TERMS OF SERVICE This Agreement governs your purchase of a license to and use of our services. The
parties agree as
follows:
IF YOU REGISTER FOR A FREE VERSION OF THE SERVICE OR A FREE TRIAL OF THE SERVICE, THE APPLICABLE
PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A
SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE
ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU
HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO
NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT
THIS AGREEMENT AND MAY NOT USE THE SERVICE.
1. DEFINITIONS
1.1 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is
under common control with such entity (but only for so long as such control exists), where “control”
means the ownership of more than 50% of the outstanding shares or securities representing the right
to vote in the election of directors or other managing authority of such entity.
1.2 “Agreement” means these Terms of Service and any Service Orders you enter into with us.
1.3 “Authorized User” means your employee, your Affiliate’s employee, or a Permitted Third Party’s
employee for whom you create a unique user name and password under your account.
1.4 “Client Software” means software components to be installed on your, your Affiliates’, or your
Authorized Users’ computer systems or mobile or other devices.
1.5 “Documentation” means our user documentation, in all forms, relating to the Service (e.g., user
manuals, on-line help files, etc.).
1.6 “Permitted Third Party” means an entity under contract with you or your Affiliates who needs to
access the Service to perform its obligations to you or your Affiliates and who is not our
competitor.
1.7 “Professional Services” means the professional services specified in a Service Order,
potentially including but not limited to implementation services, consulting, and training services.
1.8 “Service” means the service identified in the Service Order, as we may modify the service from
time to time in our discretion, including any associated Client Software provided by us to you.
1.9 “Service Order” means an ordering document entered into between you and us specifying the
services to be provided thereunder, including any addenda and supplements thereto. An online
registration or sign-up page may also constitute a Service Order. By entering into a Service Order
under this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were
an original party to the Agreement.
1.10 “Subscriber Data” means any data uploaded into the Service, or otherwise provided for
processing by the Service, by or on behalf of you and your Affiliates in accordance with this
Agreement.
1.11 “Subscription Fees” means the fees for the Service specified in the Service Order. Subscription
Fees may or may not be based on events or transactions conducted using the Services.
1.12 “Technical Support Services” means our then-current technical support services offering, as
described at request by emailing sales@wickedfile.com.
1.13 “We” or “Us” or “Our” means WickedFile a Texas LLC, or its designated Affiliate as specified in
a Service Order or invoice.
1.14 “You” or “Your” or “Subscriber” means the customer named on the Service Order, the person
indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is
acting on behalf of a company or other legal entity, such company or legal entity.
2. FULL SERVICE; FREE VERSIONS AND FREE TRIALS
2.1 Full Service. We offer various versions of our Service. The most comprehensive version of the
Service requires payment for continued use of the Service. The version of the Service that requires
payment is currently referred to as “Full Service.”
2.2 Free Versions. Certain versions of the Service may be provided to you free-of-charge. The
versions of the Service that do not require payment to be accessed are currently referred to as
“Free Versions.”
2.3 Free Trials. From time to time, we may offer trials of the Full Service for a specified period
of time without payment or at a reduced rate (each, a “Free Trial”). If you register on our website
or via a Service Order for a Free Trial, we will make the Service available to you under the Free
Trial until the earlier of (a) the end of the Free Trial period for which you registered to use the
Service, or (b) the start date of any Full Service subscription ordered by you for such Service, or
(c) termination by us in our sole discretion. Additional Free Trial terms and conditions may appear
on the Free Trial registration web page. Any such additional terms and conditions are incorporated
into this Agreement by reference and are legally binding. We reserve the right, in our absolute
discretion, to determine your eligibility for a Free Trial, and, subject to applicable laws, to
withdraw or to modify a Free Trial at any time without prior notice and with no liability, to the
greatest extent permitted under law. ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CONFIGURATION
CHANGES MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS
YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE FREE TRIAL OR EXPORT SUCH
DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CONFIGURATION
CHANGES MADE DURING THE FREE TRIAL TO A FREE VERSION OF THE SERVICE, UNLESS THE DATA ENTERED OR
CONFIGURATION CHANGES ARE TO FEATURES AVAILABLE IN THE FREE VERSIONS; THEREFORE, YOU MUST EXPORT
YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. Please review
the applicable Documentation for the Service during the Free Trial period so that you become
familiar with the functionality and features of the Service before you make your purchase.
2.4 Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS,
FREE VERSIONS, AND FREE TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. SECTION 10
(INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO, AND SECTION 12.2 (CAP ON
LIABILITY) DOES NOT LIMIT THE TOTAL LIABILITY OF, SUBSCRIBERS USING FREE VERSIONS OR FREE TRIALS OF
THE SERVICE.
3 USE OF THE SERVICE
3.1 Use of the Service. Subject to the terms and conditions of this Agreement, we grant to you and
your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly
permitted in this Agreement) right during the term of this Agreement to use the Service solely in
connection with your internal business operations. Your and your Affiliates’ rights to use the
Service are subject to any limitations on use of the Service based on the version of the Service you
register for (e.g., applicable usage limits) and as set forth in the Service Order (collectively,
the “Scope Limitations”) and your rights to use the Service are contingent upon your compliance with
the Scope Limitations and this Agreement. As part of the Service, we may provide you and your
Affiliates with Client Software, which you and your Affiliates may install on your computer system
or other devices and use solely to upload Subscriber Data into the Service. You are solely
responsible for your conduct (including by and between all users), the content of Subscriber Data,
and all communications with others while using the Service. You acknowledge that we have no
obligation to monitor any information on the Service, but we may remove or disable any information
that you make publicly available on the Service at any time for any reason or for no reason at all.
We are not responsible for the availability, accuracy, appropriateness, or legality of Subscriber
Data or any other information you may access using the Service.
3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you
and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly
permitted in this Agreement) right during the term of this Agreement to reproduce, without
modification, and internally use a reasonable number of copies of the Documentation solely in
connection with use of the Service in accordance with this Agreement.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be
expressly permitted by applicable law, you will not, and will not permit or authorize your
Affiliates or third parties to: (a) rent, lease, or, except as explicitly set forth in this
Agreement, otherwise permit third parties to use the Service or Documentation; (b) use the Service
to provide services to third parties as a service bureau or in any way that violates applicable law;
(c) circumvent or disable any security or other technological features or measures of the Service,
or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or
authentication measures; (d) upload or provide for processing any information or material that is
illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property
rights of any third party; (e) use the Service to harm, threaten, or harass another person or
organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other
disabling code or malware component harmful to a network or system. You will not copy, reproduce,
modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of
any Client Software or provide, disclose, or make any Client Software available to any third party,
except that you may make one copy of Client Software solely for backup and archival purposes. You
will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice
that may appear in any part of the Documentation or any Client Software and will include all such
notices on any copies. You will ensure that your Affiliates and Permitted Third Parties comply with
this Agreement. You will be directly and fully responsible to us for their conduct and any breach of
this Agreement by them. We reserve the right to deactivate, change, or require you to change your
user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the
Service for any reason or for no reason. We may exercise such right at any time, with or without
prior notice.
3.4 Authorized Users Only. This Agreement restricts the use of the Service to Authorized Users, up
to the number of users specified in the Service Order. An Authorized User must be at least eighteen
(18) years of age and accounts must not be shared among users. Additional Authorized Users may be
added by paying the applicable fees to us at our then-current rate or as otherwise specified in a
Service Order. The Authorized Users who are employees of Permitted Third Parties may access and use
the Service solely to perform the Permitted Third Party’s contractual obligations to you subject to
the use limitations set forth in this Agreement. As part of the registration process, you may be
asked to identify your company and other Authorized Users who should be associated with your
account. You will not misrepresent the identity or nature of the company or Authorized Users who
should be associated with your account. We may change the way you access the Service at any time in
our sole discretion. You are responsible for maintaining the confidentiality of your login,
password, and account and for all activities that occur under your login and account, including the
activities of Authorized Users.
3.5 Protection against Unauthorized Use. You will, and will ensure that your Affiliates and
Permitted Third Parties use reasonable efforts to prevent any unauthorized use of the Service or
Documentation, and you will immediately notify us in writing of any unauthorized use that comes to
your attention. If there is unauthorized use by anyone who obtained access to the Service or
Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party, you
will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and
assist with any actions taken by us to prevent or terminate unauthorized use of the Service or
Documentation. We may, at our expense and no more than once every 12 months with reasonable notice,
appoint our own personnel or an independent third party to verify that your use of the Service
complies with the terms of this Agreement.
3.6 Beta Versions. From time to time, we may make available for you to try, at your sole discretion,
certain functionality related to the Service, which is clearly designated as beta, pilot, limited
release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are
intended for evaluation purposes and not for production use, are not supported, and may be subject
to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may
never make them generally available. We have no liability for any harm or damage arising out of or
in connection with a Beta Version.
3.7 Reservation of Rights. We retain all right, title, and interest in and to the Service, Client
Software and Documentation and all related intellectual property rights, including without
limitation any modifications, updates, customizations, cards, apps, or other add-ons. Your rights to
use the Service, Documentation, and Client Software are limited to those expressly set forth in this
Agreement. We reserve all other rights in and to the Service, Client Software, and Documentation.
3.8 Service Availability. We perform and maintain regular database backups according to the
retention policy appropriate for the particular system. We incorporate database and system
maintenance operations and processes designed to address data consistency, indexing, and integrity
requirements that also help improve query performance. We have implemented and will maintain
commercially reasonable measures intended to avoid unplanned Service interruptions. We will use
commercially reasonable efforts to notify you in advance of planned Service interruptions. In the
event of an unplanned Service interruption, you may contact us for Technical Support Services, as
described in this Agreement. The Service depends on the availability of the Subscriber Data from you
and third-party data providers. You are responsible for making the Subscriber Data available that is
necessary for us to provide the Service.
4 PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES
4.1 Professional Services. You may contract with us to perform Professional Services. The specific
details of the Professional Services to be performed will be determined on a per-project basis, and
the details for each project will be described on the Service Order. Unless otherwise specified in
the applicable Service Order, any unused portion of the Professional Services and training will
expire and may not be carried over after 12 months from the Service Order effective date.
4.2 Changes to Professional Services. You may reasonably request in writing that revisions be made
with respect to the Professional Services set forth in a Service Order. If your requested revisions
materially increase the scope of the Professional Services or the effort required to perform the
Professional Services under the Service Order, then we will deliver to you a written proposal
reflecting our reasonable determination of the revised Professional Services, delivery schedule, and
payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then
the parties will execute an amendment to the Service Order. Otherwise, the then-existing Service
Order will remain in full force and effect, and we will have no obligation with respect to the
relevant change requests.
4.3 Technical Support Services. We will provide you with the applicable Technical Support Services
for the version of the Service to which you are subscribed so long as you are current in payment of
the Subscription Fees (if applicable). You are responsible for providing support to Permitted Third
Parties.
4.4 Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a
suitable work environment, and resources reasonably necessary to enable us to perform the
Professional Services and Technical Support Services. You acknowledge that our ability to provide
Professional Services as described in the Service Order and Technical Support Services may be
affected if you do not meet your responsibilities as set forth above.
4.5 Feedback and Other Content. The Service may permit you, your Affiliates, and Permitted Third
Parties to submit feedback, user community contributions and comments, technical support
information, suggestions, enhancement requests, recommendations, and messages relating to the use
and operation of the Service. You grant to us a royalty-free, fully paid, non-exclusive, perpetual,
irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform,
translate, create derivative works from, sublicense, distribute, and otherwise exploit such content
without restriction.
5 FEES AND PAYMENT
5.1 Fees and Payment Terms. Unless otherwise specified in a Service Order, the Subscription Fees for
the initial subscription term and Professional Service fees set forth in the Service Order are due
upon execution of the Service Order. After the initial subscription term, Subscription Fees will be
invoiced annually at the then-current rate for the Service or as otherwise specified in a Service
Order, at least 30 days in advance of the start of each renewal period. Fees for additional Service
quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed
in writing by the parties. You will pay all amounts in full within 30 days after the invoice date.
The charges in an invoice will be considered accepted by you unless we are notified of a good faith
dispute in writing within 15 days of the date of the invoice. Unless expressly provided otherwise in
a Service Order, all amounts payable under this Agreement are denominated in United States dollars,
and you will pay all such amounts in United States dollars.
5.2 Credit Card. If you use a credit card to set up an account or pay for the Service, you must be
authorized to use the credit card information that you enter when you create the billing account.
You authorize us to charge you for the Service plus a reasonable processing fee using your credit
card and for any paid feature of the Service that you choose to sign up for or use under this
Agreement. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or
(d) on a recurring basis for a subscription to the Service. If you set up a Free Trial using a
credit card or if you paid the Subscription Fees using a credit card, you agree that we may
automatically charge your credit card account the applicable Subscription Fee when the Free Trial
ends or renew your subscription and charge your credit card account on the one-year anniversary of
your last subscription date (the “Renewal Date”), unless you cancel your subscription before the end
of the Free Trial or the Renewal Date (as applicable). We will automatically renew your subscription
each year on the Renewal Date until you terminate your subscription or we no longer offer the
Service to which you subscribed. We will notify you in advance of the difference for recurring
Subscription Fees. We may charge you up to the amount you approve plus a reasonable processing fee.
You must keep all information in your billing account current. You may change your payment method at
any time. If you tell us to stop using your payment method and we no longer receive payment from you
for a Service that requires payment, we may terminate your access to that Service.
5.3 Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of
the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is
less, determined and compounded monthly from the date due until the date paid. You will reimburse
any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to
collect any amount that is not paid when due. Amounts due from you under this Agreement may not be
withheld or offset by you against amounts due to you for any reason.
5.4 Taxes. The fees stated in a Service Order do not include local, state, federal, or foreign taxes
(e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting
from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes. If we determine
that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable
invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate
from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid
Taxes for which you are responsible under this Agreement and which you did not pay to us, we may
invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all
applicable interest, penalties and fees.
5.5 Future Functionality. Your purchases are not contingent on the delivery of any future
functionality or features, or dependent on any oral or written public comments made by us regarding
future functionality or features.
6 TERM AND TERMINATION
6.1 Term. This Agreement commences on the effective date specified in the Service Order and
continues for the initial subscription term specified in the Service Order, unless this Agreement is
terminated earlier in accordance with the terms of this Agreement. Unless otherwise expressly stated
in the Service Order, this Agreement automatically renews for additional successive terms of equal
length to the initial term unless at least 30 days before the end of the then-current term either
party provides written notice to the other party that it does not intend to renew.6.2 Termination.
Either party may terminate this Agreement if the other party does not cure its material breach of
this Agreement within 30 days of receiving written notice of the material breach from the
non-breaching party. A breach of this Agreement by your Affiliate, or a Permitted Third Party will
be treated as a breach by you. Termination in accordance with this Subsection will take effect when
the breaching party receives written notice of termination from the non-breaching party, which
notice must not be delivered until the breaching party has failed to cure its material breach during
the 30-day cure period. If you fail to timely pay any Subscription Fees or fees for Professional
Services, we may, without limitation to any of our other rights or remedies, suspend performance of
the Service, Professional Services, and Technical Support Services until we receive all amounts due,
or may terminate this Agreement pursuant to this Subsection. We may terminate your license to use
Free Versions at any time in our sole discretion.
6.3 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no
obligation to provide or perform any Service, Professional Services, or Technical Support Services
after the effective date of the termination; (b) you will immediately pay to us any Subscription
Fees, fees for Professional Services, and other amounts that have accrued prior to the effective
date of the termination; (c) any and all liabilities accrued prior to the effective date of the
termination will survive; (d) you will provide us with a written certification signed by your
authorized representative certifying that all use of the Service and Documentation by you, your
Affiliates, and Permitted Third Parties has been discontinued and the Client Software has been
de-installed from your and your Affiliates’ computer systems; and (e) Sections and Subsections 1, 2,
3.7, 4.5, 5, 6.3, 7, 8.3, 9.4, 11, 12, and 14 will survive termination. If this Agreement is
terminated by us for your uncured material breach or by you other than as a result of a material,
uncured breach by us, you will pay to us the amounts due under the applicable Service Order for the
remainder of the then-current term. If you terminate this Agreement for our uncured material breach,
as your exclusive remedy, we will provide you a pro-rata refund of all prepaid but unused
Subscription Fees for the remainder of the then-current term.
7 CONFIDENTIAL INFORMATION
7.1 Definition. “Confidential Information” means non-public business information, know-how, and
trade secrets in any form, including information regarding our product plans, Beta Versions, terms
of this Agreement, and any other information a reasonable person should understand to be
confidential, which is disclosed by or on behalf of either party or its Affiliates to the other
party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible
objects, and whether such information is disclosed before or after the effective date specified on
the Service Order. Confidential Information includes this Agreement and its terms. “Confidential
Information” excludes information that (a) is publicly known and made generally available in the
public domain prior to the time of disclosure by the disclosing party through no action or inaction
of the receiving party; (b) is already in the possession of the receiving party at the time of
disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is
obtained by the receiving party from a third party without a breach of the third party’s obligations
of confidentiality; or (d) is independently developed by the receiving party without use of or
reference to the disclosing party’s Confidential Information, as shown by documents and other
competent evidence in the receiving party’s possession.
7.2 Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to
take reasonable steps, at least substantially equivalent to the steps it takes to protect its own
proprietary information, but not less than reasonable care, to prevent the unauthorized duplication
or disclosure of the Confidential Information to third parties without the disclosing party’s prior
written consent. The receiving party may disclose the disclosing party’s Confidential Information to
the receiving party’s employees or agents who reasonably need to have access to such information to
perform the receiving party’s obligations under this Agreement, and who will treat such Confidential
Information under the terms of this Agreement. Provided that such Permitted Third Party is bound by
obligations of confidentiality and nonuse no less restrictive than the terms of this Agreement, you
may disclose our Confidential Information to a Permitted Third Party solely to the extent required
for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement.
Also, we may disclose this Agreement to actual and potential investors and funding sources and their
representatives, in each case who agree to hold it in confidence. The receiving party may disclose
the disclosing party’s Confidential Information if required by law so long as the receiving party
gives the disclosing party written notice of the requirement prior to the disclosure (where
permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or
obtaining an order protecting the information from public disclosure.
7.3 Return of Materials and Effect of Termination. Upon written request of the disclosing party, or
in any event upon any termination or expiration of this Agreement, the receiving party will return
to the disclosing party or destroy all materials, in any medium, to the extent containing or
reflecting any of the disclosing party’s Confidential Information. Following expiration or
termination of this Agreement, we may purge your Subscriber Data and your Service environment from
our systems. The obligations in this Section 7 survive for three years following expiration or
termination of this Agreement, except that Confidential Information that constitutes a trade secret
of the disclosing party will continue to be subject to the terms of this Section 7 for as long as
such information remains a trade secret under applicable law.
8 DATA SECURITY
8.1 Data Security. We implement and maintain physical, electronic, and managerial procedures
intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of
Subscriber Data. These measures include encryption of Subscriber Data during transmission to the
Service, and encryption of backups of Subscriber Data and authentication credentials at rest. We
will notify you of any unauthorized access to, or use of, Subscriber Data that comes to our
attention. If any unauthorized disclosure of Subscriber Data resulting from your use of the Service
comes to our attention, we will work with you to investigate the cause of such unauthorized
disclosure, and will work together in good faith to take the steps reasonably necessary to prevent
any future reoccurrence and to comply with applicable data breach notification laws.
8.2 Data Transmission. You acknowledge that use of the Service involves transmission of Subscriber
Data and other communications over the Internet and other networks, and that such transmissions
could potentially be accessed by unauthorized parties. You must protect your Authorized User login
names and passwords from access or use by unauthorized parties, and are solely responsible for any
failure to do so. You must promptly notify us of any suspected security breach at
support@wickedfile.com.
8.3 Subscriber Data. Subscriber Data is your property. We will store and use Subscriber Data as set
forth in our privacy policy at https://wickedfile.com/home/Privacy_policy In addition, you grant us
a non-exclusive, perpetual, worldwide, irrevocable, royalty-free license to use, copy, transmit,
sub-license, index, store, aggregate, and display Subscriber Data as required to provide or perform
the Service, Technical Support Services, account management services, and Professional Services, and
to reproduce, publish, display, and distribute de-identified, aggregated information derived from
Subscriber Data or from your use of the Service for any lawful purpose, including but not limited to
improving our products and services, developing new products or services, and developing,
displaying, and distributing benchmarks and similar reports, provided that any such data is not
publicly identified or identifiable as originating with or associated with you or any individual
person.
9 WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement
constitutes a valid and binding agreement enforceable against such party in accordance with its
terms; and (b) no authorization or approval from any third party is required in connection with such
party’s execution and delivery of the Service Order, or performance of this Agreement.9.2 Our
Warranty. We warrant that the Service as delivered to you will materially conform to the
specifications set forth in the applicable Service Order, during the term of the Service Order. You
must notify us of a claim under this warranty within 30 days of the date on which the condition
giving rise to the claim first appears. We further warrant that we will perform Professional
Services in a professional and workmanlike manner in accordance with the Service Order. To the
extent permitted by law, your sole and exclusive remedy arising out of or in connection with a
breach of warranty is limited to correction of the non-conforming Service or re-performance of the
Professional Service, as applicable, or if correction or re-performance is not commercially
reasonable, termination of the applicable Service Order and a refund of any prepaid unused fees for
the applicable Service or Professional Services.
9.3 Sensitive Personal Information. Unless we specifically agree otherwise in writing, you represent
and warrant that neither you nor any Authorized User will upload into the Service, or otherwise
provide for processing by the Service, any Sensitive Personal Information. “Sensitive Personal
Information” means Sensitive Personal Information and any similar term (e.g., “Sensitive Personal
Data,” “Protected Health Information,” etc.) as defined under relevant privacy or data protection
laws, including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and
Accountability Act of 1996, US Children’s Online Privacy Protection Act, and Family Educational
Rights and Privacy Act. Without limitation, “Sensitive Personal Information” includes: personal
financial and financial account information, sexual orientation, personal medical or health
information, personal information of children under 13, personal education records, and social
security, national identity, national insurance, and similar personal identifiers. You further
represent and warrant that you and any Authorized User will comply with all applicable laws,
regulations, self-regulatory guidelines, and your privacy policy with respect to the collection,
transfer, and use of any personally identifiable information in connection with the Service,
including proper disclosure and receipt of all required consents from each individual to transfer
such personally identifiable information to us.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION,
NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED
(EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY
DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY,
ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF
THE SERVICE OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE OR DOCUMENTATION IS ERROR-FREE OR
THAT OPERATION OR USE OF THE SERVICE OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE
NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE
OF THE SERVICE OR DOCUMENTATION.
10 INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION
10.1 Defense of Infringement Claims. We will, at our expense, either defend you from or settle any
claim, proceeding, or suit brought by a third party (“Claim”) against you alleging that your use of
the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other
intellectual property right. You must (a) give us prompt written notice of the Claim; (b) grant us
full and complete control over the defense and settlement of the Claim; (c) provide assistance in
connection with the defense and settlement of the Claim as we may reasonably request; and (d) comply
with any settlement or court order made in connection with the Claim. You will not defend or settle
any Claim under this Subsection 10.1 without our prior written consent. You may participate in the
defense of the Claim at your own expense and with counsel of your own choosing, subject to our sole
control over the defense and settlement of the Claim as provided above.
10.2 Indemnification of Infringement Claims. We will indemnify you and your Affiliates from and pay:
(a) all damages, costs, and attorneys’ fees finally awarded against you and your Affiliates in any
Claim under Subsection 10.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees
reasonably incurred by you in connection with the defense of a Claim under Subsection 10.1 (other
than attorneys’ fees and costs incurred without our consent after we have accepted defense of the
Claim and expenses incurred pursuant to the last sentence of Subsection 10.1); and (c) all amounts
that we agree to pay to any third party to settle any Claim under Subsection 10.1.
10.3 Exclusions from Obligations. We have no obligation under this Section 10 for any infringement
or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in
combination with other products or services; (b) any aspect of the Service configured specifically
for you to comply with designs, requirements, or specifications required by or provided by or on
your behalf; (c) use of the Service by you, any Affiliate, or any Permitted Third Party outside the
scope of the rights granted in this Agreement; (d) failure of you, any Affiliate, or any Permitted
Third Party to use the Service in accordance with instructions provided by Us; or (e) any
modification of the Service not made or authorized in writing by Us (collectively, “Excluded
Claims”).
10.4 Infringement Remedies. In the defense or settlement of any infringement Claim, we may, at our
sole option and expense: (a) procure for you a license to continue using the Service; (b) replace or
modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are
not commercially feasible in our sole judgment, then terminate your license and access to the
Service and refund any prepaid, unused Service fees as of the date of termination. This Section 10
states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or
alleged infringement or misappropriation of any third-party intellectual property right by the
Service.
11 INDEMNIFICATION
11.1 Defense. You will defend us and our Affiliates from any actual or threatened third-party Claim
arising out of or based upon (a) use of the Service by you, your Affiliates, or Permitted Third
Parties that is not in accordance with the terms of this Agreement; (b) any dispute between you and
another user of the Services; (c) the Subscriber Data or other materials or information provided by
you or on your behalf under this Agreement; and (d) Excluded Claims. We will give you prompt written
notice of the Claim and provide assistance in connection with the defense and settlement of the
Claim as you may reasonably request. We may participate in the defense of any Claim at our own
expense and with counsel of our own choosing.
11.2 Indemnification. You will indemnify us from and pay: (a) all damages, costs, and attorneys’
fees finally awarded against us in any Claim under Subsection 11.1; (b) all out-of-pocket costs,
including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of a
Claim under Subsection 11.1 (other than attorneys’ fees and costs incurred without your consent
after you have accepted defense of the Claim); and (c) all amounts that you agree to pay to any
third party to settle any Claim under Subsection 11.1.
12 LIMITATIONS OF LIABILITY
12.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR
RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
OCCURRING.
12.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S
TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED
TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED
ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING
THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE
ABOVE LIMITATIONS WILL NOT LIMIT YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY SERVICE
ORDER, OR LIMIT YOUR LIABILITY FOR YOUR VIOLATION OF THE SERVICE USE RESTRICTIONS PROVIDED IN THIS
AGREEMENT OR FOR YOUR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS.
12.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS
OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO
YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE
PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS
IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN
THIS AGREEMENT.
13 THIRD-PARTY PRODUCTS
13.1 Third-Party Products. Any third-party product that we provide as identified in an applicable
Service Order or that is made available in connection with the Service (e.g., a Third Party App) is
provided pursuant to the terms of the applicable third-party agreement, and your use of any such
third-party product constitutes your agreement to comply with the terms of the applicable
third-party agreement. We assume no responsibility for, and specifically disclaim any liability or
obligation with respect to, any third-party product.
13.2 Third Party Apps. “Third Party App” means a software application developed by a third party or
by you that interoperates with the Service and as applicable, that may be listed in a marketplace
that we make available. We do not warrant or support Third Party Apps, regardless of whether the
Third Party App is certified by us. If you install or enable a Third Party App for use with the
Service, you grant us permission to allow the provider of that Third Party App to access Subscriber
Data as required for the interoperation of that Third Party App with the Service. We are not
responsible for any disclosure, modification, or deletion of Subscriber Data by the applicable
provider resulting from access by a Third Party App. If we believe a Third Party App violates our
policies, this Agreement, applicable law, or the rights of any third party, we may disable the Third
Party App and suspend use of the Third Party App until the potential violation is resolved.
14 MISCELLANEOUS
14.1 Access by Competitors. You may not access the Service if you are our direct competitor, except
with our prior written consent. In addition, you may not access the Service for purposes of
monitoring its availability, performance, or functionality, or for any other benchmarking or
competitive purpose.
14.2 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback,
payment, gift, or thing of value from any of our employees or agents in connection with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not
violate the above restriction. If you learn of any violation of the above restriction, you will use
reasonable efforts to promptly notify our Legal Department at info@wickedfile.com.
14.3 Relationship. We will be and act as an independent contractor (and not as the agent or
representative of you) in the performance of this Agreement.
14.4 Publicity. We may only use your name, trademarks, and service marks to the extent necessary to
fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement
or a Service Order. We reserve the right to use your name and trademark as a reference for marketing
and promotional purposes on our website and in other communications with our existing and
prospective customers. If you do not want to be listed as reference for the Service, you may send an
email to sales@wickedfile.com stating that you do not wish to be identified as a reference.
14.5 Assignment and Delegation. You may not assign any of your rights or delegate any of your
obligations under this Agreement (in whole or in part) without our prior written consent, except in
connection with a change of control, merger, or by operation of law. Your assignment or delegation
will not relieve you of your obligations under this Agreement nor release you of your liability
under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our
rights or delegate any of our obligations under this Agreement without your consent. Any purported
assignment or delegation in violation of this Subsection will be null and void. Subject to this
Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted
successors and permitted assigns.
14.6 Subcontractors. We may use subcontractors or other third parties in carrying out our
obligations under this Agreement and any Service Order. We remain responsible for all of our
obligations under this Agreement.
14.7 Notices. Any notice required or permitted to be given in accordance with this Agreement will be
effective if it is in writing and sent by certified or registered mail, or overnight courier, return
receipt requested, to the appropriate party at the address set forth in the Service Order and with
the appropriate postage affixed. Either party may change its address for receipt of notice by notice
to the other party in accordance with this Subsection. Notices are deemed given two business days
following the date of mailing or one business day following delivery to a courier.
14.8 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default
under this Agreement on account of, any delay or failure to perform as required by this Agreement as
a result of any cause or condition beyond its reasonable control, so long as that party uses all
commercially reasonable efforts to avoid or remove the causes of non-performance.
14.9 Governing Law. This Agreement is governed by the state laws of Delaware and the federal laws of
the United States. The federal and state courts serving New Castle County, U.S.A. will have proper
and exclusive jurisdiction and venue with respect to any disputes arising from or related to the
subject matter of this Agreement. Notwithstanding the foregoing, each party shall have the right to
commence and prosecute any action for injunctive relief before any court of competent jurisdiction.
In any arbitration, action or proceeding to enforce rights under this Agreement, the prevailing
party will be entitled to recover costs and attorneys’ fees.
14.10 Arbitration. Any action arising out of or in connection with this Agreement or the breach,
termination, enforcement, interpretation, or validity thereof, will be determined by binding
arbitration in Fulton County, Georgia, U.S.A. by one arbitrator. The arbitration will be
administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon
the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The
prevailing party will be entitled to receive from the other party its attorneys’ fees and costs
incurred in connection with any arbitration or litigation instituted in connection with this
Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as
may be necessary to prepare for or conduct the arbitration hearing on the merits. This section does
not prohibit either party from applying to a court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other equitable relief to preserve the status quo or
prevent irreparable harm, or to any action by us to collect amounts not paid to us when due.
14.11 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement,
including, without limitation, your Affiliates, Permitted Third Parties, or Authorized Users.
14.12 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time, will not be construed as a waiver of the
party’s rights under this Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or
enforcement by either party of any right or remedy under this Agreement will not preclude the
enforcement by the party of any other right or remedy under this Agreement or that the party is
entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this
Agreement on a going-forward basis at any time. Please check the terms of this Agreement
periodically for changes. If a change materially modifies your rights or obligations, you will be
required to accept the modified Agreement in order to continue to use the Service. Material
modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications
are effective upon publication. Disputes arising under this Agreement will be resolved in accordance
with the version of this Agreement that was in effect at the time the dispute arose.
14.13 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid,
the remaining portions of this Agreement will remain in full force and effect. If any material
limitation or restriction on the use of the Service under this Agreement is found to be illegal,
unenforceable, or invalid, your right to use the Service will immediately terminate.
14.14 Headings. Headings are used in this Agreement for reference only and will not be considered
when interpreting this Agreement.
14.15 Counterparts. The Service Order may be executed in any number of identical counterparts,
notwithstanding that the parties have not signed the same counterpart, with the same effect as if
the parties had signed the same document. All counterparts will be construed as and constitute the
same agreement. The Service Order may also be executed and delivered by facsimile or electronically
and such execution and delivery will have the same force and effect of an original document with
original signatures.
14.16 Entire Agreement. This Agreement and all exhibits contain the entire agreement of the parties
with respect to the subject matter of this Agreement and supersede all previous communications,
representations, understandings, and agreements, either oral or written, between the parties with
respect to said subject matter, including any prior Nondisclosure Agreement between the parties or
their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order,
the terms of the Service Order will control. No usage of trade or other regular practice or method
of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of
this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or
other provision that is different from or in addition to this Agreement (whether or not it would
materially alter this Agreement) that is proffered by the other party in any acceptance,
confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party
mutually and expressly agrees to such provision in writing.
