.com/security/. Wyng makes no warranty or representation regarding the security controls implemented by AWS in the Hosting Environment. Campaign Operator is solely responsible for ascertaining whether the controls and attestations made by AWS meet Campaign Operator’s requirements in regards to safeguards and controls implemented by AWS in the Hosting Environment for the processing of Campaign Operator Data as part of Campaign Operator’s use of the Wyng Applications.
9. VIRUS AND MALWARE DETECTION
Each party agrees on an ongoing basis to implement and maintain in those devices and systems used or received by such party to access, use or provide a Subscription that are in such party’s possession or control, reasonable and commercially-available technical safeguards to detect and prevent the introduction of computer viruses, Trojan Horses, cancelbots, or other unauthorized computing routines designed to disable, erase, damage or corrupt software, hardware or data.
10. DATA USE
10.1. Use of Campaign Design Materials. Campaign Operator grants Wyng a limited, non-exclusive, royalty-free, worldwide license to display, perform and transmit the Campaign Design Materials solely as part of the Campaign commencing on the date Users access the Wyng Application to design the Campaign and for the duration of each Campaign. Without limiting Wyng’s take down and suspension rights expressly granted under this Agreement Campaign Operator is solely responsible for monitoring, retrieving and disposing of all Campaign Design Materials.
10.2. 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 Wyng Applications and deliver the Subscription, including but not limited to the right to store and use Campaign Participation Data on Campaign Operator’s behalf to: (a) generate and display Campaign Analytics to Users, (b) process Social User entries and (c) issue announcements or communications to Social Users via email or by posting on the Third Party Site, only if and as initiated by Users.
11. ORDERING, FEES AND PAYMENT TERMS, TAXES, AND REFUND RIGHTS.
11.1. Ordering. Either Campaign Operator or Affiliates of Campaign Operator may purchase Subscriptions by executing Order Forms hereunder. If an Affiliate of Campaign Operator is a party to an Order Form, all references in this Agreement to Campaign Operator will apply to the ordering Affiliate. Campaign Operator represents that purchases under this Agreement and each Order are not contingent on the delivery of any future functionality or features in the Wyng Applications nor dependent on any oral or written public comments made by Wyng regarding future functionality or features of the Wyng Applications. All Orders are deemed incorporated into this Agreement.
11.2. Subscriptions Acquired through an Wyng Authorized Reseller. If Campaign Operator acquires Subscriptions through an Authorized Reseller, all ordering, fees, and payment terms are exclusively between Campaign Operator and the Authorized Reseller, and, in such event, this Section 11 is not applicable to Campaign Operator, nor enforceable by Campaign Operator against Wyng.
11.3. Fees and Payment. Campaign Operator will pay all fees specified in an Order using any of the payment methods Wyng supports. Unless otherwise stated in an Order: (i) fees are quoted and payable in United States dollars; (ii) fees are payable for the entire Subscription purchased, (iii) Subscriptions purchased cannot be decreased during the relevant Subscription Term, and (iv) payment obligations are non-cancellable and non-refundable. Except for Credit Card Payments or as otherwise stated in an Order, all undisputed amounts are payable in full thirty (30) calendar days after the invoice date. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Wyng may charge Campaign Operator an administrative processing fee in connection with certain transactions that Campaign Operator elects not to pay by Credit Card Payment.
11.4. Payment By Credit Card. Wyng accepts credit/debit card payments for certain Subscriptions as set forth on Wyng’s website (“Credit Card Payments”). Credit Card Payments for Subscriptions ordered online are due and payable immediately without the issuance of an invoice. Campaign Operator is responsible for all charges from its card issuer or bank associated with Wyng’s processing of Campaign Operator’s Credit Card Payment. Subscriptions purchased by Credit Card Payment are made available upon receipt of payment in full. The terms and conditions in this Section, and other supplementary terms disclosed to and accepted by Campaign Operator during the payment process will apply to Credit Card Payments (including terms imposed by the applicable Credit Card Payment processor acting on Wyng’s or Campaign Operator’s behalf.) Campaign Operator agrees to Wyng’s, or its Credit Card Payment processor’s collection and use of certain information associated with Credit Card Payments, including but not limited to:
(i) credit card number, expiration date, name and CVV2 code as it appears on the credit card;
(ii) credit card billing address;
(iii) a valid e-mail address and phone number of the purchaser; or
(iv) a valid sales tax exemption number when applicable.
Campaign Operator represents and warrants that any credit/debit card used to purchase a Subscription is issued to Campaign Operator, and Campaign Operator has all necessary rights and authority to use the credit/debit card. Credit Card Payments are subject to validation checks and authorization by the card issuer. Wyng is not obligated to inform Campaign Operator of the reason for the refusal of any Credit Card Payment.
11.5. 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.
11.6. Refund Rights. Wyng will provide Campaign Operator a pro-rata refund of fees received by Wyng for the remainder of a terminated Subscription Term provided the termination resulted from: (i) Customer’s termination of this Agreement under Section 17.2 following Wyng’s failure to cure a material breach of the service level availability commitments in Section 3.1.1(iv); (ii) either party’s exercise of termination rights incident to a third party claim of infringement as set forth in Section 15; (iii) Campaign Operator’s exercise of termination rights incident to an assignment of this Agreement by Wyng as set forth in Section 18.6; or (iv) Campaign Operator’s exercise of its termination for convenience rights in connection with a force majeure condition affecting Wyng as set forth in Section 18.9. Except for the foregoing, payment obligations are non-cancelable as of the applicable due date and fees paid are non-refundable. Wyng’s refund obligation under this Section, is conditioned upon its receipt of a written refund request from Campaign Operator within thirty (30) days following the date on which the refund entitlement arose.
11.7. Taxes. Campaign Operator is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) related to the Subscription, except any taxes assessed upon Wyng’s net income or employees. If Wyng is required to directly pay Taxes related to Campaign Operator’s use of the Wyng Applications, Campaign Operator agrees to promptly reimburse Wyng for any Taxes so paid by Wyng.
12. PROPRIETARY RIGHTS
12.1. Wyng Ownership. Campaign Operator does not acquire any right, title or interest in or to any Wyng Application, the Content API, Usage Data, the Hosting Environment or Confidential Information, except as expressly set forth in this Agreement.
12.2. Campaign Operator Ownership. Wyng does not acquire any right, title or interest in or to any Campaign Operator Data, the Campaign Operator Application or Confidential Information, except as expressly set forth in this Agreement.
12.3. Suggestions. Campaign Operator grants Wyng a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Wyng Applications any suggestions, enhancement requests, recommendations or other feedback provided by Users that relate specifically to the features and functions of Wyng’s products or services (“Suggestions”). Suggestions submitted to Wyng are not subject to the confidentiality restrictions imposed upon Wyng pursuant to Section 13 below and may be used freely by Wyng, provided that any Suggestions adopted or implemented by Wyng will not contain Campaign Design Materials, Social User PII, or identify Campaign Operator, Users or any Social User. Wyng products or services incorporating Suggestions are the sole and exclusive property of Wyng.
12.4. Usage Data. Campaign Operator understands and agrees that Wyng and its subcontractors will generate Usage Data based on Campaign Operators’, Users’s and Social Users’ interaction with the Wyng Applications and the Hosting Environment. To the extent Usage Data abstracts, aggregates, or statistically analyzes Campaign Operator Data or Confidential Information (always in a de-identified way), and only to such extent, Wyng shall be deemed to have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use such as part of the Usage Data.
13.1. “Confidential Information” means all non-public information of either Wyng or Campaign Operator (“Disclosing Party”) disclosed to the other party (“Receiving Party”), regardless of the manner of disclosure, that is designated or marked as confidential under this Agreement or at the time of disclosure, or that should be reasonably understood to be confidential given the nature of the information and the circumstances of disclosure. A Disclosing Party’s Confidential Information consists, by way of illustration but not limitation, of information regarding the Disclosing Party’s employees, contractors, suppliers, customers, finances, business practices, or marketing plans. Subject to Section 12.3 and 12.4 above, Confidential Information of Campaign Operator includes Campaign Operator Data and the Campaign Operator Application. Confidential Information of Wyng includes Wyng’s quoted prices, pre-sales discussions, non-public technical information regarding the Wyng Applications and Hosting Environment (including marketing plans, product roadmap, pre-release versions of an Wyng Application), Usage Data, Suggestions, and the Content API.
13.2. Treatment of Confidential Information. The Receiving Party will treat the Disclosing Party’s Confidential Information as confidential by means of reasonable technical, physical, and administrative safeguards designed to prevent the unauthorized disclosure of such Confidential Information. The Receiving Party will not disclose the Confidential Information of the Disclosing Party to third parties other than employees and contractors who are bound by obligations of confidence no less restrictive than those imposed by this Agreement, and who have a need to know the Confidential Information for purposes of performing obligations or exercising rights as authorized by this Agreement.
13.3. Permitted Disclosure. The obligations set forth in this Section 13 shall not apply to any information that: (i) is made publicly available by the Disclosing Party or a party lawfully authorized to do so (such as a Social User or Third Party Site); (ii) is already known or becomes known to the Receiving Party without breach of any obligation owed to the Disclosing Party; (iii) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; or (iv) the Receiving Party is required to disclose pursuant to applicable law, governmental or regulatory rule or request, or pursuant to an order of any court or government agency of competent jurisdiction; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure, and limits the disclosure to that strictly required for compliance with the disclosure request.
13.4. Notification of Unauthorized Disclosure. 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 Wyng Applications or Hosting Environment resulting in the unauthorized disclosure of Social User PII or Campaign Operator Data. The parties will cooperate diligently to implement prompt measures to mitigate further unauthorized disclosures. Wyng may, without requiring Campaign Operator’s consent, communicate with law enforcement personnel, service providers, insurance providers, and other relevant personnel required to immediately take action to resolve or address such incident, but will not issue communications to Social Users 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 strictly required by law.
14. WARRANTIES; DISCLAIMERS
14.1. Mutual Warranties. Each party warrants that: (i) the individual consenting to the terms and conditions of this Agreement is of lawful age and duly authorized to give such consent by the party on whose behalf consent is given, and the other party is entitled to rely on such warranty of authority; (ii) it is not aware of any law, regulation or prior obligation that would impair such party’s ability to perform the obligations undertaken under this Agreement; (iii) it has obtained and will maintain during the term of this Agreement all necessary permits, licenses and authorizations required to conduct its business.
14.2. Assumed Risks. Campaign Operator understands and agrees that using the Wyng Applications, including the Content API, and operating a Campaign is not risk free, and that the prices charged by Wyng for each Subscription reflects Wyng’s assumption of limited liability under this Agreement. In particular, Campaign Operator bears all risks associated with the collection, use, loss, disclosure, or corruption of any Barred PII, or any infringing, obscene, threatening, offensive, libelous, or otherwise unlawful or tortious material contained in Campaign Operator Data submitted to the Wyng Applications, including material that is harmful to children. Campaign Operator understands and agrees that Wyng Applications are not designed, developed or marketed by Wyng as compliance tools. Because Wyng does not and cannot control the industry or geographic reach of a Campaign, Wyng makes no warranty or representation that the Wyng Applications comply or will comply with any or all laws applicable to Campaign Operator’s products, services, marketing, or business. Campaign Operator assumes all risk and responsibility for determining whether the Wyng Applications as used by Campaign Operator will meet laws applicable in the jurisdictions in which the Campaign is offered to Social Users and Third Party Site terms and conditions as made applicable to Campaign Operator, and/or for entering into Campaign Terms or Third Party Site terms and conditions that enable Campaign Operator to attain such compliance or limit Campaign Operator’s liability.
14.3. General Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 14.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY WYNG AND ITS SUPPLIERS, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WYNG NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.
14.4. Wyng Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WYNG DOES NOT WARRANT (I) THAT THE WYNG APPLICATION, CONTENT API, HOSTING ENVIRONMENT, OR SUBSCRIPTIONS ARE ERROR FREE OR WILL MEET CAMPAIGN OPERATOR’S, USERS’ OR SOCIAL USERS’ SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, (II) THAT CAMPAIGN OPERATOR, USERS OR SOCIAL USERS WILL BE ABLE TO ACCESS OR USE THE WYNG APPLICATION WITHOUT PROBLEMS OR INTERRUPTIONS, OR (III) THAT THE WYNG APPLICATIONS, CONTENT API, OR THE HOSTING ENVIRONMENT ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.
15.1. Indemnification by Wyng. Wyng will, at its expense, defend Campaign Operator and pay any damages or settlement amounts awarded or approved by a court of final jurisdiction arising out of any third party claim, suit or proceeding asserted against Campaign Operator alleging that the Wyng Applications, including the Content API, infringe, violate or misappropriate such third party’s United States trade secret, copyright or patent rights. The foregoing obligation shall not apply with respect to a claim if such claim arises out of: (i) unauthorized access to or use of the Wyng Applications, including the Content API, by Campaign Operator, Users or Social Users, (ii) infringing, illegal or unauthorized Campaign Operator Data or Barred PII submitted to the Wyng Applications, (iii) modifications, alterations or configurations of the Wyng Application made by Campaign Operator or parties acting on Campaign Operator’s behalf (other than Wyng), or (iv) Campaign Operator’s independent violation of applicable law, the rights of third parties, or the Third Party Site terms and conditions applicable to Campaign Operator and/or its Campaign. In addition to the foregoing obligations, in the event a third party claim of infringement is asserted against Campaign Operator as set forth in this Section, either Campaign Operator or Wyng may terminate this Agreement for convenience on written notice to the other party, in which case the refund rights in Section 11.6 shall apply.
15.2. Indemnification by Customer. Campaign Operator will, at its expense, defend Wyng and pay any damages or settlement amounts awarded or approved by a court of final jurisdiction arising out of any third party claim, suit or proceeding asserted against Wyng: (i) alleging that the Campaign Design Materials infringe, violate or misappropriate such third party’s trade secret, trademark, copyright, privacy or publicity rights; (ii) resulting from a dispute between Campaign Operator and a Social User related to a Campaign or any claim of any nature brought against Wyng by a User; (iii) resulting from Campaign Operator’s failure to adhere to the terms and conditions of Third Party Sites applicable to Campaign Operator’s use of the Third Party Site, including but not limited to, the retrieval, use, and display of Third Party Participation Data; or (iv) resulting from the conditions in 15.1(i) through (iv) above. The foregoing obligation shall not apply with respect to a claim to the extent such claim arises out of (v) Wyng’s uncured material breach of an obligation owed to Campaign Operator under this Agreement, (vi) Wyng’s independent violation of applicable law, the rights of third parties, or the Third Party Site terms and conditions applicable to Wyng as the developer or provider of the Wyng Applications. In addition to the foregoing obligations, in the event a third party claim of infringement is asserted against Wyng as set forth in this Section, either Campaign Operator or Wyng may terminate this Agreement for convenience on written notice to the other party.
15.3. Conditions. The parties’ obligations under this Section are contingent 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). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party, not to be unreasonably conditioned, delayed or withheld. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 16 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
16. LIMITATION OF LIABILITY
16.1. Limitation of Liability. EXCEPT AS STATED IN SECTION 2.4. OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT RECEIVED BY WYNG FOR THE SUBSCRIPTIONS IN THE 12 (TWELVE) MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CAMPAIGN OPERATOR’S PAYMENT OBLIGATIONS UNDER SECTION 11 OF THIS AGREEMENT TO THE EXTENT FEES OWED EXCEED THE FOREGOING LIMITATION.
16.2. Exclusion of Other Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES. WITHOUT LIMITATION, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY WYNG APPLICATION MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, COST OF COVER, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, OR ANY ACTS OF GOD OR OTHER EVENTS OUTSIDE CAMPAIGN OPERATOR’S CONTROL OR WYNG’S CONTROL, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. TERM AND TERMINATION
17.1. Termination for Convenience. Campaign Operator may terminate a Subscription at any time for Campaign Operator’s convenience for any reason or no reason by providing Wyng with written notice or by using the cancellation procedures made available by Wyng on the Wyng website.
17.2. Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach by the end of the thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder.
17.3. Right of Suspension; Take Down Process. Wyng may, with prior or concurrent notification to Campaign Operator, suspend or limit access to the Wyng Applications if:
(i) any amounts owed by Campaign Operator under this Agreement are thirty (30) or more days overdue (or ten (10) or more days overdue in the case of Credit Card Payments);
(ii) Wyng reasonably concludes that Campaign Operator, Users, or Social Users are using the Wyng Applications to engage in (a) denial of service attacks, spamming, (b) improper uses set out in Section 5 of this Agreement, (c) illegal activity, (d) failure to comply with the requirements of Section 4.1, and/or (d) actions that are causing immediate and material harm to Wyng or others;
(iii) either Wyng or Campaign Operator are named as a party to a claim or lawsuit giving rise to the indemnification obligations in Section 15. In addition, should Wyng receive statutory notification regarding alleged infringements of third party rights resulting from Campaign Operator Data posted on a Third Party Site as part of an active Campaign, then Wyng shall provide Campaign Operator with a copy of such notice and Campaign Operator agrees to promptly remove the offending content or, barring such removal within twenty four (24) hours of Wyng’s notification, Wyng may take down such Campaign Operator Data. Wyng will use diligent efforts to limit suspension or removal only to the affected Users, Social Users, Campaigns, Campaign Operator Data, or Wyng Applications, to promptly inform Campaign Operator of the circumstances giving rise to the suspension or removal, and to promptly restore suspended access or materials upon verification that issues giving rise to the suspension or removal have been fully addressed. 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; or
(iv) Campaign Operator exceeds Campaign Limitations, and Wyng reasonably deems that such excess will constitute an event under subsection (iv) of Section 5, or exceeds limitations regarding use of the Content API, then upon notice to Campaign Operator, Wyng may either suspend, or limit, the Campaign parameters or use of the Content API to the levels noted in the preceding sentence or the Documentation, as applicable, and/or charge Campaign Operator additional, then-current fees to scale the Campaign to the excess levels, or to account for the excess use of the Content API, which Campaign Operator hereby agrees to pay in accordance with the payment terms of this Agreement.
17.4. Effect of Termination. Upon termination of this Agreement, all Subscriptions will terminate immediately. Upon Campaign Operator’s request made within thirty (30) days after the effective date of termination, Wyng will make available to Campaign Operator for download all Campaign Operator Data in the current format in which it is stored in the Wyng Application. After such thirty (30) day period, Wyng shall have no obligation to maintain or provide any Campaign Operator Data and may thereafter unless legally prohibited, delete all Campaign Operator Data in its systems or otherwise in its possession or under its control.
17.5 Survival. Except to the extent expressly provided to the contrary herein, Sections 11 (with respect to amounts owing), 12, 13, 14.2, 14.3, 14.4, 16, 17.4 and 18 shall survive the termination of this Agreement.
18.1. Relationship. The relationship between the parties created by this Agreement is solely that of independent contractors and not employer-employee, partners, franchisees, joint venturers or agents. This is a non-exclusive arrangement.
18.2. Entire Understanding. This Agreement (including any Orders or URLs incorporated by reference herein) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order, the terms of the Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Campaign Operator’s purchase order or in any other ordering documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
18.3. Modification and Waiver. Except for Wyng’s modification or updates to any pricing or other policies referenced by a URL herein, no modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by both parties. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.
18.4. 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 conflict of law rules. The parties agree that 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, will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
18.5. Publicity. Wyng may reference Campaign Operator’s name and the Wyng Applications for which Campaign Operator purchased a Subscription in Wyng business development and marketing efforts, including without limitation Wyng’s web site. Further, Campaign Operator hereby grants Wyng a limited, royalty-free, revocable, worldwide license to refer prospects by hypertext link to any of Campaign Operator’s publicly-available Campaigns developed by use of the Wyng Applications on Wyng’s website, for demonstration and other marketing purposes.
18.6. Assignment. Either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. The assigning party shall provide notification of all necessary updated company, contact, billing or payment information as necessary for the parties to continue to perform their obligations and exercise their respective rights hereunder. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party, and, if applicable, the refund rights set forth in Section 11.6. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement.
18.7. Notices. Campaign Operator will provide accurate, current and complete business and contact information as necessary for Wyng to communicate with Campaign Operator from time to time regarding the Subscription, issue invoices, accept payment, or other account-related purposes. Campaign Operator will accept emails from Wyng at the e-mail addresses specified by Users for login purposes. Wyng may provide any and all notices, statements, and other communications to Campaign Operator through either e-mail, posting on the Wyng User account, support portal, or the Wyng Applications (or other electronic transmission) or by mail or express delivery service. Wyng may rely and act on all information and instructions provided to Wyng by Users from the above-specified e-mail address. Except for email notifications as permitted hereunder or notifications posted via the Wyng Applications, all other legal notices required to be sent hereunder shall be in writing and deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the parties accepting this Agreement and the relevant Order, with a copy to its General Counsel, or to such other address or individual as the parties may specify from time to time by written notice to the other party. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
18.8. Staffing. Wyng is responsible for all staffing decisions with respect to its personnel and the provision of any services under this Agreement, including the right to employ subcontractors., Wyng
has the right to remove or replace any of its personnel without notice or consent of Campaign Operator. Wyng will remain liable for the acts and omissions of its employees, agents, service providers, and subcontractors to the same extent expressly assumed by Wyng for itself under the terms of this Agreement.
18.9. Force Majeure. Except for performance of a payment obligation, neither party will be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to 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 not within Wyng’s control, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party and receive a refund pursuant to Section 11.6.
18.10. Federal Government End User Provisions. If Campaign Operator or any User is the US Federal Government, Wyng provides the Subscriptions, including related software and technology, in accordance with the following: Government technical data and software rights related to the Wyng Applications include only those rights customarily provided to the public 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). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Wyng to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement.
18.11. Use by Marketing Agencies. If Campaign Operator is a marketing agency or marketing services provider (“Agency”), and is purchasing a Subscription for the purpose of running one or more Campaigns as part of the Agency’s service relationship with a company (“Brand”), then: (i) Agency is solely responsible for obtaining all necessary permissions, approvals or consents to Agency’s operation of a Campaign for a Brand; (ii) Agency will ensure that the Brand is bound by terms and conditions with Agency that meet and are consistent with all obligations and assumed risks set forth in this Agreement with respect to Campaign Operators; (ii) Agency will not make any warranty, representation or commitment to the Brand regarding Wyng, the Wyng Applications, the Hosting Environment or a Subscription that exceeds or conflicts with the warranties, obligations and undertakings assumed by Wyng under this Agreement and will release Wyng and assume for itself all risks and liabilities in connection therewith); (iv) Agency’s indemnification obligations in Section 19.2 above will apply to any claim asserted by a Brand against Wyng that arises as a result of (a) any dispute between Agency and the Brand, regardless of the cause, or (b) breach by the Agency of any term of this Agreement or independent violation of applicable law; (v) Agency will ensure that nothing in its agreement with the Brand constitutes or can be deemed to constitute the Brand as an intended third party beneficiary of this Agreement or otherwise entitles the Brand to enforce any term or condition of this Agreement directly against Wyng; (vi) Agency is liable under this Agreement for any acts or omissions of any User who is an employee, contractor or agent of the Brand, as if such acts or omissions had been carried out by Agency itself, to the same extent expressly assumed by Agency for itself under the terms of this Agreement; and (vii) Agency shall not disclose or commercially exploit one Brand’s Campaign Participation Data (including any Social User PII therein) or Campaign Analytics for Agency’s own independent benefit or for the benefit of any third party unaffiliated with the Brand, except pursuant to the express consent of such Brand.
18.12. Use by Users. Except as expressly provided in this Section, which applies to Users as defined in Section 1.23 above, all rights and obligations under this Agreement are solely and exclusively between Wyng and Campaign Operator. If you are a User: (i) Wyng assumes no duty or obligation to you personally regarding the Subscription or the Wyng Applications or any other obligation, warranty, representation or covenant set forth in this Agreement; (ii) by accessing and using the Subscription(s) you waive any right to enforce any terms of this Agreement against Wyng; and (iii) you agree that you are not an intended third party beneficiary of any agreement between Wyng and Campaign Operator, including this Agreement. IF YOU ARE A USER, WYNG IS NOT LIABLE TO YOU PERSONALLY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY APPLICATION MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, COST OF COVER, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, LOSS OF EMPLOYMENT, OR ANY ACTS OF GOD OR OTHER EVENTS OUTSIDE WYNG’S CONTROL, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WYNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, WYNG’S ENTIRE LIABILITY TO YOU, AS A USER, IN CONNECTION WITH YOUR USE OF THE WYNG APPLICATIONS WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT, AS TO ANY INDIVIDUAL CLAIM OR IN THE AGGREGATE YOU MAY ASSERT, EXCEED $25. IF YOU ARE A USER, AND DO NOT AGREE TO THE ALLOCATION OF RISK IN THIS SECTION, YOUR SOLE RECOURSE IS TO IMMEDIATELY DISCONTINUE THE USE OF THE WYNG APPLICATIONS.