This Evaluation Agreement (the “Evaluation Agreement”) is by and between Wyng, Inc., with offices at 17 West 20th St., 4th Floor, New York, NY 10011 (“Wyng”) and the licensee (the “Licensee”) referenced below.
By clicking the box indicating acceptance, Licensee agrees to be bound by all the terms and conditions in this Evaluation Agreement.
1. SCOPE OF EVALUATION AGREEMENT
Wyng develops, markets and licenses Wyng Applications pursuant to a software as a service methodology (the “Services”). Licensee desires to license such Services and use such Services at no charge solely during the Evaluation Term set forth herein for the evaluation of the Wyng Services.
2.1. “Documentation” means the then-current online user instructions and help files made available by Wyng as part of the user interface for the Services.
2.2. “Hosting Environment” means the hardware, software and networks used by Wyng or its third-party hosting provider to host the Services.
2.3. “Licensee Data” means content which Licensee 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.
2.4. “Usage Limitations” means the limitations on Services set forth in the Documentation and in this Evaluation Agreement, including but not limited to: (i) 500 cumulative visitor sessions across experiences; (ii) 100 profiles; (iii) 100 personalized visitor sessions ; (iv) 100 user-generated content assets ingested; and (v) 500 cumulative email verifications across experiences.
2.5. “User” means any individual authorized by Licensee to access and use the Services on the Licensee’s behalf.
2.6. “Wyng Applications” means the then-current software applications provided by Wyng that are identified herein, including any updates and the Documentation.
3. LICENSE OF SERVICES
Wyng hereby grants to Licensee at no charge during the designated Evaluation Term the non-exclusive and non-transferable right to access and use the Services solely for evaluation purposes. All right, title to and interest (including all intellectual property rights) in the Services and copies thereof remains exclusively with Wyng. During the designated Evaluation Term, Wyng will host or have its third-party provider host the Services and provide updates and upgrades to the Services that Wyng makes generally available.
4. RESTRICTIONS ON USE
Licensee shall not, and shall not permit any third party, to, except as expressly set forth in this Evaluation Agreement, (i) sell, resell, lease, time share or transfer the Services for the benefit of any third party; (ii) use the Services to transmit or process any personal information; (iii) knowingly or negligently send, store, publish or transmit through the Services any viruses, trojan horses or other routines intended to intercept any data or personal information of another party; (iv) remove or alter any copyright, trademark or other notices included in the Services; (v) use the Services except as expressly permitted in this Evaluation Agreement; (vi) use the Services in a manner that exceeds the Usage Limitations; (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; or (xii) attempt to reverse engineer or decompile the Services. Licensee shall not use the Services for any production purposes or use the Services except to evaluate such Services during the designated Evaluation Term.
5. WYNG DATA SAFEGUARDS
Wyng will use commercially reasonable efforts to maintain administrative, physical and technical safeguards for the protection, confidentiality and integrity of Licensee Data.
6. HOSTING ENVIRONMENT DATA SAFEGUARDS
Wyng currently engages Amazon Web Services (“AWS”) to supply and operate the Hosting Environment. Wyng makes no warranty or representation regarding the security controls implemented by AWS in the Hosting Environment. Licensee is solely responsible for determining whether such security controls meet Licensee’s requirements.
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, Trojan Horses, cancelbots, or other unauthorized computing routines.
9. PROPRIETARY RIGHTS
Licensee 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 Evaluation Agreement. Wyng does not grant any right, license or interest in the Services 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.
10. WARRANTIES; DISCLAIMERS
10.1. Mutual Warranties. Each party warrants that: (i) the individual executing this Evaluation Agreement is duly authorized; and (ii) it has obtained and will maintain during the term of this Evaluation Agreement all necessary permits, licenses and authorizations.
10.2. Disclaimers. THE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, WYNG AND ITS SUPPLIERS DISCLAIM ALL 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; (II) THAT LICENSEE 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’ DISABLEMENT OR INCORRECT CONFIGURATION OF SECURITY FEATURES; (ii) USERS’ FAILURE TO UPDATE WYNG SECURITY POLICIES; (iii) USERS’ FAILURE TO MAINTAIN THE CONFIDENTIALITY OF THEIR PASSWORDS; OR (iv) UNFORESEEN CAUSES NOT REASONABLY PREVENTABLE BY WYNG. LICENSEE BEARS ALL RISK WITH RESPECT TO THE COLLECTION OF ANY PERSONAL INFORMATION OR ANY INFRINGING, LIBELOUS, UNLAWFUL OR TORTIOUS MATERIAL IN THE LICENSEE 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.
For purposes of this Evaluation 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 Evaluation 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 Evaluation 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 Evaluation 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.
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 Social User PII or Licensee Data. The parties will cooperate to implement prompt measures to mitigate further unauthorized disclosures. Wyng may, without Licensee’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 Social Users without prior notification to and approval of Licensee (unless prohibited by law). Licensee 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.
12. SUPPORT SERVICES
Wyng may, at its discretion, provide at no charge during the applicable Evaluation Term its then-current support services.
13. OTHER CUSTOMERS
Licensee acknowledges that Wyng may, directly or indirectly, be retained by or associated with persons, corporations, partnerships or other entities that may compete with Licensee. Licensee will not object to or claim that such relationships alone constitute a breach of this Evaluation Agreement, provided that Wyng will continue to observe its confidentiality obligations to Licensee hereunder.
14. LIMITATION OF LIABILITY
EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS OR LICENSEE’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 EVALUATION 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 LICENSEE’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 EVALUATION AGREEMENT, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS EVALUATION 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 FIVE THOUSAND ($5,000) US DOLLARS.
Wyng may, with or without prior notice, suspend access to the Services if Wyng reasonably concludes that Licensee or Users are using the Services in denial of service attacks or spamming; illegal activity; breach of the terms and conditions of this Evaluation 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 Licensee Data. Licensee agrees to promptly remove any offending content and Wyng, within twenty-four (24) hours of such notice, may take down such Licensee Data. Wyng will use commercially reasonable efforts to limit suspension only to the affected Users. Licensee agrees that Wyng will not be liable to Licensee or any third party for any damages if Wyng exercises any of its rights as permitted by this Section.
16. TERM AND TERMINATION
16.1. Evaluation Term. The Evaluation Term of this Evaluation Agreement shall commence on the date of first access of the Services, and shall expire thirty (30) days thereafter, unless extended in writing by Wyng or terminated in accordance with its terms.
16.2. Termination. Either party may terminate this Evaluation Agreement immediately, with or without cause, and with or without written notice.
16.3. Effect of Termination. Upon termination of this Evaluation Agreement, all Services licenses will terminate immediately.
Any expiration or termination of this Evaluation Agreement shall not modify or alter any right or obligation of a party hereto which arose prior to such expiration or termination.
17.1. Governing Law and Venue. This Evaluation 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 Evaluation Agreement. The state and federal courts located in the Borough of Manhattan, New York City, New York, shall have exclusive jurisdiction to adjudicate any dispute relating to this Evaluation Agreement, and each party irrevocably consents to the exclusive jurisdiction of such courts.
17.2. Assignment. This Evaluation Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Licensee shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Evaluation Agreement without the express written consent of Wyng, which shall not be unreasonably withheld. Wyng, at its sole option and without the consent of Licensee, may assign this Evaluation Agreement in the event of a merger, consolidation or the sale of all or substantially all of Wyng’s assets or stock.
17.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Evaluation Agreement.
17.4. Entire Agreement. This Evaluation Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior and contemporaneous agreements, oral or written, with respect to a subject matter.