UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF WEHAA DESIGN, LLC (“WEHAA DESIGN”) PRODUCTS (AS DEFINED BELOW), THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE WEHAA DESIGN SAAS PLATFORM.
BY EXECUTING THE SERVICES AGREEMENT THE CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN WEHAA DESIGN AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT EXECUTE THE SERVICES AGREEMENT.
This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein and executed on the Services Agreement, or the date on which Customer downloads, installs, activates, signs-in, or otherwise uses the SaaS Platform.
a. “Affiliate” means any entity controlling, controlled by or under common control with Customer, where “control” means (i) a general partnership interest in a partnership; or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
b. “Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable SaaS Platform that is provided by Wehaa Design to Customer together with access to the SaaS Platform.
c. “License Term” means the term of the access rights granted for the SaaS Platform, as identified in the relevant Service Agreement, starting when Wehaa Design delivers to Customer the relevant credentials to access and use the SaaS Platform.
d. “Services Agreement” means any purchase order, invoice, product schedule or other ordering document between Customer and Wehaa Design that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g., the number of licenses).
e. “SaaS Platform” means the enterprise white label digital solutions made available by access to and use of software hosted by Wehaa Design to which Customer has purchased a license under the relevant Services Agreement. References in this Agreement to the SaaS Platform shall include the software which is the object code version of Wehaa Design proprietary computer SaaS programs made available by Wehaa Design for download by Customer, including any Documentation and Updates.
f. “Updates” means any correction, update, upgrade, patch, or other modification or addition made by Wehaa Design to specific Software.
- Rights of Access and Use
Access and Use. Subject to the terms and conditions of this Agreement, during the applicable License Term, Wehaa Design hereby grants to Customer a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the SaaS Platform solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Saas Platform documentation. Customer may provide access to the SaaS Platform to its and its Affiliates' employees, contractors, and other individual users to access and use the SaaS Platform on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer. Customer agrees that its purchase and use of the SaaS Platform is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Wehaa Design with respect to future functionality or features.
- Use Restrictions; Customer Obligations
a. As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the SaaS Platform (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the SaaS Platform; (c) distribute, sell, license, lease, transfer, or otherwise provide any SaaS Platform use to third parties except as expressly provided in this Agreement; (d) provide the SaaS Platform as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any SaaS Platform; (f) modify or copy the information, data, images, videos, or code ("materials"); (g) use the materials for any commercial purpose, (h) transfer the materials to another person or "mirror" the materials on any other server or for any public display (commercial or non-commercial); or (i) use the Documentation except for supporting Customer’s authorized use of the SaaS Platform without the prior written consent of Wehaa Design. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of any SaaS Platform and notify Wehaa Design promptly of any such unauthorized access or use.
b. This license shall automatically terminate if you violate any of these restrictions and may be terminated by Wehaa Design at any time. Upon termination of this license, you must destroy any downloaded materials from this website or any services we provide that are in your possession, whether in electronic or printed format.
Customer shall pay the fees for Wehaa Design products and/or services as set forth in the applicable Services Agreement.
a. Definition. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. Wehaa Design Confidential Information includes but is not limited to all SaaS Platforms (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the SaaS Platform), Documentation and its derivatives, and Wehaa Design’s pricing. The terms and conditions of this Agreement and any other Services Agreement are the Confidential Information of both parties.
b. Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential Information.
Wehaa Design and its suppliers own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the SaaS Platform and its derivative works. Customers are not obligated to provide Wehaa Design with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to Wehaa Design, Customer assigns ownership of such Feedback to Wehaa Design and Wehaa Design may use and modify such Feedback without any restriction or payment.
Customer will indemnify, defend, and hold harmless Wehaa Design, its Affiliates, successors and assigns, and all of their respective officers, directors, employees, and agents from and against any and all claims, losses, demands, causes of action, debts, or liabilities, including reasonable attorneys' fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of Customer’s obligations, representations, or warranties under this Agreement, (ii) Customer’s use of the Services, or (iii) any claim that any Customer trademarks, service marks, trade names, logos, or other content or materials furnished by Customer for use in connection with the Services, including, without limitation, any Customer Data and any Customer Materials, but excluding any content provided by Wehaa Design, (a) misappropriates any third party's confidential information, (b) violates any applicable law, rule, or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
a. Support and Maintenance Services. Wehaa Design shall provide Customer, to the extent available, with telephone and email technical support during Wehaa Design’s normal business hours (Central Time), Monday through Friday excluding holidays. If unavailable, Wehaa Design will respond to any support request within 24 hours, and if a request is sent on a weekend, on the next business day.
b. Third Party Services. The Saas Platform may contain features designed to interface with applications or services provided or made available by third parties (“Third Party Services''). In order to use a feature in connection with a Third Party Service, Customer must have a license from the provider of the relevant Third Party Service. If the Third Party Services are no longer available or if the applicable third party provider no longer allows the Third Party Services to interface with the SaaS Platform, then such features will no longer be available or function in the SaaS Platform. Wehaa Design and the provider of the applicable Third Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third Party Service. Further, Wehaa Design disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Service.
a. SaaS Platform. Wehaa Design represents and warrants to Customer that the SaaS Platform materially conforms to the specifications specified in the relevant Documentation. Customer must notify Wehaa Design of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Platform. Customer's sole and exclusive remedy and the entire liability of Wehaa Design for Wehaa Design’s breach of this warranty will be for Wehaa Design, at its option, to (i) repair such SaaS Platform or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to Wehaa Design for the unused period of any such terminated License Term.
b. Exclusions. The express warranties do not apply if the applicable SaaS Platform (i) has been modified, except by or at the direction of Wehaa Design, (ii) has not been accessed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
c. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SAAS PLATFORM AND SERVICES ARE PROVIDED “AS IS,” AND WEHAA DESIGN PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WEHAA DESIGN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WEHAA DESIGN MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE. FURTHER, WEHAA DESIGN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS INTERNET WEBSITE OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY SITES LINKED TO THIS SITE.
- Term and Termination
The access rights granted herein with respect to the SaaS Platform shall remain effective until the License Term for the relevant SaaS Platform expires or the license for the relevant SaaS Platform is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 10, or expiration of the applicable License Term. If Wehaa Design agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay), unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, Sections 1, 3-7, and 9-12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUT IN NO EVENT WILL WEHAA DESIGN, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WEHAA DESIGN, ITS AFFILIATES AND THEIR LICENSORS' TOTAL LIABILITY TO USER OR ANY THIRD PARTY CLAIMING THROUGH USER FOR ANY CLAIM ARISING OUT OF WEHAA DESIGN’S PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY USER TO WEHAA DESIGN WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE SIXTY (60) DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
a. Export/Import. The SaaS Platform and Documentation may be subject to U.S. and foreign import and export control laws and regulations. Customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.
b. Governing Law and Jurisdiction. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Wisconsin, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Waukesha County, Wisconsin, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
c. Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12 shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
d. Data Communications. Wehaa Design shall only collect, access, use, sore, safeguard, disclose and transfer (“Process”) Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the SaaS Platform and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to Wehaa Design by Customer in performance by Wehaa Design of its obligations under this Agreement. Wehaa Design collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. Wehaa Design may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
e. Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Wehaa Design’s or its suppliers’ intellectual property rights in the SaaS Platform or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
f. Publicity. Wehaa Design may publicly disclose that Customer is a customer of Wehaa Design and a licensee of the Software and SaaS Platform, including in a list of Wehaa Design customers and other promotional materials.
g. Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
h. Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
i. Force Majeure. Neither party shall be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, diseases, labor disturbances, riots, or wars provided that it gives prompt notice to the other of its invocation of this provision and make diligent efforts to resume its performance despite such force majeure.
j. Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Services Agreement. All legal notices to Wehaa Design will be given in writing to: Wehaa Design, LLC,1166 Quail Ct., Suite 105, Pewaukee, WI, 53072, U.S.A., Attention: General Counsel. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, service agreements, invoices, and other documents relating to obtaining Software and Saas Platform services, and payment are not legal notices and may be delivered electronically in accordance with Wehaa Design and Customer's standard ordering procedures.
k. Entire Agreement. This Agreement consists of these terms and conditions, and any related Services Agreement, which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement