1. SERVICES SUBSCRIPTION AND SUPPORT
1.1 Subscription Services. Wingman will use commercially reasonable efforts to provide you the Services and applicable support services pursuant to this Agreement. The Services are purchased for the Services Fees as subscriptions for the Initial Service Term, as stated in the Order Form, and are renewable.
1.2 Software and Software License. Wingman will also provide you software, applications, and documentation for implementing or supporting the Services (“Software”) pursuant to this Agreement as part of the subscription. With respect to any Software provided to you for use on your devices, we grant you a limited non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term, as defined below, only in connection with the Services.
2. FREE TRIAL
2.1 Free Trial. If you register for a free trial, Wingman will make the Services and Software available to you, under the terms of this Agreement, on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered, or (b) the start date of any purchased Services subscription that you order, or (c) the termination of the free trial by us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. A free trial period may be extended upon mutual agreement by Wingman and you.
2.2 No Warranty, Indemnification and Liability for a Free Trial. A free trial is provided “AS IS.” WINGMAN MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL. WINGMAN SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE WINGMAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS US $1,000.
3. YOUR WINGMAN CUSTOMER ACCOUNT(S)
4. CUSTOMER RESPONSIBILITIES AND REQUIREMENTS
4.1 Usage Restrictions. You will not, directly, or indirectly:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or Software.
(ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by us or authorized within the Services);
(iii) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or
(iv) modify, remove, or obstruct any proprietary notices or labels.
4.2 Export Control. You may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related thereto in violation of any export restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
4.3 Customer Compliance. You represent, covenant, and warrant that you will use the Services and Software only in compliance with all applicable laws and regulations.
4.4 Consent for Personally Identifiable Information. If you provide us with any personally identifiable information about another person, whether through a telephone or video conference recording or otherwise, you represent and warrant that (1) you have that person’s consent to do so; and (2) such person has given consent, whether explicit or implicit, consent for you to transfer that personally identifiable information if required by any applicable laws, rules, and regulations. You are responsible for ensuring that your (and any of your personnel or representatives, if applicable) use, control, processing and treatment of such information are in compliance with all applicable laws, rules and regulations.
4.5 Customer Shall Obtain and Maintain Equipment. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for (a) maintaining the security of the Equipment, your customer account, passwords (including but not limited to administrative and user passwords) and files, and (b) for all uses of your account or the Equipment with or without your knowledge or consent.
4.6 Non-compliant Use of the Services. Although Wingman has no obligation to monitor your use of the Services, Wingman may do so and may prohibit any use of the Services that it believes may be (or alleged to be) in violation of your responsibilities and requirements in this Section 3.
5. CUSTOMER DATA
5.1 Ownership. You own all right, title and interest in and to any data provided by you for use of the Services (“Customer Data”). You grant to Wingman a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use and exploit Customer Data to provide the Services.
5.2 Security. Wingman will maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access or disclosure of Customer Data.
5.4 Deletion or Return of Customer Data. Upon termination or expiration of this Agreement, Wingman shall, upon your discretion, delete or make available to you for retrieval all relevant Customer Data in Wingman’s possession, with the exception of (i) any Customer Data that Wingman is required to retain by an applicable law; and (ii) any Customer Data that is aggregated or anonymized data such that it is not personal information or personal data, as defined by any applicable data privacy laws or regulations.
6.1 Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Wingman includes non-public information regarding features, functionality and performance of the Service, and the terms of this Agreement (including pricing). Your Confidential Information includes Customer Data.
6.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
6.3 Protection of Confidential Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Confidentiality Term. The confidentiality obligations set forth in this Section 5 shall survive for a period of five (5) years from the date of the initial disclosure of the applicable Confidential Information.
7. INTELLECTUAL PROPERTY
The Services and Software are made available on a limited access basis, and no ownership right is conveyed to you under this Agreement. Wingman shall own and retain all right, title and interest in and to (a) the Services and Software, (b) all improvements, enhancements or modifications thereto, and (c) all intellectual property rights related to any of the foregoing.
8. PAYMENT OF FEES
8.1 Fees. You are responsible for paying Wingman the applicable Service Fees described in the Order Form in accordance with the terms therein. Wingman reserves the right to change the Service Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to you.
8.2 Invoicing and Payment. Wingman may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within thirty (30) days the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
8.3 Taxes. The Service Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with the purchase of any Services (excluding taxes based on Wingman’s net income or property) unless you provide Wingman with a valid tax exemption certificate authorized by the appropriate taxing authority. The limitations of liability set forth in Section 10 shall not apply to your payment obligations under this Section 7.
9. TERM AND TERMINATION
9.1 Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration (collectively, the “Term”).
9.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or Wingman must give written notice of non-renewal at least 30 days prior to the end of the Term.
9.3 Termination. Wingman, at its sole discretion, may terminate this Agreement and close your customer account(s) in the event you commit any material breach of this Agreement and fail to remedy that breach within five (30) days after Wingman provides written notice of that breach to you. You may also terminate this Agreement in the event Wingman commits a material breach of this Agreement and fails to remedy that breach within five (30) days after you provide written notice of that breach to Wingman. In the event of any termination, you are still responsible for paying in full for the Services up to and including the last day on which the Services are provided.
9.4 Survival. The following provisions will survive any termination or expiration of these Terms: Sections 4 (Customer Responsibilities and Requirement), 6 (Confidentiality), 7 (Intellectual Property), 8 (Payment of Fees), 10.2 (Disclaimers), 11 (Limitation of Liability), 12 (Indemnification), 13 (Non-Solicitation Agreement), 14 (Governing Law and Dispute Resolution), and 15 (General Provisions).
10. WARRANTY AND DISCLAIMER
10.1 Warranties. Wingman shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Wingman or by third-party providers, or because of other causes beyond Wingman’s reasonable control, but Wingman shall use reasonable efforts to provide advance notice in writing of any scheduled service disruption.
10.2 Disclaimers. WINGMAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY
EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
(C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR
(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ADDITIONALLY, AS SET FORTH IN SECTION 1.3, WINGMAN SHALL HAVE NO LIABILITY
OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE WINGMAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS US $1,000.
12.1 Indemnification for Non-Compliance. You agree to indemnify and hold Wingman harmless from and against any Claims that arise from an alleged violation of your responsibilities and requirements under Section 3 or any other unauthorized use of the Services. “Claims” means all third-party demands, claims and actions, as well as all associated liabilities, losses, costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and expenses.
12.2 Mutual Indemnification. Each party shall indemnify and hold harmless the other party, and its successors and assigns, from and against any and all Claims asserted against, imposed upon or incurred by the party resulting from or arising out of negligence or breach of this Agreement. Notwithstanding the foregoing, as set forth in Section 1.2, Wingman has no indemnification obligation with respect to a free trial.
13. NON-SOLICITATION AGREEMENT
You agrees that for a period of one (1) year from and after the termination of this Agreement, you shall not directly or indirectly engage, hire, employ, or solicit any employee of Wingman or otherwise induce or attempt to induce any employee, of Wingman to leave the employment of Wingman and, in the event of an unsolicited approach by a current employee, you will not communicate with that individual concerning employment opportunities and will not hire or influence others to hire the individual who is or has been so employed by Company.
14. GOVERNING LAW AND DISPUTE RESOLUTION
14.1 Governing Law. This Agreement shall be governed by the laws of the state of California without regard to its conflict of laws provisions.
14.2 Dispute Resolution. The parties waive their rights to seek remedies in court in any jurisdiction, and will resolve any and all claims, disputes, or controversies relating in any way to this Agreement ("Disputes") as set forth in this Section. Nothing in this Section will be construed to waive any rights or timely performance of any obligations under this Agreement.
(a) The party raising the Dispute will promptly provide the other party with a written notice reasonably detailing the Dispute (a "Dispute Notice"). The parties will attempt to resolve the Dispute during the 30-day period after a party's receipt of a Dispute Notice.
(b) If the parties cannot timely resolve the Dispute through negotiation, before resorting to arbitration, the parties will try in good faith to settle the Dispute by mediation before a mutually agreed upon mediator. The mediation will be conducted in English and administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. If the parties are unable to agree upon a mutually acceptable mediator, the AAA will appoint a qualified mediator. The mediation proceeding will take place on the earliest practicable date following the submission of a request for mediation by either party, which request will be submitted within sixty (60) days after a party’s receipt of a Dispute Notice.
(c) If the Dispute is not resolved through mediation, the parties will submit the Dispute to final and binding arbitration administered under by the AAA under its Commercial Arbitration Rules. The arbitration will be conducted by a mutually agreed panel of 3 neutral arbitrators (or a panel of 3 selected by the AAA if the parties cannot agree). The arbitrators' award may be entered and enforced in any court with competent jurisdiction. The costs of the arbitration proceeding, including reasonable attorneys' fees and costs, will be determined by the arbitrators, who may apportion costs equally, or in accordance with any finding of fault or lack of good faith of either party.
15. GENERAL PROVISIONS
15.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.2 Assignment. This Agreement is not assignable, transferable or sublicensable by you except with Wingman’s prior written consent. Wingman may transfer and assign any of its rights and obligations under this Agreement without consent.
15.3 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
15.4 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Wingman in any respect whatsoever.
15.5 Federal Government End Use Provisions. If the Services are being or have been acquired with U.S. Federal Government funds, or you are an agency, department, or other entity of the United States Government, as defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
15.6 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given
(i) when received, if personally delivered;
(ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
(iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and
(iv) upon receipt, if sent by certified or registered mail, return receipt requested.
15.7 Public Relations. You agree that Wingman may identify you as a customer of Wingman in advertising, media relations, trade shows, the website, and other similar promotional activities, using your name and trademarks in accordance with your trademark guidelines.