All terms defined in the Ribn SaaS Agreement continue to have the same meaning in these Terms and Conditions. Additional definitions are below:
Subject to, and conditional on Customer's payment of Fees and compliance with all other, terms and conditions of the Agreement, Wise hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(j)) right to access and use Ribn during the Term, in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.
Subject to the terms and conditions contained in the Agreement, Wise hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(j)) licence to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of Ribn.
Customer shall not use Ribn for any purposes beyond the scope of the access granted in the Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of Ribn or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available Ribn or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of Ribn, in whole or in part; (iv) remove any proprietary notices from Ribn or Documentation; or (v) use Ribn or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Wise reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licences expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Wise IP.
Notwithstanding anything to the contrary in the Agreement, Wise may temporarily suspend Customer's access to any portion or all of Ribn if: (i) Wise reasonably determines that (A) there is a threat or attack on any of the Wise IP, (B) Customer's use of the Wise IP disrupts or poses a security risk to the Wise IP or to any other customer or vendor of Wise, (C) Customer is using the Wise IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Wise's provision of Ribn to Customer is prohibited by applicable law; (ii) any vendor of Wise has suspended or terminated Wise's access to or use of any third-party services or products required to enable Customer to access Ribn;or (iii) in accordance with Section 5(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Wise shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to Ribn following any Service Suspension. Wise shall use commercially reasonable efforts to resume providing access to Ribn as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Wise will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
Notwithstanding anything to the contrary in the Agreement, Wise may monitor Customer's use of Ribn and collect and compile Aggregated Statistics. As between Wise and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Wise. Customer acknowledges that Wise may compile Aggregated Statistics based on Customer Data input into Ribn. Customer agrees that Wise may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law.
Customer is responsible and liable for all uses of Ribn and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement.
Other than basic training and support, the Agreement does not entitle Customer to any support for Ribn.
In consideration of Wise providing Ribn under the Agreement, Customer agrees to compensate Wise by paying the Fee ("Fees") as set out in the Ribn Saas Agreement. Customer shall pay Wise Fees without off-set or deduction. The payment process is set out in Exhibit A. Customer shall make all payments hereunder in Canadian dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, without limiting Wise's other rights and remedies: (i) Wise may charge interest on the past due amount at the rate of eighteen percent (18%) per annum or, if lower, the maximum amount permitted under applicable Law; (ii) Customer shall reimburse Wise for all reasonable costs incurred by Wise in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for forty-five (45) days or more, Wise may suspend Customer's access to any portion or all of Ribn until such amounts are paid in full.
All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Wise's income.
Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of the Agreement with respect to matters necessary for accurately determining amounts due hereunder. Wise may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by the Agreement, provided that if such inspection and audit reveals that Customer has underpaid Wise with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds ten percent (10%) for any quarter. Such inspection and auditing rights will extend throughout the Term of the Agreement and for a period of two (2) years after the termination or expiration of the Agreement.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive the termination or expiration of the Agreement for as long as such Confidential Information remains so until it is no longer Confidential Information.
Customer acknowledges that, as between Customer and Wise, Wise owns all right, title, and interest, including all intellectual property rights, in and to the Wise IP.
Wise acknowledges that, as between Wise and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Wise a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Wise to provide Ribn to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
If Customer or any of its employees or contractors sends or transmits any communications or materials to Wise by mail, email, telephone, or otherwise, suggesting or recommending changes to the Wise IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Wise is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Wise on Customer's own behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Wise is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Wise is not required to use any Feedback.
WISE IP IS PROVIDED "AS IS" AND WISE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WISE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WISE MAKES NO WARRANTY OF ANY KIND THAT THE WISE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer shall indemnify, hold harmless, and, at Wise's option, defend Wise from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's (i) negligence or wilful misconduct; (ii) use of Ribn in a manner not authorized by the Agreement[; (iii) use of Ribn in combination with data, software, hardware, equipment or technology not provided by Wise or authorized by Wise in writing; or (iv) modifications to Ribn not made by Wise, provided that Customer may not settle any Third-Party Claim against Wise unless Wise consents to such settlement, and further provided that Wise will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.
THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND WISE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT RIBN INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL WISE'S LIABILITY UNDER THIS SECTION 9 EXCEED $10,000.
IN NO EVENT WILL WISE BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WISE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL WISE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO WISE UNDER THE AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100,000, WHICHEVER IS LESS.
Upon expiration or earlier termination of the Agreement, Customer shall immediately discontinue use of the Wise IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Wise IP and certify in writing to the Wise that the Wise IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
This Section 11(b) and Section 1, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10, and Section 12 shall survive any termination or expiration of the Agreement. No other provisions of the Agreement survive the expiration or earlier termination of the Agreement.
The Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
In the event of any inconsistency between the statements made in the body of the Agreement, these Terms and Conditions, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Agreement, excluding its Exhibits; (ii) second, these Terms and Conditions, (iii) third, the Exhibits to the Agreement as of the Effective Date; and (iv) fourth, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on of the Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, with confirmation of transmission if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) 5 business days after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
In no event shall either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 novel coronavirus disease (“COVID-19”) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege
If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
The Agreement and all related documents, and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to the Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to the Agreement, Ribn provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Wise, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
Ribn acts as an ad server for affiliate marketing. Ribn will:
Within ten (10) days of the end of each calendar month during the Term, Wise will provide Customer with an invoice for the Revenue Sharing Payment (plus applicable taxes) in Canadian dollars for each calendar month during the Term using the amount of Gross Affiliate Revenue set out in the relevant Affiliate Revenue report. Customer shall pay Wise’s invoice for the Revenue Sharing Payment in Canadian dollars no later than thirty (30) days following the end of the applicable calendar month.