THESE TERMS OF LICENSE AND SERVICE (THESE “TERMS”) GOVERN SUBSCRIPTION TO AND USE OF WIZCOMMERCE’S SERVICES. IF YOU REGISTER FOR A FREE TRIAL OF WIZCOMMERCE’S SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL. BY ACCESSING OR USING WIZCOMMERCE’S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE WIZCOMMERCE’S SERVICES. FOR THE PURPOSES OF THESE TERMS ‘YOU’ SHALL MEAN AND BE IDENTIFIED AS THE ‘CLIENT’ OF WIZCOMMERCE AND ALL REFERENCES TO ‘CLIENT’ SHALL MEAN AND REFER YOU.
The following words when used with capitalized first letter shall have the following meaning in this Agreement:
1.1. “Additional Terms” has the meaning set out in Section 6.7
1.2. “Affiliates” of a Person means any person/entity that directly or indirectly Controls, is Controlled by or is under common Control with, such Person.
1.3. “Agreement” shall mean and include these Terms, the Order Forms, the Additional Terms, the User Terms, and any other agreements expressly incorporated by reference in these Terms.
1.4. “Change Requests” has the meaning set out in Section 4.5.
1.5. “Client Content” means any data, content or information provided by the Client to WizCommerce and shall include all work products created or developed by the Client using the Software such Client content for its business purposes.
1.6. “Client Data” means and includes Client Content and data related to Customer and User.1
1.7. “Confidential Information” means all non-public information disclosed by a Party, or their respective Representatives that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) non-public information relating to a Party or its Affiliates technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a Party and its Affiliates are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between the Client and WizCommerce or WizCommerce’s Affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Party at the time of the Party’s receipt from of information from the other Party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Party without reference to other Party’s Confidential Information.
1.8. “Control” (including, with correlative meaning, the term “under common Control”), as used with respect to any Person, means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of capital, partnership interest or any other equity interest, or ownership of voting rights or otherwise. Ownership of more than 50% (fifty percent) of the voting securities or other equity interest in a Person shall be deemed to constitute Control.
1.9. “Customer” means customer of the Client.
1.10. “Error(s)” means any failure of the Software to function in accordance with the specifications set out Order Form that are in force, but does not include any failure caused by: (a) Client’s failure to comply with WizCommerce’s instructions, and/or (b) the Client's or third party’s adjustments or changes to the Software or any other component of the Client’s infrastructure and systems that is not approved by WizCommerce, and/or (c) adjustments or changes to the Software by WizCommerce upon the written requirements of the Client; and/or (d) malfunctioning of any part of the Client’s infrastructure and systems other than the Software, and/or (e) malfunctioning of any other product, services, hardware, infrastructure, network or application that is not provided or being controlled by WizCommerce.
1.11. “Excusable Event” has the meaning set out in Section 7.3.
1.12. “Fees” means all the Fees payable by the Client under this Agreement and includes the Subscription Fee, Maintenance Fee, Implementation Fee.
1.13. “Implementation Fee” means the fees payable for the Implementation Services set out in Order Form.
1.14. “Intellectual Property Rights” means all intellectual property rights and related priority rights protected, created or arising under the laws of India or any other jurisdiction or under any international convention, including all (i) patents and patent applications, including any continuation, continuation-in-part, divisional and provisional applications and any patents issuing thereon and any reissues, reexaminations, substitutes and extensions of any of the foregoing (“Patent”), (ii) trademarks, service marks, trade names, trade dress, logos, corporate names and other source or business identifiers and any registrations, applications, renewals and extensions of any of the foregoing and all goodwill associated with any of the foregoing, (iii) Internet domain names and uniform resource locators, (iv) copyrights, mask works, works of authorship and moral rights and any registrations, applications, renewals, extensions and reversions of any of the foregoing, (v) trade secrets, know-how and confidential and proprietary information, information, designs, formulae, compositions, algorithms, procedures, methods, techniques, ideas, research and development, data, specifications, processes, inventions (whether patentable or not and whether reduced to practice or not) and improvements, in each case, excluding any of the foregoing that comprise or are protected by issued Patents or published Patent applications, (vi) rights in and to Technology, and (vii) other proprietary rights relating to any of the foregoing including all remedies against infringements thereof, rights to protection of interests therein, all past, present and future income, royalties and payments receivable in respect thereof, and all claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of the foregoing, and the right to sue and recover for past, present and future infringements or misappropriations the foregoing).
1.15. “Maintenance Fee” means the fees payable for the maintenance Services set out in Order Form.
1.16. “Marks” means any trademarks, service marks, service or trade names, logos, and other designations of WizCommerce and its Affiliates that may be made available to the Client in connection with this Agreement.
1.17. “Order Form” means an order for license of Software and Services mutually agreed between the Parties, which incorporates these Terms by reference.1.18. “Patch(es)” means additional programming code to be integrated with the Software to correct an Error or alleviate its effects.
1.19. “Person” means any individual, partnership, limited liability partnership, limited liability company, body corporate, corporation, association, society, trust or other entity or organization, whether or not a juridical person.
1.20. “Representatives” of a Person means the employees, officers, directors, auditors and professional advisors of such Person, the Affiliates of such Person and the employees, officers, directors, auditors and professional advisors of such Affiliates.
1.21. “Restricted Person” means any employee, consultant, or other personnel of WizCommerce who is/was engaged in the provision of services under this Agreement or performance of this Agreement.
1.22. “Service Attributes” means usage data related to the Client and Users use of the Software and Services, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
1.23. “Service” means provision of limited license of Software, design, development or creation of deliverables and any other work or services performed by WizCommerce for the Client pursuant to this Agreement and the Order Forms.
1.24. “Software” means the software more fully described in Order Form that meets the specifications of the Client set out in this Agreement, and shall mean: (a) The computer programs and mobile application in executable code for the Modules as modified and customized for the Client; (b) Upgrades provided by WizCommerce to the Client pursuant to this Agreement; if any; and (c) Updates and Patches provided by WizCommerce to the Client pursuant to this Agreement, if any.
1.25. “WizCommerce” shall mean Oritur Technologies Private Limited and its Affiliate with whom the Client has executed the Order Form.
1.26. “Subscription Fee” means the fee set out in Order Form payable by the Client for the license of the Software.
1.27. “Suggestions” means all suggested improvements to the Services or Software that the Client provides to WizCommerce.
1.28. “Third Party Content” any content provided by a Person that is not a Party.
1.29. “UAT Confirmation” has the meaning set out in Section 4.1.
1.30. “Updates” means modifications, improvements, revisions and updates made to the Software to enable it to operate in conjunction with supported releases of third party computer equipment, operating system upgrades and all new enhancements to the Software that are incorporated into the Software, that improve it but don’t fundamentally alter it.
1.31. “Upgrades” means new versions/ future releases of the Software. An Upgrade will supersede and replace the earlier version of the Software. Upgrades will involve major improvements or key structural changes to the current version of the Software, such as (but not limited to) an overhauled user interface, or a set of new features, or other key structural changes.
1.32. “User Acceptance Testing” means testing of the Software in accordance with Section 4 .1.
1.33. “User Terms” has the meaning set out in Section 6.8.
1.34. “User” means the person authorized by Client to use the Software and Services.
1.35. “Value Added Tax” / “VAT” means goods and service taxes payable under the applicable Law and includes all state, federal goods and services tax, value added taxes or any other taxes as may be applicable
1.36. “VAT Information” has the meaning set out in Section 5.6.
1.37. “Work Product” means any and all content, works, notes, materials, approaches, designs, specifications, systems, innovations, improvements, inventions, software, programs, source code, documentation, methodologies, concepts, studies, reports, whether finished or unfinished, that are developed, produced, generated or provided by WizCommerce in connection with our performance of Services under this Agreement.
2.1. Subject to the payment of the Subscription Fee, and the terms and conditions set out in this Agreement, WizCommerce shall provide the Client with a license to the Software as set out in Section 3.
2.2. WizCommerce will provide the Services set out in Order Form subject to the payment of the Fee. The provision of maintenance services by WizCommerce will be subject to the terms and set out in the Order Form and payment of additional Maintenance Fee, if any, as provided in the Order Form.
2.3. The Parties may execute agree for installation, implementation (“Implementation Services”) and any additional Services to be provided, including the deliverables and specifications relating to any of them in the Order Form.
2.4. Each Order Form forms an integral part of this Agreement. These Terms shall apply to each and every Order Form. In the event that any specific terms or other provisions of any Order Form conflict with these Terms, the terms of the Order Form shall prevail in respect of the Services rendered pursuant to such Order Form.
2.5. Each Order Form shall be subject to written acceptance by both the Parties. Any addition, modification or deletion to the Order Form shall be mutually executed through a Change Request in accordance with Section 4.5 below. All Change Request executed by Parties shall become part of and will be read with the relevant modified Order Form. No variation or modification to an Order Form shall be binding unless signed by the duly authorized representatives of both the Parties.
3.1. Grant of license. Subject to the terms and conditions contained in this Agreement (including without limitation the restrictions, terms and conditions set out in Order Form, and the payment of the Subscription Fee by the Client to WizCommerce, WizCommerce grants to the Client, a revocable, non-exclusive, non-sublicensable, non-transferable license for Users to use the Software in object code form only in the Territory as identified in the Order Form for the Term; and the Client hereby accepts the same. The Client shall not use the Software other than for the purpose set out in this Agreement. Restriction on number of permitted Users (if any) is set out in Order Form.
3.3. Title. Nothing herein shall convey the title or any proprietary rights in or to the Software to the Client, and the title, ownership and proprietary rights in relation to the Software and any derivation/ derivative work thereof including but not limited to adaptations, modifications, translations, reverse engineering, Updates, etc. shall vest solely with WizCommerce.
3.4. Open source components. The Software may contain open source software and the rights granted herein are also subject to Client’s compliance with such open source license terms.
3.5. Restrictions. Except as expressly permitted in this Agreement, the Client shall not itself, or through any other Person (including a parent, subsidiary, affiliate, agent): (a) license/sublicense, lease, rent, loan, sell, resell, transfer, assign, distribute or otherwise commercially exploit, the Software or its content; (b) copy, modify, enhance, decompile, decrypt, alter, tamper with, repair, or otherwise create derivative works of, translate, adapt, reverse engineer, the Software or any part thereof, for any purpose including without limitation to (i) build a competitive product, or (ii) build a product using features, functions or graphics similar to those of the Software, or (iii) copy any features, functions or graphics of the Software; (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quota agreed upon under this Agreement; (d) provide, disclose, divulge or make available to or permit use of the Software by, any Person other than theUsers; and (e) permit any User or other Person to do any of the actions specified in this Section 3.5.
3.6. Acceptable Use. The Client will use the Services only in accordance with these Terms, the Order Form and the specifications therein, solely for its internal business purposes. The Client shall not use the Services for any other purposes other than as agreed under this Agreement.
3.7. Prohibited Use. The Client may not use, or facilitate or allow others to use the Services: (a) for any illegal or fraudulent activity; (b) to violate the rights of others; (c) to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm; (d) for any content or activity that promotes child sexual exploitation or abuse; (e) to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device; (f) or to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, solicitations or spam.
3.8. Client will ensure that all users of the Software (whether or not authorized by the Licensee) comply with the provisions of this Agreement.
4.1. WizCommerce shall provide the installation, implementation and other services and deliver the Software to the Client as per the timelines agreed under the Order Form.
4.2. On delivery of the Software, Client shall initiate and complete User Acceptance Testing based on pre-agreed criteria and timeliness. Upon successful completion of the User Acceptance Testing, Client shall inform WizCommerce in writing (including by email) (“UAT Confirmation”). The UAT Confirmation date shall be considered the ‘Go- Live Date’ and the subscription and the term of the Services will commence from the Go-Live Date. Whether the Client does or does not begin the use of the Services on Go-Live Date, the subscription shall be deemed to have commenced for the purpose of this Agreement.
4.3. Order Form sets out the obligations of the Parties, timelines, processes and other criteria and requirements in respect of the installation and other services pertaining to the Software, including delivery of Software, User Acceptance Testing of the Software and Go Live.
4.4. If Client wishes to avail of any services pertaining to the Software not specified in Order Form, and WizCommerce is willing to provide such services, then Parties will enter into another Order Form in respect of such services and WizCommerce will be entitled to charge additional fees for such services.
4.5. If the Client requires any modifications or enhancements to the Software (“Change Requests”), WizCommerce may, at its sole discretion agree to execute such Change Request. If WizCommerce agrees, it will be entitled to charge additional fees for the execution of the Change Request, and the Parties will execute a Change Request in the format provided by WizCommerce. Client acknowledges that WizCommerce’s approval of any Change Request and execution thereof may inter alia be conditional on (i) increase in the Subscription Fee for the modified Software, (ii) provision of additional support, maintenance, or other services for the modified Software for additional consideration pursuant to one or more Service Agreements, and (iii) any other terms and conditions as WizCommerce may require.
5.1. The specific terms of payment of the Fees will be set out in the Order Form, as applicable. Unless the Order Form expressly states otherwise, the terms set out in this Section 5 shall apply to all payments that are to be made by the Client to WizCommerce.
5.2. All invoices will be raised in the currency mentioned in Order Form, and shall be due and payable within 15 (fifteen) days from the date of the invoice.
5.3. No delay in raising invoices will prejudice any claim by WizCommerce for the amounts payable to WizCommerce.
5.4. Any amount due and payable and not paid within the time period mentioned in Section 5.2 by the Client to WizCommerce shall bear interest at a rate of 24% (twenty four percent) per annum or the maximum amount permitted by law, whichever is lesser, from the due date of payment to the date of actual receipt of payment by WizCommerce (both days inclusive for the purpose of calculation of interest). In addition, the Client shall also be liable for any costs of collection (including attorney’s fees) associated with such collection/recovery.
5.5. The Fee is exclusive of any and all taxes, duties and levies. The Client shall be responsible for payment of all current and future taxes, levies and duties in connection with this Agreement including sales, use, excise, value- added, goods and services, consumption. Client agrees to reimburse and hold WizCommerce harmless from any taxes, penalties, and interest relating to taxes that are the responsibility of Client, under applicable law, or under this Section 5.
5.6. As per the statutory requirement under the applicable tax laws, Client will provide all necessary information such as the correct VAT registered address, legal name and Tax Information in order for WizCommerce to issue correct VAT invoices as per the applicable legal requirements. In the event, the VAT invoice is incorrect, the Client must inform WizCommerce in a timely manner, to enable WizCommerce to correct the Tax invoice. WizCommerce will determine the place of supply for the Services based on the Tax Information provided by the Client and accordingly, charge VAT on its invoice.
5.7. All Fees and invoices must be paid by the Client in full, without the deduction of any withholding taxes. If the Client deposits the applicable withholding taxes to the applicable government treasury, the Client must issue a withholding tax certificate evidencing such deposit, following receipt of the withholding tax certificate in original form, WizCommerce will reimburse to the Client an amount equal to the taxes that are evidenced as deposited.
5.8. The Client shall not set off any amount that is to be paid by the Client under this Agreement, against any amount that WizCommerce is obliged to pay to the Client, whether under this Agreement or otherwise.5.9. Unless expressly stated otherwise in writing by WizCommerce, WizCommerce shall not be liable to provide any refund of the Fees.
6.1. Client acknowledges that the timely, complete and accurate provision of, and access to, Client documentation/information and timely decisions and approvals by the Client shall be essential and integral to the performance of the Services by WizCommerce and that WizCommerce’s ability to complete any Services on time shall be dependent upon the same.
6.2. The Client shall allow WizCommerce reasonable access to and use of Client-owned hardware, software, equipment and other resources reasonably required by WizCommerce to perform the Services for the Client, upon WizCommerce’s prior written request.
6.3. The Client shall comply with all applicable laws relating to the usage of the Services. All licenses, permissions and approvals that may be required from governmental or regulatory authorities as necessary for installation and /or use of the Services provided by WizCommerce and/or to operate the Client’s network, shall be the sole responsibility of the Client and the Client shall be liable to pay any fees or incur expenses connected therewith.
6.4. The Client shall be responsible for all actions of the users (whether or not authorized by the Client) that use the Services from the Client’s account. WizCommerce does not have any obligations to the User under this Agreement.
6.5. Client will ensure that it is authorized and entitled under contract and/or applicable law to provide Client Content to WizCommerce and has/ will not violate any third-party rights in this regard. The Client must ensure that the Client Content is accurate, complete, and not misleading.
6.6. Client shall be solely responsible for its internet connection (the speed of which may have a significant impact on the responsiveness of the Software), including all internet service provider connection charges. Client shall also solely be responsible for all computers, other hardware, and software necessary to allow the Client to establish and maintain a wireless computer network in its offices and to access the internet, including but not limited to personal computers, printers, scanners, routers, faxes, signature pads, copiers, modems, personal digital assistants, operating systems, antivirus software, firewalls, and network software. WizCommerce shall provide documentation specifying certain minimum requirements that the Clients system and equipment must meet for the Software to perform as described.
6.7. The Client’s use of the Service is subject to any additional terms, rules, or guidelines applicable to the Service or certain features of the Service that WizCommerce may notify from time to time (the “Additional Terms”), such as end user license agreements for our downloadable applications, subject to these Terms. All such Additional Terms are hereby incorporated by reference into, and made a part of, the Terms.
6.10. Security and Backup. The Client is responsible for properly configuring and using the Software and otherwise taking appropriate action to secure access and use of Services only by its Users and ensure that there is no unauthorized access to the Software.
7.1. The Services shall be performed by qualified personnel of WizCommerce in accordance with the prevailing industry standards. WizCommerce may sub-contract the performance of any aspect of the Services to any third-party, provided it remains liable to the Client for the performance of such Services.
7.2. WizCommerce shall be responsible (i) for compliance under all applicable laws, including labor laws with respect to its resources / employees, deputed to the Client’s premises (if any); (ii) to make all payments to its resources / employees, on time, including but not limited to payment of remuneration, applicable relevant statutory social security payments/benefits, as well as for deducting and remitting applicable taxes in respect thereof.
7.3. WizCommerce shall be excused from performing any of its duties under this Agreement under circumstances where the failure by WizCommerce is a result of any breach, failure or delay by the Client, or its employees, representatives, affiliates agents or any third party appointed by the Client to perform their respective obligations or provide the relevant products, services or infrastructure (“Excusable Event”). Such failure to perform shall not be construed as a breach of WizCommerce’s obligations under this Agreement and WizCommerce will not be liable for any losses resulting therefrom.
8.1. Each Party represents and warrants to the other Party that:
(a) it is duly incorporated, registered and existing under the laws of the country from which it originates;
(b) it has the corporate power, capacity and authority to execute and enter into this Agreement and perform its obligations hereunder;
(c) this Agreement constitutes obligations that are legal, valid, binding and enforceable against it;
(d) it shall perform its obligations hereunder in good faith and in a workmanlike and professional manner;
(e) all information, Intellectual Property Rights or otherwise utilized during the performance of the Agreement will not violate or infringe upon the trademark, copyright, or any other Intellectual Property Rights of any person or entity and the same are free and clear of any liens or claims by third parties.
8.2. WizCommerce warrants that it has the requisite licenses, registrations, skills, capabilities and manpower to perform its obligations under this Agreement.
8.3. The Client represents and warrants that it shall provide all Users all necessary privacy notices and obtain all necessary consents for their use of the Software and Services.
9.1. Security. Without limiting Section 14 (Disclaimers) or the Clients’ obligations under Section 6 (Client’s Obligations), WizCommerce will implement reasonable and appropriate measures designed to secure the Client and User’s against accidental or unlawful loss, access or disclosure.
9.2. Data Privacy. WizCommerce will not access or use the Client Data except as necessary to maintain or provide the Software and Services, or as necessary to comply with the law or a binding order of a governmental body. WizCommerce will not disclose any Client Data to any government or third party except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, WizCommerce will give the Client and User, as applicable, notice of any legal requirement or order referred to in this Section 9.2 (Data Privacy). WizCommerce will only use the Client Data in accordance with these Terms and the User Terms.
9.3. Confidentiality. The Parties agree and undertake:
(a) To keep all Confidential Information, it receives confidential and only use it to perform its obligations under this Agreement or as reasonably required for provision or receipt of the Services (including use of any Work Products and any Client Data).
(b) Not to disclose Confidential Information to any third party, except where:
i. necessary for performance under this Agreement or as reasonably required for provision/receipt of the Services (including use of the Work Products and any Client Data) – the Party disclosing Confidential Information to any third party is responsible for ensuring that third party maintains the confidentiality of the disclosed information; or
ii. required by applicable law, although the other Party must be given reasonable prior notice (where lawful).
(c) On termination or expiry of this Agreement, Parties shall be bound by the terms under Section 11.3(c) in relation to the other Party’s Confidential Information.
9.4. Service Attributes. To provide billing and administration services, WizCommerce may process Service Attributes in the region(s) where the uses the Software. To provide the Client with support services requested by the Client and investigate fraud, abuse or violations of this Agreement, WizCommerce may process Service Attributes where WizCommerce maintains its support and investigation personnel. WizCommerce may also process Service Attributes for improvement of its Software or Services. The User Terms governs processing of Service Attributes.
9.5. Consents. The Client will take and maintain appropriate consent from the Users for their use of the Software and Services. The Client must ensure that all Users understand that the Client Data will be used by WizCommerce in accordance with the Agreement.
10.1. Suspension of Subscription. WizCommerce may suspend the Client’s right to access or use any portion or all of the Software and Services immediately upon notice to the Client if WizCommerce determines that a User’s use of the Services
(i) poses a security risk to the Software or Services being provided to any third party, or
(ii) could adversely impact WizCommerce’s systems, the Software Services or the systems or data of WizCommerce or any other customer of WizCommerce, or
(iii) could subject WizCommerce or its Affiliate, or any third party to liability, or
(iv) could be fraudulent; or
(v) the Client is in breach of the Client’s payment obligations under Section 5 (Payment Terms); the Client is in breach of Section 3 (License of Software); or the Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of WizCommerce’s assets, or WizCommerce has become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
10.2. Effect of Suspension. If WizCommerce suspends the Client’s right to access or use any portion or all of the Software or Services in accordance with Section 10.1 (Suspension of Subscription) above, the Client shall remain responsible for all Fees that become due and payable during the period of suspension.
10.3. Investigation and Enforcement.
(a) WizCommerce may investigate any suspected violation of Section 3.5 (Restrictions) and Section 3.6 (Acceptable Use), and remove or disable access to any content or resource that is found violative. In the event that WizCommerce is unable to remove any violative content, WizCommerce may suspend access to such part of the Software or Services. The Client agrees to cooperate with WizCommerce to remedy any violation. In the event that WizCommerce removes any content without prior notice, WizCommerce will provide prompt notice to the Client unless prohibited by law.
(b) When determining whether there has been a violation of Section 3.5 (Restrictions) and Section 3.6 (Acceptable Use), WizCommerce may take into consideration the Client’s Section 3.5 (Restrictions) andSection 3.6 (Acceptable Use), including the policies and processes the Client has in place to prevent or identify and remove any prohibited content or activity.
11.1. Term of the Agreement. The term of this Agreement will commence on the Execution Date and shall continue in full force until all subscriptions granted in accordance with these Terms or an Order Form have expired or been terminated as per this Section 11 (Term and Termination).
11.2. Subscription Term. The initial subscription term for the Software shall commence form the Go-Live Date provided in the Order Form and shall continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 (thirty) days before the end of the relevant subscription term. Any notice of termination of this Agreement by either Party to the other must include a Termination Date that complies with the notice periods in Section 11.2 (Subscription Term). If the Client has agreed for a lock-in period under an Order Form, the Client shall not have the right to terminate such Order Form unless the expiry of the lock-in period. In the event, the Client terminates an Order Form before the expiry of a lock-in period, if any, the Client shall be liable to pay the full subscription fee for the remaining duration of the lock-in period as an early termination fee.
(a) Termination for Convenience. Either Party may terminate this Agreement for any reason by providing at least 30 (thirty) days’ notice.
(b) Termination for Cause.
i. By Either Party. Either Party may terminate this Agreement for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 30 (thirty) days from receipt of notice by the other Party.
ii. By WizCommerce. WizCommerce may also terminate this Agreement immediately upon notice to the Client: (x) for cause if WizCommerce has the right to suspend under Section 10 (Temporary Suspension); or (y) in order to comply with the law or requests of governmental entities.
iii. By the Client. (x) If the Services are unavailable for a continuous period of 5 (five) days, the Client may send a notice of unavailability of Services to WizCommerce setting out in detail the issues that the Client is facing. If the Services continue to be unavailable after 10 (ten) days from the date of receipt of notice from the Client, Client may terminate this Agreement immediately with a notice.
iv. For Force Majeure. This Agreement may be terminated in accordance with the terms of Section 16.3
(c) Effect of Termination.
i. Generally. Upon the Termination Date:
1) If WizCommerce has terminated the Agreement or any Order Form under Section 11.2(a) (Termination for Convenience), or Client has terminated under Agreement under Section 11.2(b) (Termination for Cause), then WizCommerce shall refund only Subscription Fee paid by the Client prorated for the remaining period of the subscription of the Software from the termination date; In no other circumstances, shall WizCommerce be liable to refund any monies under this Agreement to the Client.
2) except as provided in Section 11.2(c)(ii) (Survival), all rights under this Agreement immediately terminate;
3) the Client’s access to the Software and Services will be terminated;
4) the Client will remain responsible for all Fees that have become due and payable as of the Termination Date and shall continue to remain responsible for any Fees that become payable during post-termination period; and
5) the Client will immediately return or, if instructed by WizCommerce, destroy all WizCommerce Confidential Information in its possession.
ii. Survival. Section 5 (Payment Terms), Section 6 (Client Obligations), Section 11 (Term and Termination), Section 12 (Intellectual Property, Proprietary Rights), Section 13 (Indemnification), Section 14 (Disclaimer), Section 15 (Limitations of Liability), Section 16 (Miscellaneous) will continue to apply in accordance with their terms.
iii. Return of Client Content. If WizCommerce terminates the Services or access to the Software under Section 11.2(a) (Termination for Convenience) or the Client terminates the Agreement under Section 11.2(b) (Termination for Cause), WizCommerce will return Client Content within 30 (thirty) days following the Termination Date in electronic form without any additional cost on the Client. For termination of the Agreement for any other reason, WizCommerce shall only be obligated to return Client Content upon termination if Client pays the Client Data retrieval fee to WizCommerce, which shall be equivalent to 25% (twenty five percent) of the current Subscription Fee being paid by the Client to WizCommerce.
12.1. Client Content. Except as provided in this Section 12, WizCommerce and its Affiliates obtain no Intellectual Property Rights under this Agreement from the Client to the Client Content. The Client consents to WizCommerce’s use of Client Content for the purpose of providing the Services. WizCommerce will take reasonable precautions to protect and keep confidential Client Content, and not use (except as per these Terms or otherwise consented to by the Client) or disclose Client Content to any third party. WizCommerce may disclose Client Content to its Representatives on a need-to-know basis, provided that such Representatives are bound by the same confidentiality and non-use obligations as provided in this Agreement.
12.2. Software, Services and Work Product. Any and all rights, including Intellectual Property Rights not expressly granted to the Client in this Agreement are hereby reserved by WizCommerce. Sections 3 (License to Software), 12 (Intellectual Property, Proprietary Rights) and Section 11(c) iii does not grant to Client or any third party any right, title or interest, including without limitation, any security interest, in any of the Services or Work Product. WizCommerce reserves the right to exercise any rights in the Services and Work Products, including the right to license, sublicense or otherwise exploit or dispose of such rights to any party and in any manner, without restriction. Client agrees that all proprietary right, Intellectual Property Rights title and interest in the Services and Work Product shall remain with WizCommerce and that any use of the Services and Work Product by the Client and Users shall not create any interest or right, express or implied, in the Services and Work Product in the Client except as expressly set forth in this Agreement, and that Client does not and will not assert any claim to any ownership thereof, except as expressly set forth in Section 3. If, by operation of the law of any jurisdiction, or otherwise, Client is deemed to or appears to own any property rights in the Services or Work Product other than as set forth in this Agreement, Client hereby assigns all right, title and interest in such property rights to WizCommerce, and Client shall, at the request of WizCommerce, execute any and all documents necessary to confirm or otherwise establish the rights of WizCommerce therein.
12.3. Suggestions. WizCommerce and its Affiliates will be entitled to use the Suggestions without restriction including to improve and modify the Software and Services. The Client hereby irrevocably assigns to WizCommerce and its Affiliates all right, title, and interest in and to the Suggestions and agree to provide WizCommerce and its Affiliates any assistance required to document, perfect, and maintain their rights in the Suggestions.12.4. Adequate Rights. The Client represents and warrants to WizCommerce that: (a) the Client owns all right, title, and interest in and to the Client Content and Suggestions; (b) WizCommerce has all rights in Client Content and Suggestions necessary to grant the rights contemplated by this Agreement.
13.1. General. Client will indemnify, defend and hold harmless WizCommerce and its Affiliates and each of their respective Representatives (“WizCommerce Indemnified Parties”) from and against any losses, damages, claims and proceedings (including costs) raised against WizCommerce that
(i) arises from any use of the Software by Client and its users (whether or not authorized by the Client) in violation of this Agreement,
(ii) is based on Client Content, or
(iii) is a result of the Client’s breach of this Agreement or violation of applicable law by the Client (including submission of any incorrect or inaccurate Tax Information), (iii) claims made by any third party relating to infringement of their Intellectual Property Rights as a result of any Client Content,
(iv) use of the Work Product, by the Client or any users (whether or not authorized by the Client) including employees, officers, agents, representatives, Customers, business partners of the Client. Client will reimburse WizCommerce Indemnified Parties for reasonable attorneys’ fees, as well as for the time and materials spent responding to any third-party summons or other compulsory legal order or process associated with third party claims described in this Section 13.1 at WizCommerce Indemnified Party’s then-current hourly rates.
13.2. Intellectual Property.
(a) For any third-party claims arising out of infringement of Intellectual Property Rights as a result of the use of the Services by the Client as per this Agreement, WizCommerce will, at its election, either: (i) procure the rights to use that portion of the Software or Services alleged to be infringing; (ii) replace the alleged infringing portion of the Software or Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Software or Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Software Services or this Agreement.
(b) The remedies provided in this Section 13.2 (Indemnification) are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services. provided that WizCommerce shall not be liable to the Client under this Section or otherwise, if the infringement is related to or caused by, any Client Content.
13.3. Process. The obligations under this Section 13 (Indemnification) will apply only if the party seeking defense or indemnity:
(a) gives the other party prompt written notice of the claim;
(b) permits the other party to control the defense and settlement of the claim (applicable only where we are the indemnified party); and
(c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will the Client agree to any settlement of any claim that involves any commitment, other than the payment of money, without WizCommerce’s written consent.
14.1. The Software and Services are provided “as is.” Except to the extent prohibited by law, or to the extent any statutory rights apply that cannot be excluded, limited or waived, WizCommerce and its Affiliates: (a) make no representations or warranties of any kind, whether express, implied, statutory or otherwise, regarding the Software, Services or the Third Party Content and (b) disclaim all warranties, including any implied or express warranties (i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, (ii) arising out of any course of dealing or usage of trade, (iii) that the Services will be uninterrupted, error free or free of harmful components, and (iv) that any data of the Client will be secure or not otherwise lost or altered.
14.2. WizCommerce is not responsible for any error, defect or failure in the software if they do not constitute Errors as defined in this Agreement and only if the error can be replicated and verified; (ii) WizCommerce has no liability or obligation if the Software is not installed or used in accordance with this Agreement and the instructions given by WizCommerce.
14.3. WizCommerce may change or discontinue any or all of the Services or change or remove functionality of any or all of the Software from time to time. WizCommerce will notify the Client of any material change to or discontinuation of the Services.
WizCommerce and its Affiliates will not be liable to the Client for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, revenues, customers, opportunities, goodwill, use, or data), even if a party has been advised of the possibility of such damages. Further, neither WizCommerce nor any of its Affiliates or will be responsible for any compensation, reimbursement, or damages arising in connection with: (a) the Client’s inability to use the Software or Services, including as a result of any (i) termination or suspension of this Agreement or the use of or access to the Services in accordance with this Agreement, (ii) discontinuation of any or all of the Services or any part of the Software by WizCommerce, or, (iii) any unanticipated or unscheduled downtime of all or a portion of the Software or Services for any reason; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures, or commitments by the Client in connection with this Agreement or the use of or access to the Software or Services; or (d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of the Client’s data or other data. In any case, WizCommerce and its Affiliate’s aggregate liability under this Agreement will not exceed the amount of Fees actually received by WizCommerce under this Agreement during 12 months before the liability arose or as mentioned in Order Form, whichever is lower.
16.1. Assignment. The Client will not assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement, without WizCommerce’s prior written consent. Any assignment or transfer in violation of this Section 16.1 (Miscellaneous) will be void. WizCommerce may assign this Agreement without the Client’s consent (a) in connection with a merger, acquisition or sale of all or substantially all of WizCommerce’s assets, or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for WizCommerce as a Party to this Agreement and WizCommerce is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective permitted successors and assigns.
16.2. Entire Agreement. The Order Forms, these Terms, the Additional Terms, the User Terms, and any other agreements expressly incorporated by reference herein, as applicable, constitute the entire and exclusive understanding and agreement between the Client and WizCommerce regarding the Client’s use of and access to theServices (the “Agreement”). This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Parties, whether written or verbal, regarding the subject matter of this Agreement. In the event of conflict, unless otherwise specifically provided in a document, the documents shall prevail as per the order in which they are written above in this Section 16.2.
16.3. Force Majeure. WizCommerce and its Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond their reasonable control,¯ including acts of God, labor disputes or other industrial disturbances, pandemics, epidemics, government imposed lockdowns, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war (“Force Majeure Event”). Should a Force Majeure Event last more than 30 (thirty) days and WizCommerce is unable to perform the Services due to the occurrence of the Force Majeure Event, the Client has the right to terminate this Agreement and the provisions of Section 11.2 (c) (Effects of Termination) shall apply.
16.4. Governing Law and Jurisdiction. The laws of the State of Delaware, without giving effect to principles of conflict of laws, shall govern all matters arising out of or relating to this Agreement. Each Party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the jurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts located in such State.
16.5. Dispute Resolution. Any dispute or claim relating in any way to this Agreement, will be resolved by binding arbitration by a sole arbitrator appointed who shall be selected by the American Arbitration Association and shall have expertise in the subject matter of the dispute and whose written final decision shall be final and binding upon the Parties. The fees, expenses and costs of the arbitrator shall be borne equally by each Party except to the extent specifically awarded otherwise by the arbitrator. All materials submitted to the arbitrator (including the final decision of the Arbitrator) shall be considered Confidential Information and subject to Section 9 hereof. The arbitration proceedings will be conducted in English, and the seat of the arbitration will be Delaware. The Parties agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
16.6. Waiver of Jury Trial. Each of the Parties hereby unconditionally waives any right to a jury trial with respect to and in any action, proceeding, claim, counterclaim, demand, dispute, or other matter whatsoever arising out of this Agreement.
16.7. Independent Contractors; Non-Exclusive Rights. The Parties are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other. Client will not misrepresent or embellish the relationship between the Client and WizCommerce (including by expressing or implying that WizCommerce supports, sponsors, endorses, or contributes to the Client or its business endeavors).
16.8. Use of Marks. The Client may only use the Marks in accordance with WizCommerce’s prior written permission.
16.9. Language. All communications and notices made or given pursuant to this Agreement must be in the English language.
16.10. Publicity. The Client will not issue any press release or make any other public communication with respect to this Agreement or the use of the Services without prior written consent from WizCommerce.
16.11. Notice. Unless otherwise specified, any notice, demand or other communication (each a ‘notice’) required or permitted under this Agreement shall be in writing and be given by e-mail or any reputed courier service or by speed post to the address set out in the introductory paragraph on the first page of this Agreement and the email addresses provided on the signature page below. Notices should be addressed to the person set out below. Either Party may change its address or representative for receiving notices upon issue of notice of such change to the other.
16.12. Non-solicitation. The Client agrees that during the subsistence of this Agreement and for a period of 12 (twelve) months from termination or expiration of this Agreement, unless otherwise agreed by the Parties in writing, the Client shall not hire, engage, employ or solicit for employment/engagement in any capacity, directly or indirectly, any Restricted Person. Breach of this section shall constitute a material breach, and in the event of such a breach, the Client shall pay to WizCommerce, damages equivalent to 12 (twelve) months’ compensation of such Restricted Person and the legal expenses incurred for the enforcement of this provision.
16.13. No Third-Party Beneficiaries; Affiliates. Except as set forth in Section 13 (Indemnification), this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. The Client acknowledges and agrees that WizCommerce’s rights and obligations under this Agreement may be exercised or performed by one or more of its Affiliates.
16.14. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
16.15. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
16.16. Variation. No variation or modification to this Agreement shall be binding unless signed by the duly authorized representatives of both the Parties.