WINGMATE INC TERMS OF SERVICE (Updated April 17th 2019)
This service agreement (the “Agreement“) is an agreement between the person or entity accessing or using the Website or the Services (“Customer“) and Wingmate Inc (“Wingmate”) (Wingmate, together with Customer, the “Parties” and each, a “Party“), and is entered into as of DATE (the “Effective Date“).
BY USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12.7. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OFFERING, INCLUDING USE OF ANY ELEMENT THEREOF.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all data or information submitted or posted by Customer and its authorized Users using the Services.
“Intellectual Property Rights” means: any and all proprietary rights provided under: (i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work law; or (vi) any other applicable statutory provision or common law principle, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how; and any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Mobile App” means the mobile application known as Wingmate App that is made available by Wingmate Inc through the Google Play Store, Amazon Appstore, and the Apple App Store;
“Order Form(s)” means the form evidencing the initial subscription order for Wingmate Services and any subsequent Order Forms specifying, among other things, the Order Effective Date, Wingmate Services pricing, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
“Platform” means collectively, the Website, Mobile App and all systems of Wingmate and Wingmate’ third-party suppliers that are used in the provision of the Services.
“Renewal Term” means each subsequent renewal period beginning on the expiration of the Initial Term.
“Services” means the products and services that are set out on Schedule 1.
“Support” means training, on-boarding, and continual telephone support.
“Users” means the authorized officers, directors, employees, contractors and agents of Customer, who are authorized to use the Platform under the Agreement.
“Website” means, collectively, the Wingmate websites, including the website located at: https://www.gopherleads.com
2. WINGMATE SERVICES
2.1. Order Process. Customer shall order Wingmate Services by completing and signing an Order Form. In the event that Customer requires a purchase order number issued prior to payment of any Wingmate invoices issued pursuant to the applicable Order Form, then such purchase order number must be provided to Wingmate prior to the Effective Date. If Wingmate performs Services before the Effective Date, all Services provided by Wingmate before that date will be considered to have been provided under all of the terms and conditions of this Agreement. In the event that Services are provided after the expiration or termination of an Order Form, such Order Form will be automatically extended for successive thirty (30) day renewal terms until terminated by either party with at least thirty (30) days’ written notice prior to the end of any renewal term.
2.2. Wingmate Responsibilities. Wingmate shall provide to Customer Support in accordance with its policies for the Services (other than premium services which Wingmate may charge additional fees for), at no additional charge, and/or upgraded support if purchased.
2.3. Customer Responsibilities.
2.3.1. Each User shall use his or her unique user identification (“Userid”) and password. This enables Users to access the Services at any time during the Term, by use of their Internet browser and/or Mobile App. Wingmate will only store Users’ passwords in encrypted form; they will not be readable by Wingmate personnel. Users must protect their Userid’s and passwords, and not make them available to persons or entities not authorized to use the Services on behalf of Customer.
2.3.2. Customer is responsible for all activities that occur in User accounts and for User’s compliance with this Agreement. Customer acknowledges and understands that Wingmate may suspend a User’s access to any particular feature or Service if Wingmate has reason to believe that such User has violated this Agreement.
2.3.3. Customer shall: (i) prevent unauthorized access to, or use of, the Services, and notify Wingmate promptly of any such unauthorized access or use; (ii) comply with all applicable local, provincial, federal and foreign laws in using the Services; and (iii) use the Services only for purposes that are permitted by this Agreement.
2.3.4. Customer understands that all Customer Data, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Customer Data originated. This means that Customer, and not Wingmate, are entirely responsible for all Customer Data uploaded, posted, emailed, transmitted, or otherwise made available via the Service. Wingmate does not control or monitor the Customer Data posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Customer Data. Customer understands that by using the Service, they may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Wingmate be liable in any way for any content, including, but not limited to, any errors or omissions in any Customer Data, or for any loss or damage of any kind incurred as a result of the use of or reliance upon any content posted, emailed, transmitted, or otherwise made available via the Service.
3.1 Fees. Customer shall pay all fees or charges as specified on each executed Order Form and SOW (“Fees”). Wingmate charges and collects in advance for committed subscription fees and in arrears for usage which exceeds such committed amounts as defined on each Order Form.
3.2 Payment Terms. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of Wingmate’ invoice, without offsets or deductions of any kind.
3.3 Taxes. Wingmate’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities,
and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Wingmate’ income. If Wingmate has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Wingmate with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to Wingmate herein, Wingmate reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to Wingmate Services if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. If Customer believes Customer’s bill is incorrect, Customer must contact Wingmate in writing within ninety (90) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Wingmate with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it.
5. TERM AND TERMINATION
5.1 Term. The term of an applicable Order Form will begin on the Effective Date of the applicable Order Form and shall continue for the initial term specified in such Order Form (“Initial Term”). The Customer has a total of four (4) options to extend the Initial Term or a subsequent renewal term for (each a
“Renewal Term”) for 12 month periods upon notice to Wingmate prior to the term then in effect. Any Renewal Term shall be on at the same Fee and expense to COMPANY NAME, subject to any Fee adjustment for
increased user volume. Initial Term and any Renewal Term shall be collectively defined as the “Term”.
5.2 Termination. Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach. The Customer may terminate this Agreement (and any Order
Forms then in effect) for any reason with four (4) months’ written notice to Wingmate. If the
Customer terminates the Agreement for any reason, Wingmate shall refund Customer any paid but unused Fees, including for certainty, any pro-rata Fees for any period paid in advance. The provisions of this Agreement, which by their nature or express terms would survive termination or expiration of this Agreement, shall survive any termination or expiration including Sections 6, 7, 8.3, 9, 10, and 12.
6. PROPRIETARY RIGHTS
6.1. Grant of License. Subject to the terms and conditions of this Agreement, Wingmate hereby grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to access and use the Services provided hereunder solely for Customer’s own business purposes and only for the specific number of Users and time periods as set forth in each fully executed Order Form.
6.2. Reservation of Rights in Wingmate Services. Subject to the limited rights expressly granted hereunder, Wingmate reserves all rights, title and interest in and to the Services, including all related Intellectual Property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer agrees not to challenge the validity or Wingmate’ ownership of the Intellectual Property Rights in the Services. Wingmate reserves the right to make changes, modifications and enhancements to the Services from time to time.
6.3. Restrictions. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Customer may permit use of Services, strictly in accordance with this Agreement, by third parties working on behalf of the Customer; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the Userid that is provided by Wingmate; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code or material in violation of third-party privacy rights, or (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.
6.4. Customer Data. All right, title and interest in and to the Customer Data and all related Intellectual Property Rights, modifications and additions thereto shall at all times remain with Customer. Customer grants Wingmate a limited license, during the Term, to use and display Customer Data within the Services as long as no Wingmate customer has access to such data other than the Customer. Wingmate shall use commercially reasonable efforts to maintain the security and integrity of Customer Data
6.5. Suggestions. Wingmate shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer (including Users) relating to the operation of the Services.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
8.1 Wingmate Representations and Warranties. Wingmate represents and warrants to Customer on an ongoing basis as follows: (i) the Services will be performed using reasonable care and skill and in accordance with this Agreement; and (ii) that the functionality of the Services will not be materially decreased during the Term of this Agreement or any renewal thereof
8.2 Customer Representations and Warranties. Customer represents and warrants to Wingmate that Customer has the capacity to enter into this legally binding Agreement. If Customer is using the Wingmate Services on behalf of another person or entity, Customer hereby represents and warrants to Wingmate that Customer has the authority to bind such person or entity to this Agreement.
8.3 DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.1 , WINGMATE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. Wingmate EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY
9.1 Consequential Damages. Neither the Customer nor its Affiliates or Wingmate nor its affiliates shall be liable in any way for indirect, incidental, consequential, special or exemplary damages, punitive damages or penalties (even if Wingmate has been advised of the possibility of such damages or penalties), arising out of this Agreement, including but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business. This limitation of liability applies to any damages or penalties, including without limitation those caused by any failure of performance, error, omission, interruption, delay in operation or transmission, whether for breach of contract, tortious conduct, acts or omissions, negligence, or under any other claim or cause of action.
9.2 Misuse of Platform. Wingmate shall not be liable in any way for any loss of life or injuries resulting from using the Platform. This includes any damage to property, persons, loss of business or loss of life while using the Platform.
9.3 Liability. IN NO EVENT SHALL WINGMATE’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY OBLIGATIONS CONTAINED LIST SECTION 7.
10.1. Wingmate Indemnification. Wingmate agrees to defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriate the Intellectual Property Rights of a third party under the laws of the United States or Canada (an “Infringement Claim”), and shall indemnify Customer for any damages and attorney fees and costs provided that Customer (i) promptly gives Wingmate written notice of the Infringement Claim; (ii) gives Wingmate sole control of the defense and settlement of the Infringement Claim (provided that Wingmate may not settle any Infringement Claim unless the settlement unconditionally releases Customer of all liability); and (iii) provides to Wingmate all reasonable assistance, at Wingmate’ expense. In the event of an Infringement Claim, or if Wingmate reasonably believes the Services may infringe or misappropriate, Wingmate may in its discretion and at no cost to Customer (a) modify the Services so that they no longer infringe or misappropriate, (b) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (c) terminate the applicable Order Form for such Services upon written notice and refund to Customer any prepaid Fees covering the remainder of the term of such Order Forms after the effective date of termination. For greater clarity, this indemnity does not apply to Infringement Claims resulting from or arising out of Customer Data or any third party content. This section 10.1 states Wingmate’ sole liability to, and Customer’s exclusive remedy, in respect of any Infringement Claim.
10.2 Customer Indemnity. Customer agrees to defend Wingmate and its affiliates against any claim, demand, suit, or proceeding made or brought against Wingmate or any Wingmate affiliate by a third party arising out of or in connection with Customer Data or any use of the Services in violation of this Agreement, and shall indemnify Wingmate and its affiliates for any damages, attorney fees and costs finally awarded against Wingmate or any of its affiliates as a result of, and for amounts paid by Wingmate or any affiliate under a court-approved settlement of, such claim, demand, suit or proceeding; provided that Wingmate (i) promptly gives Customer written notice of the claim, demand, suit or proceeding; (ii) gives Customer sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that Customer may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Wingmate and its affiliates of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
Wingmate can use the trade-marks, logo designs and tradenames provided by Customer (collectively, the “Customer Marks”) with written or verbal consent of the Customer.
12.1 Notice. All legal notices required to be provided under this Agreement must be delivered in writing (i) in person, (ii) by email, (iii) by a nationally recognized overnight delivery service or, (iv) by certified mail to the address as shown on the other party’s record. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above.
12.2 No Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
12.3 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the province of Ontario, Canada and subject to the exclusive jurisdiction of the province of Ontario.
12.4 Relationship. The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship exists between Customer and Wingmate.
12.5 Waiver and Severability. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
12.6 Entire Agreement. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein),comprises the entire agreement between Customer and Wingmate regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements.
12.7 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.