This Software as a Service Agreement is between WILL Interactive, Inc. a Maryland corporation with offices at 10000 Falls Road, Suite 305, Potomac, MD 20854 ("WILL"), and the entity identified either on an associated purchase order form or a purchaser on the WILL website ("Customer"). The Agreement is effective as of the date the last party signs the purchase order form or the date and time that the Customer completes purchase on the WILL website ("Effective Date").
Capitalized terms have the meanings described in this section or in the body of the Agreement.
"Agreement" means this Software as a Service Agreement and all Order Forms (unless otherwise required by context).
"Customer Data" means all electronic data or information that Customer submits to the Service.
"Order" and/or"Orders" means a Customer purchase using a WILL ordering document (order form) or through Customer purchases made through the WILL website that reference this Software as a Service Agreement.
"Service" means WILL's proprietary Virtual Experience Immersive Learning Simulation (VEILS®) software-as-a-service, accessible through the Internet, that is intended for organizational training and education.
"Term" means the period of Customer's subscription to the Service as specified in an Order, unless terminated earlier under Section 7 (Term and Termination).
"Third Party Products" means any products or services not developed by WILL.
"User" means an employee or independent contractor of Customer that Customer authorizes to use the Service on Customer's behalf.
"WILL" means the WILL website and all associated eCommerce and Learning Management System service software owned by WILL Interactive.
2. SERVICE AND SUPPORT
2.1. Provision of Service. WILL shall provide Customer with access to the Service for the number of Users specified on the Order during the Term.
2.2. Use of Service. Customer shall use the Service and the data generated by the Service only for its intended purpose and Customer's internal business use.
2.3. Support. WILL shall provide Customer with technical support, both telephonic or email ("Customer Support") between the hours of 8:30am and 6:00pm, United States Eastern Standard Time.
3. RESPONSIBILITES AND RESTRICTIONS
3.1. WILL Responsibilities. WILL shall: (i) provide Customer with access to the Service in accordance with this Agreement and all applicable laws; and (ii) provide the Service with a minimum of 99.0% Uptime during any calendar month, except WILL shall have 2 days to restore availability after any downtime."Uptime" means the availability of the Service, excluding lack of availability due to Customer or third party causes, downtime for maintenance, or a force majeure event.
3.2. Customer Responsibilities. Customer shall: (i) cause Users to comply with this Agreement; (ii) cooperate with WILL so that WILL can provide the Service, including using reasonable efforts to make people and information available; (iii) be responsible for the Customer Data, except for WILL's obligations described in Section 5 (Confidentiality); (iv) use reasonable efforts to prevent unauthorized access or use of the Service and promptly notify WILL if Customer discovers any unauthorized access or use; and (v) use the Service in accordance with this Agreement and applicable laws.
3.3 Restrictions. Only Users may use the Service and only with the account credentials issued to that User. Users may not share their account credentials. Customer shall not, and shall not permit any third party to: (i) use the Service except as expressly authorized under this Agreement; (ii) interfere with or disrupt the integrity or performance of the Service; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Service available; (iv) remove any title, trademark, copyright, or restricted rights notices or labels from the Service; (v) modify or create a derivative work of the Service or any portion of the Service; (vi) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, object code or underlying structure or algorithms of the Service.
4.1. Fees. Customer shall pay all fees specified in all Orders ("Fees"). Fees are quoted and payable in United States dollars and are non-refundable, except as described in Section 7 (Term and Termination) prior to access to the Service.
4.2. Taxes. Fees are exclusive of all taxes, including any applicable sales, excise, or use taxes ("Taxes"). WILL shall include any Taxes on an Order or invoice, if applicable. Customer shall pay any Taxes directly or to WILL, as required by law. If Customer is exempt from paying Taxes, Customer shall provide WILL with a valid tax exemption certificate. Customer is not responsible for taxes based on WILL's net income, property, or employees.
4.3. Invoicing and Payment Using Order forms. WILL shall invoice Customer according to the terms on the Order. Unless the Order states otherwise, Fees are due upon receipt of invoice. Customer shall provide WILL with complete and accurate billing and contact information and promptly notify WILL of any changes throughout the Term. Access to the Service commences upon receipt of Fees.
4.4. Payment Disputes. If Customer disputes an invoiced amount in good faith, Customer shall give WILL written notice with detailed support of the dispute within 10 business days of Customer's receipt of the invoice. If Customer fails to do so, Customer waives its right to dispute that invoice, and the invoice will be deemed accurate and valid. This section does not waive Customer's obligation to pay all undisputed Fees.
5.1. Definition."Confidential Information" means oral, electronic or written information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of its disclosure. Customer Confidential Information includes, but is not limited to, Customer Data. WILL Confidential Information includes, but is not limited to, information pertaining to the features, functionality and performance of the Service, pricing, and this Agreement. Confidential Information does not include information that: (i) is now or becomes generally known or available to the public without breach of this Agreement by the receiving party (the"Recipient"); (ii) was acquired by the Recipient without restriction on its use or disclosure before the information was received from the disclosing party (the"Discloser"); (iii) is obtained by the Recipient without restriction on its use or disclosure from a third party authorized to make the disclosure; or (iv) is independently developed by the Recipient without using or referring to the Discloser's Confidential Information.
5.2. Protection of Confidential Information. The Recipient may only use the Discloser's Confidential Information in relation to this Agreement. The Recipient shall maintain the confidentiality of the Discloser's Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information (including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. The Recipient shall not disclose any of the Discloser's Confidential Information except to Recipient's employees, contractors and agents who need to know the information to provide the Service or in relation to an event described in Section 5 (Assignment), in which case Recipient shall cause these recipients to agree to and abide by commercially reasonable confidentiality terms. Each party has the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
5.3. Compelled Disclosure. If the Recipient is required by law or a valid court or government order to disclose any of the Discloser's Confidential Information, then (to the extent permitted under law) the Recipient shall promptly notify the Discloser in writing of the required disclosure so that the Discloser may seek to protect its Confidential Information. The Recipient shall cooperate with the Discloser in seeking such protection. If the Recipient is required to disclose the Discloser's Confidential Information, it shall disclose only the portion of the Confidential Information legally required and shall use reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the maximum extent possible.
6. PROPRIETARY RIGHTS
6.1. Customer Ownership and Licenses. Customer owns all rights, title and interest in and to Customer Data. During the Term, Customer grants WILL a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Service), non-transferable (except as described in Section 5 (Assignment)) right to access and use the Customer Data to provide the Service to Customer and to monitor and improve the Service. Customer shall back up Customer Data during the Term and may not have access to the Customer Data via the Service after the Term.
6.2. Blind Data. WILL may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively,"Blind Data"). Blind Data will be owned solely by WILL and may be used for any lawful business purpose without a duty of accounting to Customer."Aggregated Data" means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer's or Customer user identity.
6.3. Feedback. If Customer provides Feedback, Customer grants to WILL a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property WILL develops."Feedback" means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Service or any services or products provided by WILL.
6.4. Reservation of Rights. WILL and its licensors reserve all right, title and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted in this Agreement. No other rights are granted to Customer by this Agreement.
7. TERM AND TERMINATION
7.1. Term. The Term begins on the Effective Date and ends on the Termination Date."Termination Date" means the earlier date of: (i) the expiration or termination of all Orders under this Agreement; or (ii) termination of this Agreement under this section.
7.2. Termination for Cause. A party may terminate this Agreement or any applicable Order: (i) if the other party is in material breach of this Agreement and fails to cure the breach within 30 days of receiving written notice from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice of breach must contain specific information to substantiate the alleged breach. If Customer terminates due to WILL's breach, Customer's exclusive remedy is a pro-rata reimbursement of prepaid Fees covering the remainder of the Term after the Termination Date. If WILL terminates due to Customer's breach, Customer will pay any unpaid Fees covering the remainder of the Term after the Termination Date. Termination under this section will not relieve Customer of its obligation to pay any Fees owed for the period prior to the Termination Date.
7.3. Effect of Termination. Customer shall immediately cease all use of and access to the Service on the Termination Date. Section 3.3 (Restrictions), Section 5 (Confidentiality), Section 6 (Proprietary Rights), Section 7 (Term and Termination) and Section 9 (Limitation of Liability), and Section 11 (General Terms) will survive termination. All other rights and obligations will be of no further force or effect.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each party represents that it: (i) has the legal power to enter into this Agreement; (ii) will comply with all applicable laws during the Term; and (iii) will use reasonable efforts to avoid transmitting to the other party any harmful or malicious code, files, scripts, agents or programs.
8.2. Warranty Disclaimer. Except as set forth herein, or as noted on the Order, WILL does not make any representations that the functions performed by the Service will meet all of Customer's requirements, that the operation of the Service will be uninterrupted or error free, that all defects in the Service will be corrected, or that the Service will be available in all languages or all countries. THE SERVICE IS PROVIDED"AS IS." EXCEPT AS EXPRESSLY PROVIDED HEREIN, WILL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECIFICALLY, THIRD PARTY CONTENT AND TEST FEATURES ARE PROVIDED"AS IS," EXCLUSIVE OF ANY WARRANTY. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY NETWORKING OR HOSTING PROVIDERS OR THIRD PARTY PRODUCTS.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS WILL NOT APPLY TO CUSTOMER'S PAYMENT OBLIGATIONS.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. US. GOVERNMENT MATTERS
10.1. Each party represents that it is not named on any United States government list of persons or entities restricted from doing business with any United States company. Customer shall not directly or indirectly access or use the Service in violation of any United States or international export embargo, prohibition or restriction.
10.2. Terms for U.S. Government Customers. This section applies only to Customers that are U.S. government entities subject to the cited regulations ("U.S. Government Customers"). The Service is a"commercial item" (as defined in 48 C.F.R. 2.101) and involves the use of"commercial computer software" and"commercial computer software documentation" (as used in 48 C.F.R. 12.212). All U.S. Government Customers acquire subscriptions to the Service only as a"commercial item" and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024.
11. GENERAL TERMS
11.1. Dispute Resolution; Governing Law. The parties shall use good faith, reasonable efforts to resolve any dispute before initiating legal action. The laws of the State of Maryland, excluding choice of law principles, govern this Agreement.
11.2. Notices. Notices under this Agreement must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/ return receipt requested); or (ii) the second business day after sending by email. Notices to WILL should be sent to firstname.lastname@example.org or to WILL's Legal Department at the address specified above. Billing notices and notices relating to this Agreement will be sent to the contacts designated by Customer on the Order, or via email to the Customer's email address associated with their WILL account.
11.3. Customer References. During the Term, if approved by the Customer, WILL may include Customer's name, logo and success stories in WILL's website, press releases, promotional and sales literature, and lists of customers.
11.4. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party, including but not limited to an electrical, internet, or telecommunication change or outage not caused by the obligated party; government restrictions; or illegal acts of third parties. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.5. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party's prior written consent (not to be unreasonably withheld), except either party may assign this Agreement in its entirety without the other party's consent to its affiliate or as part of a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
11.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.7. Waiver. No failure or delay by either party to exercise any right under this Agreement will constitute a waiver of that right, unless expressly stated in this Agreement.
11.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it enforceable. The provision will be disregarded only if such modification is not possible or is prohibited by law. The remaining provisions of this Agreement will remain in effect.
11.9. Order of Precedence. If there is a conflict or inconsistency between any physical Order form and this SaaS Agreement, the Order form will control.
11.10. Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No change to any provision of this Agreement or any Order will be effective unless in writing and signed by an authorized signatory of the party against whom the change is asserted. No terms in Customer's purchase order or other order documents (excluding Order forms) will be incorporated into this Agreement, regardless of any terms to the contrary, and WILL expressly rejects all such terms.
11.11. Headings. Headings are for reference only and do not affect the meaning or interpretation of this Agreement.
11.12. Signature Authority. The person signing Order forms or agreeing to this SaaS agreement via purchase on the WILL website represent that they have authority to bind Customer to the terms of this Agreement.