Order Terms and Conditions
1. SERVICES
Subject to these Terms and Conditions (“Agreement”), Wrap.co (“Wrap”) will use commercially reasonable efforts to provide Customer the Services pursuant to the Order solely for Customer’s internal business purposes. Wrap reserves the right to “take down” any material that may be illegal, defamatory, or discriminatory. Customer will at all times be responsible for all actions taken under its Account: (a) by an employee authorized by Customer to use the Services on Customer’s behalf (“Authorized User”); or (b) by any other party to the extent Customer does not implement industry standard security measures to protect its Account.
2. RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any documentation or data related to the Services (“Documentation”); modify, translate, or create derivative works based on the Services or any Documentation; use the Services or any Documentation for timesharing or service bureau purposes or otherwise for the benefit of any third party, or remove any Wrap proprietary notices or For Documentation provided to Customer, Wrap grants Customer a non-exclusive, non-transferable, non-sublicensable license to use only in connection with the Services.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, any of Wrap’s standard published policies then in effect (the “Policies”) and all applicable laws and regulations. Customer agrees to indemnify and hold harmless Wrap against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Wrap has no obligation to monitor Customer’s use of the Services, Wrap may do so and may prohibit any use of the Services it believes Customer may be in violation of the
3. CUSTOMER DATA
Customer and Authorized Users may upload data and information (“Customer Data”) to use with the Services. Customer is responsible for providing all Customer Data in the appropriate format, the means by which the Customer Data was acquired and obtaining any necessary rights and licenses to use the Customer Data. Wrap assumes no responsibility for the Customer or third party content (including without limitation Customer Data) carried on any system provided by Wrap. Customer is responsible for any Customer Data that may be lost, corrupted, or unrecoverable through Customer’s use of the Services. Wrap may access and use the Customer Data during the term of this Agreement as necessary to provide the Services to Customer and to identify or resolve technical problems with the Services. Customer represents and warrants that (1) it has, and will continue to have, during the term of this Agreement, the legal right and authority to access, use and disclose to Wrap any such required Customer Data; and (2) neither the Customer Data, nor Customer’s use and provision of Customer Data to be made available through the Services, nor any use of Customer Data by Wrap on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4. PROFESSIONAL SERVICES
If Customer requests Wrap to perform any services that are different from or in addition to the Services set forth herein (for example, commissioning Wrap to personalize, design, and develop “wraps” on behalf of Customer) (“Professional Services”), and Wrap is willing to provide such Professional Services, then Wrap will provide Customer with a statement of work (“Statement of Work”) setting forth the terms and conditions under which Wrap will provide such Professional Services including without limitation the fees for such requested Professional Services (“Professional Service Fees”). If Customer accepts such Statement of Work in writing then Wrap will perform the Professional Services in accordance with the terms and conditions of such Statement of Work, and Customer will pay Wrap the Professional Service Fees calculated in accordance with and subject to the payment terms set forth in the Statement of Work. Unless expressly stated otherwise in the applicable Statement of Work, Wrap owns all right, title, and interest in and to the results of any Professional Services, including all intellectual property rights therein. Additionally, any data, information or other materials provided to Wrap by Customer in order to perform the Professional Services under a Statement of Work will be deemed Customer Data hereunder. If the terms of a Statement of Work conflict with the terms of this Agreement then the terms of the Statement of Work shall control, but solely with respect to that particular Statement of Work.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may need to disclose certain non-public information relating to the Disclosing Party’s business that is marked or identified as “confidential” at the time of disclosure (“Proprietary Information”) in connection with the use and/or performance of the Services. Proprietary Information of Wrap includes non-public information regarding features, functionality and performance of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its rightful possession or rightfully known prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party. The Receiving Party may disclose Proprietary Information if the disclosure is necessary to comply with a valid court order or subpoena, in which case the Receiving Party will promptly notify the Disclosing Party and cooperate with the Disclosing Party if the Disclosing Party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be
- Customer shall own the Customer Data. Wrap owns and retains all right, title and interest in and to: (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services; and (c) all worldwide intellectual property rights related to any of the
- Wrap may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Wrap will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Wrap offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its No rights or licenses are granted except as expressly set forth herein.
6. PAYMENT OF FEES
Customer will pay Wrap the applicable fees described in the Order for the Services and Professional Services (if any) in accordance with this Agreement (the “Fees”). If Customer’s use of the Services requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided within the payment terms of the bill. All payment obligations are non-cancelable and non-refundable.
7. TERM AND TERMINATION
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- Subject to earlier termination, this term of this Agreement is as specified in the Order (the “Term”).
- Sections 5, 6, 8, 9, 10 and 11 will survive the expiration or termination of this Agreement.
8. WARRANTY AND DISCLAIMER
Wrap shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Wrap or by third-party providers, or because of other causes beyond Wrap’s reasonable control, but Wrap shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, WRAP.CO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND WRAP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
9. INDEMNIFICATION
Customer will: (1) defend Wrap against any third party suit, claim, action or demand (a “Claim”) arising out of or related to the accessing and/or use of the Customer Data through the Services; and (2) indemnify and hold Wrap harmless from any final award of damages or settlement amount arising in connection with any such Claim. Wrap will notify Customer promptly in writing of any actual or threatened Claim, give Customer sole control of the defense thereof and any related settlement negotiations, and cooperate and, at the indemnifying party’s request and expense, assist in such defense.
Wrap will: (1) defend against Customer any third party suit, claim, action or demand based on a claim that the accessing and/or use of the Customer Data through the Services by Customer as permitted herein infringes the intellectual property rights of such third party (a “Claim”); and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any such Claim. Customer will notify Wrap promptly in writing of any actual or threatened Claim, give Wrap sole control of the defense thereof and any related settlement negotiations, and cooperate and, at Wrap’s request and expense, assist in such defense.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL WRAP BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING ANY LOST PROFITS, REVENUE, OR DATA) IN CONNECTION WITH THE SERVICES OR IMPLEMENTATION SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY INFORMATION OR DATA TRANSMITTED THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL THE TOTAL LIABILITY OF WRAP EXCEED THE FEES PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
EXCEPT FOR BREACHES OF SECTIONS 2, 3, 5, HEREOF, IN NO EVENT WILL CUSTOMER BE LIABLE TO WRAP HEREUNDER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING ANY LOST PROFITS, REVENUE, OR DATA). EXCEPT FOR BREACHES OF SECTIONS 2, 3, 5, 6 HEREOF, AND EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTION 9 HEREOF, IN NO EVENT WILL THE TOTAL LIABILITY OF CUSTOMER EXCEED THE TOTAL AMOUNTS DUE AND PAYABLE HEREUNDER BY CUSTOMER.
11. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Wrap’s prior written consent. Wrap may transfer and assign any of its rights and obligations under this Agreement with thirty (30) days’ written notice to Customer. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Wrap in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.