WizeCamel Standard Terms & Conditions

1.        LICENSE GRANT

1.1 Grant of Rights. Subject to the terms and conditions of this Agreement (including the obligation to pay the Fees) and unless stated otherwise, Company hereby grants Customer and each of their Authorized Users a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to Use WizeCamel Solutions as specified and agreed in the applicable Purchase Schedule during the respective Term, solely for Customer’s internal business purposes. Any such additional license to access and Use WizeCamel Solutions shall become effective only upon the Parties executing a separate Purchase Schedule. All rights not expressly granted to Customer are reserved by Company.

1.2 Documentation. Company hereby grants a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use any Company-provided Documentation during the respective Term, solely for Customer’s internal business purposes. Company will provide to Customer updates of all such Documentation as soon as reasonably practical following its release by Company. 

1.3 Additional Services. As applicable, Company may provide certain Additional Services, at its then-current rates, as set out in a mutually agreed Purchase Schedule which sets out the Customer’s project-specific activities, together with the associated deliverables, work effort, resources and costs. Expiration or termination of the Agreement shall result in the automatic termination of all estimates or Purchase Schedules for Additional Services. Unless stated otherwise in the Purchase Schedule, any timelines provided in connection with Professional Services are good faith projections and not guarantees, and Professional Services will generally be performed in a professional and workmanlike manner by qualified personnel. Unless otherwise specified in a Purchase Schedule, Customer shall have fifteen (15) days from completion of the Professional Services to reject any deliverables that do not materially comply with the details in the applicable Purchase Schedule, otherwise such deliverables shall be considered accepted. If Customer rejects such deliverables, the Parties agree to cooperate in good faith to revise the deliverables until the deliverables materially comply with the details in the applicable Purchase Schedule.

1.4 Training. Company may provide training sessions as an Additional Services as agreed by the Parties and pursuant to the Fees, rates, and other terms set forth in an applicable Purchase Schedule.

1.5 Configurations and Updates. The terms of this Agreement will also apply to Configurations or Updates of WizeCamel Solutions subsequently made available by Company to Customer. Company may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to support and improve WizeCamel Solutions. 

2.        CUSTOMER OBLIGATIONS & USAGE RESTRICTIONS

2.1        Customer Obligations. Customer shall abide by and use WizeCamel Solutions in accordance with all applicable local, state, national and foreign laws, treaties and regulations in connection with the Use of WizeCamel Solutions, including those related to Applicable Privacy Laws. Further, Customer will: (a) obtain any permissions and consents required for Company and Authorized Users to access Customer Data in connection with WizeCamel Solutions; (b) be responsible and liable for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of WizeCamel Solutions, and promptly notify Company of any such unauthorized access or use.

2.2        Authorized User Accounts. Company will supply Customer with (or provide Customer the ability to create) usernames and passwords that will permit Customer’s Authorized Users to access WizeCamel Solutions. Authorized User accounts cannot be shared or used by more than one Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status or function and no longer Use WizeCamel Solutions. Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts.

2.3        Usage Restrictions. Customer acknowledges that WizeCamel Solutions and its structure, organization and source code constitute valuable Intellectual Property of Company. Accordingly, Customer agrees: (a) Not to modify, adapt, alter, translate, or create derivative works of or from WizeCamel Solutions (except as expressly permitted by the Documentation); (b) not to merge WizeCamel Solutions with any other software, application, product, or service, unless expressly permitted by Company, and not to sublicense, lease, sell, resell, rent, loan, or otherwise transfer WizeCamel Solutions to any third party; (c) not to reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for WizeCamel Solutions for any reason, except to the extent expressly permitted by applicable law (and then only upon advance written consent by Company); (d) not to provide services to third parties using WizeCamel Solutions (e.g., business process outsourcing, or third-party training) or otherwise Use, copy, or disclose WizeCamel Solutions or its user interface to any third party; (e) to notify Company immediately of any unauthorized Use of any password or account or any other known or suspected breach of security; (f) to report to Company immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of WizeCamel Solutions or Documentation that is known or suspected by Customer or Authorized Users; (g) not to remove, alter, or obscure any proprietary notices (including copyright notices) of Company incorporated within WizeCamel Solutions; (h) not to provide false identity information to gain access to or Use WizeCamel Solutions; (i) not to “frame” or “mirror” WizeCamel Solutions on any other server or wireless or Internet-based device; and (j) not to: (i) Use WizeCamel Solutions to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) Use WizeCamel Solutions to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates the rights of any third party; (iii) send to or store material in WizeCamel Solutions containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of WizeCamel Solutions or the data contained therein; or (v) attempt to gain unauthorized access to WizeCamel Solutions or its related systems or networks.

2.4        Access Compliance. In the event that Company determines that, at any time during the Term, Customer is using a quantity of named Authorized User licenses which exceeds the number of named Authorized User licenses specified within the Purchase Schedule, Company shall have the right to invoice Customer for any such excess usage. 

2.5        Third Party Products and Content. If, with Company’s prior written consent, Customer enables Third Party Products and Content for use with WizeCamel Solutions: (a) any use by Customer or its Authorized Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Company does not guarantee or warrant the performance of or offer support for any such Third Party Products and Content; and (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with WizeCamel Solutions, and Company will not be responsible for any use, disclosure, modification or deletion of such Customer Data by such providers.

3.   COMPANY PROPRIETARY RIGHTS; CUSTOMER DATA SECURITY AND DATA BACKUPS 

3.1        Company’s Proprietary Rights. Excluding all Customer Data and Third Party Products and Content, as between the Parties, Company retains and owns all right, title, and interest in and to all Intellectual Property comprising WizeCamel Solutions, any deliverables or part thereof as a result of Additonal Services, Documentation, Configurations or Updates to WizeCamel Solutions (whether or not they were made or developed by Company at Customer’s or its Authorized Users’ request, or made or developed by Customer), and any Feedback. To the extent applicable, Customer hereby irrevocably assigns to Company any and all rights in and to such deliverables, Documentation, Configurations, Updates, Feedback, and all Intellectual Property rights therein and thereto. If the foregoing assignment fails for any reason, Customer hereby grants to Company an exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, transferable right and license (with rights to sublicense through multiple tiers) to use, reproduce, distribute, create derivative works based on, transmit, display and perform (publicly or otherwise), make, have made, sell, offer to sell, import and otherwise exploit the deliverables, Documentation, Configurations, Updates, Feedback, and all Intellectual Property arising from or related thereto in any form. Upon Company’s request, Customer agrees to execute any instrument and take further actions as Company may request to effect ownership, license rights, and other protections in any of the foregoing. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to WizeCamel Solutions or the Intellectual Property rights owned by Company. 

3.2        Customer Data and Ownership Rights. Subject to Section 3.2 and the limited licenses granted herein, Client retains and owns all right, title and interest in and to all intellectual property rights in the Customer Data and Company acquires no right, title, or interest under this Agreement in or to any Customer Data.  Customer hereby grants to Company and its agents, employees, staff, representatives, licensors, and providers a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, transmit, modify, and display Customer Data, and provide necessary access to third party service providers acting on Company’s behalf: (a) to provide, maintain, and update WizeCamel Solutions for Customer and its Authorized Users; (b) to prevent or address service or technical problems or at Customer’s or its Authorized Users’ request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. 

3.3        Inaccuracies. All Customer Data originates from Customer and its Authorized Users, and as such, is beyond the control of Company. Company does not monitor the specific content or accuracy of Customer Data. Customer is solely responsible for the accuracy, content, currency, completeness and delivery of Customer Data uploaded by its Authorized Users. Customer hereby acknowledges and agrees, on behalf of itself and its Authorized Users, that WizeCamel Solutions uses artificial intelligence, which may produce inaccuracies or errors and should not be relied upon as a substitute for independent judgement. Accordingly, Customer hereby acknowledges and agrees that it and its Authorized Users are responsible for using and relying on any Customer Outputs, independently verifying any results of using WizeCamel Solutions, and consulting with professionals for specific advice or information. Company hereby disclaims any responsibility or liability for the use or interpretation of any Customer Output.

3.4        Improvements and Training. Without limiting the terms of Section 3.4, Company shall not use, or permit any third party to use, Customer Data to train, retrain, tune, validate, modify, update, or otherwise improve any other technology, software, product or service, except that (a) Company may use Customer Input and Customer Output to train, retrain, tune, validate, modify, or otherwise improve features, calculations, and results of WizeCamel Solutions solely for the use and benefit of Customer and its Authorized Users and (b) Company may use Customer Input and Customer Output that does not include any personally identifiable information and any other de-identified information derived from the Customer Data (“De-identified Data”) in an aggregate and anonymized manner to train, retrain, tune, validate, modify, update, or otherwise improve WizeCamel Solutions and for other development, diagnostic, and corrective purposes in connection with WizeCamel Solutions. Company may disclose De-identified Data solely in aggregate form in connection with its business. 

3.5        WizeCamel Solutions Updates. Company, in its discretion, reserves the right to supply Customer an Update to WizeCamel Solutions whenever a future Update becomes commercially available.  

3.6        Support Services. During the Term, Company shall provide Customer with technical support and maintenance for WizeCamel Solutions in accordance with this Section. The support services shall include: (a) responding to and remedying problems with WizeCamel Solutions; and (b) access to technical support and other user support information and forums, whether in the Documentation or provided in another form or medium. Any rights or remedies available to Customer provided under Company’s technical support shall be Customer’s exclusive remedy with respect to any issue relating to the performance, functionality or availability of WizeCamel Solutions, except for Customer’s right to terminate this Agreement in accordance with the terms contained herein.   

3.7        Customer Data Security. Company will endeavor to maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to Customer Data and to maintain the security of Customer Data in accordance with Applicable Privacy Laws. Company will endeavor to maintain a backup of Customer Data and provide an orderly and timely recovery of such data in the event that the Use of WizeCamel Solutions may be interrupted.

3.8        Loss of Data. In the event of any act that compromises or is suspected to compromise the security, confidentiality, or integrity of Customer Data or the physical, technical, administrative, or organizational safeguards put in place by Company that relate to the protection of the security, confidentiality, or integrity of Customer Data or Customer Confidential Information, Company shall, as applicable: (a) notify Customer as soon as practicable but no later than seventy two (72) hours of becoming aware of such occurrence; (b) reasonably cooperate with Customer in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise reasonably required by Customer; and (c) perform or take any other actions reasonably required to comply with applicable law as a result of the occurrence.

4.        CONFIDENTIALITY 

4.1 Treatment. The receiving Party shall: (a) protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than reasonable efforts, to prevent disclosure to outside parties; (b) not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents and representatives who need to know the Confidential Information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement and who have agreed to obligations of confidentiality substantially similar to those in this Section 4.1 prior to receiving such Confidential Information. The receiving Party shall be responsible for any breach of this Section 4.1 caused by any of its employees, agents, and representatives. Each Party will take appropriate action to address incidents of unauthorized access to the other’s Confidential Information, including promptly notifying the other of the unauthorized access and mitigating the circumstances causing such unauthorized access. 

4.2 Exceptions. The obligations of this Section 4 shall not apply with respect to any alleged Confidential Information which a Party can demonstrate through written documentation: (a) was publicly known through no wrongful act of a Party; (b) was in a Party’s lawful possession prior to disclosure under this Agreement and was not received as a breach of any confidentiality obligations; (c) was independently developed without use of or reference to the other Party’s Confidential Information; or (d) was lawfully obtained from a third party without confidentiality restrictions. 

4.3 Compelled Disclosure. A Party may access or disclose Confidential Information of the other Party if it is compelled by law to do so, provided the Party gives the other Party prompt prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance if the other Party wishes to contest the access or disclosure. In any case, a Party agrees to limit the disclosure to only the Confidential Information specifically required to be disclosed and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information.

4.4 Ownership of Confidential Information. All Confidential Information, including all embodiments and copies thereof and any samples, models, computer programs, drawings, notes, notebooks, documents and other items and materials furnished hereunder, shall remain the sole and exclusive property of the disclosing Party. The disclosing Party’s Confidential Information shall remain the sole and exclusive property of the disclosing Party and the receiving Party shall not acquire any right, license, title or ownership interest therein solely by virtue of this Agreement.

4.5 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this Section 4 may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

4.6 Delete or Return. Upon the disclosing Party’s request and/or upon termination of this Agreement, all Confidential Information, including any embodiments and copies thereof, shall be either returned by the receiving Party to the disclosing Party and/or, at the disclosing Party’s option, destroyed (including, with respect to Confidential Information residing in any electronic or other storage device or media, such Confidential Information shall by destroyed or erased by the receiving Party). The obligations related to Confidential Information will continue from the Effective Date through the termination or expiration of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement or such longer period as any of the Confidential Information may be protected by applicable state or federal law.

5.        PAYMENT, TAXES AND RENEWALS

5.1 Fees. Customer shall pay all Fees or charges to Customer’s account specified in the applicable Purchase Schedule and pay any Fees pursuant to the payment terms set forth in the Purchase Schedule. Unpaid balances are subject to monthly interest at a rate equal to the lesser of: (a) one percent (1%) per month compounded monthly; or (b) the highest rate allowed by law, until paid in full.

5.2 Additional Fees. Customer is responsible for paying for all hours purchased by Authorized Users for the entire Term. Customer will not reimburse Company for any out-of-pocket or other expenses incurred for Company’s performance of its obligations under this Agreement unless such expense is set forth in a Purchase Schedule.

5.3 Taxes; Billing Information. All Fees are exclusive of taxes. Customer shall pay all applicable taxes on the Fees, including duties and tariffs, imposed upon this Agreement, the possession or Use of WizeCamel Solutions, and the Additional Services provided hereunder. Company will deliver invoices to the address provided on the Purchase Schedule and Customer agrees to provide Company with complete and accurate billing and contact information. Customer agrees to update this information and to notify Company of any change within thirty (30) days of any change of address. 

6.        TERM AND TERMINATION 

6.1 Term. The term of this Agreement commences on the Effective Date and continues until terminated in accordance with the terms of this Agreement or expiration or termination of all Purchase Schedules (collectively, “Term”). 

6.2 Termination for Cause. Either Party may terminate this Agreement: (a) in the event the other Party fails to cure any material breach of this Agreement (including a failure to pay undisputed Fees) within thirty (30) days after written notice or (b) in the event the other Party files or has filed against it any bankruptcy or similar proceeding or enters into any form of arrangement with its creditors (provided such filing is not removed within sixty (60) days thereof).  

6.3 Suspension. Company may suspend Customer’s or any or all Authorized Users’ access to WizeCamel Solutions, in whole in part, if: (a) Customer or any Authorized User’s Use of WizeCamel Solutions is in violation of this Agreement or any applicable law; (b) suspension of WizeCamel Solutions is necessary, in Company’s reasonable discretion, to protect the security of WizeCamel Solutions or the infrastructure of Company or licensors or service providers; (c) suspension is required by applicable law; or (d) any Fees owed by Customer (excluding amounts disputed in reasonable and good faith) are thirty (30) days or more overdue, provided Company has given Customer ten (10) or more days’ prior notice to such suspension.

6.4 Effects of Termination.  Upon any termination or expiration of this Agreement, (a) Customer shall immediately cease any and all Use of and access to WizeCamel Solutions and the Documentation and all rights and licenses granted by Company hereunder shall immediately terminate and (b) except with respect to De-Identified Data, Company shall immediately cease any and all use of and access to the Customer Data, and all rights and licenses to Customer Data hereunder shall immediately terminate. Upon the termination or expiration of this Agreement or all or part of any Purchase Schedule, Customer shall be liable for payment of undisputed Fees incurred through the termination or expiration date only; any pre-paid Fees shall be pro-rated as necessary, with Company refunding any Fees associated with post-termination periods within forty-five (45) days following the termination or expiration date.  

6.5 Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.1, 3.1, 3.4, 4, 6.4, 6.5, 7, 8, 9, 10, and 11.

7.         INDEMNIFICATION

7.1 Company Indemnification. Company shall indemnify, defend, and hold Customer and its Authorized Users harmless from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s or its Authorized Users’ Use of WizeCamel Solutions as permitted and in accordance hereunder infringes or misappropriates such third party’s Intellectual Property rights; provided, however, that Company will have no liability under this Section 7.1 to the extent any such lawsuit or proceeding arises from: (a) Customer Data or Third Party Products and Content; (b) Customer’s or any of its Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of WizeCamel Solutions that is not performed or approved by Company or specifically set out in the Documentation.

7.2 Customer Indemnification. Customer shall indemnify, defend and hold Company, and its officers, shareholders, investors, directors, employees, agents and affiliates (each a “Company Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees, resulting from or arising out of any claim, suit, action, arbitration or proceeding brought or threatened by a third party against any Company Indemnified Party relating to: (a) any Customer Data infringing, misappropriating, or otherwise violating Applicable Privacy Laws or the rights, including Intellectual Property, privacy and publicity rights, of any other party; (b) Customer’s or any Authorized User’s particular Use of WizeCamel Solutions violating applicable law; (c) the breach by Customer or Authorized Users of this Agreement; or (d) the gross negligence or willful misconduct of Customer and/or its Authorized Users; provided, however, that Customer will have no liability under this Section 7.2 to the extent any such lawsuit or proceeding arises from Company Indemnified Party’s negligence, misconduct, or breach of this Agreement.

7.3 Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.

7.4 Potential Remedy. Should WizeCamel Solutions or any part thereof become or, in Company’s opinion, be likely to become, the subject of a claim of infringement, Company may, at its own expense and option, either: (a) procure for Customer the right to continue using WizeCamel Solutions or part thereof; or (b) replace the same with non-infringing components or modify WizeCamel Solutions so that it becomes non-infringing. If neither of these options is commercially reasonable, Company may terminate this Agreement and require that Use of WizeCamel Solutions be terminated and, refund to Customer all pro-rated, prepaid Fees associated with the remaining unused portion of the then-current Term. Company shall have no obligation for any such claim based on a Configuration of WizeCamel Solutions (if not approved by Company), the combination, operation, or use of WizeCamel Solutions with equipment, data, or software not approved by Company or as a result of any combination with or use of the Customer Data. 

8.         REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations. Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitutes a valid and binding agreement of such Party.

8.2 Company Warranties. Company represents and warrants that: (a) during the Term, WizeCamel Solutions shall perform materially in accordance with the Documentation, content and materials provided in conjunction therewith; (b) Company will employ reasonable safeguards, consistent with industry standards, against harmful or malicious code, files, scripts, agents, or programs; (c) Company will not knowingly expose Customer to a Computer Virus; and (d) Company’s agents, staff, employees, and representatives will exercise due care in the provision of any Professional Services. The representations and warranties set forth in this Section shall not apply if WizeCamel Solutions is not used in accordance with the Documentation. 

8.3 Customer Warranties. Customer represents and warrants that: (a) Customer owns or has properly licensed all rights in the Customer Data at all times during the Term; (b) Company will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Company for its use as contemplated herein; (c) the Customer Data is not, nor will be, in violation of any United States laws or third party Intellectual Property rights; (d) all Customer Data and Customer’s Use of WizeCamel Solutions does and will comply with all applicable United States laws, including Applicable Privacy Laws; and (e) neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the effective date) to which Customer is a party or by which it may be bound, or constitute a default thereunder.

8.4 General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION, COMPANY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE. WIZECAMEL ADDITIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY DOES NOT WARRANT THAT WIZECAMEL SOLUTIONS OR ADDITIONAL SERVICES WILL OPERATE ACCURATELY, UNINTERRUPTED OR ERROR-FREE. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY INFORMATION PROVIDED BY COMPANY OR WIZECAMEL SOLUTIONS AND SHALL NOT BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF CUSTOMER OUTPUTS OR ITS CONFIDENTIAL INFORMATION OR DOCUMENTATION. COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS CUSTOMER WILL OBTAIN BY USING WIZECAMEL SOLUTIONS OR ADDITIONAL SERVICES. COMPANY IS NOT RESPONSIBLE FOR ANY DEFECT CAUSED BY OR THAT OTHERWISE RESULTS FROM CONFIGURATIONS, MODIFICATIONS, MISUSE OR DAMAGE TO WIZECAMEL SOLUTIONS MADE, PERMITTED OR OTHERWISE CAUSED BY CUSTOMER, IN WHOLE OR IN PART.

9.        LIMITATION OF LIABILITY

9.1 Limitation of Consequential Damages. EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OR INDEMNIFICATION OBLIGATIONS, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR FOR EITHER PARTY’S WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY RECEIVED ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY (EXCEPT AND EXPRESSLY STATED HEREIN), WHETHER OR NOT ANY OF THE MATTERS AFORESAID ARISES IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY. 

9.2 EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OR INDEMNIFICATION OBLIGATIONS, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR FOR EITHER PARTY’S WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, A PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. 

10.      GENERAL

10.1 Relationship of the Parties. The Parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.

10.2 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns. 

10.3 Notices. All notices under this Agreement will be in writing addressed to the points of contacts of each of the Parties listed on the Purchase Schedule at the addresses set forth therein and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.

10.4 Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to its conflicts of laws rules. Company and Customer hereby agree on behalf of themselves, and any person claiming by or through them, that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in New Castle County, Delaware.

10.5 Force Majeure. Except with respect to payment obligations or delays or failures caused by the negligent act or omission of either Party, any delay in or failure of performance by either Party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such Party including, but not limited to, power outages, natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action, provided that the Party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated. If the act or condition beyond a Party’s reasonable control that prevents that Party from performing any of its obligations under this Agreement continues for fifteen (15) days or more, then the other Party may terminate this Agreement and/or the applicable Purchase Schedules immediately upon written notice to the non-performing party.

10.6 Waiver. Any waiver by either Party must be in writing. The waiver by either Party of a breach of any provisions of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent breach by such Party.

10.7 Counterparts. This Agreement and any Purchase Schedule or other document relating to this Agreement may be executed in counterparts, each of which may be original or electronic and shall together constitute one and the same binding instrument.

10.8 Publicity. Any advertisement, solicitation, or public announcement of the existence of this Agreement or the terms of the relationship created hereby, must be preapproved by Company in writing. 

10.9 Agreement Structure. This Agreement is the complete agreement between the Parties and supersedes any prior or contemporaneous oral or written communications between the Parties concerning the subject matter of this Agreement. This Agreement may only be modified by a written document expressly stated for such purpose and executed by the Parties. The terms and conditions of this Agreement shall control and supersede any end user license agreements, terms of use, click-through or shrinkwrap terms, purchase orders, invoice terms, or other similar documents, in any format, including terms located on Company’s website, whether signed before or after this Agreement. 

11.      DEFINITIONS

“Additional Services” means certain professional, consulting, support, advisory, development, or Configuration services as may be agreed upon by the Parties in an applicable Purchase Schedule, including implementation service, maintenance and support service, consulting service, training service, or other professional service.

“Applicable Privacy Laws” means all applicable data protection legislation, regulations and rules related to data security and integrity, processing personal information, and those data protection laws applicable to Company and Customer.

“Authorized User(s)” means any employees, subcontractors, staff, representatives or individuals who are designated by Customer and authorized to access and use WizeCamel Solutions and have been supplied user identifications and passwords by Customer (or by Company at Customer’s request). 

“Computer Virus” means any malicious data, code, program, routine, device or other internal component (e.g., computer worm, computer time bomb, software lock, malicious logic, Trojan horse, bug, error, defect or trap door, or similar component), which could damage, destroy, delete, disable, deactivate, alter or disrupt any computer program, firmware or hardware or which could, in any manner, reveal, damage, delete, disable, deactivate, destroy, alter or disrupt any data or other information in any manner. 

“Confidential Information” means (i) all non-public confidential or proprietary information of a Party relating to that Party’s business or operations, in whatever form transmitted, consisting of or relating to the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, financial information, personal information, customer information, prospective customers, software documentation and content, end-user materials, infrastructure, security, pricing, proposals, design, trade secrets, ideas, formulae, data, code (including object or source code), know-how, methodologies, inventions, practices, processes, procedures, vendors, concepts, future plans, and (ii) any other information clearly labeled by the disclosing Party in writing as “confidential” or similar designation prior to its disclosure. Without limiting the foregoing, Company’s Confidential Information includes WizeCamel Solutions and its underlying technology and Documentation, and Company’s Intellectual Property, Professional Services, and deliverables thereof.

“Configuration” means a change to WizeCamel Solutions that changes the delivered source code or an enhancement to WizeCamel Solutions that is made using Company tools or software or utilizing or incorporating Company Confidential Information.

“Customer Data” means all data and information submitted, uploaded, input or otherwise entered by Customer or its Authorized Users into WizeCamel Solutions. Customer Data also includes Customer Input, Customer Output, and the reports, analyses, information and data generated in WizeCamel Solutions in response to a Customer Input, excluding WizeCamel Solutions and any related Company Intellectual Property and De-Identified Data. 

“Customer Input” means information, data, materials, text, prompts, images, or other content that is input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available by Customer or any Authorized User for processing by or through WizeCamel Solutions.

“Customer Output” means information, data, materials, text, images, code, works, expressions, or other content generated or otherwise output from WizeCamel Solutions in response to a Customer Input.

“Documentation” means, collectively, technical information and materials, user manuals, and other documentation in written or electronic form, delivered with WizeCamel Solutions by Company to Customer and that are intended for use in connection with WizeCamel Solutions.

“Error” means (i) any material problem that adversely interferes with access to or Use of WizeCamel Solutions; and/or (ii) material failure of WizeCamel Solutions to conform to the Documentation and this Agreement (including any requirements set forth in applicable addenda).

“Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other Party relating to WizeCamel Solutions.

“Fees” means the fees and charges specified in an Purchase Schedule, including both recurring and one-time charges.

“Intellectual Property” means all intangible legal rights or interests, whether registered or unregistered, now or hereafter in existence evidenced by or embodied in (i) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (iii) any trademark, trade name or service mark; and (iv) any other intellectual property, proprietary or similar rights, including all goodwill and derivative works pertaining thereto and in each case, on a worldwide basis.

“Purchase Schedule” means any validly executed order form, statement of work, purchase order or schedule, or similar document, between Company and Customer, referencing this Agreement to which Customer may order access to WizeCamel Solutions and Professional Services.

“Third Party Products and Content” means any applications, products, services, databases, or content that interoperate with WizeCamel Solutions and that are provided by Customer or a third party.

“Update(s)” means all upgrades, modified versions, or updates, to WizeCamel Solutions whether provided to the Customer by Company through maintenance and support services or otherwise at any time.

“Use” means to directly or indirectly load, execute, access, employ, utilize, store, or display WizeCamel Solutions.

“WizeCamel Solutions” means the artificial intelligence technologies, including learning algorithms, models, neural networks, and other artificial intelligence tools or methodologies capable of generating various types of content based on user-supplied information, data, materials, text, prompts, images or other content, all software implementations of any of the foregoing, related applications, hardware, or equipment, and including, without limitation, any Upgrades, Configurations, new version, replacement version, patch, error correction, changes, customizations, modifications, improvements and enhancements provided or made available by Company, but excluding any Third Party Products or Content from any of the foregoing.