2. DEFINITIONS. In this Agreement, the following terms shall have the following meanings, and such meanings shall apply to both singular and plural forms of any such terms:
2.1 “Whistle Materials” means the Software, APIs, Documentation and Whistle Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Whistle or any subcontractor or Third Party Provider of Whistle in connection with the Services or otherwise comprise or relate to the Services or Whistle Systems, including, for the purposes of this Agreement, as between the parties, Whistle Third Party Tools and Data. For the avoidance of doubt, Whistle Materials include Usage Data.
2.2 “Whistle Site” means https://tryhistle.com/ including all subdomains and as the same may be updated from time to time.
2.3 “Whistle Systems” means the information technology infrastructure used by or on behalf of Whistle in performing the Services, including all computers, software, Whistle Site, any Whistle application designed for mobile or other specific devices, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Whistle or through the use of third party services.
2.4 “Whistle Third Party Tools and Data” means the third party tools, software, services, Third Party Provider Content, content, materials, information, documents, specifications, products, equipment or components of or relating to the Services that are procured by Whistle from Third Party Providers and with which any or all of the Services, including the Software, interoperate.
2.5 “Customer Data” means information, data and other content, but excluding Usage Data, in any form or medium, which (i) is uploaded or transmitted directly or indirectly by Customer or an Authorized User to Whistle by or through the Software Services; (ii) is directly output from the Processing of such information, data or content by or through the Software Services; or (iii) is created by Customer and maintained by Customer within the Software Services. For clarity, Customer Data includes Customer Personal Information.
2.6 “Customer Systems” means Customer’s, or any Authorized User’s, information technology infrastructure, including without limitation or other computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Customer or any Authorized User, Third Party Provider or Distributor.
2.7 “Customer Third Party Services and Data” means any third party services, hardware, data, information, or content that are procured by Customer from Third Party Providers to interoperate with the Services.
2.8 “Access Methods” means the user identifiers and passwords used to verify an Authorized User’s credentials to use the Software Services and Support pursuant to this Agreement.
2.9 “Additional Order” means a written order agreed to between Customer and Whistle or Customer’s order of additional Software and/or Services through the Whistle Site for additional Software or Services to be purchased, licensed or otherwise provided by Whistle. All such Additional Orders will be bound by all the terms of the Agreement.
2.10 “Affiliate” means an entity either directly or indirectly Controlled by, Controlling or under common Control (as defined below) of a party.
2.12 “API” means any application program interface that Whistle makes available hereunder.
2.13 “Applicable Privacy Laws” means all laws, regulations, rules and guidance pertaining to privacy, data processing and data protection applicable to Whistle’s Processing of Personal Information in connection with Whistle’s provision of and making available of the Services;
2.14 “Authority” means any government authority, agency, body or department, whether federal, state, or municipal, having or claiming jurisdiction over the Agreement and “Authorities” means all such authorities, agencies, bodies and departments.
2.15 “Authorized User” means those employees, agents, independent contractors, and customer(s) who are authorized by Whistle (or by Customer’s Services Administrator, as defined in and specified in an Order) to use Services, and who have been supplied Access Methods, as may be further specified in the Agreement or an Additional Order.
2.16 “Claims” means all claims, demands, losses, liabilities and damages (including taxes and related penalties if applicable), and all related costs and expenses, including reasonable legal and professional fees, expert fees and disbursements, and costs of investigation, litigation, settlement, judgment and appeal, if any.
2.17 “Control” (and its variants set forth in Section 1.2) means having a more than fifty percent (50%) equity voting interest or the sole power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise.
2.18 “Confidential Information” means any oral, written, graphic or machine readable information including, but not limited to, that which relates to research, trade secrets, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software, hardware configuration, algorithms, business plans, agreements with third parties, services, customers, marketing or finances of the disclosing party, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
2.19 “Distributor” means a third party distributor or vendor over whose network or through whose services Customer may use the Services.
2.20 “Documentation” means any written specifications, manuals or instructions for the Software Services that Whistle specifically provides or makes available for Customer through Customer’s account, as well as any then-current general minimum Customer System requirements as published by Whistle (as may be updated from time-to-time).
2.21 “Feedback” means all suggestions, input, information, comments, or other feedback provided by Customer to Whistle with respect to the Services, but excludes Customer Data.
2.22 “Force Majeure Event” means any occurrence beyond the reasonable control of a party hereto or its sources, such as, acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, act of government, Internet or telecommunication service provider failures or delays, communication line or power failures, or hosting or cloud service provider technical failures or delays, denial of service attack, inoperability or destruction of any computer equipment or software.
2.23 “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby.
2.24 “Initial Term” has the meaning given to it in the Agreement.
2.25 “Intellectual Property Rights” means all intellectual property and other proprietary rights, including, without limitation, all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor.
2.26 “Modifications” means any corrections, improvements, translations, alterations, adaptations, revisions, withdrawals, additions, developments, as well as new versions or regular enhancements, changes, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing. For clarity, Modification does not include additional or wholly new modules, products or services.
2.27 “Order” means the Initial Order or an Additional Order, as the case may be.
2.28 “Personal Information” means (a) information about an identified or identifiable individual; (b) any information that when combined with such individually identifiable information identifies an individual; or (c) information that is otherwise protected under Applicable Privacy Laws.
2.29 “Process” means to create, obtain, acquire, record, access, organize, alter, use, store, maintain, copy, aggregate, disclose, erase, destroy, dispose of or otherwise process. “Processing” and “Processed” have correlative meanings.
2.30 “Professional Services” means the customization, integration, training, consulting, development and other professional services purchased pursuant to the Agreement or any Order, and any Modifications to such services, but does not include Software Services or Support.
2.31 “Service Level Commitment” means the service level commitment attached as Schedule 3.
2.32 “Services” means the Software Services, including accompanying Support, and Professional Services.
2.33 “Software” means the Whistle software application(s) and other software, and all Modifications of the foregoing, that Whistle makes available for use as part of the Software Services whether through the Whistle Site or otherwise.
2.34 “Software Services” means the software services made available by Whistle for use by Customer, including the making available of the Software and accompanying Support, and any Modifications to such services and/or software, as may be subscribed to or purchased by Customer pursuant to and as specified in an Order, but not including Professional Services or Whistle Third Party Tools and Data.
2.35 “Support” means the standard support services accompanying the Software Services, as described in the Service Level Commitment, and any Modifications to such support services, but not including Professional Services or Whistle Third Party Tools and Data. For clarity, Support does not include Professional Services, hardware and related supplies and support thereof, or any onsite (e.g. onsite at a Customer location) support.
2.36 “Third Party Provider” means a supplier of data, information, content, software, services or other items or infrastructure that are part of or otherwise used in connection with the Services to include Amazon Web Services, Twilio (+Sendgrid), Google (Firebase), and Pusher.
2.37 “Use” or “use” (a) of the Software Services, including accompanying Support, means to9 “access and use” the Software Services and to “access, use and, to the extent applicable, receive” Support; and (b) of Professional Services, means to “receive” Professional Services.
2.38 “Usage Data” means information, data and other content collected from, as well as insights, ideas, observations and know-how generated from, Whistle’s monitoring of usage and interaction with the Services by Authorized Users that is sufficiently different from Customer Data (including Personal Information) that Customer Data cannot be reverse engineered other otherwise identified from the inspection analysis or further Processing of such data.
2.39 “Work Product” means (in any form including source code) any and all processes, methods, formulas, algorithms, reports, programs, manuals, software, flowcharts and systems and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared, conceived, or made by Whistle as part of, in connection with, or in relationship to the performance of Services pursuant to this Agreement. Work Products also means all such developments as are originated or conceived during the term of this Agreement but are completed or reduced to practice thereafter.
Other terms are defined elsewhere in the text of this Agreement.
- TERM & TERMINATION; FEES.
3.1.1 Term of Agreement. This Agreement shall commence on the Effective Date and shall continue in effect thereafter for as long as any Order entered into pursuant to this Agreement remains in effect.
3.1.2 Term of Order(s). The term of each Order will commence on its “Commencement Date” (as defined and stated therein) and shall continue in effect thereafter for its term as may be specified in any such Order and in accordance with the provisions stated therein. In the event no term is indicated in an Order for Software Services, (a) the term of such Order will be the one-year period commencing on the Commencement Date (as defined and stated in such Order); and (b) such term will automatically renew for successive periods of the same duration as the Initial Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
3.1.3 Termination for Breach; Insolvency. Either party may terminate any or all Orders in the event of a material breach thereof which is not cured within 30 days of written notice of such material breach; provided, however, such termination shall not take effect if the breaching party cures or corrects the breach within such 30 day notice period. In addition, either party may terminate any or all Orders upon written notice to the other if the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party (and such petition is not dismissed within 30 calendar days) or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
3.1.4 Suspension of Services. In the event that Whistle learns of any of the following described circumstances, then Whistle may immediately suspend or disable Customer’s or any Authorized User’s use of any or all of the Services and Whistle Materials, without liability to Whistle: (a) any breach of Section(s) 3.5.1(a), 3.5.2(a), or 6.2.1; (b) any circumstance that Whistle reasonably and in good faith believes requires temporary suspension of the Services in order to protect the Services, Whistle, Whistle Materials, any Whistle Third Party Provider, or any of Whistle’s client’s or their data, for clarity including for example but not exclusively cases of cyber-attack, Customer data breach or physical security risk to equipment; or (c) if Customer does not cure any late payment hereunder within 10 days of the date of Whistle’s notice regarding such late payment, Whistle will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless Whistle determines, in its reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect the Services, Whistle, Whistle Materials, any Whistle Third Party Provider, or any of Whistle’s Customers or their data from imminent risk. In the event that Whistle suspends use of the Service pursuant to this Section 3.4.4, Whistle will promptly inform Customer in writing, and will use reasonable efforts to limit the suspension to the affected portion(s) of the Services, and will work with Customer to resolve the issue(s) causing such suspension.
3.1.5 Effect of Termination. In addition to any other termination obligations hereunder, the below provisions shall apply upon the earlier of termination of this Agreement or termination of any Order.
(1) Customer shall immediately cease using any terminated or expired Services, Whistle Third Party Tools and Data and Whistle Materials. Customer shall within 30 days: (a) pay all agreed upon sums owing to Whistle under the affected Order(s) to the date of termination; (b) return to Whistle, or at Whistle’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any Whistle Materials or other Whistle Confidential Information; (c) permanently erase all Whistle Materials and other Whistle Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on Whistle Confidential Information or Whistle Materials, from all Customer Systems; and (d) upon Whistle’s request, certify to Whistle in a signed written instrument that it has complied with the requirements of this Section.
(2) Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (a) Whistle may retain Customer’s Confidential Information and Whistle may retain Customer Data, in each case, in its then current state and solely to the extent and only for so long as required by applicable law, rule or regulation; and (b) Whistle may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course (up to 180 days following the date of termination of this Agreement). All information and materials described in this Section 3.4.5(2) will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
3.1.6 Transition. Upon termination of this Agreement, at Customer’s request, and for a period not to exceed ninety (90) days from the date of termination, Whistle shall cooperate with Customer in the transition of moving Customer Data back to Customer or Customer’s designee. If the Agreement is terminated by Whistle pursuant to Section 3.4.3, then such services shall be provided by Whistle at its then-current standard professional services rates plus expenses and Taxes, and Whistle may at its discretion require advance payment or other adequate security for payment as Whistle may consider appropriate in connection with or as a condition to the provision of services described in this Section 3.4.6.
3.2 General Services Restrictions and Obligations; Representations and Warranties.
3.2.1 General Customer Obligations. Customer shall: (a) obtain and maintain all necessary licenses, consents, and permissions necessary for Whistle, its contractors and agents to perform their obligations under this Agreement; and (b) comply with all applicable laws, rules, and regulations applicable to its use of the Services, Whistle Materials and Customer Third Party Services and Data, including privacy laws, securities laws, and export laws.
3.2.3 Access Methods. Authorized Users may only use the Services via the Access Method(s) stated in the applicable Order(s). Customer is responsible for protecting the security and integrity of all Access Methods. Customer shall hold in strict confidence all administrative Access Methods. Customer is responsible for any acts or omissions occurring under any administrative Access Methods, other than those administrative Access Methods which are under the control or care of Whistle.
3.2.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Section 3, then Customer shall, immediately: (a) take all reasonable and lawful measures within its control necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Whistle of any such actual or threatened activity.
3.2.5 Customer Systems. As between the parties, Customer has and will retain sole control over the operation, maintenance and management of, and all use of, any Customer Systems, and sole responsibility for all use and receipt of the Services and Whistle Materials by any person by or through Customer Systems or any other means controlled or directed by Customer or Authorized User, including any information, instructions or materials provided by same to the Services or Whistle.
3.2.6 Cooperation. Customer shall: (a) provide reasonable cooperation and assistance as Whistle may reasonably request to enable Whistle to exercise its rights and perform its obligations under and in connection with this Agreement; (b) promptly communicate to Whistle all changes to Customer’s resources, equipment, facilities and software, that impact or may impact the Services; and (c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. Whistle is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
3.2.7 Relationship Management. The parties will each appoint a person to act as its representative for managing the overall relationship between the parties. The parties’ representatives will meet quarterly to review the status of the Services, and the parties’ compliance with this agreement, and other relationship governance matters as mutually agreed from time to time.
3.2.8 Modifications; Upgrades; New Services. Whistle reserves the right to Modify any of the Software Services or Whistle Materials and any portions or configurations thereof, from time to time; provided that no such Modification may materially diminish any functionality or feature of the Software Service material to Customer’s use of the Software. Whistle may, in its sole discretion, make available, for additional fees, additional or wholly new modules, services and products that have materially different functionality from the Software Services as described in the Initial Order.
3.2.9 Whistle Third Party Tools and Data. Except with respect to Whistle’s Hosting Providers, Whistle shall be responsible for all Whistle Third Party Tools and Data provided as part of the Software Services and shall provide Support for the same.
3.2.10 Customer Third Party Services and Data. Customer may from time to time procure Customer Third Party Services and Data. Any acquisition by Customer of any such Customer Third Party Services and Data, and any exchange of data between Customer and any Third Party Provider, is solely between Customer and the applicable Third Party Provider. Whistle does not warrant or support Customer Third Party Services and Data, except that (i) Whistle will support integration of the interoperability of the Software Services with Customer Third Party Services and Data; and (ii) Whistle may agree to other support if specifically agreed to by the parties in a particular Order.
3.2.11 Promotional Material. If Whistle or Customer wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval. The parties agree that any of them can withhold approval until the promotional material is agreeable to such party.
3.2.12 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into his Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) the fulfilment of its obligations under this Agreement will not breach its contractual or other obligations to third parties, and will not breach any applicable laws.
3.2.13 Whistle Representations and Warranties. Whistle represents and warrants that the Professional Services will be performed in a competent, professional and workmanlike manner. To the extent any acceptance criteria are required in connection with any Work Product provided as part of any Professional Services provided pursuant to a particular Order, then such criteria shall be set out in such Order. In the event such Work Product do not meet such acceptance criteria, Whistle will reasonably proceed to correct the deficiency until such Work Product are accepted (not to be unreasonably withheld) by Customer. For a period of 90 days from such Acceptance (“Work Product Warranty Period”), Whistle warrants that such Work Product will materially conform to such applicable acceptance criteria, if any. During the Work Product Warranty Period, Whistle’s sole responsibility and Customer’s sole remedy with respect to non-conforming Work Product is for Whistle to, at its option, either use commercially reasonable efforts to correct the deficiency or terminate the affected Professional Services and refund to Customer any amounts paid for such Work Product, but termination may only be selected if the deficiency cannot be corrected by Whistle, using commercially reasonable efforts, within 30 days of Customer’s written notice of the deficiency. The warranty set forth in in this Section 6.3.2 does not apply upon any of the following: (a) any change, addition, deletion or other modification was made to the Work Product, except as specifically authorized in writing by Whistle; and (b) failure by Customer to report a deficiency within the specified Work Product Warranty Period.
3.3 Fees and Charges.
3.3.1 Fees and Charges; Payment Terms. Customer shall pay fees and charges stated in the applicable Order(s), in United States Dollars, plus all applicable Taxes, within 15 days after the date of Whistle’s invoice. These fees and charges shall be due and payable by Customer to Whistle regardless of whether Customer uses any Services. In case of Termination for Breach or Insolvency as per Section 3.4.3, only the unused portion of pre-paid fees is refundable.
3.3.2 Fee Increases. We reserve the right to increase or decrease your fees for the Services by providing you with thirty (30) days prior notice. To notify you of such an upcoming fee increase or decrease, we may post the revised fees on our website, or we may notify you directly in writing (email acceptable). Notwithstanding the foregoing, if you are under a Services subscription term that is longer than thirty (30) days, and if we notify you of an increase in your fees for those Services during that subscription term, the increased fees will only become effective when your subscription term ends. For example, if you are under a twelve (12) month subscription term for certain Services and we notify you of an increase in the fees for those Services in the fourth month of your subscription term, your fees will remain unchanged during the remaining eight months of your subscription term, and the increased fees will only become effective at the end of that subscription term..
3.3.3 Late Payment. Whistle may assess a late charge at a rate of (i) 1% per month; or (ii) the maximum amount allowed under the law, whichever shall be greater, on all amounts due and not paid within 30 days of the date of Whistle’s invoice until the time of Whistle’s receipt of payment.
3.3.4 Taxes. Whistle’s rates, fees and other charges set forth in this Agreement do not include any and all present or future taxes, levies, customs, duties, deductions, charges or withholdings, and all liabilities (including penalties, additions to tax, interest and expenses) with respect thereto, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties, as well as any similar city, municipal, provincial or state taxes whether currently imposed or to be imposed in the future, but excluding always taxes or duties determined on Whistle’s gross or net income, personnel or property (collectively, hereinafter referred to as “Taxes”), for which Customer will be responsible. For any Taxes that Whistle is required to withhold or remit to the applicable taxing authority, Whistle shall include each such Tax as a separate line item on its applicable invoice, shall timely remit such Taxes to the applicable taxing authority and shall indemnify Customer from any failure thereof by Whistle. If any Taxes are found to be applicable or if Customer or any person paying to Whistle on behalf of Customer (including banks) shall be required by Law to deduct any Taxes from or in respect of any sum payable to Whistle hereunder, then: (a) the sum payable to Whistle shall (at the same time and on the same conditions as applied to the sum payable) be increased as may be necessary such that following all required deductions, Whistle receives the amount equal to the sum it would have received had no such deductions been made; and (b) Customer shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with the applicable Law. Upon the request of Whistle, Customer shall promptly take all reasonable and proper actions, including, without limitation, the completion of forms, certificates and documents and the provision of information to the relevant taxing authority, of the kind required under the applicable Law.
The User acknowledges and agrees that the messaging services provided by Cloudbeds require the advance purchase of credits to facilitate messaging. The User agrees to pay for each messaging transaction* using the purchased credits at the rates specified by Cloudbeds**. Cloudbeds reserves the right to adjust the credit rates for messaging services without notice, which will be reflected when purchasing credits in the Cloudbeds application, and User agrees to pay such adjusted credit rates. The User shall be solely responsible for monitoring their credit balance and ensuring that sufficient credits are available for messaging. Failure to maintain an adequate credit balance may result in the inability to send messages until additional credits are purchased. Cloudbeds shall have the sole discretion to determine the validity period*** of credits and any associated policies governing credit usage, and may change such periods and/or policies at any time. The User agrees to be governed and abide by any such changes.
* Messaging Transaction – Every message, containing from 1-160 characters (or 1-70 characters in the case of Unicode) constitutes a single “messaging transaction.” By way of example, one message containing 65 characters is one messaging transaction. One message containing 182 characters constitutes two messaging transactions.
** Credit Rates – Credits are based in USD.
*** Validity Period – Purchased credits may be used as long as the User is a current Cloudbeds’ customer. All purchased credits will automatically expire at the time the User’s contract with Cloudbeds expires or is terminated for any reason.
- NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Whistle and Customer each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out the purposes of this Agreement. Neither party will disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to carry out the purposes of this Agreement. Each party has had, or will have, entered into arrangements with its employees, consultants and agents who have access to Confidential Information of the other party with substantially similar restrictions on disclosure to this provision. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this provision to have any such information. Such measures will include, but not be limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which will be no less than reasonable care. Each party agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention. Notwithstanding the above, neither party will have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; or (iii) is disclosed with the prior written approval of the disclosing party. Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party will provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Confidential Information so disclosed will continue to be treated as Confidential Information as between the parties hereto. Notwithstanding the foregoing, either party may provide information about the terms and status hereof on a confidential basis to its subcontractors, lenders, private investors, legal counsel, accountants, auditors and other professional advisors, and either party may file a copy of this Agreement with the Securities and Exchange Commission or other applicable regulatory body on advice of counsel; provided, however, that the filing party will use reasonable efforts to seek confidential treatment of the economic terms of this Agreement and will notify the other (non-filing) party in writing in advance of such filing. Each party acknowledges that the restrictions and obligations in this Section 6.6 are reasonable and necessary to protect the other party’s interests and in the event of a violation of these restrictions or obligations, remedies at law may be inadequate and a violation may cause irreparable damages. Accordingly, notwithstanding anything to the contrary herein, each party shall be entitled to immediately seek injunctive relief, without posting bond or other security, against the other party or the other party’s employees or agents for any violation thereof.
- SECURITY; PERSONAL INFORMATION; DISASTER RECOVERY.
5.1 Security. Whistle shall be responsible for implementing and complying with commercially reasonable measures (including technical and organizational security measures) designed to maintain the security and non-disclosure of all Customer Data in the course of providing the Software Services and Support under this Agreement. Whistle shall comply with all Laws (including Applicable Privacy Laws) applicable to its Processing of Customer Data and otherwise performing the Services. Whistle shall use reasonable endeavors to set up, maintain and operate in good repair all systems used to perform the Services. In addition, Whistle shall ensure, using commercially reasonable endeavors, that all systems used to provide the Services are configured in accordance with the “principle of least privilege”.
5.2 Personal Information. Whistle acknowledges that Customer Data may include Personal Information of Authorized Users (“Customer Personal Information”). With respect to such Customer Personal Information, Whistle shall: (a) use Customer Personal Information only for the purposes necessary to fulfill this Agreement; and (b) maintain Customer Personal Information only for so long as may be required to fulfill the purposes for which Customer Personal Information was collected, or as may be permitted herein.
5.3 Government Demand. Notwithstanding anything to the contrary in this Agreement, Whistle may disclose Customer Data as required by applicable law, rule or regulation, including Applicable Privacy Law, or by proper legal or Authority. Whistle shall, to the extent legally permitted, give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
5.4 Hosting. Customer agrees that Whistle may transfer Customer Data to, and Process Customer Data via, providers of hosting and backup services for the purposes of Whistle providing and making available the Services (each, a “Hosting Provider”). Whistle shall provide to Customer a list of such Hosting Provider(s) involved in the Services who have been transferred Customer Data for backup storage, hosting storage and Processing services, and a copy of any information Whistle receives describing the information security of such Hosting Providers. Customer shall be provided notice of any changes by Whistle from one Hosting Provider to another.
- ADDITIONAL TERMS AND CONDITIONS.
6.1 Customer Data; Feedback. As between the parties, Customer owns all right, title and interest in and to Customer Data. Customer hereby grants to Whistle and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid-up license to use and Process (including, without limitation, to host, store, copy, record, transmit, maintain, and display), including via Customer’s Third Party Providers, Customer Data and any Customer Third Party Services and Data for the purposes of (i) making available and providing the Services hereunder; and (ii) research, statistical, data analysis, product improvement, marketing, sales tracking or similar purposes. Customer is solely responsible for the following with respect to any Customer Data and Customer Third Party Services and Data: (a) compliance with the Acceptable Use Policy; (b) all storage, backup and retrieval thereof not used by Whistle to provide or make available the Services; (c) any transmission errors, corruption, or compromise thereof transmitted via Distributors or other Third Party Providers, or otherwise transmitted via the Internet; and (d) the condition, completeness, timeliness, backup, legality, reliability, integrity, accuracy and quality thereof. Customer agrees that Whistle does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Customer Data or Customer Third Party Services and Data. For certainty, Whistle is not responsible for and has no liability for Customer not storing and backing-up all Customer Data. Customer may from time to time provide Feedback. Customer agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Customer shall not, absent a separate written agreement, create any confidentiality obligation for Whistle. Whistle shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
6.2 Whistle’s Proprietary Rights; Equitable Relief; Third Party Beneficiaries. All right title and interest in and to the Services and Whistle Materials, and any Work Product, including, without limitation, all Intellectual Property Rights and other proprietary rights therein, are and shall remain the sole and exclusive property of Whistle, its Affiliates and their Third Party Providers, as the case may be. This Agreement does not grant any Intellectual Property Right or license under any Intellectual Property Right in or to the Services or Whistle Materials. All rights in and to the Services and Whistle Materials are expressly reserved by Whistle and the respective Third Party Providers. Customer shall not violate the Intellectual Property Rights and other proprietary rights of Whistle, its Affiliates, and their Third Party Providers in the Services and Whistle Materials, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Order. Upon any termination this Agreement or suspension of Services, Customer shall immediately cease all use of Software, Software Services and Whistle Materials. Customer shall comply with all reasonable requests made by Whistle to protect the rights of Whistle at their expense, its affiliates, and their Third Party Providers in the Services and Whistle Materials. As between the parties, all Customer Data and Customer Systems, and all Intellectual Property Rights therein, shall remain the sole and exclusive property of Customer, and, except in the course of fulfilling its obligations hereunder, Whistle shall not use, disclose, or otherwise share such with any third-party including but not limited to any other financial service provider. The parties agree that any breach or threatened breach of Section 4 or this Section 6.2 shall cause a party, its Affiliates and/or their Third Party Providers irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach thereof may be enforced by the affected party, its Affiliates, or their Third Party Providers by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available, without the need to post a bond or other security.
6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, WITH RESPECT TO THE SERVICES, WHISTLE MATERIALS, THIRD PARTY TOOLS AND DATA, CUSTOMER THIRD PARTY SERVICES AND DATA, WORK PRODUCT, AND ANY DATA OR RESULTS OBTAINED OR OUTPUT BY USING ANY OF THEM: (A) CUSTOMER’S OR AUTHORIZED USER’S, USE THEREOF ARE ALL AT THEIR SOLE RISK; (B) ARE PROVIDED “AS IS” AND “AS AVAILABLE”; (C) THE REMEDIES LISTED IN THE SERVICE LEVEL COMMITMENT ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND WHISTLE’S SOLE OBLIGATION, REGARDING ANY FAILURE OF OR OTHER ISSUE WITH THE SOFTWARE, SERVICES OR SUPPORT; AND (D) THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) (I) REGARDING ANY OF THEM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, ACCURACY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, OR UNINTERRUPTED USE; OR (II) THAT ANY OF THEM WILL MEET ANY REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS), ERROR FREE, OR FREE OF HARMFUL CODE.
6.4.1 LIMITATION. IN NO EVENT WILL THE MAXIMUM CUMULATIVE LIABILITY OF WHISTLE OR ITS AFFILIATES, OR CUSTOMER OR ITS AFFILIATES, FOR ANY AND ALL LIABILITIES AND CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT (REGARDLESS OF WHEN MADE) EXCEED THE TOTAL FEES PAID BY CUSTOMER TO WHISTLE UNDER THE APPLICABLE ORDER FOR THE SERVICE IN QUESTION IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN.
6.4.2 EXCLUSIONS. IN NO EVENT WILL WHISTLE OR ITS AFFILIATES, OR CUSTOMER OR ITS AFFILIATES, BE LIABLE FOR ANY OF THE FOLLOWING DAMAGES OR LOSSES WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES; (B) LOSS OF BUSINESS OR GOODWILL, SALES, USE, PROFITS, OR REVENUE, OR LOSS OF OR CORRUPTION TO DATA OR CONTENT; OR (C) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OF SERVICES.
6.4.3 CARVE-OUT. THE LIMITATIONS AND EXCLUSIONS IN SECTION 6.4.1 AND SECTION 6.4.2 DO NOT APPLY TO LIABILITY FOR (I) DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S NEGLIGENCE OR MISCONDUCT; (II) INDEMNIFICATION OBLIGATIONS IN SECTION 6.5; (III) A PARTY’S BREACH OF SECTION 4 (TO THE EXTENT NOT DUE TO A SECURITY INCIDENT OR A SECURITY INCIDENT CAUSE); (IV) THE VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (V) A PARTY’S OR ITS REPRESENTATIVES’ FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
6.4.4 APPLICATION. THIS SECTION 6.4 APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
6.5 INDEMNIFICATION. Customer shall indemnify, hold harmless and defend Whistle, its Affiliates, and each of their respective officers, directors, employees, agents, heirs, successors in interest from and against any and all Losses from any third-party claim to the extent arising from: (a) Customer Data; (b) Customer’s or any Authorized User’s breach of this Agreement; (c) Customer’s or any Authorized User’s, breach of any applicable laws, rules or regulations; (d) Customer’s or any Authorized User’s, fraud or willful misconduct; (d) any property damage or personal injury caused by Customer or any Authorized User; or (e) Customer’s or any Authorized User’s financial, business or commercial judgments.
7.1 Independent Contractors. Customer and Whistle are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.
7.2 Force Majeure. Except for payment obligations, neither party will be liable to the other party for any delay in performance or failure to perform due to any Force Majeure Event; provided, that the party that is unable to perform has taken reasonable and customary measures to mitigate the effects of any such delays or nonperformance. In any such event, the party that is unable to perform shall promptly notify the other party and shall use its reasonable to remedy the failure or delay. If a party seeks to excuse itself from its obligations under this Agreement due to a Force Majeure Event, that party shall promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance, the anticipated period of delay or non-performance and in the case of Whistle, the expected date of resumption and the details of any contingency plans that will enable Whistle to minimize the length of the delay.
7.3 Export Controls. Customer acknowledges and agrees that the Software Services, Support or Whistle Materials may be subject to export controls under United States and other export control Laws. Customer shall not directly or indirectly, whether to an Affiliate or a third party: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the Software Services, Support or Whistle Materials, to any prohibited or restricted destination, person, or entity; or (b) access or use or allow any Authorized User, Affiliate or third party to use the Software Services, Support or Whistle Materials in a manner prohibited or restricted by export control Laws. Customer shall comply with all applicable export controls Laws at all times.
7.4 Audit; Inspection. During the term of this Agreement, and upon at least 14 days’ prior written notice to Customer, no more often than once per annum Whistle shall have the right, during normal business hours, to audit the manner of use of the Services solely in accordance with the scope of audit agreed to by the parties in advance of such audit, each party’s consent to such scope of audit not to be unreasonably withheld, and under Customer’s reasonable supervision. Whistle will ensure that the audit is conducted in a manner that will result in minimal disruption to Customer’s business.
7.5 Governing Law; Venue. The laws of the State of California shall be applied to this Agreement, without reference to conflicts of law principles, and the parties submit to the exclusive jurisdiction of (a) The United States District Court for the Central District of California (to the extent it has subject matter jurisdiction); or (b) the Superior Court of California, County of Los Angeles; but the Parties agree that Whistle may seek equitable relief in any venue it so chooses. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded.
7.6 Assignment. Customer shall not assign or transfer (including by operation of law) this Agreement, including any Orders, without the prior written consent of Whistle and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement. In addition to and notwithstanding the foregoing, if the ownership of Customer at any time shall pass out of the majority control of its then-current owners by sale of stock or assets, merger or otherwise, Customer shall give Whistle not fewer than 30 days’ prior written notice to the effective date of any change of control. Whistle shall have the right to terminate this Agreement and any affected Orders by providing written notice to Customer within the later of 60 days following (i) receipt of such notice of change of control; or (ii) the date such change of control occurs. If Whistle elects not to exercise the foregoing termination right, any successor-in-interest to this Agreement and any affected Orders as a result of the change of control shall assume all rights and obligations of Customer and shall be responsible for adhering to the terms thereof. Any attempted assignment in violation of this section will be null and void. Whistle can freely assign without consent to an Affiliate, or in the event of a merger, reorganization, or sale of substantially all of its assets. This Agreement shall be binding upon, shall enure to the benefit of, and shall be enforceable by the parties and their permitted successors and assigns.
7.7 Entire Agreement; Amendments. This Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with respect to its subject matter. There are no oral or written collateral representations, agreements or understandings. This Agreement may not be modified except in a written document signed by the parties.
7.8 Conflicts. In the event of any conflict among the terms of this Agreement or any Order, the terms of the Order shall prevail only with respect to the Services and pricing specified in such Order, as well as any provisions in the Agreement that are specifically excluded or modified in such Order. Except as may be specifically provided for in a particular Order, any such exclusion or modifications contained in any Order shall not modify this Agreement with respect to any other Order.
7.9 Headings; Interpretation. The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively.
7.10 Waiver; Severability. The failure of a party to insist upon strict compliance with any term or condition of this Agreement on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or condition. No waiver of any term or condition of this Agreement, including any Order, shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law, and the parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then Whistle’s liability will be limited to the greatest extent permitted by law.
7.11 Counterparts; Electronic Transmission. This Agreement may be signed in any number of counterparts with the same effect as if the parties had signed the same document. Delivery by electronic transmission is as effective as delivery of an original of this Agreement.
7.12 Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect, including, without limitation, Sections 3.1.5, 3.1.6, 3.2.1, 3.2.2, 4, 6 and 7.
7.13 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand or sent by nationally recognized overnight carrier, or prepaid registered or certified mail, return receipt requested, with acknowledgment by the receiving party as of the date received, to the address listed in the first paragraph above, or to such other address as either party shall specify in a written notice to the other.
7.14 Commencement of Services. Commencement of the Service(s) prior to the signing of this Agreement or any applicable Order(s) by Whistle does not constitute acceptance by Whistle of any changes made by Customer to the terms and conditions of this Agreement or any Order(s) and no such changes are binding on Whistle until Whistle has agreed to them in writing.