Terms & Conditions
Whysdom is a need-based behavior science company that helps everyone from Fortune 500 brands, entrepreneurs, organizations, and non-profits understand the “whys” of human behavior, in real time. Our Terms & Conditions can be downloaded for your convenience.
LICENSE GRANTED TO CUSTOMER
All rights in and to the Products developed, prepared, or created by Company solely for Customer in performance of this Agreement as further specified in the Agreement (collectively, the “Products”) shall belong to the Customer; provided, however, that neither Customer nor any of its affiliates or representatives has, or shall have, the rights to the Company data collected by and/or residing with Company that causes or informs any of the Products (not including Customer-supplied data) (“Company Data”). Company and its independent contractors acting under the direction of Company may use, compile (including creating statistical and other models), annotate and otherwise analyze the Company Data and/or the Products and the results thereof to develop, train, enhance and improve its software and Products, and to create a case study, for Company’s marketing purposes, of the Products, provided that the Customer is not identified. To the extent any Product is compiled or used by Company in or with any such software and Products, all intellectual property rights in and to such software and Products shall be owned by Company.
CONFIDENTIAL & PROPRIETARY INFORMATION
Each party acknowledges and agrees that any and all information concerning the other’s business that is disclosed by one party (the “Disclosing Party”) to the other party (“Receiving Party”) may reasonably be considered “Confidential and Proprietary Information,” and the Receiving Party agrees that it will not permit the duplication, use or disclosure of any such Confidential and Proprietary Information of the Disclosing Party to any person (other than its own employee, agent or representative who must have such information for the performance of its obligations hereunder), and for whose unauthorized disclosure of such information the Receiving Party will be liable, unless such duplication, use or disclosure is specifically authorized by the Disclosing Party in writing.
Confidential and Proprietary Information belonging to Customer includes, but is not limited to, all trade secrets, data, know-how and products of Customer and all information regarding products not currently marketed by the Customer, business plans, technical and nontechnical materials, market research developed for Customer by any party, product specifications, Customer lists, and personnel information regarding employees of Customer. Confidential and Proprietary Information is not meant to include any information which (i) at the time of disclosure is generally known by or available to the public and any competitors of the Customer, (ii) the Receiving Party can prove was previously lawfully known to it, (iii) is lawfully obtained from a third party, (iv) is lawfully developed by the Receiving Party completely independent of any disclosure from the Disclosing Party; or (v) the Receiving Party is required by applicable law or judicial or administrative order or requirement to disclose (but in such case, disclosure shall only be made to the person or entity specified by such law, order or requirement, and provisions for the confidential treatment of such information shall be made by the Receiving Party, and Receiving Party shall (if it is lawful to do so) promptly advise Disclosing Party of the necessity of disclosing the information in question).
PUBLICITY, TRADEMARKS, ETC.
Neither party shall use the name(s), trademark(s), or trade name(s) (whether registered or not) of the other party in publicity releases or advertising without securing the prior written approval of the other.
“Customer Data” shall mean Customer’s First Party Data (as defined below) that is collected, uploaded, transferred, or otherwise provided to Company and/or Company’s authorized third-party providers. Customer hereby grants Company a non-exclusive, royalty-free license and right to use those portions of the Customer Data provided to Company (i) solely as necessary to perform Company’s obligations to Customer hereunder, and (ii) to compile aggregated statistics including such data for internal use, and for marketing purposes upon Customer written consent. “First Party Data” shall include data related to Customer’s visitor data, including by means of Customer’s pixel data, CRM data or other forms of Customer database data.
THIRD PARTY DATA
If third-party data is used or created by Company for purposes of performing Company’s obligations hereunder, Customer shall have no right, title or interest in or to any such third-party data.
Company shall develop, implement and maintain (and require that all subcontractors and third parties performing Products in connection with this Agreement develop, implement and maintain) necessary and appropriate policies, procedures, programs and other security and integrity measures effective in preventing unauthorized use or disclosure of Customer Data.
To the extent applicable to each Party’s performance and obligations under this Agreement, Company and Customer shall adhere to any applicable privacy laws, regulations, codes, and self-regulatory guidelines. During the Term and in the course of the obligations under this Agreement, neither Party shall use, collect, transmit, provide, or otherwise make available “sensitive information”, which is defined as the following: personally identifiable information about a natural person: his or her financial account numbers, insurance plan numbers, precise information about health or medical conditions, and government-issued identifiers (such as a Social Security number), as well as those elements described as sensitive information under the NAI code. Any personally identifiable information about a minor child under the age of 13 is also “sensitive information”.
CUSTOMER RESTRICTIONS & OBLIGATIONS
CultureWaves™ Products may not be copied or reproduced in any way by Customer except for Customer’s permitted uses as allowed by this Agreement. Any copies made shall be the property of the Company.
Company shall provide Customer with on-site or remote phone/online support as needed and mutually agreed by the parties at the prices as then published by the Company. Support provided at Customer’s premises shall be charged to Customer at Company’s then published rates and shall include reasonable costs of travel, food and accommodations.
INVOICING & PAYMENT TERMS
Company shall promptly invoice Customer for any fees due and payable under this Agreement per the schedule and terms detailed in the Agreement. All invoices issued by Company are Net 15 day terms.
LATE FEES & INTEREST
Any payment not received within forty-five (45) days of its invoice date shall incur a late fee of five percent (5%) of the amount of the payment. Any payment not received within sixty (60) days shall additionally bear interest at one and one-half percent (1.5%) per month (or at the maximum rate allowed by applicable law if lower) from its original due date until paid. If Customer fails to pay any deliquent payment within thirty (30) days of notice from Company of its intent to terminate this Agreement for nonpayment, Company may terminate this Agreement.
TERM AND TERMINATION OF AGREEMENT
The term of this Agreement shall be as set forth in the Agreement. After the Initial Term, this Agreement shall automatically expire unless otherwise mutually agreed upon in writing by both parties.
TERMINATION FOR CAUSE
This Agreement may terminate “for cause”, (1) on sixty (60) days’ notice of termination by Customer or (2) on thirty (30) days’ notice by Company that Customer is in breach of this Agreement if such breach is not cured within such thirty-day period. Such breach may include, but is not limited to, the failure of Customer to pay the fees invoiced as a result of this Agreement or any invoices for additional products, Products, training or support. Termination of this Agreement shall not relieve Customer’s obligation to pay any and all undisputed fees, costs and expenses due under this Agreement or any other scope of work.
Company warrants that, in the production and delivery of the Products:
a) It will comply with the descriptions and representations as to the Products (including performance capabilities, accuracy, completeness, characteristics, specifications, configurations, standards, functions and requirements) which appear herein;
b) The Products will not be in violation of any applicable law, rule or regulation, as currently enforced, and Company will have applied for and obtained all permits required to comply with such laws and regulations;
c) The Products will not violate or in any way infringe upon the rights of any third parties, including property, contractual, intellectual property, employment, trade secrets, proprietary information and nondisclosure rights, or any trademark, or copyright. Company shall be responsible for securing all appropriate or necessary permits, licenses, or authorizations from third parties to establish or protect Customer’s proprietary rights in all aspects of performance of the Products, including all use of media, displays, presentations, or the like, notwithstanding any oral information or assurances supplied by Customer that no third-party rights are infringed by a proposed undertaking of Company, or by any work product commissioned by Company on Customer’s behalf. The foregoing obligations of Company shall not apply in relation to (a) material provided to Company by Customer in written or other tangible form, or (b) uses specifically excluded from this provision in writing by Customer.
d) Customer warrants that materials provided to Company shall not violate, infringe or misappropriate any patent, published patent application, copyright, trademark, service mark, trade secret or other intellectual property or industrial property rights of any third party (collectively, “Intellectual Property Rights”).
The foregoing warranties are in lieu of all other warranties and conditions express or implied, including but not limited to those covering merchantability and fitness for a particular purpose.
Company agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees and agents from and against any damages, liability, costs and expenses incurred by such parties in connection with any third party claim: alleging that the Company Services or Products infringe a third party U.S. patent, trademark or copyright. In the event of an alleged infringement, Company may either (i) procure for the Customer the right to continue using the Service or Product, (ii) substitute an equivalent, non-infringing version of the Service or Product, (iii) modify the Service or Product so that it is non-infringing, or (iv) if Company reasonably determines that the foregoing options are not commercially practicable, terminate this Agreement.
Customer agrees to defend, indemnify and hold harmless Company and its officers, directors, employees and agents from and against any damages, liability, costs and expenses incurred by such parties in connection with any third party claim: (i) alleging that the data or content provided by Customer infringes upon a third party U.S. patent, trademark, or copyright; (ii) arising from its material breach of any of its representations or warranties (including, without limitation, those set forth in any Customer scope of work), or (iii) arising from Customer’s material breach of any obligations relating to its collection, use, transfer or provision of Customer Data.
The indemnified party shall promptly notify the indemnifying Party in writing of the claim for which the indemnified Party is seeking indemnification. The indemnifying Party shall control the defense of the indemnified claim, including through choice of counsel, provided that the indemnified Party many appear at its own expense and through its own counsel. The indemnifying Party may not settle any indemnified claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
WARRANTIES; LIMITATIONS OF LIABILITY
Except as may be expressly set forth in this Agreement, Company disclaims all other warranties, express or implied, including, without limitation, any warranties as to suitability or merchantability or fitness for any particular purpose of any services furnished hereunder. Company does not make any representation regarding the benefits or results that Customer or other third party may receive from the Company Products, services, technology, tools or support. Either party’s maximum and sole liability to the other hereunder shall in no event exceed the direct damages suffered by the injured party.
In no event shall either party be liable for any punitive damages or lost profits of any nature, directly or indirectly relating to or arising out of either party’s breach of this agreement, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and whether or not such damages were foreseen or unforeseen, and even if either party was advised of the possibility thereof. In addition, Company’s total liability under this agreement shall under no circumstances exceed the fees actually paid by client to Company under this agreement.
No waiver of any breach of this Agreement shall be deemed to constitute a waiver of any subsequent breach of the same or any other provision.
SURVIVAL OF TERMS
Upon termination or expiration of this Agreement, any provisions which by their nature are intended to survive such termination shall survive.
GOVERNING LAW; DISPUTES
This Agreement shall be construed and interpreted according to the internal laws of the State of Missouri, without respect to choice of law provisions. Any and all disputes, claims and causes of action arising out of or connected with this Agreement shall be resolved exclusively by the United States District Court for the Western District of Missouri or an appropriate Missouri State Court. The parties agree that any and all disputes or claims arising out of or related to this Agreement shall be submitted to mediation and if the matter is not resolved through mediation within forty-five (45) days from such submission, it shall be submitted for binding arbitration upon the demand of either party. Any mediation and/or arbitration shall take place in the State of Missouri, Greene County, and shall be administered by, and pursuant to the rules of, the American Arbitration Association’s Commercial Arbitration Rules (including the Emergency Interim Relief Procedures), with each party to bear its own costs and to divide the cost of arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
This Agreement represents the full understanding of the parties hereto and supersedes any prior or contemporaneous oral or written agreements between the parties concerning the matters contemplated herein. This Agreement may not be amended or modified except by written agreement signed by a duly authorized representative of each party.
Headings used in this Agreement are for convenience only and shall not be deemed to be operative text. Terms of gender shall be deemed interchangeable, as shall singular and plural terms, in each case unless the context otherwise requires. All monetary amounts used herein shall be deemed to refer to current U.S. Dollars, unless specifically stated otherwise.
SALES & USE TAXES
Customer shall pay all applicable federal, state and local sales, use, value added and similar taxes applicable on the Products and services provided to Customer under this Agreement promptly when billed to Customer, including such taxes billed with the invoice for such Products and services. It is the Customer’s responsibility to inform Company of all sales and services that should be taxed. Customer is responsible for all state sales and use tax services not previously billed to the Customer but deemed taxable and due by state tax audit.
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then all parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by the declaration or finding as is capable of substantial performance, then each provision not so affected shall be enforced to the extent permitted by law.
Neither party may assign, delegate or sublicense (by operation of law or otherwise) this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that upon written notice to the other party, either party may assign this Agreement, and all its rights and obligations hereunder, to (i) an affiliate, or (ii) an acquiring entity in the event of a merger, reorganization, consolidation, or sale of all or substantially all of such party’s assets.
This Agreement, together with the appendices attached to it, constitutes the entire agreement of the parties, superseding in all respects any and all prior proposals, negotiations, understandings and other agreements, oral or written, between the parties.
Any notice given pursuant to this Agreement may be given by (1) personal delivery; (2) deposit in the United States mail, prepaid, return receipt requested; or (3) deposit with a recognized courier company, prepaid, return receipt requested. Any such notice shall be deemed to be received (1) when delivered, if given pursuant to clause (1) of the previous sentence; (2) on the earlier of (a) the fourth day after deposit, or (b) at the time verification is made of delivery, if given pursuant to clauses (2) or (3) of the previous sentence. The address for notice to Customer shall be the address set forth in Section 1.0 above; the address for notice to Company shall be: 2215 W. Chesterfield Blvd, First Floor, Springfield, MO 65807. Either party may change the address for notice by giving notice as set forth in this Section. Springfield, MO 65807. Either party may change the address for notice by giving notice as set forth in this Section.
All orders shall be made out to, and are subject to acceptance by, Company at its offices located in Springfield, Missouri. This Agreement may be revoked by Company without liability at any time prior to written acceptance. The Agreement is based on Company terms and conditions as stated herein. Any modifications must be communicated in writing and accepted by an officer of Company. Modifications to our terms and conditions may affect the quoted price. This Agreement is governed by and subject to the laws of the State of Missouri.