The Effective Date is the date this agreement is submitted by the customer. In consideration of the mutual promises and obligations in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. SCOPE OF THE AGREEMENT
WITLINGO grants Customer a license to access the Service subject to WITLINGO’s privacy policy. In the event of a conflict, the terms in this Agreement shall prevail.
2. TERM AND TERMINATION
2.1 The Effective Date of this Agreement shall be the date this agreement is submitted by the customer.
2.2 Either party will have the right to terminate this Agreement by written notice to the other party.
3. INTELLECTUAL PROPERTY
The Service is the proprietary material of WITLINGO or its third party licensors and is protected by intellectual property laws. Except for Customer’s personal or internal business use, Customer may not modify, reproduce or distribute the content, design or layout of the Service, or individual sections of the content, design or layout of the Service or WITLINGO logos. Except as otherwise provided on this page, no part of any content or software on the Service may be copied, downloaded, recorded or stored in a retrieval system for any other purpose, nor may it be redistributed for any purpose. This Agreement does not grant any rights for the resell of the Service to third parties and to do so is a material breach of this Agreement. WITLINGO grants Customer a non-exclusive, royalty free license to all works created by the Customer (e.g., audio files, images, voice experience designs) using the WITLINGO Service.
4. REPRESENTATIONS AND WARRANTIES
THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITLINGO MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SERVICE. CUSTOMER IS RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICE AND THE CONTENT AVAILABLE ON THE SERVICE IS AT CUSTOMER’S SOLE RISK. WITLINGO MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER IS RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT CUSTOMER MAY OBTAIN FROM THE WEB SITE IS FREE OF VIRUSES.
5. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, REVENUE, DATA OR USE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS ARISING FROM A BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED PAYMENTS MADE BY CUSTOMER TO WITLINGO UNDER THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE; THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
6. GENERAL TERMS
6.1. ASSIGNMENT
Customer may not assign its rights or obligations under this Agreement, either in whole or in part, without the prior written consent of WITLINGO.
6.2. MARKETING
Customer grants WITLINGO the right to use Customer’s name and logo to identify it as a WITLINGO customer. Subject to prior written approval, Customer grants WITLINGO the right to issue a press release after execution of this Agreement announcing that Customer has become a WITLINGO customer.
6.3. SURVIVAL BEYOND COMPLETION
The provisions of this Agreement regarding payment, confidentiality, assignment, warranty, limitation of liability and intellectual property will survive the termination of this Agreement.
6.4. FORCE MAJEURE
Neither party will be responsible for delays or failures on performance resulting from acts beyond the control of such party. Such acts will include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, government regulations superimposed after the fact, fire, communication line failures, power failures, earthquakes or other disasters.
6.5 GOVERNING LAW
The laws of the Commonwealth of Virginia, excluding its conflicts of laws, shall govern this Agreement, and all matters arising out of or relating to this Agreement. The UN Convention for the International Sale of Goods shall not apply to this Agreement in whole or in part.
6.6. AUTHORITY TO EXECUTE
The party executing this Agreement on behalf of the parties represents and warrants that he or she has been duly-authorized under the party’s charter documents and applicable law to do so.
6.7 COMPLETE AGREEMENT; AMENDMENT
This Agreement and any attached Schedules constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, referring to the same subject matter. Modifications, amendments, cancellations or supplements to or any other change in any term or condition of this Agreement, including any exhibits, work orders, or other attachments will be enforceable only if they are in writing and are signed by authorized representatives of both parties, no other act, document, usage or custom shall be deemed to amend or modify this Agreement.
DEFINTIONS
“Service” shall mean the proprietary software application, the underlying graphical user interface and the conversation user interface for creating and delivering interactive conversational content that can be accessed via communication devices (e.g., smart speakers, smart phones, mobile phones, lap tops) and the corresponding interactive service known as the WITLINGO Network.