Terms of Service Agreement

Thank you for signing up for a subscription with Wisely, legally represented by “Bytebenders LLC”. (“Wisely”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Wisely Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a Wisely Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendment’s section below, so you should make sure to check this page from time to time. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein.

Our Privacy Policy explains the way we collect and use your information. By using the Service, you agree to be bound by these Terms and our Privacy Policy. If you’re using our Service on behalf of an organization or entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these Terms. In that case, “you” and “your” refers to that Organization.

Our Terms and Privacy Policy affect your legal rights and obligations. If you do not agree to be bound by all of these, do not access or use our Service.

This Agreement is effective as of December 1, 2021.

1.Terms of Service Agreement

Wisely provides a web based platform with tools that allows customers to get actionable metrics and insights about ecommerce campaigns, channels and initiatives by collecting and crossing data from multiple sources. To accomplish this, the Customer first connects the Wisely platform to their data sources. Based on these data connections, Wisely platform will process it and generate reports and insights about the Customer store.

2. DEFINITIONS

2.1 “Add-On” means integrations, applications, and other add-ons that are used with the Wisely Service.
2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the Wisely Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Customer Data” means: (i) Submitted Data; (ii) Visitor Data; and (iii) any other Customer Data specified in this terms.
2.7 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; (iii) Customer Stores; or (iiii) other types of platforms or properties (as may be supported by Wisely) specified in the applicable Order Form or Purchase Order.
2.8 “Customer Sites or Customer Stores” means the web domains expressly identified in the applicable Order Form or Purchase Order.
2.9 “Documentation” means the end user technical documentation created by Wisely and provided with the Wisely Service, currently available in the Website and Blog at https://wisely.pro/.
2.10 “Wisely Service” means the specific proprietary software-as-a-service product(s) of Wisely specified in Customer’s Order Form or Purchase Order, including any related Wisely Code and Documentation, and excluding any Third-Party Products.
2.11 “Wisely Technology” means the Wisely Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Wisely Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.12 “Order Form” means any Wisely ordering documentation or online sign-up or subscription flow that references this Agreement.
2.13 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.14 “Scope of Use” means the usage limits or other scope of use descriptions for the Wisely Service included in the applicable Purchase Order (including descriptions of packages and features) or Documentation. These include any numerical limits on Advertisement Spent Range or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.15 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Wisely Service, including Third-Party Content and Data.
2.16 “Subscription Term” means the initial term for the subscription to the applicable Wisely Service, as specified on Customer’s Order Form(s) or Purchase Order(s), and each subsequent renewal term (if any).
2.17 “Third-Party Content” means content, data or other materials that Customer provides to the Wisely Service from its third-party data providers, including through Data Connections used by Customer.
2.18 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Wisely.
2.19 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.20 “Visitor” means any end user of a Customer Property.
2.21 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Wisely Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the relevant Service-Specific Terms, policies, or Exhibits.

3. ACCOUNT REGISTRATION AND USE

Customer and its Authorized Users may need to register for an Wisely account in order to place orders or to access or receive an Wisely Service. Account information must be accurate, current, and complete, and will be governed by Wisely’s Privacy Policy (currently available at https://www.wisely.pro/en-privacy/). Customer agrees to keep this information up-to-date so that Wisely may send notices, statements, and other information by email or through Customer’s account. Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the Wisely Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any Wisely Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify Wisely immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.

4. USE RIGHTS

4.1 Use of Wisely Services. Subject to all the terms and conditions of this Agreement, Wisely grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Wisely Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions.

4.2 Use by Others. Customer may permit its Authorized Users to use the Wisely Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.

4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Wisely Service to a third party (except Authorized Users); (ii) incorporate the Wisely Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the Wisely Service (which is deemed Wisely’s Confidential Information); (iv) modify or create a derivative work of the Wisely Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Wisely Service (including Wisely Code), except to the extent expressly permitted by applicable law and then only with advance notice to Wisely; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Wisely Service, or configure the Wisely Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the Wisely Service other than the Wisely Code installed in Customer Properties as specifically permitted above; (viii) access the Wisely Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Wisely Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Wisely’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the Wisely Service, including in any reports or output obtained from the Wisely Service.

4.4 Beta Releases and Trial Access Subscriptions. Wisely may provide Customer with an Wisely Service or on a trial basis (a “Trial Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Wisely Services, Wisely Code, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Trial Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Wisely may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY TRIAL ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH WISELY WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. Wisely makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Wisely may terminate Customer’s right to use any Trial Access Subscriptions or Beta Releases at any time for any reason or no reason in Wisely’s sole discretion, without liability.

5. CUSTOMER DATA

5.1 Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Wisely Technology). Customer hereby grants Wisely a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Wisely Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data).

5.2 Aggregate/Anonymous Data. Customer agrees that Wisely will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Wisely Technology, which Wisely may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Wisely’s products and services and to create and distribute reports and other materials). For clarity, Wisely will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Wisely’s use of Aggregate/Anonymous Data.

5.3 Security. Wisely agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail on Wisely’s website, currently available at https://wisely.pro. Wisely’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.

5.4 Storage. Wisely does not provide an archiving service. During the Subscription Term, Customer acknowledges that Wisely may delete Data no longer in active use. Wisely expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.

5.5 Data Export. Wisely does not provide the ability for Customer to export data in the Wisely Service’s platform.

6. CUSTOMER OBLIGATIONS

Customer agrees to: (i) maintain a legally-adequate privacy policy on its Customer Properties and provide all required disclosures to its Visitors; (ii) obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Wisely the rights set out in this Agreement; (iii) use the Wisely Service in compliance with Wisely’s then-current policies ; (iv) not submit, collect, or use any Regulated Data to or with the Wisely Service (including from Third-Party Products), except where expressly permitted by the Service-Specific Terms or for online identifiers (such as IP addresses or cookie IDs) collected by default by the Wisely Service; (v) comply with any third-party terms applicable to any Customer Websites, and to any Third-Party Products used in connection with the Wisely Service; (vi) not take any action that would cause Wisely, the Wisely Service or the Wisely Code to become subject to any third-party terms (including open source license terms). Customer represents and warrants that its Customer Properties and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly: (a) stop using the related item with the Wisely Service; and (b) notify Wisely. If Wisely receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, Wisely may respond in accordance with its policies, and will notify and consult with the Customer on next steps.

7. SERVICES

Wisely makes available web-based support through its website (currently available at https://wisely.pro). Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form or Purchase Order. Any support services are subject to this Agreement and Wisely’s applicable support policies. Wisely may also provide onboarding, configuration support and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Wisely Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Wisely Service itself. Wisely’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. For avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Wisely.

8. FEES AND PAYMENT

Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Wisely’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Wisely. Customer will make tax payments to Wisely to the extent amounts are appropriately included in Wisely’s invoices. Wisely sends invoices electronically, and invoices for the Wisely Service in advance as set out in the Order Form, and for overages or additional CPM, if applicable in the relevant Order Form, monthly in arrears. If Customer requires a Purchase Order number referenced on Wisely’s invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes Wisely to charge and fees other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.

9. TERM AND TERMINATION

9.1 Term. This Agreement is effective until all Subscription Terms for the Wisely Service(s) have expired or are terminated as expressly permitted in this Agreement.

9.2 Subscription Term and Renewals. By executing an Order Form or Purchase Order of an Wisely Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Wisely Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Wisely’s then-applicable rates.

9.3 Suspension of Service. Wisely may suspend Customer’s access to the Wisely Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. Wisely may also suspend Customer’s access to the Wisely Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Wisely Service. Wisely will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless this Agreement has been terminated, Wisely will cooperate with Customer to promptly restore access to the Wisely Service once it verifies that Customer has resolved the condition requiring suspension.

9.4 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). Wisely may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.

9.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Wisely Service(s) (including any related Wisely Technology); (b) stop distributing any Wisely Code installed on its Customer Properties; and (c) delete (or, at Wisely’s request, return) any and all copies of the Wisely Code, any Wisely documentation, passwords or access codes, and any other Wisely Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable Wisely Service will cease and Wisely may delete the Customer Data at any time after 30 days from the date of termination. If Wisely terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

9.6 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Trial Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Wisely’s Technology); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).

10. CONFIDENTIAL INFORMATION

10.1 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Wisely, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.

10.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

10.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

11. WISELY’S TECHNOLOGY

11.1 Ownership and Updates. This is a subscription agreement for access to and use of the Wisely’s Service. Customer acknowledges that it is obtaining only a limited right to use the Wisely’s Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer agrees that Wisely (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Wisely’s Technology (which is deemed Wisely’s Confidential Information) and reserves any licenses not specifically granted in this Agreement. Other than the Wisely’s Code, the Wisely’s Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Wisely’s Service and that Wisely at its option may make updates, bug fixes, modifications or improvements to the Wisely’s Service from time-to-time.

11.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Wisely (collectively, “Feedback”), Customer hereby grants Wisely a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Wisely will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Wisely’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

12. INDEMNIFICATION

Customer agrees to defend and indemnify Wisely from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations). Customer must not settle any claim without Wisely’s prior written consent if the settlement would require Wisely to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Wisely may participate in a claim through counsel of its own choosing at its own expense and Customer and Wisely will reasonably cooperate on the defense.

13. DISCLAIMERS

ALL WISELY TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER WISELY NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WISELY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT WISELY TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT WISELY TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. WISELY DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. WISELY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-WISELY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON WISELY TECHNOLOGY OR WISELY’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

14. LIMITATIONS OF LIABILITY

14.1 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WISELY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES. WISELY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO WISELY FOR THE APPLICABLE WISELY SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR TRIAL ACCESS SUBSCRIPTIONS OR BETA RELEASES, WISELY’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).

14.2 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY WISELY TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

15. THIRD-PARTY PRODUCTS AND INTEGRATIONS

If Customer uses Third-Party Products in connection with the Wisely Services, those products may make Third-Party Content available to Customer and may access Customer’s instance of the Wisely Service, including Customer Data. Wisely does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Wisely as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Wisely Services, including their modification, deletion, disclosure, or collection of Customer Data. Wisely is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Wisely Services by Customer or under Customer’s direction.

16. GENERAL

16.1 Trial Agreement. Your use of our Services indicates that you agree to follow and be bound by the Terms Of Use described on this web page and by our Privacy Policies available at https://wisely.pro/en-privacy/.

16.2 Contractual Agreement. By making the payment of the first monthly subscription fee, you agree to all clauses of our Service Agreement that we sent you digitally via email.

16.3 Assignment. This Agreement will bind and insure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that WISELY may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be void.

16.4 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to Wisely, in English, at the following address, legal@wisely.pro, and include “Attn. Legal Department” in the subject line. Wisely may send notices to the email addresses on Customer’s account or, at Wisely’s option, to Customer’s last-known postal address. Wisely may also provide operational notices regarding the Wisely Service or other business-related notices through conspicuous posting of the notice on Wisely’s website or the Wisely Service. Each party consents to receiving electronic notices. Wisely is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

16.5 Publicity. Wisely may not use Customer’s name, logo, and marks for its marketing purposes unless otherwise specified in the applicable Order Form or with Customer’s prior written permission.

16.6 Subcontractors. Wisely may use subcontractors and permit them to exercise the rights granted to Wisely in order to provide the Wisely Service and related services under this Agreement. These subcontractors may include, for example, Wisely’s hosted service and CDN providers. However, subject to all terms and conditions of this Agreement, Wisely will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Wisely Services if and as required under this Agreement.

16.7 Subpoenas. Nothing in this Agreement prevents Wisely from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Wisely will use commercially reasonable efforts to notify Customer where permitted to do so.

16.8 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.9 Major Force. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

17.1 Export. Customer is responsible for obtaining any required export or import authorizations for use of the Wisely Services. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the Wisely Service in violation of any U.S. export embargo, prohibition or restriction.

17.2 Amendments; Waivers. Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party. However, if Wisely modifies the Agreement or any applicable Service-Specific Terms during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal. In addition: (a) If Wisely launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use; (b) changes to any terms will take effect immediately for Trial Access Subscriptions; and (c) during a Subscription Term, Wisely may update Wisely’s Security page, Privacy Policy, and Acceptable Use Policy from time-to-time to reflect process improvements or changing practices, and these changes will take effect thirty (30) days from the date of posting so long as they do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a Subscription Term. Wisely’s Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term Wisely may update the Documentation to reflect best practice with the relevant Wisely Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations. In the event of any conflict between this Agreement and any Order Form, this Agreement will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.

17.3 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

17.4 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.

17.5 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Wisely Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.

17.6 Governing Law, Jurisdiction and Region-Specific Terms. Governing law, jurisdiction, and other region-specific terms are set out below:

US, North and South America, Asia Pacific, and Rest of World. For customers located in the United States, North and South America, Asia Pacific (excluding Australia and New Zealand), and any other jurisdiction not covered by the region-specific terms below (Rest of World), the following terms apply:

  • Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Florida and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Orange County, Florida or the United States District Court, and both parties submit to the personal jurisdiction of these courts.

  • HIPAA non-compliance. Customer acknowledges that Wisely is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Wisely Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced. “Regulated Data” includes HIPAA-regulated data and data covered under the Gramm-Leach-Bliley Act (or related rules or regulations) as updated or replaced.

  • U.S. Government Use. The Wisely Services are based upon commercial computer software. If the user or licensee of an Wisely Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Wisely Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulations 12.211 (Technical Data) and 12.212 (Computer Software) for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). The Wisely Services were developed fully at private expense. All other use is prohibited. If greater rights are needed, a mutually acceptable written amendment specifically conveying these rights must be included as part of this Agreement.

  • General. The Uniform Computer Information Transactions Act (UCITA) do not apply to this Agreement regardless of when or where adopted.

  • Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

  • English language. The parties agree that this Agreement is in the English language.