Effective Date: May 24, 2018
WAYIN SERVICES SUBSCRIPTION TERMS AND CONDITIONS
These Wayin Services Subscription Terms and Conditions (the “Agreement”), govern use of the Wayin Services (defined below), and are entered into between Wayin Limited, a company incorporated in England, with registered number 07101974, having its registered office at 67D Innovation Drive, Milton Park, Milton, Abingdon, Oxfordshire, OX14 4RQ (“Wayin”) and the organization on whose behalf the individual accepting this Agreement is registering for the use of, or otherwise setting up, accessing or using, the Wayin Services (defined below) (such entity, the “Client”), effective as of the earlier of Client’s registration or first use of Wayin Services (the “Effective Date“). You, the individual registering for access to, or otherwise accessing or using the Wayin Services on behalf of a Client, and the Client on whose behalf you are registering for or accessing the Wayin Services, represent and warrant that you have the full right and authority to bind the Client to this Agreement, and that the Client is fully aware of, understands, and agrees to be bound by all the terms and conditions of this Agreement.
BY REGISTERING FOR AN ACCOUNT ON THE WAYIN SERVICES, ACCESSING OR USING WAYIN SERVICES IN ANY WAY, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ, UNDERSTANDS, AND AGREES TO ACCEPT AND BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. BY AGREEING TO THIS AGREEMENT, CLIENT REPRESENTS AND WARRANTS: (I) THAT CLIENT CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) THAT CLIENT HAS NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE WAYIN SERVICES; (III) THAT CLIENT’S REGISTRATION AND USE OF THE WAYIN SERVICES, AS WELL AS THE CLIENT CONTENT AND CLIENT PROPERTIES, ARE AND WILL REMAIN THROUGHOUT THE SUBSCRIPTION TERM, IN COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. IF CLIENT DOES NOT QUALIFY FOR THE WAYIN SERVICES, OR DOES NOT AGREE TO THIS AGREEMENT, CLIENT SHOULD NOT AND MAY NOT REGISTER FOR, ACCESS, OR USE THE WAYIN SERVICES.
1.1. “Affiliate” means any entity that is directly or indirectly controlled by or under common ownership or control with a party to this Agreement.
1.2. “Aggregate Information” means any information or data derived from Client Content, Promotion Data or Client’s or its End Users’ use of the Wayin Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include Personal Data, and cannot be used, alone or in conjunction with other information, to identify any specific person.
1.3. “Administrative Interface” means the online interface or portal made available by Wayin, on which Client may access and use the Wayin Services and features or functionality that Wayin may make available to Client in accordance with this Agreement.
1.4. “Controller” has the meaning set out in the Data Protection Laws.
1.6. “Client Data” means the Personal Data Processed by Wayin under, or in connection with, this Agreement (by way of example only, including individual Clients of Client or Client employees or employees of Client Affiliate) as such Personal Data is further described in Data Protection Particulars.
1.7. “Client Property” or “Client Properties” means the Client website or online property, web, mobile or desktop application, in-venue property or other medium for broadcasting that is owned or controlled by the Client, on which Client may run a Promotion and/or publicly display or broadcast Social Media Content in accordance with this Agreement and the applicable Order.
1.8. “Data Protection Impact Assessment” means an assessment of the impact of the envisaged Processing operations on the protection of Personal Data, as required by Article 35 of the GDPR.
1.9. “Data Protection Laws” means (a) any applicable law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including the General Data Protection Regulation (2016/679) (“GDPR”) and any national law issued under or relating to that Regulation.
1.10. “Data Protection Particulars” as determined by the Client, means, in relation to any Processing under this Agreement:
a) the subject matter and duration of the Processing;
b) the nature and purpose of the Processing;
c) the type of Personal Data being Processed; and
d) the categories of Data Subjects.
1.11. “Data Subject” has the meaning set out in the Data Protection Laws.
1.12. “Data Subject Request” means an actual or purported request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Laws.
1.13. “EEA” means the European Economic Area.
1.14. “End User” means a consumer who interacts or participates in the public facing components of the Wayin Services (e.g. an entrant in a Promotion or the social media user who posts Social Media Content).
1.15. “Good Industry Practice” means, at any time, the exercise of that degree of care, skill, diligence, prudence, efficiency, foresight and timeliness which would be reasonably expected at such time from a leading and expert supplier of similar services to the Wayin Services.
1.16. “Order” means the ordering document, including addenda and supplements thereto, issued by Wayin, an Affiliate of Wayin or a WSP from time to time and accepted by Client, or issued by Client and accepted by Wayin, an Affiliate of Wayin or a WSP from time to time, which describes the Wayin Services, including the Subscription Term, any type of limitations or other terms, and applicable fees. Each such Order is hereby deemed to be incorporated by reference into, and made a part of, this Agreement. Additional Orders will also be governed by this Agreement, unless accompanied by separate terms.
1.17. “Outage” means a period during which there is total loss of the Wayin Services.
1.18. “Personal Data” has the meaning set out in the Data Protection Laws.
1.19. “Personal Data Breach” has the meaning set out in the Data Protection Laws.
1.20. “Processing” has the meaning set out in the Data Protection Laws (and “Process” and “Processed” shall be construed accordingly).
1.21. “Processor” has the meaning set out in the Data Protection Laws.
1.22. “Promotion” means the promotion that the Client wishes to publish using the Wayin Services.
1.23. “Promotion Data” means all data, including Personal Data, user generated content which is submitted to or posted on the Client Property during a Promotion (whether by Client or an End User), or any statistics, graphs or reports relating to a Promotion which the Client obtains by using the Wayin Services.
1.24. “Service Interruption” means a period during which there is partial loss of the Wayin Services.
1.25. “Social Media Content” means any user generated content submitted to the Wayin Services, any content that is posted or uploaded by End Users directly to Third Party Services (for example, a Tweet on Twitter) and made available to Client by Wayin in connection with the Wayin Services, or any other content provided by a Third Party Service provider to Client (e.g. relevant data analytics, enrichments or other data linked to any user- generated content).
1.26. “Snippet” has the meaning given in Section 2.1.
1.27. “Subscription Term” means the period of time, designated in an Order, that the Wayin Services will be available to Client.
1.28. “Suggestions” has the meaning given in Section 6.4.
1.29. “Third Party Services” means third party applications, products or services (such as social media platforms, including Twitter) and open source software.
1.30. “User” means those authorised individual representatives of Client who Client specifically identifies by name and/or other identification method approved by Wayin on an Order or through the Administrative Interface to access and use the Wayin Services on behalf of Client pursuant to this Agreement.
1.31. “VAT” means within the European Union such tax as may be levied in accordance with (but subject to derogations from) the Directive 2006/112/EC and outside the European Union any similar tax levied by reference to added value or sales.
1.32. “Wayin Services” means Wayin’s products and services that Client obtains from Wayin, as identified in an Order, including but not limited to the Wayin Software (whether purchased directly or through a WSP).
1.33. “Wayin Software” means the Wayin proprietary software underlying the Wayin Services.
1.34. “WSP” means the individual, company, organisation or other third party entity that is an active member of Wayin’s Sales Partner programme, authorised to sell or offer for sale the Wayin Services, from whom Client purchased the Wayin Services.
2. USE OF THE SERVICES.
2.1. Wayin Services. Subject to full and ongoing compliance with the terms and conditions of this Agreement, Wayin authorises Client to access and use the Wayin Services for Promotions on the Client Properties pursuant to this Agreement and the applicable Orders during the Subscription Term. To the extent that Wayin makes the Wayin Services available for direct integration with Client’s Properties through an iframe, embeddable widget, or similar mechanism (a code “Snippet”), Wayin grants to Client a personal, limited, revocable, non-transferable, non-sublicensable right and licence during the Subscription Term to incorporate the Snippet enabling such integration without modification into those Client Properties solely for such purpose.
2.3. Users. Users may access the Wayin Services with unique credentials through the Administrative Interface and use Wayin Services on Client’s behalf in accordance with this Agreement (“Authorised Access”). The number of Users may be limited as set forth in the Order. Client represents and warrants that all Users have the necessary authority to access and use Wayin Services on Client’s behalf. Client is solely responsible at all times for ensuring that all Authorised Access and any other Client access is used solely in accordance with this Agreement.
2.4. Usage Limitations. The Wayin Services may be subject to other limitations as described in more detail in the applicable Order and/or documentation and such limitations shall be deemed to be incorporated by reference into and made a part of this Agreement. The Client acknowledges that Wayin may at any time, and without notice, incorporate management software into the Wayin Services for the purposes of ensuring that limitations are not exceeded. Client will abide by any such limitations and Client will not attempt to exceed or circumvent such limitations. If Client exceeds, or Wayin reasonably believes that Client has circumvented any limitations, then Client’s ability to use the Social Media Content and other features of the Wayin Services may be suspended until such time as the issue is resolved. Client will be solely responsible for any and all charges that exceed usage limitations as set forth in an Order.
3. THIRD PARTY SERVICES.
3.1. Wayin Services. The Wayin Services may contain features designed to interoperate with Third Party Services (e.g., Twitter or other social platforms). To use such features, Client, Users or End Users may be required to obtain access to such Third Party Services from their providers and will agree to the terms and conditions on which such third party provider offers such services, including but not limited to any developer rules or guidelines regarding the use or download of data. Client is solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of Client in connection with the Wayin Services. Wayin shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third Party Services and their providers. If the provider of any such Third Party Service ceases to make the application available, alters the interoperation functionality or otherwise alters how Client uses the corresponding feature(s) of the Wayin Services, Wayin may cease providing such features without entitling Client to any refund, credit, other compensation or any other considerations.
3.2. End User Interactions. The Wayin Services may contain features that require an End User to interact with the Wayin Services through one or more Third Party Services, and to obtain access to such Third Party Services from their providers and agree to the terms and conditions on which such third party provider offers such services. Any acquisition or use of Third Party Services and any exchange of information between an End User and any third party is directly between the End Users and the applicable third party, and any interaction between Client and End Users is solely between Client and the End User, and Wayin will have no liability with regard thereto.
3.4. Third Party Services Requirements. If Client features any advertising or Promotions within the Wayin Services, Client will ensure that all such advertisements or Promotions comply with the requirements of any applicable Third Party Services. If Wayin or a Third Party Services provider notifies Client that Client is not in compliance with the requirements of the Third Party Services provider, Client will immediately remove or modify any non-compliant advertisements, Promotions, or other features.
4. SUPPORT SERVICES.
4.1. Support Services. If Client purchased the Wayin Services from Wayin or a Wayin Affiliate, Wayin or the Wayin Affiliate will provide basic support services (in the English language only) to Client to address reported incidents of the Wayin Services not performing materially in accordance with applicable specifications when used by Client and End Users in accordance with this Agreement and all applicable documentation at no additional charge in accordance with Wayin’s standard support procedures. Wayin may also provide upgraded support if mutually agreed upon and for an additional fee.
4.2. WSPs. If Client purchased the Wayin Services through a WSP, the applicable WSP shall be Client’s contact with respect to requests for support associated with Client’s use of the Wayin Services. Unless mutually agreed upon by Wayin and WSP to provide support services, Wayin will have no responsibility to provide any direct support to, or to communicate directly with, the Client. Notwithstanding the foregoing, to the extent that Wayin terminates the applicable WSP, Wayin reserves the right to assume the communication and support role directly with Client, or to appoint a replacement WSP for Client to work with and through.
4.3. Outages or Service Interruptions. Outages or Service Interruptions may be made by Wayin when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Wayin Services. Wayin will use commercially reasonable efforts to minimise the Outages or Service Interruptions that may be caused by a change and will endeavour to schedule any such necessary Outages or Service Interruptions so as to minimise impact on the Wayin Services.
4.4. Internet. Wayin does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Wayin will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Wayin cannot guarantee that such events will not occur. Accordingly, Wayin disclaims any and all liability resulting from or related to such events.
5. FEES AND PAYMENT FOR WAYIN SERVICES.
5.1. Fees. Client shall pay all fees specified in the applicable Orders (“Fees”) to Wayin, the Wayin Affiliate or the WSP. Except as otherwise specified herein or in an Order, (i) fees are based on Wayin Services purchased and (ii) payment obligations are non-cancellable and fees paid are non-refundable.
5.2. Invoicing and Payment. Fees will be invoiced by Wayin, the Wayin Affiliate or the applicable WSP, as set forth in the applicable Order, and payable by Client in accordance with the Order. Unless otherwise stated in the Order, Fees shall be paid in Great British Pounds . Unless otherwise stated in the Order, invoices will be submitted on or about the first day of each billing period, and are due net 30 days from the date of the invoice. Client is responsible for providing complete and accurate billing and contact information to Wayin, the Wayin Affiliate or the WSP, as applicable, and notifying Wayin, the Wayin Affiliate or the WSP, as applicable, of any changes thereto.
5.3. Overdue Charges. If any fees payable are not received from Client by the due date, then at Wayin’s, the Wayin Affiliate’s or the WSP’s, as applicable, discretion: (a) interest on such unpaid amounts may be assessed at the lesser of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid, and/or (b) Wayin may suspend the Wayin Services and accelerate any of Client’s unpaid fee obligations to Wayin, the Wayin Affiliate or the WSP, as applicable, and/or (c) Wayin, the Wayin Affiliate or the WSP may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Payment Disputes. Client must notify Wayin, the Wayin Affiliate or the WSP, as applicable, in writing of any fees or charges disputed in good faith within thirty (30) days following the invoice date, providing reasonable detail identifying the basis for the dispute, and any fees or charges not so disputed within such thirty (30) day period shall be considered valid and undisputed and no adjustment will be made.
5.5. Taxes. All fees payable by Client shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever. Unless otherwise stated, the fees do not include, and Client is solely responsible for, any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to VAT, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, other than taxes assessed on Wayin’s, the Wayin Affiliate’s or the WSP’s, as applicable, net income (collectively, “Taxes”). Client shall pay to Wayin, the Wayin Affiliate or the WSP, as applicable, any VAT chargeable in addition to the fees (except where the reverse charge procedure applies), on receipt of a valid VAT invoice. Wayin, the Wayin Affiliate or the WSP, as applicable, may invoice any other applicable Taxes to Client.
6. PROPRIETARY RIGHTS.
6.1. Reservation of Rights in Wayin Services. Subject to the limited rights expressly granted hereunder, Wayin reserves all right, title and interest in and to the Wayin Services, including all related intellectual property rights. No rights are granted to Client other than as expressly set forth herein, whether by implication, estoppel, or For the avoidance of doubt, other than the limited access and use granted in Section 2.1, Client shall not acquire any intellectual property rights whatsoever in respect of the Wayin Software.
6.2. Restrictions. Except as set forth expressly herein or with the prior express written consent of Wayin, Client shall not:
a) reverse engineer, decompile, disassemble, translate or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Wayin Services or any Third Party Services, provided that Wayin, on request, provides full details of how to make the Wayin Services interoperable with other software;
b) interfere with, modify, disrupt or disable features or functionality of the Wayin Services or any Third Party Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Wayin Services or any Third Party Services;
c) copy, sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Social Media Content, Wayin Services or any Third Party Services to any third party;
d) provide use of the Wayin Services or any Third Party Services on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet “links” to the Wayin Services or any Third Party Services or “frame” or “mirror” the Wayin Services or any Third Party Services on any other server, or wireless or Internet-based device;
e) use the Social Media Content, Wayin Services or any Third Party Services for any illegal, unauthorised or otherwise improper purposes, including without limitation to store or transmit infringing, libellous, or otherwise unlawful or tortious material, to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
f) utilise the Wayin Services or any Third Party Services to derive or obtain non-public information of individual End Users, including without limitation a user’s location;
g) interfere with or disrupt the integrity or performance of the Service, Wayin Services or any Third Party Services or Social Media Content contained therein, interfering with the ability of any other person to use or enjoy the Service, Wayin Services or any Third Party Services or Social Media Content, or attempt to gain unauthorised access to the Service, Wayin Services or any Third Party Services, Social Media Content or related systems or networks;
h) access the Wayin Services or any Third Party Services in order to build a similar or competitive product or service;
i) remove, alter, or obscure any proprietary notices or marks, including but not limited to any Trade Marks or copyright notices;
j) use Social Media Content, by itself or bundled with third party data, or derivative analysis therefrom, to target users; or
k) access the Wayin Services or any Third Party Services in order to: (i) build a similar or competitive product or service to the Wayin Services or any Third Party Services or the Third Party Services to which the Social Media Content is uploaded or posted, (ii) carry out benchmarking of the Wayin Services or any Third Party Services, including by monitoring their availability, performance or functionality, or (iii) copy any features, functions or graphics of the Wayin Services or any Third Party Services.
6.3. Client Content and Client Trade Marks. As between the parties, Client owns the Client Content, and hereby grants Wayin a non-exclusive, royalty-free, worldwide right to access and use Client Content: (a) as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Wayin Services and (b) in connection with the creation of Aggregate Information, including as may be required to develop, deliver and provide ongoing innovation to the Wayin Services. As between the parties, Client owns the Client Trade Marks, and hereby grants Wayin a non-exclusive, royalty-free, worldwide licence during the Subscription Term to use, reproduce and display the Client’s Trade Marks for the purpose of providing the Wayin Services.
6.4. Suggestions. Client may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback to Wayin (“Suggestions”). Client hereby grants Wayin a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual licence to use, disclose, reproduce, licence, distribute and exploit such Suggestions, and incorporate Suggestions into the Wayin Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, licence or to make available to, Client or any other person or entity.
6.5. Professional Services. Any professional services to be performed by Wayin for Customer will be identified in an Order. Unless otherwise set forth in the applicable Order, the professional services will be performed by Wayin at its then-current fee or hourly rate and except as set forth in Section 6.6, Wayin will retain all right, title, and interest in and to any materials resulting from such services, including all related intellectual property rights. Wayin will perform professional services in a good and workmanlike manner, exercising reasonable care and skill in accordance with the terms of this Agreement. Professional services response times vary. Wayin will endeavor to respond to Customer requests within two business days. Unless otherwise agreed upon, no more than 25% of total annual purchased professional services hours may be used during the last three months of a Subscription Term.
6.6. Publicity. During the term of this Agreement, (a) Wayin may publicly refer to Client as a Client of Wayin and may use Client’s name, trade names, screen captures, brands and logos orally and in written materials, including on its websites, in connection therewith, and (b) Client may publicly refer to Wayin orally, in writing, and on web sites operated by Client, as a service provider of Client. Subject to Client’s satisfaction with Wayin Services, Client agrees to cooperate with Wayin’s requests to participate in a press release and/or Client testimonial. Client will have the opportunity to request review of the press release and/or Client testimonial prior to issuance, and Wayin will reasonably consider any modifications Client may request. Client may be asked to be the subject of a case study about Client’s experience and success with Wayin Services; participation will only be upon Client’s approval and if given, Client further grants Wayin the right to use Client Content, Aggregate Information and Client related approval data in connection with the case study.
“Confidential Information” means any technical or business information disclosed by one party to the other party that:
(i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarised in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) has been approved for use or disclosure by the disclosing party. During the term and for a period of two (2) years after expiration or termination of this Agreement, neither party shall make the other party’s Confidential Information available to any third party or use the other party’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other party’s Confidential Information is not disclosed or distributed by its employees, agents or subcontractors in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any employees, agents or subcontractors that are permitted to access the other party’s Confidential Information are legally bound to comply with the obligations herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by applicable law or legal authority, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the information requested to enable the non-disclosing party to exercise any rights it may have to obtain appropriate protective orders or to limit the scope of the information request.
8. PROMOTION DATA.
All Promotion Data shall remain at all times the exclusive property of the Client and may only be used by Wayin in order to fulfil its obligations pursuant hereto, provided that Wayin may use Aggregate Information derived from Promotion Data in demonstrations to potential clients. Wayin will reasonably attempt to detect and flag fraudulent entries in Promotion Data, but Client acknowledges that Wayin cannot uncover all forms of fraud. As such, Wayin is not responsible or liable for the existence of fraudulent entries in Promotion Data. Promotion Data may be processed in the European Union or the United Kingdom by Wayin or its Affiliates.
9. DATA PROTECTION.
9.1. Wayin may Process Client Data where such Client Data has been made available to Wayin by Client (or Client Affiliate).
9.2. The Client acknowledges and agrees that it shall provide complete and accurate Data Protection Particulars and warrants that these shall be an accurate description of the Personal Data to be Processed under the applicable Order
9.3. Client Data Protection Obligations. Client shall:
a) Use the Wayin Services in compliance with Data Protection Laws and any applicable codes of conduct or guidelines issued by the relevant regulatory authorities;
b) maintain appropriate technical and organisational safeguards for End User data accessed or collected by Client through the Wayin Services; and
c) otherwise comply with the obligation imposed upon a Controller under the Data Protection Laws.
9.4. Wayin Data Protection Obligations. Wayin shall comply with the obligations imposed upon it under the Data Protection Laws in providing the Wayin Services. To the extent that Wayin is acting as a Processor for and on behalf of Client as the Controller in relation to the Processing that it is carrying out arising out of, or in connection with, the performance of its obligations under this Agreement, Wayin shall:
a) only Process Client Data on the documented instructions of the Client (which shall include the provision of Wayin Services under this Agreement and any Order) unless required to Process that Client Data for other purposes by applicable law. Where such a requirement is placed on Wayin it shall provide notice to the Client unless the relevant law prohibits the giving of notice on important grounds of public interest;
b) promptly inform Client if, in Wayin’s opinion, Client instructs Wayin to do something it reasonably believes infringes Data Protection Law and Wayin shall be entitled to not Process the Client Data as instructed;
c) ensure that appropriate technical and operational measures are in place to safeguard Client Data against any unauthorised or unlawful Processing of the Client Data and against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access;
d) assist the Client to comply with its own data security obligations under Data Protection Laws;
e) take reasonable steps to ensure the reliability and integrity of any of its staff who shall have access to the Client Data, and ensure that each member of its staff shall have entered into appropriate contractually- binding confidentiality undertakings
f) within thirty (30) calendar days of a reasonable request from Client, and at Client’s expense, allow its data processing facilities, procedures and documentation to be subject to audit, including by inspection, by Client or an auditor nominated by the Client, in order to ascertain compliance with the terms of this Section 9 (Data Protection). Wayin shall provide reasonable information, assistance and co-operation to Client, and on the reasonable request of Client, provide Client with written evidence of its compliance with the requirements of this Section 9 (Data Protection);
g) at the Client’s expense, provide reasonable assistance to the Client to conduct a Data Processing Impact Assessment (and any related consultations) where required under Data Protection Laws.
h) notify Client promptly following its receipt of any Data Subject Request, and shall:
i. except to the extent required by law, not disclose any Client Data in response to any Data Subject Request without Client’s prompt prior written consent; and
ii. provide Client with reasonable co-operation and assistance required by Client in relation to any such Data Subject Request
i) notify Client promptly upon becoming aware of any actual Personal Data Breach, and:
i. implement reasonable measures, as determined by Wayin, necessary to limit the impact of the Personal Data Breach and restore the security of the Wayin Services; and
ii. provide the Client with any information reasonably requested by the Client to allow the Client to make any notifications to a competent regulator and/or affected Data Subjects; and
j) on termination or expiry of this Agreement (as applicable), cease Processing all Client Data and, at the option of the Client as notified to Wayin on termination or expiry (as applicable), return and/or, to the extent possible, permanently and securely destroy all Client Data and all copies in its possession or control provided that Wayin may retain a copy of any Client Data it is obliged to retain by applicable law.
9.5. Sub-processing. The Client provides a general authorisation to Wayin to engage further Processors to Process Client Data. Wayin shall provide the Client with a list of those further Processors. Wayin shall give the Client prior notice of any intended addition to or replacement of those further Processors. If the Client reasonably objects to that change, Wayin will take steps to resolve any reasonable concerns raised by the Client and will inform the Client of those steps.
9.6. Transfers of Personal Data Outside of the EEA. Whenever we transfer your personal data out of the European Economic Area (EEA) to countries not deemed by the European Commission to provide an adequate level of personal data protection, the transfer will be based on one of the following safeguards recognized by the European Commission as providing adequate protection for personal data, where required by EU data protection legislation:
a) contracts approved by the European Commission which impose data protection obligations on the parties to the transfer; and
b) for transfers to third parties in the United States, ensuring they participate in the E.U.-U.S. Privacy Shield Framework.
9.7. Data Retention. Unless specifically provided for in an Order, Wayin does not have an obligation to retain Client Data (including without limitation any Client Content or associated Social Media Content) after the Subscription Term.
9.8. Indemnity. Without prejudice to Sections 2.2 or 3.3, Client shall indemnify and hold harmless Wayin against any costs, claims, demands, expenses and damages of whatsoever nature arising out of or in connection with the Client’s breach of the provisions of this Section 9 (Data Protection).
10. LIMITED WARRANTY; DISCLAIMER.
10.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Client’s sole remedy for performance issues with respect to Wayin Services shall be support services in accordance with this Agreement.
10.2. Disclaimer. Except as expressly provided herein, to the maximum extent permitted by applicable law, Wayin makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all other warranties and conditions, express, implied, or statutory, including without limitation: the implied warranties and conditions of satisfactory quality, and fitness for a particular purpose; or with respect to any social media content, promotion data or other third party content that may be accessed, provided, or made available; or any Third Party Services accessed or used, in connection with the Wayin Services; and hereby expressly disclaims any liability with respect thereto.
10.3. Services. Wayin does not warrant that the Wayin Services will be correct, uninterrupted or error-free, that defects will be corrected, that the Wayin Services (including any snippets) will be compatible with any other software, hardware or other materials, or that the Wayin Services or the servers that make the Wayin Services available are free of viruses or other harmful components. Client understands and agrees that if Client uses, accesses, downloads, or otherwise obtains any Third Party Services or content or data therein, any social media content or any Promotion Data, it is at Client’s own discretion and risk. Wayin has no control over any Third Party Services, Social Media Content or Promotion Data, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Third Party Services, Social Media Content or Promotion Data available in connection with the Wayin Services. Wayin provides access to Third Party Services, Social Media Content and Promotion Data to Client only as a convenience, and the inclusion of any link, referral, or features on the Wayin Service to Third Party Services, Social Media Content or Promotion Data does not imply Wayin’s affiliation, endorsement, or adoption of the Third Party Service or any content or data therein, any Social Media Content or Promotion Data. Access and use of Third Party Services, including without limitation the content, material, products, and services available on or through Third Party Services, any Social Media Content and any Promotion Data is solely at Client’s own risk.
10.4. Claims. To the maximum extent permitted by applicable law, Wayin expressly disclaims responsibility and liability for any claims or damages arising in connection with or relating to: a) any End User interactions with the Wayin Services or any Third Party Services; b) any Social Media Content; c) any Promotion Data; d) any acts or omission of the Client (including without limitation, breach of the Client’s obligations set out in this agreement), Users, or any third parties; and e) any compliance with laws or regulations governing publication, broadcast, or other distribution of content over the public airwaves or across third party networks.
11. MUTUAL INDEMNIFICATION.
11.1. Indemnification by Wayin. Wayin shall defend Client against or settle (at Wayin’s option) any claim, demand, suit, or proceeding made or brought against Client by a third party alleging that the Wayin Software (excluding Third Party Services, Promotion Data, Client Content and Social Media Content), when used by Client as provided by Wayin and in accordance with this Agreement and all applicable documentation, infringes or misappropriates the intellectual property rights of such third party (a “Claim Against Client”), and shall pay any damages, attorney fees and costs finally awarded or agreed to in settlement of, a Claim Against Client; provided that Client (a) promptly gives Wayin written notice of the Claim Against Client; (b) gives Wayin sole control of the defence and settlement of the Claim Against Client (provided that Wayin may not settle any Claim Against Client without Client’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed); and (c) gives Wayin all reasonable assistance, at Wayin’s expense in the defence and settlement of the Claim Against Client. In the event of a Claim Against Client, or if Wayin reasonably believes the Wayin Services may infringe or misappropriate any third party’s rights, Wayin may in Wayin’s discretion and at no cost to Client (i) modify the Wayin Services so that they no longer infringe or misappropriate, (ii) obtain a licence for Client’s continued use of the Wayin Services in accordance with this Agreement, or (iii) terminate Client’s subscriptions for such Wayin Services upon 10 days’ written notice and refund to Client a prorated portion of any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Wayin shall have no liability or obligation for any Claim Against Client or demand arising in connection with (x) the use or combination of the Wayin Services or any part thereof (including without limitation a Snippet) with software, hardware, or other materials not provided by Wayin (including without limitation the Third Party Services, Client Content, Promotion Data or Social Media Content), (y) modification of the Wayin Services by a party other than Wayin, or (z) an allegation that is based on content passing through the Wayin Services, including without limitation Client Content, Promotion Data or Social Media Content. The foregoing states Wayin’s entire liability and Client’s exclusive remedy for intellectual property rights infringement.
11.2. Indemnification by Client. Client shall defend Wayin, its Affiliates, and the directors, officers, employees, and representatives of each of them (“Wayin Parties”), against or settle (at Client’s option) any claim, demand, suit or proceeding made or brought against a Wayin Party by a third party (i) alleging that Client Content, when used by Wayin in accordance with this Agreement, or Client’s use of the Wayin Services in violation of this Agreement or applicable documentation, infringes, misappropriates, or otherwise violates the intellectual property or privacy rights of a third party or applicable law or regulations, except and solely with respect to any claim that would have been a Claim Against Client if brought directly against Client, or (ii) otherwise arising out of or relating to any act, omission, fault or negligence of Client in relation to its use of the Wayin Services or its performance or breach of this Agreement (each, a “Claim Against Wayin”), and shall pay any damages, attorney fees and costs finally awarded or agreed to in settlement of, a Claim Against Wayin; provided that Wayin (a) promptly gives Client written notice of the Claim Against Wayin; (b) gives Client sole control of the defence and settlement of the Claim Against Wayin (provided that Client may not settle any Claim Against Wayin without Wayin’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed); and (c) gives Client all reasonable assistance, at Client’s expense in the defence and settlement of the Claim Against Wayin. The foregoing states Client’s entire liability and Wayin’s exclusive remedy for intellectual property rights infringement.
12. LIMITATION OF LIABILITY.
12.1. Exclusion of Consequential and Related Damages. Subject to section 12.3 and to the maximum extent permitted by applicable law, in no event shall either party have any liability to the other party or to any third party for any indirect, special, exemplary, incidental, punitive, or consequential damages however caused, whether arising as a result of statute, contract, tort (including negligence) or under any other theory of liability, whether or not the party has been advised of the possibility of such damage.
12.2. Limitation of Liability. Subject to section 12.3 and to the maximum extent permitted by applicable law, in no event shall either party’s aggregate total liability arising out of this agreement, whether in contract, tort or under any other theory of liability, exceed the amounts paid or payable under the applicable order during the twelve (12) months prior to the date on which such claim or cause of action arose.
12.3. Exceptions. The limitations of liability set out in this Section 12 shall not apply in respect of: (a) any liability for death or personal injury resulting from a party’s negligence; (b) any liability for fraud or fraudulent misrepresentation by a party; (c) any breach of any obligations implied by Section12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; (d) any other negligence or willful misconduct of Client; (e) Client’s indemnification obligations hereunder; (f) Client’s obligation to pay the Fees; or (g) any other liability to the extent to which it cannot be lawfully excluded.
13. TERM AND TERMINATION.
13.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Client’s subscriptions to Wayin Services have expired, unless earlier terminated as set forth herein.
13.2. Term of Purchased Subscriptions. Subscriptions purchased by Client commence on the start date specified in the applicable Order and continue for the Subscription Term. Unless otherwise provided for in an Order, subscriptions will automatically renew at the end of each Subscription Term for a further year unless Client gives Wayin written notice of termination at least 30 days prior to the end of the relevant term. Wayin reserves the right to increase Fees 10% annually for a renewed Subscription.
13.3. Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
13.4. Termination for Non-Payment by WSP. In the event that the WSP from whom Client purchases Wayin Services fails to timely pay Wayin the fees owed for such Wayin Services, Wayin reserves the right to terminate the Order or this Agreement or suspend Client’s access to the applicable Wayin Services, upon 30 days’ written notice to Client. Wayin will have no liability to Client for any such termination or suspension, and Client’s sole remedy with respect to any such suspension or termination is to seek a refund or other applicable remedy from the applicable WSP.
13.5. Payment upon Termination. Upon any termination for cause by Wayin, Client shall pay any unpaid fees covering the remainder of the applicable Subscription Term of all Orders accepted prior to the effective date of termination. In no event shall any termination relieve Client of the obligation to pay any fees payable to Wayin, the Wayin Affiliate or the applicable WSP for the period prior to the effective date of termination.
13.6. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 5, 6, 7, 10, 11, 12, 13.4, 13.5, 13.6, and 15.
14. MODIFICATIONS TO THE AGREEMENT.
Wayin reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Client should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Client’s rights or obligations, Wayin will make reasonable efforts to notify Client of such change. Wayin may provide notice through a pop-up or banner within the Wayin Services or Administrative Interface, by sending an email to any address Client may have used to register for access, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies Client’s rights or obligations, Wayin may require Client to provide consent by accepting the changed Agreement. If Wayin requires Client’s acceptance of the changed Agreement, changes are effective only after Client’s acceptance. If Client does not accept the changed Agreement, Wayin may terminate Client’s access to and use of the Wayin Services. All other changes are effective upon the earlier of Client’s acceptance of the modified Agreement, Client’s use of the Wayin Services with actual knowledge of the change, or thirty (30) days following publication of the modified Agreement. Disputes arising under this Agreement will be resolved in accordance with the Agreement in effect at the time the dispute arose.
15. GENERAL PROVISIONS.
15.1. Affiliates. The parties agree that any Affiliate of Wayin may execute an Order under this Agreement. Upon execution of such an Order, references in this Agreement to Wayin shall be deemed to be references to the Wayin Affiliate, except where the context dictates otherwise.
15.2. Relationship. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship.
15.3. Notices. All notices under this Agreement shall be in writing and shall be delivered to the address set forth in the Order, provided that Wayin may provide notices to Client via the email address provided at the time of registration for access.
15.4. Waiver and Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to effect the original intent to the fullest extent possible, if at all, and the remaining provisions of this Agreement shall remain in full force and effect.
15.5. Assignment. Neither party may assign or novate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party, provided that either party may assign or novate this Agreement together with all rights and obligations hereunder, without consent of the other party, to a successor entity resulting from a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a party to assign or novate its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted transferees.
15.6. Governing Law and Dispute Resolution. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law. Disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules in force at the time the request for arbitration is filed. The number of arbitrators shall be one. The sole arbitrator shall be nominated jointly by the parties within thirty (30) days from the filing of the response to the request for arbitration. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
15.7. Force Majeure. Except for the obligation to make payments, non-performance of either party shall be excused to the extent that performance is rendered impossible by strikes or other labour problems, fire, flood, civil unrest, acts of terror, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
15.8. Headings. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The words “include” and “including” as used in this Agreement are to be read as if they were followed by the phrase “without limitation”.
15.9. Integration. This Agreement, as may be modified from time to time as set forth herein, together with any Orders and other documents or additional terms referenced herein, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement, including without limitation, any foreign language translation of this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly incorporated into it.
15.10. Modification and Waiver. Except as expressly provided herein, no modification, amendment, or waiver of any provision of this Agreement (or any Order) shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in this Agreement and any Order, the terms of the Agreement shall prevail.
15.11. Translations. For the avoidance of doubt, any foreign language translations of this Agreement provided by Wayin or a WSP are solely for reference and convenience purposes, and are not binding in any way, and the English language version of this Agreement controls in all cases, regardless of any deviation or inaccuracy in any foreign language translation provided.
15.12. Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, except that each of Wayin’s Affiliates may enforce and rely on this Agreement to the same extent as if it were a party.
15.13. Reasonableness. Each party to this Agreement confirms it has had sufficient opportunity to obtain legal advice relating to all the matters provided for in this Agreement, including the provisions of Section 12 (Limitation of Liability) and agrees, having considered the terms of each Section and the Agreement as a whole, that the provisions of each Section and this Agreement are fair and reasonable.
Effective Date: May 24, 2018