Last modified: May 13, 2019
- Authorization and Customer Restrictions
- Customer Obligations
- Service Availability
- Fees and Payment Terms
- Intellectual Property Rights
- Term and Termination
- Representations and Warranties
- Limitations of Liability
This Agreement will only apply to the extent that no binding agreement, written or electronic, (the "Other Agreement") is already in place between Customer and TW pertaining to the TW Services to which this Agreement applies. To the extent that any other agreement is in effect, then such other agreement will govern Customer's use of the TW Services and this Agreement will not apply, even if you are required to click the box affirming your consent to the terms of this Agreement.
If you do not have the authority to bind the Customer, or you or the Customer do not agree to any of the terms below, TW is unwilling to provide the TW Services to the Customer, and you should not click to accept the terms of this Agreement and you should discontinue your order of the TW Services.
Capitalized terms not otherwise defined in this Agreement have the meanings given them in Section 15.
Provision. Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, during the Term (defined in Section 10) TW will use commercially reasonable efforts to provide the TW Services to Customer in accordance with the terms and conditions hereof, except for: (i) Scheduled Downtime in accordance with Section 5; (ii) Service downtime or degradation due to a Force Majeure Event; (iii) any other circumstances beyond TW's reasonable control, including Customer's use of Third Party Materials, misuse of the TW Services, or use of the TW Services other than in compliance with the express terms of this Agreement; and (iv) any suspension or termination of Customer's access to or use of the TW Services as permitted by this Agreement.
Control. TW has and will retain sole control over the operation, provision, maintenance, and management of the TW Services and TW Materials, including the: (i) TW Systems; (ii) locations where any of the TW Services are performed; (iii) selection, deployment, modification, and replacement of the Service Software; and (iv) performance of TW Services maintenance, upgrades, corrections, and repairs.
Changes. TW reserves the right, in its sole discretion, to make any changes to the TW Services and TW Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of the TW Services to its clients, the competitive strength of or market for the TW Services, or the TW Service's cost efficiency or performance; or (b) to comply with applicable Law.
Subcontractors. TW may from time to time in its discretion engage third parties to perform TW Services (each a "Subcontractor").
Suspension and Termination. TW may suspend, terminate, or otherwise deny Customer's or any other Person's access to or use of all or any part of the TW Services or TW Materials, without incurring any resulting obligation or liability, if: (a) TW receives a judicial or other governmental demand, order, or request that requires TW to do so; or (b) TW believes, in its sole discretion, that: (i) Customer has failed to comply with any term of this Agreement, or accessed or used the TW Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the TW Services; or (iii) this Agreement expires or is terminated. This paragraph does not limit any of TW's other rights or remedies, whether at law, in equity, or under this Agreement.
Installed Software. The TW Services may require use of one or more software programs that are made available for download by TW and are designed to be installed and used on a computer for the purposes of enabling use of the TW Services ("Installed Software"). Use of all Installed Software is subject to the end user license agreement provided with the Installed Software ("License Agreement"). All of the Restrictions applicable to the TW Services apply to the Installed Software and use of the Installed Software is subject to the limitations and disclaimers in this Agreement.
3. AUTHORIZATION AND CUSTOMER RESTRICTIONS
Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the TW Services, TW Materials, or Third Party Materials. All right, title, and interest in and to the TW Services, the TW Materials, and the Third Party Materials are and will remain with TW and the respective rights holders in the Third Party Materials.
Authorization Limitations and Restrictions. Customer will not, and will not permit any other Person to, access or use the TW Services or TW Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Customer will not, except as this Agreement expressly permits:
- copy, modify, or create derivative works or improvements of the TW Services or TW Materials;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the TW Services or TW Materials, in whole or in part;
- bypass or breach any security device or protection used by the TW Services or TW Materials or access or use any of the TW Services or TW Materials except through the use of then valid Access Credentials;
- share or allow use of valid Access Credentials by anyone other than Customer;
- input, upload, transmit, or otherwise provide to or through the TW Services or TW Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the TW Services, TW Systems, or TW's provision of services to any third party, in whole or in part;
- access or use the TW Services or TW Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of TW or of any third party or that violates any applicable Law;
- access or use the TW Services or TW Materials for purposes of competitive analysis of the TW Services or TW Materials, the development, provision, or use of a competing software service or product, or any other purpose that is to TW's detriment or commercial disadvantage;
- access or use the TW Services or TW Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the TW Services could lead to personal injury or property damage; or
- otherwise access or use the TW Services or TW Materials beyond the scope of the authorization granted under this Section 3.
4. CUSTOMER OBLIGATIONS
Customer Systems and Cooperation. Customer will at all times during the Term set up, maintain, and operate in good repair all Customer Systems on or through which the TW Services are accessed or used, provide all cooperation and assistance as TW may reasonably request to enable TW to exercise its rights and perform its obligations under and in connection with this Agreement, and maintain the confidentiality of all Access Credentials. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the TW Services and TW Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions, or materials provided by any of them to the TW Services or TW; (ii) results obtained from any use of the TW Services or TW Materials; and (iii) conclusions, decisions, or actions based on such use.
Effect of Customer Failure or Delay. TW is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each a "Customer Failure").
Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, Customer will immediately: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify TW of any such actual or threatened activity.
Customer acknowledges that any data storage functionality associated with the TW Services is not intended for the storage of Social Security numbers, driver’s license numbers, medical information, health insurance information, sensitive data about personal characteristics such as race, religion, or sexual orientation, or other personal data (collectively, "Sensitive Personal Information"). Customer agrees not to upload or otherwise submit any Sensitive Personal Information in connection with the TW Services and further agrees that TW will have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the TW Services.
5. SERVICE AVAILABILITY
Availability. TW will use commercially reasonable efforts to make TW Service available with a Monthly Uptime Percentage of at least 99.9%, during any monthly billing cycle (the "Service Commitment").
Service Support. The TW Services include TW's standard Customer support services ("Support Services") in accordance with the TW service support schedule then in effect, a current copy of which is available at thewild.com/status (the "Support Schedule"). TW may amend the Support Schedule from time to time in its sole discretion.
Scheduled Downtime. TW will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the TW Services between the hours of 5 p.m. and 5 a.m., Pacific Time; and (b) give Customer at least 12 hours prior notice of all scheduled outages of the TW Services ("Scheduled Downtime").
Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) information, instructions, and materials provided by or on behalf of Customer in connection with the TW Services; (b) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (c) the security and use of Customer's Access Credentials; and (d) all access to and use of the TW Services and TW Materials directly or indirectly by or through the Customer Systems or its Access Credentials, with or without Customer’s knowledge or consent.
Access and Security. Customer will be responsible for all processes necessary to securely administer the distribution and use of all Access Credentials, protect against any unauthorized access to or use of the TW Services, and control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the TW Services.
7. FEES AND PAYMENT TERMS
Fees. Customer will pay TW the fees set forth in the Order Form (the "Fees") in accordance with this Section 7.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on TW's income.
No Deductions or Setoffs. All amounts payable to TW under this Agreement will be paid by Customer to TW in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
8. INTELLECTUAL PROPERTY RIGHTS
TW Services and TW Materials. All right, title, and interest in and to the TW Services and TW Materials, including all Intellectual Property Rights therein, are and will remain with TW and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the TW Services or TW Materials (including Third-Party Materials) except as expressly set forth in Section 3. All other rights in and to the TW Services and TW Materials (including Third-Party Materials) are expressly reserved by TW and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to TW an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
Customer Data. As between Customer and TW, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Section 9.
Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to TW, its Subcontractors, and the TW Personnel as are necessary or useful to perform the TW Services; and (b) to TW as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
Protection of Confidential Information. The Parties acknowledge that, in connection with this Agreement, each Party (the "Receiving Party") may obtain Confidential Information of the other Party (the "Disclosing Party"). Such Confidential Information will not be used or disclosed by the Receiving Party except as specifically authorized, or as necessary to provide the TW Services. The Receiving Party agrees to keep such Confidential Information confidential and to accord such Confidential Information the same standards and procedures it uses to protect its own confidential business information (but not less than reasonable care), including limiting access to its Representatives on a need-to-know basis and only after such Persons have been informed of and are bound to maintain confidentiality. Nothing in this Agreement will prohibit or restrict Receiving Party's right to develop, use, or market products or services similar to or competitive with those of the Disclosing Party as disclosed in the Confidential Information as long as doing so will not thereby breach this Agreement.
Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
10. TERM AND TERMINATION
Initial Term. This Agreement will remain in effect for the term set forth in the Order Form (the "Initial Term") and will automatically renew for the renewal period specified in the Order Form, if any, or, if not specified, for a period of 12 months unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a "Renewal Term" and, together with the Initial Term, the "Term").
Termination. TW may terminate this Agreement, effective on 60 days written notice to Customer, for any reason whatsoever. In addition to this right and any other express termination right set forth elsewhere in this Agreement, TW may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after TW's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3 or Section 9.
Either Party may terminate this Agreement upon written notice, effective immediately, if: (a) a petition under any bankruptcy law is filed by or against the other Party; (b) a receiver is appointed for the other Party's assets; (c) the other Party becomes insolvent or takes advantage of any insolvency or any similar statute; or (d) the other Party is in material breach of this Agreement and such breach remains uncured, if curable, for 30 days after written notice of the breach.
Effect of Expiration or Termination. The following will occur upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- All rights, licenses, consents, and authorizations granted by TW to Customer under this Agreement will immediately terminate.
- Customer will immediately cease all use of any TW Services or TW Materials and (i) promptly return to TW, or at TW's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any TW Materials or TW's Confidential Information; and (iii) if requested by TW, an authorized officer of Customer will certify to TW in writing that Customer has complied with the requirements of this Section.
- TW may disable all Customer access to the TW Services and TW Materials.
- Notwithstanding anything to the contrary in this Agreement, TW may retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course and all such Customer Data will remain subject to all confidentiality, security, and other applicable requirements of this Agreement.
- If TW terminates this Agreement because Customer fails to pay any amount when due hereunder or breaches any of its obligations under Section 3 or Section 9, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer will pay such Fees, together with all previously accrued but not yet paid Fees.
Surviving Terms. The provisions of Sections 1, 6-15, the Authorization Limitations and Restrictions portion of Section 3, and any other term of this Agreement that by its nature operates beyond termination or expiration, will survive and continue in full force and effect after any termination or expiration of this Agreement.
11. REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
- it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
- the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
- when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants and covenants to TW that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by and assigned to TW and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other right of any third party or violate any applicable Law.
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, ALL TW SERVICES AND TW MATERIALS ARE PROVIDED "AS IS" AND TW HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND TW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TW MAKES NO WARRANTY OF ANY KIND THAT THE TW SERVICES OR TW MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. TW EXPRESSLY DISCLAIMS AND IS NOT RESPONSIBLE FOR ALL DECISIONS OR ANALYSIS MADE BY ANY PERSON BASED UPON THE USE OR RESULTS OF THE TW SERVICES OR TW MATERIALS. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
TW Indemnification. TW will indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, successors, and permitted assigns (each a "Customer Indemnitee") from and against any and all Losses incurred by Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each an "Action") by a third party (other than an affiliate of any Customer Indemnitee) alleging that Customer's use of the TW Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes a United States Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
- modification of the TW Services or TW Materials other than: (i) by or on behalf of TW; or (ii) with TW's written approval in accordance with TW's written specifications;
- failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of TW; or
- act, omission or other matter described in the Customer Indemnification paragraph below, whether or not the same results in any Action against or Losses by any TW Indemnitee.
Customer Indemnification. Customer will indemnify, defend, and hold harmless TW and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each a "TW Indemnitee") from and against any and all Losses incurred by such TW Indemnitee in connection with any Action by a third party (other than an affiliate of any TW Indemnitee) that arises out of or relates to any:
- Customer Data, including any Processing of Customer Data by or on behalf of TW in accordance with this Agreement;
- any other materials or information (including any Personal Information, documents, data, specifications, software, content, or technology) provided by or on behalf of Customer, including TW's compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by TW;
- allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
- negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer in connection with this Agreement.
Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Section. The Party seeking indemnification (the "Indemnitee") will cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this paragraph will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Mitigation. If any of the TW Services or TW Materials are, or in TW's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of the TW Services or TW Materials is enjoined or threatened to be enjoined, TW may, at its option and sole cost and expense:
- obtain the right for Customer to continue to use the TW Services and TW Materials as materially contemplated by this Agreement;
- modify or replace the TW Services and TW Materials, in whole or in part, to seek to make the TW Services and TW Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute TW Services and TW Materials, as applicable, under this Agreement; or
- by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the TW Services and TW Materials.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND TW'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE TW SERVICES AND TW MATERIALS) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. LIMITATIONS OF LIABILITY
EXCLUSION OF DAMAGES. IN NO EVENT WILL TW OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT [OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE TW SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF TW AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY TW FROM CUSTOMER UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE DATE OF THE OCCURRENCE OR EVENT UNDERLYING THE CLAIM.
Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God, flood, fire, explosion, war, terrorism, invasion, riot, other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, or national or regional emergency, in each case, provided that such event is outside the reasonable control of the affected Party (each a "Force Majeure Event").
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. TW retains absolute discretion in the manner and means of providing the TW Services, and Customer will have no obligation to direct or control the working conditions of TW's employees or Subcontractors.
Public Announcements. Customer consents to the inclusion of Customer's name or other indicia in its lists of TW's current or former Customers of TW in promotional and marketing materials.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications to TW hereunder will be in writing and addressed to Wild Technology, Inc., 2236 SE 10th Avenue, Portland, OR 97214 with Attention to Gabe Paez, CEO and by email to firstname.lastname@example.org.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail, if sent during normal business hours of the recipient with confirmed receipt, and on the next business day, if sent after normal business hours of the recipient with confirmed receipt.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No terms or conditions of any purchase order or similar document provided by Customer to TW will constitute a part or amendment of this Agreement or be binding on TW for any purpose unless expressly accepted by TW in writing.
Assignment. Customer may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without TW's prior written consent. TW may, without Customer's consent, assign this Agreement to an affiliate or as part of a change of control. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Governing Law; Submission to Jurisdiction; Attorneys' Fees. This Agreement and all related documents are governed by, and construed in accordance with, the laws of the State of Oregon, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement will be federal or state court located in Multnomah County, Oregon, and the Parties irrevocably consent to the personal jurisdiction of such courts. Each Party hereby waives any objection or defense of personal jurisdiction or forum non-conveniens it may otherwise possess.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer breach of Section 3, Section 4, or Section 8 would 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.
For purposes of this Agreement, the following terms have the following meanings:
"Access Credentials" means the user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the TW Services.
"Analytics Data" means anonymized analytics information that is derived by or through use of the TW Services.
"Confidential Information" means any information that is treated as confidential by either party, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information includes TW Materials. Confidential Information does not include information that the Receiving Party can demonstrate by documentation: (a) was already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information directly or indirectly from or on behalf of the Disclosing Party; (b) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party's Confidential Information; (c) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party or any of its Representatives; or (d) was received by the Receiving Party from a third party who was not, at the time, under any obligation to the Disclosing Party or any other Person to maintain the confidentiality of such information.
"Customer Data" means, other than Analytics Data, information, data and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services, and all data, other than Analytics Data, that is Processed through use of the Services.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Harmful Code" means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Customer of its lawful right to use such Software.
"Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Permitted Use" means any use of the TW Services by Customer in conformance with this Agreement.
"Person" an individual, corporation, partnership, limited liability company, association, joint stock company, joint venture, estate, trust, unincorporated organization, or other entity or organization, or a local, state, United States, or foreign governmental or public body or authority, or any agency or subdivision thereof.
"Personal Information" means name, address, telephone number, and any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located.
"Process" means to take any action or perform any operation or set of operations that the TW Services are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings.
"Representatives" means, with respect to a Party, that Party's employees, officers, independent contractors, service providers, subcontractors, and legal advisors.
"Resultant Data" means information, data, and other content that is derived by or through the TW Services from Processing Customer Data.
"Service Software" means The TW software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that TW provides remote access to and use of as part of the TW Services.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the TW Services that are not proprietary to TW.
"TW Materials" means the Service Software, TW Systems, Installed Software and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by TW or any Subcontractor (defined in Section 2) in connection with the TW Services or otherwise comprise or relate to the TW Services or TW Systems. For the avoidance of doubt, TW Materials include Resultant Data, and any information, data or other content derived from TW's monitoring of Customer's access to or use of the TW Services, and any Customer Data submitted to the TW Services.
"TW Personnel" means all individuals involved in the performance of the TW Services as employees, agents, or independent contractors of TW or any Subcontractor.
"TW Systems" means the information technology infrastructure used by or on behalf of TW in performing the TW Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by TW or through the use of third-party services.