Last Updated: July 27th, 2022
Effective upon your access and use of the WAIR Service(s) (as defined below), you or the organization you represent ("Customer") agree with Fit3D, Inc. DBA WAIR, having an address of 548 Market St, PMB 79166, San Francisco, California 94104-5401 ("Fit3D" or "WAIR") that you have read, understood and accepted all the terms and conditions set forth below and that customer agrees to be legally bound by them as of the first date of customer's access and use of the WAIR Service(s) (the "Effective Date").
This Agreement, together with the applicable Terms of Service, and Order Form(s), sets forth the terms under which WAIR will make its Services available to the customer. This agreement includes the terms set forth in any applicable statements of work or Order Forms that reference this agreement, as well as the WAIR Terms of Service.
IN CONSIDERATION OF the mutual covenants and promises in this agreement, the receipt, and sufficiency of which consideration is hereby acknowledged, WAIR provides its service (s) to the customer on the following terms:
The following terms shall have the meanings, respectively, ascribed to them below and, unless the context clearly indicates otherwise, shall include the plural as well as the singular names.
"Confidential Information" means all information provided by you or us ("Discloser") to the other ("Receiver"), whether orally or in writing, that is designated as confidential. Confidential information will include Customer Data and information about the Discloser's business plans, technical data, and the terms of the order. Confidential information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser. "Service(s)" may be defined as the software or service (s) provided to customer and End Users by WAIR. WAIR Service will be further defined in Sales Order(s).
"Session" is defined as a group of user interactions with your website that takes place within a given time frame, which will expire after 30 minutes of inactivity.
"Prediction" is defined as an event where an End User fills out the intake form to the point where the service offers a body prediction.
"Recommendation" is defined as an event where an End User has previously filled out the intake form, and a size is recommended to the End User.
"Order Form(s)" or "Sales Order(s)" means the form attached hereto as Exhibit 1. There may be multiple Sales Orders per Agreement. There may be Sales Order(s) associated with this agreement that may be
executed at a later time between WAIR and the customer.
"Service Fees" means the fees charged to the Customer by WAIR for the service (s) as well as any additional services offered by WAIR that which the customer opts to purchase. Service Fees are set forth in the Sales Order(s).
"End User Data" means all information that is collected or processed via the service (s) about the end User.
"End User Sessions" means any Session where the End User has used the service.
"Customer Data" means all information that is collected or processed via the service (s). Customer Data does not include Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input, or submit through service (s).
"Enrichment Data" means the data we make available to you as part of the service (s). Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third-party sources and our internal data processes provided from End User Data or Customer Data.
"Activation Date" means the date on which the Service(s) are made available to the customer.
"Subscription Term" means the term of your subscription to the applicable The Service, as specified on your Order Form(s), and each subsequent renewal term (if any).
"Fit3D", "WAIR," "we," "us," or "our" means the applicable contracting entity as specified in the 'Contracting Entity and Applicable Law Section.
"You," "your," or "Customer" means the person or entity using the service (s) or receiving and identified in the applicable account record, billing statement, online subscription process, or Order Form as the
2: GENERAL COMMERCIAL TERMS
2.1. Access. During the Subscription Term, we will provide you access to use the service(s) as described
in this Agreement and the applicable sales order(s). We might provide some or all elements of the service(s) through third-party service providers.
2.2. Additional Features. You may subscribe to additional features of the service (s) by placing additional Sales Order(s) or activating the additional features from within your WAIR account (if this option is made available by us.). This agreement will apply to all additional Sales Order(s) and all additional features that you activate from within your WAIR account.
2.3. Availability. We try to make the service (s) available 24 hours a day, 7 days a week, except for planned downtime for maintenance.
2.4. Fees and Payments
<p style="padding-left: 2rem"> 2.4.1. Fees and Billing. The Service(s) Fees and Billing will be defined in the Sales Order(s) associated with this agreement. <p>
<p style="padding-left: 2rem">2.4.2. Fee Adjustments During a Term. During the term, fees may only be adjusted with the express written consent of the customer and approval by WAIR. <p>
<p style="padding-left: 2rem">2.4.3. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the term as defined in the Sales Order(s). You further authorize us to use a third party to process payments and consent to the disclosure of your payment information to such a third party. <p>
<p style="padding-left: 2rem">2.4.4. Payment against invoice. If you are paying by invoice, we will invoice as per the payment terms in your Sales Order(s). All amounts invoiced are due and payable as specified in the Sales Order(s). <p>
<p style="padding-left: 2rem">2.4.5 Payment Information. You will keep your contact information, billing information, and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your WAIR account or by emailing email@example.com. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this agreement. All fees are due and payable throughout the term. <p>
<p style="padding-left: 2rem">2.4.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable specific to your region, state, or country. You agree to pay any taxes applicable to your use of the service(s). <p>
2.5. Service(s) Term, Termination, Suspension
<p style="padding-left: 2rem">2.5.1. Term and Renewal. Your Terms will be specified in your Sales Order(s). <p>
<p style="padding-left: 2rem">2.5.2. Notice of Non-Renewal. If your service (s) include a subscription, it will automatically renew according to the 'Term and Renewal' as defined in the service (s) Sales Order(s). Unless otherwise specified in your Sales Order(s), to prevent renewal of your subscription, you or we must give written notice of non-renewal, and this written notice must be received no less than thirty (30) days in advance of the end of the Subscription Term. Written notice may take the form of an email sent to firstname.lastname@example.org coming from the Point of Contact, Billing Contact, or from someone in another equal position within your Company. <p>
<p style="padding-left: 2rem">2.5.3. No Early Termination; No Refunds. The Subscription Term will end on the expiration date, and the subscription cannot be canceled early unless early termination is allowable in the Sales Order(s).
We do not provide refunds if you decide to stop using the service (s) during your term. <p>
<p style="padding-left: 2rem">2.5.4 Termination for Cause. Either party may terminate this agreement for cause as to any or all the service (s): (i) upon thirty (30) days notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this agreement for cause on thirty (30) days' notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This agreement may not otherwise be terminated prior to the end of the Subscription Term. <p>
<p style="padding-left: 2rem">2.5.5 Suspension for Prohibited Acts. We may suspend any User's access to any or all service (s) without notice for (i) use of the service (s) in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this agreement. <p>
<p style="padding-left: 2rem">2.5.6. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the service (s) ten (10) days after such notice. We will not suspend the service (s) while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service(s) is suspended for non-payment, we may charge a reactivation fee to reinstate the
<p style="padding-left: 2rem">2.5.7. Suspension for Present Harm. If your website, or use of, the service (s): (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the service (s) or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the service (s). We will try to limit the
suspension to the affected portion of the service (s) and promptly resolve the issues causing the suspension of service (s). Nothing in this clause limits our right to terminate for cause as outlined above if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. <p>
<p style="padding-left: 2rem">2.5.8. Effect of Termination or Expiration. You may request the deletion of your WAIR account after the expiration or termination of your subscription by sending a request to email@example.com. You will continue to be subject to this agreement for as long as you have access to a WAIR account. Upon termination or expiration of this agreement, you will stop all use of the terminated service (s). If you terminate this agreement for cause, we will promptly refund any prepaid but unused fees covering the use of the service (s) after termination. If we terminate this agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable. <p>
3.1. We modify the service (s) from time to time, including by adding or deleting features and functions in an effort to improve your experience. We will not make changes to the service(s) that materially reduce the functionality provided to you during the term.
4. CUSTOMER SUPPORT
4.1. Phone, email, and in-app support are generally available from 9 am Monday to Friday 5 pm (Pacific Standard Time). Refer to your Sales Order(s) for additional information regarding Customer Support.
5. GENERAL LEGAL TERMS
5.1. Customer Data
<p style="padding-left: 2rem">5.1.1. Aggregate Data. We may monitor the use of the service (s) by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. We may, however, use Customer Data as part of internal data processes to develop and improve Enrichment Data. With these internal data processes, in no event will Customer Data be disclosed, included within, or provided to other customers or third parties. For clarity, any data provided to other customers or third parties will only be in an aggregated and anonymous manner. <p>
<p style="padding-left: 2rem">5.1.2. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of End User and Customer Data in the United States. <p>
5.2. End User Data
<p style="padding-left: 2rem">5.2.1. WAIR adheres to its End-User Privacy Policies regarding any End-User Data, which can be found here (https://www.getwair.com/privacy). <p>
5.3. WAIR's Proprietary Rights. This is an Agreement for access to and use of the service(s). The service(s) are protected by intellectual property laws they belong to and are the property of us or our
licensors (if any), and we retain all ownership rights to them. Subject to the customer's compliance with the terms and conditions of this Agreement, WAIR hereby grants to the customer a limited, non-sublicensable, nontransferable license to use the service(s). The customer shall have no right and specifically agrees not to: (i) transfer, assign or sublicense any of the license rights granted herein to any other person, or use the service (s) except as expressly permitted by this agreement, and any such attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the service(s) or create derivative works based upon the service (s), or to permit third parties to do the same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the service(s) to a human-readable form. The customer shall not remove any proprietary notices or markings included in the service (s). Except as otherwise expressly granted in this agreement, all rights to the service (s) and all intellectual property rights embodied in the service (s) are reserved to WAIR. You may not use any of our trademarks without prior written permission. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the service (s) (unless, of course, you have a source other than the Service(s) for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third-party service providers or public sources. We encourage all customers to comment on the service (s), provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the service (s) without payment or attribution to you.
5.4. Customer's Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials. This agreement does not grant us any ownership rights to Customer Materials. You grant permission to us and our licensors to use the Customer Materials only as necessary to provide the service (s) to you and as permitted by this agreement. If you are using the service (s) on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.5. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, and (ii) not use any Confidential Information for any purpose outside the scope of this agreement, (iii) not disclose Confidential Information to any third party (except our third-party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors, and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena, or legal process.
5.6. Publicity. You grant us the right to use your name, company logo, testimonials, and other distributed information in a non-defamatory way. We grant you the right to use our name, company logo, testimonials, and other distributed information in a non-defamatory way. Either party may request the removal of materials by the other party.
5.7. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such action is based upon or arises out of (a) unauthorized or illegal use of the service (s) by you, (b) your noncompliance with or breach of this agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the service (s) by any other person using your user information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
5.8. Disclaimers; Limitations of Liability
<p style="padding-left: 2rem">5.8.1. Disclaimer of Warranties. We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security, or accuracy of the service(s) or data made available from the service(s). Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the Service(s) are provided "AS IS" without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied, or statutory, with regard to the service (s), including all implied warranties or conditions of merchantability, fitness for a particular purpose, title, and non-infringement. <p>
<p style="padding-left: 2rem">5.8.2. No Indirect Damages. To the extent permitted by law, in no event shall either party be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data, or business opportunities; provided that this limitation shall not apply to you if you only use the free services. <p>
<p style="padding-left: 2rem">5.8.3. Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the 'Indemnification' section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party is determined to have any liability to the other party or any third party, the parties agree that the aggregate liability of a party will be limited to the lesser of five thousand U.S. dollars or the total amounts you have actually paid for the service in the twelve-month period preceding the event giving rise to a claim. <p>
<p style="padding-left: 2rem">5.8.4. Third Party Products. We disclaim all liability with respect to third-party products that you use. Our licensors shall have no liability of any kind under this agreement. <p>
<p style="padding-left: 2rem">5.8.5. Agreement to Liability Limit. You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you. <p>
WAIR Privacy Philosophy
WAIR follows this philosophy in order to protect your privacy:
What is the Personal Information that we collect?
Why do we collect Personal Impersonal Information?
How do we use Personal Information?
With whom do we share Personal Information?
How do we secure Personal Information?
How do we use third-party advertising and analytics services?
How do we respect your choices about your Personal Information?
Whom do I contact if I have questions or concerns?
1. What is the Personal Information that we collect?
The most common sources of this Personal Information include:
Pixel tags or clear graphics interchange format files, known as GIFs; and
Retail Partners, business partners, contractors, shared databases, and other third parties
Date and time of access;
Name and URL of the retrieved file;
The website from which the access originated;
UTM parameters from any digital ads you may have clicked prior to arriving on the Retail Partner's website.
We provide a summary description of each of these circumstances below. Please note that we permit certain service providers to use these technologies on our Services as well. For more information about these service providers and their activities, please see Section 6 below.
Cookies: Cookies are small files that are sent to your computer's hard drive to tell us who you are when you are using our service. We use them when you use our service, including on our Partner Sites, so that we can provide you our service on our Partner Sites. Cookies help us to: (1) associate you with your WAIR Profile and enable you to update and modify your WAIR Profile; (2) speed navigation and provide you with personalized fit recommendations; (3) remember the Personal Information you gave so you don't have to re-enter it; (4) determine the effectiveness of some of our marketing efforts and communications, and (5) count the total number of visitors, pages viewed, and the total number of banners displayed. Upon your first visit to our website, we offer you the ability to accept or decline cookies that are not essential to the use of the Services (e.g., marketing or analytics cookies). You may also choose to have your browser notify you when cookies are being written to your computer or accessed, or you can disable cookies entirely. If you disable cookies entirely, you will not be able to create a WAIR Profile, and therefore you will not be able to receive the benefit of the WIAR Service. Also, by not using cookies, features within our Service or a Partner Site may not function properly.
Pixel tags or clear GIFs: To help us understand the effectiveness of select communications and marketing efforts, we may use "message format" and "message open" sensing technologies that use pixel tags or clear GIFs (which are also called web beacons). These technologies allow us to know if your e-mail program is able to accept HTML e-mails and, if it is, to: (1) send you e-mails in that format; and (2) determine if you have opened our e-mail messages.
2. Why do we collect Personal Impersonal Information?
We collect your Personal Information to provide you with the WAIR Service and to administer our business. It allows us to provide you with easy access to our products and services, with a particular focus on the items and programs that may be of most interest to you. Your Personal Information also allows us to communicate with you about special offers, promotions, and other marketing programs and news that may be of interest to you.
3. How do we use Personal Information?
WAIR uses your Personal Information to provide you with the WAIR Service through our Partner Sites, to provide you with a superior customer experience, and to administer our business. We use your Personal Information to:
Create and provide recommendations on size, fit, and style of apparel items;
Analyze the fit, style, and fashion of apparel items;
Analyze and enhance the sustainability of our Retail Partners;
Create a WAIR Profile (personal account) you can log into from any device;
Provide you with special offers, promotions, and other marketing programs and news that may be of interest to you;
Answer questions you ask of us regarding the service or recommendations;
Make communications necessary to notify you regarding security, privacy, and administrative issues;
Validate you are of legal age to use our services;
Test and improve our systems and services; and
Manage our business.
We will only keep your Personal Information for as long as necessary to carry out our services or as long as we are required by law. After this, your Personal Information will be deleted. We may not remove your data when there is a legal storage requirement, such as bookkeeping rules, or when there is a legal ground to keep the data, such as an ongoing contractual relationship.
Non-personal data is used as described above and in other ways as permitted by applicable laws, including combining non-personal data with personal data.
4. With whom do we share Personal Information?
In addition, WAIR may share any of your Personal Information with third parties as follows:
Finally, WAIR may share aggregated or de-identified information for our business purposes.
5. How do we secure Personal Information; Transfers of Personal Information?
We take commercially reasonable security measures, including physical, technological, and procedural measures, to help to safeguard your Personal Information and to prevent unauthorized access and disclosure. In addition, we use industry-standard technology, such as edge-protection devices and encryption in the transmission of certain sensitive Personal Information, designed to prevent unauthorized persons from gaining access to your Personal Information and WAIR Profile, and, as technology develops, we intend to take additional measures to improve security. No method of transmission over the Internet or method of electronic storage, however, is 100% secure. Therefore, we cannot guarantee its absolute security.
We operate globally and may transfer your Personal Information and WAIR Profile to individual companies and customers of WAIR as part of the services offered by WAIR to its customer base. Wherever your Personal Information is transferred, stored, or processed by us, we will take reasonable steps to safeguard the privacy of your Personal Information. You acknowledge and agree that your Personal Information may be processed and stored in countries outside of the European Union, including, without limitation, the United States.
6. How do we use third-party advertising and analytics services?
From time to time, we may work with third-party service providers to help us better understand how you use our service. These service providers may place cookies on your computer or use other technologies, such as pixel tags and clear gifs, to collect Personal Information. The Personal Information that is collected will tell us things like how you navigated around our service and how quickly we helped you to enter Personal Registration Information. This Personal Information will help us to better serve you and provide you with more personalized offerings. Additionally, some of our service providers use these technologies on our service to provide certain behavioral advertising services as well as marketing services via email and display advertising.
We will not grant permission to any of these third-party service providers to collect your credit card information, e-mail address, or password information through this technology. Any third-party service provider will be restricted from using your Personal Information to perform services for us securely and in confidence. Any such third-party service provider will be restricted from using your Personal Information for any other purpose, except on an aggregate, anonymous basis. With your privacy in mind, we will work toward engaging third-party service providers who enable you to opt out of their Personal Information collection processes.
The third-party services we use include, but are not limited to, Google ads, Facebook ads, Pinterest ads, LinkedIn Ads, and others. To learn more about the third-party service privacy policies, please see their specific privacy policies.
7. How do we respect your choices about your Personal Information?
When you interact with our service in certain ways, you may be eligible to receive certain marketing-related and promotional communications as well as special offers (collectively "Promotional Communications") from WAIR or third parties with whom WAIR has a business relationship, and those communications may include advertisements. The most common of these circumstances may include:
Creating a WAIR Profile
Signing up to receive newsletters or email notices
Entering a sweepstake or a contest
If at any time you wish to no longer receive Promotional Communications from WAIR, you will be able to follow instructions provided with the Promotional Communication or within our service in connection with Promotional Communications. Even if you opt out of receiving Promotional Communications, you may continue to receive e-mails relating to your WAIR Profile, Personal Information, and/or other security or business-related communications. Although the primary purpose of these emails is not to provide you with promotional material, they may contain within them some promotional material.
WAIR may provide you with the ability to access, correct, change, or delete the Personal Information in your WAIR Profile at any time. Please be advised that WAIR may periodically archive the Personal Information it has collected, and there may be times that such archived information cannot be permanently removed from our systems.
8. Whom do I contact if I have questions or concerns?
If you would like to report a Security concern about any of our products, please contact us at firstname.lastname@example.org.
9. Additional Terms
Children's and Minor's Privacy. The WAIR Service is not designed to attract minors, in particular, children under the age of 16. WAIR does not market to or knowingly collect Personal Information from anyone under the age of 16. Children should always get permission from their parents before sending any Personal Information about themselves (such as their names, email addresses, and phone numbers) to anyone over the Internet.
Last Updated: July 27th, 2022
This WAIR Partnership Program Agreement ("Agreement") is a legal agreement by and between the individual or entity who accepts these terms ("Referring Party," "you" or "your") and Fit3D, Inc. DBA WAIR, ("WAIR," "we" or "us"). Your participation in the WAIR Referral program ("Program") is subject to the terms of this agreement.
WAIR may update or modify this agreement from time to time, including any referenced policies or documents, and will provide notice of any updates on the WAIR Partnership website. You may be required to click through the updated agreement and show your acceptance of such changes. By continuing to participate in the Program, you agree to accept all of our modifications to this agreement. The benefits available as part of the Program are subject to modification or termination at the sole discretion of WAIR, as notified on the WAIR Partnership website. If you do not agree to changes to the agreement or Program, you must stop participating in the Program.
By clicking on the "I agree" button or by participating in the WAIR Referral program, you indicate your agreement to be bound by this agreement. Please carefully read this agreement. If you do not agree to the terms of this agreement, do not click "I Agree" and do not participate in the Program.
WAIR is a technology services company that provides virtual fitting, virtual sizing, and provides insights to its customers to help them align their operating strategies with the bodies of their shoppers. Partner wishes to promote, market, and advertise WAIR's services (collectively, the "WAIR Services") in accordance with the WAIR Referral Program. The Parties agree as follows:
During the term, the partner may refer and provide contact information for Leads to WAIR, and WAIR may, at its discretion, contact such Leads to attempt to enter into an agreement to provide the WAIR Services to such Lead (each, a "Transaction"). Upon WAIR's request, the partner shall provide reasonable assistance to WAIR, including providing information regarding the details of the Lead's interest in WAIR's Services. Within a commercially reasonable period of time after receipt of the Lead information from Referring Party, WAIR shall notify Partner if WAIR rejects the Lead or if WAIR accepts the Lead, making the Lead one for which WAIR may potentially pay a fee to Partner ("Eligible Lead"). WAIR may reject a lead for any reason, including if (a) the Lead has already been provided to WAIR by another sales representative, reseller, or third party, (b) WAIR has already been in contact with the Lead, or has a proposal or quote out to the Lead, or (c) WAIR or a WAIR reseller or other third party has previously sold or licensed WAIR's Services to the Lead. If WAIR does not notify Partner that it accepts the Lead, such Lead shall not 2. be considered an Eligible Lead. If WAIR enters into a Transaction with an Eligible Lead to provide WAIR Services to the Eligible Lead within six (6) months after such Eligible Lead was first submitted to WAIR by Referring Party, such Lead will be considered a "Qualified Lead" for which Partner shall be entitled to compensation in accordance with Section 3.
(a) Subject to this agreement and its terms, WAIR hereby grants to Referral Partner a free, nonexclusive, nontransferable, and revocable license ("License") to market WAIR Services to Referrals and to use the WAIR trademarks, logos, and URLs provided by WAIR Media and listed in Exhibit A ("Licensed Marks," as may be amended by WAIR from time to time), and associated materials, language or code for the sole purpose of promoting WAIR Services (collectively, "Marketing Materials").
(b) The license to use the Licensed Marks granted herein is subject to WAIR's Trademark Usage Guidelines ("Guidelines") (which will be provided upon request), incorporated here by reference as updated from time to time by WAIR Media at its sole discretion. WAIR Media may revoke this license at any time by giving Partner a written notice (including via email). A list of certain WAIR trademarks and logos ("WAIR Media Marks") is included in the Guidelines.
(a) Calculation of Profit Share
(i) Calculation. For the Profit Share Term (as defined in Section 3(a)(iii) below), WAIR shall pay, on a monthly basis, an amount equal to the percentage of the profit derived from a Transaction with a qualified lead. The percentage of the profit may change from time to time but shall be clearly marked on the WAIR Partnership website and shall not change during the Profit Share Term for any Qualified Lead.
(ii) Profit. As used in this agreement, "Profit" shall mean all payments actually collected by WAIR from the Qualified Lead for WAIR Services, less any (a) taxes, duties, or similar charges,(b) interest, penalties, late charges, or similar charges, or (c) any out-of-pocket or pass-through amounts WAIR must pay third parties (e.g., advertising fees). WAIR is only obligated to pay a Profit share for amounts received for the WAIR Services.
(iii) Profit Share Term. As used in Section 3 (a)(i) above, the "Profit Share Term" shall be the period during which any Transaction is in effect and for which WAIR continues to receive payments from a Qualified Lead, including any renewal terms. The Profit Share Term may change from time to time but shall be clearly marked on the WAIR Partnership website. In the event that a Transaction terminates or expires, and a new agreement is entered into with the Qualified Lead within twelve (12) months after the relevant expiration or termination date, then WAIR shall continue to make the Profit share payment.
(iv) Payment; Audit Rights. Each monthly payment under Section 3 (a) above derived from the profit generated during a calendar month shall be due and payable to the partner within thirty (30) days after the end of the calendar month and shall be based on amounts received from a Qualified Lead during the prior month. Each monthly payment to Partner under this agreement shall be accompanied by a reasonably detailed report setting forth the basis for calculating such payment. WAIR will maintain true and correct records and books of account containing a record of all information pertinent to the transactions contemplated hereunder during the term and for a period of two (2) years thereafter. Subject to Section 4hereof, and during the term that WAIR is obligated to maintain records as provided in this Section, Partner may appoint an independent, third-party auditor that will be entitled to review, at Referring Party's expense, during regular business hours and upon not less than fifteen (15) business days' notice, WAIR's books and 3. records for the purpose of verifying the accuracy of all calculations and the number of payments due hereunder. Any such review will be made not more than once during each calendar year during the term of this agreement. If, based on any such audit, it is ultimately undisputed that the WAIR underpaid any amounts owed to Referring Party, WAIR shall remit such amounts within thirty (30) days of such determination.
As between Partner and WAIR, WAIR shall pay all applicable taxes relating to the provision of WAIR Services and Transactions with the exception of taxes due on Referring Party's income relating to amounts payable under Section 3 (a) above.
4. TERM AND TERMINATION
The term of this agreement shall begin as of the Effective Date and, unless earlier terminated as provided herein, shall continue for one (1) year ("Initial Term"). Thereafter, and unless earlier terminated as provided herein, this agreement shall automatically renew for successive addition alone (1) year terms (each a "Renewal Term") unless either party notifies the other of its intent not to renew this agreement at least thirty (30) days prior to the next renewal date. The Initial Term and any Renewal Terms shall be referred to as the "Term."
(b) Material Breach
Discretional Termination. Either party shall at all times have the right to terminate this agreement in its sole and complete discretion: (a) upon thirty (30) days prior written notice to the other party if the other party materially breaches this agreement and such breach has not been cured(if reasonably capable of being cured) within the thirty (30) day notice period; or (b) at any time and for any reason upon thirty (30) days prior written notice to the other party.
(c) Immediate Termination
Either party may terminate this agreement immediately upon written notice: (i) upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceeding or any proceeding for the settlement of the other party's debts; (ii) upon the other party's making an assignment of substantially all of its assets for the benefit of creditors; or (iii) upon the other party's dissolution or cessation of business. (d) Pending Discussions at Time of Termination. Notwithstanding the other provisions in Section4, WAIR may continue to pursue any discussions with a Qualified Lead in which it is engaged as of the termination date, provided that it complies with its payment obligations under Section 3 (a) above with respect to any resulting Transaction.
Each party agrees that during and after the existence of this agreement, it will hold in the strictest confidence and will not use for any purpose unrelated to its performance of this agreement or disclose to any third party any Confidential Information of the other party. The term "Confidential Information" shall mean all non-public information, whether business or technical in nature, that the other party designates as being confidential or which under the circumstances of disclosure ought to be treated as confidential and shall include (but is not limited to) information concerning business methods, business plans, new product launches, Customer and vendor information, and pricing and other financial information. Neither party shall disclose the terms or conditions of this agreement without the prior written consent of the other party, except (i) as may be required by law or (ii) to its employees, contractors, or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this Section. Notwithstanding the foregoing, information will not be deemed confidential if it(i) was known to the receiving party, and such information was acquired through proper methods prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (ii) is now, or 4. (through no act or failure on the part of the receiving party) later becomes generally known through no breach of this agreement by the receiving party; (iii) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (iv) is independently developed by the receiving party without the use of or reference to any Confidential Information provided by the disclosing party. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving party, provided that in each such case, the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief.
6. PROHIBITED ACTIVITES
(a) Partner agrees not to associate Marketing Materials with content that is unlawful in any manner or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in WAIR's sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients ("Spamming") in promoting the WAIR's Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this agreement.
7. PERMISSIBLE USE OF WAIR MARKS
(a) Partner expressly agrees to comply with all the terms herein in using the Licensed Marks and in creating Marketing Materials.
(b) Through the Guidelines and otherwise, WAIR shall provide specifications and other instructions from time to time as to Partner's permissible use of the Licensed Marks in creating Marketing Materials and promoting WAIR's Services. Partner further agrees to comply with all such specifications and instructions.
(c) Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by WAIR in the Guidelines or otherwise, shall not modify any WAIR Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by WAIR, and shall further comply with reasonable instructions from Hawk as to the form, content, and display of marketing materials. Upon termination of this agreement for any reason whatsoever or upon written request by WAIR, the license granted herein shall expire, and Partner shall immediately cease all its activities under this agreement.
Each party represents and warrants to the other that: (a) this agreement is valid, binding, and enforceable against it in accordance with its terms; (b) it is a corporation or entity duly incorporated or formed, validly existing, and in good standing under the laws of its incorporation or formation; (c) it is duly qualified and is properly licensed to do business in each jurisdiction in which the nature of its activities hereunder makes such authorization or licensure necessary, and (d) it has the right and authority to grant all rights granted herein, and its performance hereunder will at all times comply with all applicable laws and regulations. In addition, Partner represents and warrants that it will (a) at all times perform hereunder in a professional manner, (b) make no representations or warranties on behalf of WAIR, and (c) make no statements regarding WAIR that are false or misleading. ASIDE FROM THE EXPRESS WARRANTIES PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EXPRESSLY DISCLAIMS 5. ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY
WAIR SHALL NOT HAVE ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR FOR ANY OTHER DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL WAIR'S LIABILITY TO THE PARTNER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO THE PARTNER BY WAIR.
Partner will indemnify, defend and hold WAIR and its subsidiaries, affiliates, officers, and employees (the "WAIR Indemnified Parties") harmless from and against any and all costs, liabilities, losses, and expenses(including but not limited to reasonable attorneys' fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the WAIR Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.
11. CONFIDENTIAL INFORMATION AND PROHIBITION ON RAIDING
Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during, and after the conclusion of the agreement shall remain confidential. Information shall, in any event, be considered confidential if related to pricing, discounts, Referrals' information or if designated as confidential by either of the Parties. Neither Party shall, for the duration of this agreement and for one year after termination thereof, hire, employ or solicit any employee of the other Party.
12. INDEPENDENT CONTRACTORS
The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment, or any other relationship between the Parties beyond the relations set out in this agreement, and Partner is expressly precluded from acting on WAIR's behalf. Partner's display of Licensed Marks under this agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.
13. ENTIRE AGREEMENT/SURVIVAL
This agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. In addition to any rights that accrued prior to termination, the provisions of Sections 5 through 22 shall survive any termination of this agreement.
If any provision of this agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this agreement is invalid or unenforceable but that by limiting such provision, it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This agreement may only be modified by a subsequently dated written amendment signed on behalf of each party by such party's duly authorized representative.
16. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names, and derivative rights) in WAIR Marks, the WAIR Service, and related content and technology around the world ("WAIR IP Rights") are and will remain the exclusive property of WAIR. The license granted by WAIR to Partner herein is granted solely under the terms of this agreement and in furtherance of its objectives. Partner's right to use the Licensed Marks is at the discretion of WAIR and is subject to Partner's compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any WAIR IP Rights in any manner reasonably likely to breach this agreement; (b) not do anything contesting or impairing any WAIR IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names, and derivative rights) that are substantially similar to any WAIR IP Rights; (d)promptly notify WAIR of any unauthorized use of any WAIR IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other WAIR Marks in compliance with the guidelines. WAIR may perform periodic reviews of any Marketing Materials presented by the partner and shall have the exclusive authority and discretion to order the removal and/or amendment of any marketing materials presented by the partner.
17. ANTI-BRIBERY AND EXPORT COMPLIANCE
Partner agrees not to promote, approach, or submit Referrals, or use, distribute, transfer, provide, sub-license, share with, or otherwise offer the service in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the U.K. Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, Partner will not knowingly directly or indirectly export, re-export, transfer, make available, or release (collectively, "Export") the service to any destination, person, entity, or end-use prohibited or restricted under U.S. law without prior U.S. government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the E.A.R. or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the U.S. Department of Treasury, Office of Foreign Assets Control without appropriate U.S. government authorization to the extent required by regulation. Compliance with the trade laws of other countries pertaining to the export, import, use, or distribution of the Service to Customers and End Users is Partner's responsibility.
18. PARTIES EXPENSES
The Parties shall each carry and pay all their respective costs, charges, and expenses incurred by it in the performance of this agreement, except as otherwise may be agreed upon by the Parties in writing in advance.
19. FORCE MAJEURE
A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. "Force majeure" events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as an improper performance by WAIR's suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
Neither party may assign or transfer this agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld, provided, however, that WAIR may assign all of its rights, title, and interest under this agreement to any (i) person or entity with which WAIR is merged or consolidated, or (ii) person or entity that acquires all or substantially all of WAIR's assets or equity securities.
All notices relating to this agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed herein.
22. GOVERNING LAW; JURISDICTION; DISPUTE RESOLUTION
This agreement shall be governed by the laws of the State of California, U.S.A., without giving effect to any principles of conflicts of law. The sole and exclusive jurisdiction and venue for any litigation arising out of this agreement shall be an appropriate federal or state court located in the State of California, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this agreement, a Party shall provide the other Party written notice of a dispute, and the Parties shall actively and in good faith negotiate with a view to a speedy resolution of such dispute within ten (10) business days of the receipt of such notice.