1.1. General. These Master Terms and Conditions are by between Wizard Commerce, Inc., a corporation existing and organized under the laws of the Delaware (“Wizard”) and the individual or legal entity (“Client”) who has executed an initial order form (or other ordering or purchasing document) referencing this Agreement (each, an “OF”). It governs Wizard’s provision and Client’s use of (i) the Subscription Services, as described in the initial OF and (ii) any professional services described in the initial OF, including, any other consultation, onboarding, implementation and technical services, creation or development of deliverables, or any maintenance, training and support (“Professional Services”, and together with the Subscription Services, the “Services”) during the Term. From time to time during the Term, the parties may enter into subsequent OFs or statements of work (each an “SOW”) for Wizard to provide additional Services hereunder, which will also be incorporated herein by reference (these Master Terms and Conditions, together with the initial OF and any subsequent OF or SOW, collectively this “Agreement”). In the event of a conflict between or among the terms in the body of this Agreement, any OF or SOW, and any other document made a part hereof, the documents will control in the following order: Master Terms and Conditions, the OF or SOW (unless the OF or SOW expressly overrides a provision in these Master Terms and Conditions) and any such other document.
1.2. License to the Subscription Services. Commencing at the time Wizard receives the associated payment for any Subscription Services and Client has completed (to Wizard’s satisfaction) all implementation requirements (as further described in the OF or Implementation SOW), subject to Client’s compliance with this Agreement, Wizard grants to Client a limited, non-exclusive, non-sublicensable, non-transferable (except as provided in Section 11), solely during the Term, to use the Subscription Services solely for Client’s internal business purposes. Wizard reserves and, as between the parties will solely own, the Wizard Materials and all right, title and interest therein and thereto. No rights are granted to Client hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
1.3. Performance of Services. By executing an OF or SOW, Client agrees to receive and pay for, and Wizard agrees to provide, the Professional Services described in such OF or SOW.
1.4. Use Restrictions. Client will not at any time and will not permit any person or entity to, directly or indirectly: (i) use the Services or any Wizard Materials in any manner beyond the scope of rights expressly granted in this Agreement; (ii) attempt to derive or gain access to or discover source code relevant to the Services; (iii) use the Services or Wizard Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any Applicable Law; (iv) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (v) access or search the Services or Wizard Materials (or download any data or content contained therein or transmitted thereby) through the use of any data mining tool other than Services features provided by Wizard for use expressly for such purposes; (vi) use the Services to store or transmit code intended to do harm, such as viruses; (vii) use the Services, Wizard Materials or Client Personal Data for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service, or technology that could, directly or indirectly, compete with the Services or (viii) remove any proprietary notices or labels of or from any Wizard Materials.
1.5. Feedback. From time to time, Client or its employees, contractors, or representatives may provide Wizard with suggestions, comments, feedback, or the like regarding the Services (collectively, “Feedback”). As between Wizard and Client, Wizard will own all right, title and interest in and to any Feedback. Client hereby assigns and agrees to assign any such Feedback and any such matter arising out of or relating to Feedback to Wizard without further consideration. Client will take all further acts as needed to affect the intent of this Section.
2.1. Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant OF (the “Initial Term”). Except as otherwise set forth in the OF, following the Initial Term, this Agreement will automatically renew for additional periods equal to the renewal term set forth and identified as the Renewal Term in the applicable OF (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the Initial Term or the then-current Renewal Term.
2.2. Termination. Wizard may terminate this Agreement at any time, whether during the Initial Term or Renewal Term, upon sixty (60) days written notice to Client, provided that, if Client is in breach of this Agreement, Wizard may terminate the Agreement or effective on written notice to Client, if such breach remains uncured thirty (30) days after Wizard had initially provided Client with written notice of such breach. In addition to the foregoing, Wizard may terminate this Agreement on written notice, effective upon written notice to Client, if Client becomes insolvent, admits its inability to pay its debts, becomes subject to any bankruptcy proceeding, is dissolved or liquidated, makes a general assignment for the benefit of creditors, or has a trustee, receiver, or custodian appointed with respect to its business or assets. The termination of any Services or otherwise this Agreement will not affect Client’s obligations to pay for other Services.
2.3. Effect of Termination. Upon the effective date of termination of this Agreement: (i) Wizard will immediately cease providing the Services; (ii) any and all payment obligations of Client under this Agreement for Services provided through the date of termination will immediately become due; (iii) each party will promptly return or certify the destruction of all Confidential Information of the other party in its possession, and will not make or retain any copies of such Confidential Information, except as required to comply with any Applicable Law or applicable accounting record keeping requirement; and (iv) Sections 1.5, 2.3, 3, 4, 5, 6.2, 6.3, 6.5 and 8 through 12 of this Agreement will survive.
2.4. Suspension of User Access by Wizard. Wizard may suspend or otherwise deny Client (or any User’s) access to or use the Services if: (a) Client fails to pay any amount when due hereunder; (b) Wizard believes that Client or a User: (x) has failed to comply with any term of this Agreement or (y) is, has been, or is likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on Wizard; (c) Wizard believes that the continued provision of all or any part of such Services is or will be noncompliant with Applicable Laws.
3. Fees, Payment Terms
For all Services, Client will pay all fees and other charges due, according to the prices and terms listed in the applicable OF or SOW.
4. Confidential Information
4.1. Nondisclosure of Confidential Information. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, Wizard Confidential Information includes the Wizard Materials. Notwithstanding the foregoing, for purposes of this Agreement, the term “Confidential Information” will not include Client Personal Data, and each party’s obligations with respect to Client Personal Data are set forth and subject to the Data Processing Addendum attached hereto as Exhibit A.
4.2. Obligations. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Wizard may use and modify Client Confidential Information in aggregated or other deidentified form in connection with Wizard’s business, including, without limitation, for purposes of improving the Services and/or developing and deriving Wizard Materials. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each party but may be disclosed on a confidential basis to a party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. Without limiting the foregoing, nothing in this Agreement will limit or restrict Wizard’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Wizard or its personnel acquire or obtain in connection with the performance of Wizard’s obligations hereunder.
4.3. Exceptions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
5. Client Materials
5.1. Ownership of Client Materials. Wizard acknowledges that, as between Client and Wizard and except as set forth in Section 5.2 and subject to Section 8, Client owns and retains all right, title, and interest in and to all Client Materials. Client acknowledges that the Services are conditioned on receipt of Client’s product and sales information, along with Client’s other obligations with respect to the Client Materials described herein.
5.2. License to Client Materials. Commencing on the date hereof, Client grants to Wizard a non-exclusive, worldwide, royalty free, sublicensable right and license to use, host, reproduce, display, perform, and modify the Client Materials (excluding any Client Personal Data, which is addressed in Section 8), the Client’s name and trademarks, and product information solely for the purpose of hosting, operating, improving, and providing the Services and Wizard’s other related products, services and technologies during the Term.
5.3. Client Representations and Warranties. Client represents, warrants, and covenants to Wizard that all Client Materials including the Client’s name, trademarks, product information, and other materials and technology provided to Wizard hereunder, as well as Client’s activities in connection with, use of or access to the Services, are accurate, complete and do not and will not infringe, violate, or otherwise misappropriate the intellectual property rights of any other person. Client will be solely and completely responsible for the accuracy, quality, and legality of all Client Materials, how Client acquired Client Materials, and the use of the same by Client and its representatives. If Wizard receives information indicating or otherwise reasonably believes that all or any portion of any Client Materials may violate Applicable Laws (including any Privacy Laws), any third-party rights or otherwise could reflect poorly on Wizard or negatively impair its name, brand or goodwill, Wizard may so notify Client and, if Client fails to remove or modify the relevant portion of Client Materials within two business days, Wizard may delete and immediately cease all use of the relevant portion of Client Materials. Under no circumstances will Wizard be liable in any way for any: (i) Client Materials transmitted or viewed for purposes of the Services; (ii) errors or omissions in Client Materials; or (iii) any loss or damage of any kind incurred because of the use of, access to, or denial of access to any Client Materials.
6. Representations and Warranties
6.1. General Representations. Each party hereby represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization, and has the right to enter into this Agreement, including each OF or SOW; and (b) the execution, delivery and performance of this Agreement, including each OF or SOW and the consummation of the transactions contemplated hereby and thereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.
6.2. Professional Service Performance Warranty. Wizard warrants that it will perform the Professional Services with reasonable care in a manner consistent with industry standards reasonably applicable to the performance thereof (the “Professional Services Warranty”), and Wizard will not knowingly provide Client with any fraudulent customers through the Services. As Client’s sole and exclusive remedy and Wizard’s entire liability for any breach of the Professional Services Warranty, Wizard will use commercially reasonable efforts to promptly re-perform any Professional Services that fail to meet the standards therein.
6.3. No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE PRECEDING SECTION 6.2, THE SERVICES AND WIZARD MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THEM IS AT ITS OWN RISK. WIZARD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ASSURANCES OF COMPATIBILITY OR FUNCTIONALITY, NON-INFRINGEMENT, UPTIME, AVAILABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WIZARD DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT SERVICES WILL GUARANTEE OR INCREASE ANY SALES OR HAVE ANY OTHER OUTCOME. WIZARD HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY OF CLIENT MATERIALS. THE SERVICES DO NOT REPLACE THE NEED FOR CLIENT TO MAINTAIN REGULAR DATA BACKUPS AND REDUNDANT DATA ARCHIVES, INCLUDING WITH RESPECT TO CUSTOMER RECORDS OR PRODUCT SALES.
6.4. Third Party Services.
- a) Certain features and functionalities within the Services may allow Client to interface or interact with, access and/or use compatible third-party services, products, technology, and content, including via an API integration (collectively, “Third-Party Services”) through the Services. Wizard does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Without limiting the foregoing, API integrations has its own inherent level of unpredictability and inconsistency that is out of Wizard’s control, and Wizard has no and will have no liability for downtime or compatibility issues caused in whole or in part by API integration failures. Third-Party Service Providers may impose restrictions on permitted use, including other terms and conditions.
- b) Wizard does not and cannot control (i) the actions of Client’s or Wizard’s customers, including with respect to such third parties’ purchase, use, or return of products from Client and (ii) the flow of data to or from Wizard’s network and other portions of the internet and telephone utilities, which depends in large part on Third-Party Services. Although Wizard will use commercially reasonable efforts to take actions it deems appropriate to facilitate interactions with third party customers and remedy and avoid service interruptions, Wizard cannot predict or guarantee what, if any, events may occur and that such events will not occur.
- c) Client is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Client to use the Third-Party Services in connection. In addition, Client is solely responsible for obtaining and maintaining in good working order, suitable for the purposes for which the applicable item is used, and in conformance with all relevant industry standards, all of Client’s information technology systems and infrastructure (“Client Systems”). Client acknowledges and agrees that failure to obtain and maintain Client Systems, to meet any applicable technical requirements of or relating to the Services, or to obtain any necessary capabilities, third-party rights, licenses and/or consents, may cause the Services to (in whole or in part) be unavailable, or function ineffectively or inappropriately. Wizard will in no event be responsible for any downtime, losses, failures, or liabilities that arise because of Client’s failure comply with the requirements set forth in this Section.
6.5. Compliance with Laws. Client acknowledges and agrees that the Services do not guarantee Client’s compliance with Applicable Laws, including, without limitation, relating to the privacy or the purchase and/or sale of Client products (such as, without limitation, any age or other gating restrictions), and that Client’s compliance with all Applicable Laws is ultimately Client’s sole and exclusive responsibility. Without limiting the generality of the foregoing, Client acknowledges that Wizard does not and will not provide any legal advice, and that any feedback, content or materials provided by Wizard as part of or in connection with the Services do not constitute legal or other professional advice, and that Client is solely responsible for determining the legality, validity and enforceability of all purchases and sales made to Users and of all Client Materials, as well as the accuracy, accessibility, safety and reliability of any language contained within all of Client Materials. For the avoidance of doubt, as between Client and Wizard, Client is responsible for determining User eligibility requirements to purchase and receive Client products and/or services and whether they have been met.
6.6. Scope of Services. Wizard reserves the right, in its sole discretion, to make any changes to the Subscription Services that it deems reasonably necessary or appropriate, including to: (a) maintain or enhance quality or the competitive strength of the Services, including with respect to cost, efficiency or performance; or (b) comply with Applicable Laws. Client acknowledges and agrees that entrance into this Agreement, including each OF or SOW is not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written public comments made by Wizard regarding any such future functionality or features, in each case unless otherwise expressly stated in the applicable OF or SOW.
7. Client Cooperation
Client will reasonably and promptly cooperate with Wizard in connection with any actual audit or inquiry requested by governmental authority in relation to the Client Materials or Client Personal Data. Client will also promptly cooperate with Wizard in all respects, including provision of information, access and support as may be reasonably required for purposes of Wizard’s performance hereunder. Wizard will not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations hereunder or as otherwise reasonably necessary for Wizard to perform any Services. In the event of any such delay or failure, Wizard may extend all or any subsequent milestone dates as it deems reasonably necessary. For the avoidance of doubt, Client will be responsible for payment for additional hours of work caused by any delay or failure caused in whole or in part by Client at the rates in effect for the relevant Services at the time of such delay or failure.
8. Data and Cybersecurity Matters
8.2. Data Processing Addendum. Each party shall comply with the Data Processing Addendum attached hereto as Exhibit A, the terms of which are incorporated herein by reference.
8.3. Client Messaging Obligations.
- a) Client is solely responsible for obtaining the consent and maintaining the appropriate records to demonstrate consent of each consumer’s whose consent is required by Privacy Laws to receive text messages (the “Messages”), and for ensuring that such consent is in compliance with all Privacy Laws, including, without limitation, applicable federal, state and local laws, regulations and rules governing Messages, such as, without limitation, the Telephone Consumer Protection Act (“TCPA”) and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, the Personal Information Protection and Electronic Documents Act, provincial privacy legislation, Canada’s Anti-Spam Legislation (“CASL”), and all state and local equivalents (collectively, “Applicable Message Requirements”).
- b) Client will utilize record keeping systems that can establish that the prior express written consent referenced in Section (a) can be conclusively established under Privacy Laws. Legally sufficient evidence of such consent will be maintained by Client, including but not limited to, screenshots of the disclaimer language and consent language, the IP address of the source of the consent and the date and time stamp indicating the time the consent was provide. Such legally sufficient evidence of such consent must be made available to Wizard or its duly authorized representatives at any time during reasonable hours of the day and upon reasonable notice, to examine such records with respect to this Section 8.3 and to make copies and summaries thereof. All records relative to the Client’s obligations hereunder will be maintained and kept accessible and available to Wizard for inspection at least until the conclusion of any applicable statute of limitations under Applicable Laws, including, without limitation, any Privacy Laws, but in no event fewer than seven (7) years.
- c) Further, Client is solely responsible for ensuring that: (A) the content of all Messages complies with Applicable Message Requirements, including all applicable form, consent, content and unsubscribe requirements; (B) Client (including Wizard, on Client’s behalf) sends Messages only to individuals from whom Client has obtained all necessary legally required consent to do so in accordance with its obligations under Applicable Message Requirements (“Subscribers”); (C) Wizard is promptly notified of all requests made by any Subscriber to stop receiving Messages, but in any event, not more than one (1) business hour; and (D) any previously collected list used to send Messages has been collected in accordance with Applicable Message Requirements.
- d) Client’s responsibilities as set forth in this Section 8.3 and this Agreement will remain the sole responsibility and liability of Client notwithstanding that Wizard may offer templates, advice, guidance or suggestions relating to any of the matters that are Client’s responsibility.
8.4. Additional Client Consents. Client will obtain from each such User any and all consents required in connection with Client’s products and services, and any consents that may subsequently be required for the provision of Services to the Users, including the exchange of any other data or information between the parties.
9. Limitations of Liability
9.1. CONSEQUENTIAL DAMAGES WAIVER. EXCEPT AS SET FORTH IN SECTION 9.3, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
9.2. ABSOLUTE LIMITATION ON THE LIABILITY OF WIZARD. EXCEPT AS SET FORTH IN SECTION 9.3, WIZARD’S AGGREGATE LIABILITY OR RESPONSIBILITY WITH RESPECT TO (A) A SECURITY INCIDENT ARISING FROM A BREACH OF SECTION 8.5 WILL NOT EXCEED THE GREATER OF TWO TIMES THE AGGREGATE AMOUNT PAID BY CLIENT UNDER THIS AGREEMENT DURING THE THEN PRECEDING TWELVE (12) MONTHS AND $250,000 AND (B) ALL OTHER CLAIMS FOR OR WITH RESPECT TO ANY ONE OR MORE CLAIMS, LOSSES, LIABILITIES OR DAMAGES THAT MAY ARISE HEREUNDER OR IN CONNECTION WITH THE PROVISION OF ANY SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY CLIENT UNDER THIS AGREEMENT DURING THE THEN PRECEDING TWELVE (12) MONTHS.
9.3. Liability Exclusions; Basis of the Bargain. The foregoing limitations of liability in Sections 9.1 and 9.2, will not apply to each party’s indemnifications obligations, confidentiality obligations under Section 4, violation of its applicable laws or regulations (as allocated hereunder), gross negligence, willful misconduct, fraud or Client’s payment obligations hereunder. The parties acknowledge that Wizard has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
10.1 Wizard Indemnification. Subject to Section 10.2, Wizard will defend Client against any and all third party actions, investigations, claims, demands, subpoenas, and proceedings (collectively, “Claims”) alleging that Client’s use of the Subscription Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Client against any damages, losses, liabilities, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) awarded against Client or agreed in settlement by resulting from such Claim.
10.2. Exclusions. Wizard’s obligations under Section 10.1 will not apply if the underlying third-party Claim arises from or as a result of: (a) Client’s breach of this Agreement, negligence, willful misconduct, or fraud; (b) any Client Materials; (c) Client’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Wizard; (d) modifications to the Subscription Services by anyone other than Wizard; or (e) combinations of the Subscription Services with software, data, or materials not provided by Wizard.
10.3. Client Indemnity. Client will defend Wizard and its successors, officers, directors, shareholders, agents, employees, and affiliates from and against any and all Claims: (a) arising out of any Client Materials, Client’s products or services or Client Personal Data that is or has been under the Client’s possession or control, including (i) any Claim that the Client Materials infringe, misappropriate, or otherwise violate any third party’s intellectual property rights or (ii) any Claim that the Processing of Client Materials or such Client Personal Data violates any Applicable Law or other rights; (b) arising from any violation of any Applicable Law; (c) to the extent arising from or relating to a Security Incident involving Client Systems but only if such Security Incident was proximately caused by Client’s breach of this Agreement; (d) arising out of use of the Subscription Services by Client or its customers in a manner that is not in accordance with this Agreement or other breach of this Agreement; (e) arising out of any claim of Client’s customers (including Users) regarding any warranty, defect, product liability, refund, or return related to Client or its products; or (f) arising out of an allegation that Client used the Subscription Services, or otherwise caused Wizard (including in scenarios where Client solely provides high-level guidance for Wizard to implement), to send an SMS message in violation of any Applicable Law or industry best practice, and in each case of (a) through (f), will indemnify and hold harmless Wizard against any Losses resulting from such Claim.
10.4. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products, or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
11. Miscellaneous Provisions
Neither party may assign or transfer this Agreement, by operation of law or otherwise, without the other party’s prior written consent, and any attempt to do so will be void, except that Wizard may assign and transfer this Agreement to any of its affiliates or to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of Wizard. Wizard may, from time to time in its sole discretion, engage subcontractors to perform some or all the Services. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. Client agrees that during the Term, Wizard may publicly refer to Client, orally and in writing, as a Client of Wizard. Wizard will comply with Client’s reasonable written directions and guidance with respect to usage of Client’s trademarks. During the Term and continuing through the first anniversary of the termination of this Agreement, Client agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Wizard or contracted by Wizard to provide Services to Client. During the Term, Client will not create text messaging services that are the same or substantially similar to the Services. Client affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Client Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including any OF and SOW, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Southern District of New York and the parties irrevocably consent to the personal jurisdiction and venue therein. In the event of a legal dispute, the prevailing party in any such action will be entitled to the recovery of its reasonable attorney’s fees, costs, and expenses. Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 4 or, in the case of Client, Section 1.4, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. In the case of notice to Wizard, copy must in all cases be made (but will not constitute notice) to: firstname.lastname@example.org. For purposes of this Agreement: (a) the words and phrases “include,” “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) words or phrases regarding Wizard’s belief are deemed to be followed by the words in its sole discretion. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.
In addition to those capitalized terms defined elsewhere in this Agreement, the following capitalized terms will have the following meanings:
“Applicable Laws” means any applicable federal, state, local or other law, rule or regulation, including, but not limited to the Privacy Laws.
“Client Materials” means Client Confidential Information and all other information, data, content, and other materials, in any form or medium, that is provided or otherwise uploaded by Client (but not from or about the User) to Wizard via the Subscription Services.
“Client Personal Data” means Personal Data about a User processed by Wizard on behalf of Client to provide the Services under the Agreement. Client Personal Data also includes Personal Data about a User processed or obtained by Client through its use of the Services. Client Personal Data is not Client Materials.
“Personal Data” means any information relating to or capable of being associated, directly or indirectly, with an identified or identifiable natural person or is otherwise protected personal information under Privacy Laws.
“Privacy Laws” means all applicable national, state, and federal data privacy, data protection, marketing, telephone solicitation acts, robocall laws, and cybersecurity laws, rules and regulations and industry self-regulatory rules to which Client Personal Data are subject, including, including without limitation the Telephone Consumer Protection Act, the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act, the Florida Telephone Solicitation Act, and the Cellular Telecommunications Industry Association’s (CTIA) guides and handbooks.
“Wizard Materials” means all the Subscription Services, Wizard Confidential Information, and other than Client Materials and Client Personal Data any other information, data, data models, text message communications, content, or materials owned, controlled by Wizard, or otherwise made available to Client by Wizard through, in connection with, processed by or generated by the Subscription Services, including in each case, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
Exhibit A – Data Processing Addendum
This Data Processing Addendum (including its attachments) (“Addendum”) forms part of and is subject to the terms and conditions of the Wizard Master Terms and Conditions (the “Agreement”) by and between Client and Wizard.
1. Subject Matter and Duration.
1.1. Subject Matter. This Addendum reflects the parties’ commitment to abide by Privacy Laws concerning the Processing of Client Personal Data in connection with Wizard’s execution of the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum with the Agreement, this Addendum shall control.
1.2. Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement. Wizard will Process Client Personal Data until the relationship terminates as specified in the Agreement.
2. Definitions. For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
2.1. Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.2. “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client Personal Data attributable to Wizard.
2.3. “Subprocessor(s)” means Wizard’s authorized vendors and third-party service providers that Process Client Personal Data. Third-Party Services are not Wizard’s Subprocessors.
3. Processing Terms for Client Personal Data.
3.1. Roles of the Parties. The parties agree that Client is a “controller” and/or “business” of Client Personal Data and Wizard is a “processor” and/or “service provider” of Client Personal Data (as such terms are defined by Privacy Laws).
3.2. Documented Instructions. Wizard shall Process Client Personal Data to provide the Services in accordance with the Agreement, this Addendum, and any applicable OF or SOW.
3.3. Authorization to Use Subprocessors. Client hereby authorizes Wizard to engage Subprocessors. Client acknowledges that Subprocessors may further engage vendors. Wizard shall (i) enter into a written agreement with Subprocessors regarding such Subprocessors’ Processing of Company Personal Data that imposes on such Subprocessors data protection requirements for Company Personal Data that are consistent with this Addendum; and (ii) remain responsible to Client for Wizard’s Subprocessors’ failure to perform their obligations with respect to the Processing of Client Personal Data.
3.4. Objection to New Subprocessors. Where required by applicable Privacy Laws, Wizard will notify Client via email prior to engaging any new Subprocessors that Process Client Personal Data and allow Client ten (10) days to object. If Client has legitimate objections to the appointment of any new Subprocessor, the parties will work together in good faith to resolve the grounds for the objection.
3.5. Confidentiality. Any person authorized to Process Client Personal Data must be subject to a duty of confidentiality, contractually agree to maintain the confidentiality of such information, or be under an appropriate statutory obligation of confidentiality.
3.6. Personal Data Inquiries and Requests.Where required by applicable Privacy Laws, Wizard agrees to provide reasonable assistance to Client related to any requests from individuals exercising their rights in Client Personal Data granted to them under Privacy Laws. Client acknowledges and agrees that Wizard may evaluate and rely on statutory exceptions found under Privacy Laws in response to Client’s request for assistance in connection with such requests. Client acknowledges and agrees that Wizard is not required to directly communicate or manage requests regarding Client Personal Data received from individuals. If Wizard receives a request (i) from an individual regarding Client Personal Data or (ii) which expressly references Client, Wizard may direct the individual to contact Client to handle their request.
3.7. Data Protection Assessment. Data Protection Impact Assessment, and Prior Consultation. Where required by applicable Privacy Laws, Wizard agrees to provide reasonable assistance and information to Client where, in Client’s judgment, the type of Processing performed by Wizard requires a data protection assessment, data protection impact assessment, and/or prior consultation with the relevant data protection authorities. Client shall reimburse Wizard for all non-negligible costs Wizard incurs in performing its obligations under this Section.
3.8. Demonstrable Compliance. Demonstrable Compliance. Where required by applicable Privacy Laws, Wizard agrees to provide information reasonably necessary to demonstrate compliance with this Addendum upon Client’s reasonable request.
3.9. California Specific Terms. To the extent that Wizard’s Processing of Client Personal Data is subject to the California Consumer Privacy Act (as amended) (“CCPA”), this Section shall also apply. Client discloses or otherwise makes available Client Personal Data to Wizard for the limited and specific purpose of Wizard providing the Services to Client in accordance with the Agreement and this Addendum. Wizard shall: (i) comply with its applicable obligations under the CCPA; (ii) provide the same level of protection as required under the CCPA; (iii) notify Client if it can no longer meet its obligations under the CCPA; (iv) not “sell” or “share” (as such terms are defined by the CCPA) Client Personal Data; (v) not retain, use, or disclose Client Personal Data for any purpose (including any commercial purpose) other than to provide the Services under the Agreement or as otherwise permitted under the CCPA; (vi) not retain, use, or disclose Client Personal Data outside of the direct business relationship between Client and Wizard; and (vii) unless otherwise permitted by the CCPA, not combine Client Personal Data with Personal Data that Wizard (a) receives from, or on behalf of, another person, or (b) collects from its own, independent consumer interaction. Client may: (1) take reasonable and appropriate steps agreed upon by the parties to help ensure that Wizard Processes Client Personal Data in a manner consistent with Client’s CCPA obligations; and (2) upon notice, take reasonable and appropriate steps agreed upon by the parties to stop and remediate unauthorized Processing of Client Personal Data by Wizard.
3.10. Service Optimization. Where permitted by applicable Privacy Laws, Wizard may Process Client Personal Data: (i) for its internal uses to build or improve the quality of its services; (ii) to detect Security Incidents; and (iii) to protect against fraudulent or illegal activity.
3.11. Aggregation and De-Identification. Wizard may: (i) compile aggregated and/or de-identified information in connection with providing the Services provided that such information cannot reasonably be used to identify Client or any data subject to whom Client Personal Data relates (“Aggregated and/or De-Identified Data”); and (ii) use Aggregated and/or De-Identified Data for its lawful business purposes.
4. Information Security Program. Wizard shall implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Client Personal Data.
5. Security Incidents. Upon becoming aware of a Security Incident, Wizard agrees to provide written notice without undue delay and within the time frame required under Privacy Laws to Client. Where possible, such notice will include all available details required under Privacy Laws for Client to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
6. Cross-Border Transfers of Client Personal Data.
6.1. Cross-Border Transfers of Client Personal Data. Client authorizes Wizard and its Subprocessors to transfer Client Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
6.2. EEA, Swiss, and UK Standard Contractual Clauses. If Client Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Client to Wizard in a country that has not been found to provide an adequate level of protection under applicable Privacy Laws, the parties agree that the transfer shall be governed by Module Two’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“Standard Contractual Clauses”) as supplemented by Attachment 1 attached hereto, the terms of which are incorporated herein by reference. Each party’s execution of the Agreement shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
7. Audits and Assessments. Where applicable Privacy Laws afford Client an audit or assessment right, Client (or its appointed representative) may carry out an audit or assessment of Wizard’s policies, procedures, and records relevant to the Processing of Client Personal Data. Any audit or assessment must be: (i) conducted during Wizard’s regular business hours; (ii) with reasonable advance notice to Wizard; (iii) carried out in a manner that prevents unnecessary disruption to Wizard’s operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit or assessment shall be limited to once per year, unless an audit or assessment is carried out at the direction of a government authority having proper jurisdiction.
8. Client Personal Data Deletion. At the expiry or termination of the Agreement, Wizard will delete all Client Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Wizard’s data retention schedule), except where Wizard is required to retain copies under applicable laws, in which case Wizard will isolate and protect that Client Personal Data from any further Processing except to the extent required by applicable laws.
9. Processing Details.
- 9.1. Subject Matter. The subject matter of the Processing is the Services pursuant to the Agreement.
- 9.2. Duration. The Processing will continue until the expiration or termination of the Agreement.
- 9.3. Categories of Data Subjects. Data subjects whose Client Personal Data will be Processed pursuant to the Agreement.
- 9.4. Nature and Purpose of the Processing. The purpose of the Processing of Client Personal Data by Wizard is the performance of the Services.
- 9.5. Types of Client Personal Data. Client Personal Data that is Processed pursuant to the Agreement.
Client’s Obligations. Client represents, warrants, and covenants that: (i) it has complied and will comply with Privacy Laws; (ii) it has provided individuals whose Client Personal Data will be Processed in connection with the Agreement with a privacy notice or similar document that clearly and accurately describes Client’s practices with respect to the Processing of Client Personal Data; (iii) it has obtained and will obtain and continue to have, during the term, all necessary rights, lawful bases, authorizations, consents, and licenses for the Processing of Client Personal Data as contemplated by the Agreement including, but not limited to, any consents required to send Communications to individuals; (iv) it will provide and honor all opt-outs required under Privacy Laws; (v) it will protect Client Personal Data using reasonable administrative, technical, and physical safeguards; (vi) it will appropriately remediate any personal data breach involving Client Personal Data it experiences; and (vii) Wizard’s Processing of Client Personal Data in accordance with the Agreement will not violate Privacy Laws or cause a breach of any agreement or obligations between Client and any third party.
Attachment 1 to the Data Processing Addendum
This Attachment 1 forms part of the Addendum and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Attachment 1 have the meaning set forth in the Addendum.
The parties agree that the following terms shall supplement the Standard Contractual Clauses:
1. Supplemental Terms. The parties agree that: (i) a new Clause 1(e) is added the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.”; (ii) a new Clause 1(f) is added to the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).”; (iii) the optional text in Clause 7 is deleted; (iv) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer must notify data exporter of any new subprocessors in accordance with Section 3.4 of the Addendum; (v) the optional text in Clause 11 is deleted; and (vi) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).
2. Annex I. Annex I to the Standard Contractual Clauses shall read as follows:
A. List of Parties
Data Exporter: Client.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement.
Activities relevant to the data transferred under these Clauses: The Services.
Data Importer: Wizard.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement.
Activities relevant to the data transferred under these Clauses: The Services.
B. Description of the Transfer:
Categories of data subjects whose personal data is transferred: Users.
Categories of personal data transferred: The categories of personal data transferred under the Clauses.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: To the parties knowledge, no sensitive data is transferred.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Personal data is transferred in accordance with the standard functionality of the Services, or as otherwise agreed upon by the parties.
Nature of the processing: The Services.
Purpose(s) of the data transfer and further processing: The Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data importer will retain personal data in accordance with the Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: For the subject matter, nature and duration as identified above.
C. Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
D. Additional Data Transfer Impact Assessment Questions:
Will data importer process any personal data under the Clauses about a non-United States person that is “foreign intelligence information” as defined by 50 U.S.C. § 1801(e)?
Not to data importer’s knowledge.
Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Clauses? For example, FISA Section 702. If yes, please list these laws:
As of the effective date of the Addendum, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, including FISA Section 702, and no such court action is pending.
Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain:
Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain:
E. Data Transfer Impact Assessment Outcome: Taking into account the information and obligations set forth in the Addendum and, as may be the case for a party, such party’s independent research, to the parties’ knowledge, the personal data originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred pursuant to the Clauses to a country that has not been found to provide an adequate level of protection under applicable data protection laws is afforded a level of protection that is essentially equivalent to that guaranteed by applicable data protection laws.
3. Annex II. Annex II of the Standard Contractual Clauses shall read as follows:
Data importer shall implement and maintain technical and organisational measures designed to protect personal data in accordance with the Addendum.
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the Addendum.
(i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 7 of the Addendum; (iv) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses; (v) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; (vi) the information required under Clause 15.1(c) of the Clauses will be provided upon data exporter’s written request; and (vii) notwithstanding anything to the contrary, data exporter will reimburse data importer for all costs and expenses incurred by data importer in connection with the performance of data importer’s obligations under Clause 15.1(b) and Clause 15.2 of the Clauses without regard for any limitation of liability set forth in the Agreement.
4. Annex III. A new Annex III shall be added to the Standard Contractual Clauses and shall read as follows:
The UK Information Commissioner’s Office International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is incorporated herein by reference.
Table 1: The start date in Table 1 is the effective date of the Addendum. All other information required by Table 1 is set forth in Annex I, Section A of the Clauses.
Table 2: The UK Addendum forms part of the version of the Approved EU SCCs which this UK Addendum is appended to including the Appendix Information, effective as of the effective date of the Addendum.
Table 3: The information required by Table 3 is set forth in Annex I and II to the Clauses.
Table 4: The parties agree that Importer may end the UK Addendum as set out in Section 19.