These Brand Terms and Conditions (“Terms”) are made part of the Way Services Agreement between Kouto Inc., doing business as Way, a Delaware Corporation (“Way”) and the Customer listed in the Order which references these Terms. These Terms will govern the use and provision of any Services purchased by Customer as described in any Order. Any terms not defined herein have the meaning given to them in the applicable Order.
1.1 “Customer Content” means the data and content uploaded or submitted into the Way Services by or on behalf of Customer, and excludes Host Content.
1.2 “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of the Disclosing Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques and (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents.
1.3 “Hosts” means employees or contractors that are providers of experiences to be offered via the Services.
1.4 “Host Content” means data and content uploaded or submitted into the Way Services by or on behalf of Hosts.
1.5 “Order” means the document signed by an authorized representative of each party that references these Terms and identifies the specific Service(s) to be made available and the fees to be paid.
1.6 “Platform” means the version of the Way Services provided by Way to the Customer.
1.7 “Professional Services” means any professional services provided by Way to Customer as described in an Order (as may be further elaborated in any statement of work agreed to by the parties), including implementation, support and maintenance, and training services.
1.8 “Services” means the Way Services, the Professional Services and any other services set forth in an Order.
1.9 “Way Services” means peer to peer software platform for branded experiential connections. Such services are more fully described in the Order.
2.1 Services. During the Term (as defined below), and subject to Customer’s compliance with this Agreement, Way will provide a nonexclusive, revocable license to use the Way Services. During the Term, Way may, but is not required to, provide updates, new features, and revisions to the Services as it may in its sole discretion decide, some of which may not be made available to Customer under the terms and conditions of this Agreement. Customer hereby acknowledges and understands that Way may offer additional functionalities beyond the tier of the Services selected by Customer that are not available for Customer’s use under the terms of this Agreement.
2.2 Customer Restrictions. During the Term and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Hosts to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s customers; (b) use or demonstrate the Services in any other way that is in competition with Way; (c) reverse engineer, disassemble or decompile the Way Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Way Services (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupt its integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations.
3.1 Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each Recipient agrees as follows: (A) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and independent contractors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”) and (B) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein. Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
3.2 Exceptions. The provisions of Section 3.1 will not apply to Confidential Information that: (A) becomes generally available to the public through no fault of the Recipient; (B) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (C) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (D) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient without use of the Confidential Information. Notwithstanding Section 3.1, each party may disclose Confidential Information to the limited extent required by 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 will first have given written notice to the other party and made a reasonable effort to obtain a protective order.
3.3 Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Way to use the Customer Content to provide the Services.
3.4 License in Customer Content. Customer grants to Way, a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services. Except for the limited licenses granted to Way in any Customer Content, as between Customer and Way, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary herein, Customer agrees that Way has the right to collect, use and analyze any deidentified information derived from the Customer Content (collectively, the “Deidentified Data”) for Way’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Way offerings. Way may disclose Deidentified Data solely in aggregate form in connection with its business. Customer hereby grants to Way a non-exclusive license to use Customer’s name and logo in connection with the promotion of Way’s business, products and/or services.
3.5 Way Services. Except for the limited access grant provided to Customer in this Agreement, Way reserves all right, title and interest in its intellectual property and business, including the Services, and Way trademarks. Unless otherwise expressly set forth in an Order, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order, and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Way.
3.6 Feedback. Way in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to Way in connection with its access to and use of the Services (all comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Way a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Way products and services.
4.1 Term. The term of this Agreement shall commence on the Order Effective Date and remain in effect for the initial Order Term set forth in the Order (the “Initial Term”). Thereafter, this agreement shall automatically renew for additional one year terms (each a “Renewal Term”), unless either party provides notice to the other of its intention not to renew at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms will collectively be referred to as the “Term”.
4.2 Termination. Either party may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice. The parties acknowledge that any fees owed to a party under this Agreement at the time of such termination shall continue to be owed to such party after any such termination pursuant to the fees outlined in Section 5.
4.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Way prior to such termination or expiration and all completed but unpaid Professional Services fees will be immediately due and payable and (b) all licensed and access rights granted will immediately cease to exist. Sections 1, 2, 3, 4.3, 6, 7, 8 and 9 will survive any expiration or termination of this Agreement.
5.1 Customer shall pay the fees set forth on the Order (the “Fees”). Fees will be automatically charged to Customer’s account during the Term unless an alternative payment method is agreed upon by the parties. Way reserves the right to suspend Customer’s access to the Platform for any failed or missed payments that are not received within two weeks of the payment due date.
5.2 Way will remit funds to Customer equal to the gross revenue booked in the Platform after credit card processing fees of 2.9% per transaction for paid experiences only, from which Customer may determine any commissions or payments due to the Hosts, which may be automatically processed, withheld, and paid through Way’s third party payment processor and transferred electronically through the Platform.
5.3 At least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term, Way shall notify Customer via email of any change in the monthly subscription fee to be charged for the subsequent renewal term.
5.4 Each party is responsible for its own income and other taxes, and shall file tax returns and pay taxes in accordance with applicable federal and state laws for any revenues owned through the Platform. Way will not voluntarily withhold any taxes from amounts due to Customer hereunder.
6.1 General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
6.2 Customer Content. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents and permissions for Customer to make available the Customer Content to Way and for Way to use the Customer Content as contemplated herein.
6.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. WAY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
6.4 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL WAY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
6.5 Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY WAY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS.
6.6 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF WAY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 6 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
7.1 Way Indemnity. Way will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Way Services infringe any U.S. patent, copyright, trademark or trade secret.
7.2 Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Way if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
7.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Way, its directors, officers, and employees (each a “Way Indemnified Party”) from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 6, and (b) arising out of any Customer Indemnity Responsibility.
7.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defence and (c) giving sole control of the defence and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
7.5 Infringement. If the Way Services are, or in Way’s opinion, are likely to become, the subject of any infringement-related claim, then Way will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Way Services; (b) replace or modify the infringing technology or material so that the Way Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order pursuant to which the Way Services are provided and give Customer a refund for any pre-paid but unused Fees.
7.6 THE PROVISIONS OF THIS SECTION 7 STATE WAY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8.1 All notices, requests, consents and demands shall be made in writing to either party at the address set forth in the applicable Order. Either party may change its address by giving notice of the new address to the other party.
8.2 Notices and payments required hereunder shall be deemed properly given: (i) upon personal delivery to the party to be notified; (ii) upon delivery by electronic facsimile (the transmittal of which shall be confirmed by a telephone call to the other party) to the fax number as such party may designate by advance written notice to the other party; (iii) upon delivery by electronic mail (the transmittal of which shall be confirmed by a telephone call or responsive e-mail to the other party) to the e-mail address as such party may designate by advance written notice to the other party; (iv) three business days after mailing by first class, certified mail, postage prepaid and addressed to the party to be notified at the address indicated for such party in this Agreement or at such other address as such party may designate by advance written notice to the other party; or (v) next day for delivery by guaranteed overnight delivery, which delivery is confirmed.
9.1 Assignment. Neither party may assign this Agreement or any rights or obligations acquired hereunder to any person or entity without the prior written consent of the other party; provided, however, that Way may subcontract and assign its obligations hereunder to a third party in connection with maintenance and support of the Platform, performance of certain Services, and collection of payments hereunder, without the prior written consent of Customer. Notwithstanding the foregoing, either party may assign this Agreement upon written notice to the other party in connection with a sale or assignment of all or substantially all of its stock or assets or to a parent, subsidiary or affiliate.
9.2 Entire Agreement. This Agreement and its Schedules and Exhibits contain the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof.
9.3 Construction. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement.
9.4 Severability. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or unlawful, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
9.5 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Massachusetts. Any legal action arising out of or in conjunction with this Agreement or any breach thereof shall be brought and prosecuted in an appropriate court of competent jurisdiction within Suffolk County, Massachusetts.
9.6 Relationship of Parties. Nothing in this Agreement shall be construed in any way as creating any relationship of principal and agent, or employer and employee, or any partnership, business entity or joint venture, between the parties, and neither party shall have the power or authority to enter into any agreements, act on behalf of or otherwise bind the other party in any manner unless as expressly stated otherwise hereunder.