Updated 11th Oct, 2019
In this Agreement, unless the context otherwise requires–
Availability means the percentage of the time in a calendar month, excluding “Excluded Operating Scenarios”, that Pattyrn is operable. Pattyrn is deemed inoperable if no End Users can access functionality of Pattyrn. The Availability target calculations will be determined by the records and reports of WNDYR. The Availability target is 99%.
Agreement means the Pattyrn Services Product and Services Agreement completed by the Parties, these Term and Conditions together with any Schedule(s) and addenda, which may be added to this Agreement from time to time;
Business Day means any day 9am – 6pm (USA Central Time hours) Monday to Friday and excludes weekends and bank and public holidays;
Charges means the charges and fees as set out in this PSA and/or as SLA and other upgrade packages require and/or any additional terms and conditions as applicable and any further charges and fees that may be payable by the Subscriber to WNDYR under this PSA
Confidential Information means this Agreement, and the pricing and other financial information contained in the terms of this Agreement. Confidential Information also includes the original and any subsequent negotiations or renegotiations of this Agreement, as well as all information, communications, data, documentation and materials, in any form (whether oral, written, graphic or otherwise) designated as confidential by the Disclosing Party, or which is in fact confidential in nature, and/or the Receiving Party knows or ought to know is confidential, including but not limited to all copyrights, works of authorship, inventions, customer and Pattyrn and other WNDYR information, marketing plans (including, without limitation), e-mail addresses, prices and discounts, plans, technical, business, commercial, development and systems timescales, employee, customer or financial information and all plans, proposals, forecasts, sketches, models, samples, databases, trade secrets, know-how, inventions, techniques, processes, procedures, methodologies, schematics, contracts, customer bases, computer programs, documentation or other IT related information, drawings, specifications and all communications between the Parties pursuant to or in connection with this Agreement (including all other notes, analyses, amendments, addenda (including but not limited to any dealing with full content and/or marketing incentives), compilations, studies and documents which relate thereto). Confidential Information excludes the following, where Receiving Party can demonstrate that it is:
Control means, in relation to a body corporate or undertaking, the power of a person to secure that its affairs are conducted in accordance with the wishes of that person (i) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate or undertaking; or (ii) by virtue of any powers conferred by the articles of association or any other document regulating the affairs of or interests in that or any other body corporate or undertaking; and, in relation to a partnership, means the right to a share of more than one-half of the assets, or of more than one-half of the income, of the partnership and “Controlled” and “Controlling” shall be construed accordingly;
Data Controller and “Data Processor” have the meanings defined in GDPR.
Data Protection Laws means all European and US applicable laws, regulations, regulatory requirements and codes of practice in connection with the use, processing and disclosure of Personal Data;
Data Subject means an individual natural person as defined by GDPR whose Personal Data is controlled or processed;
Disclosing Party means the Party disclosing an item of Confidential Information;
End User means any persons of Subscriber’s choosing throughout the World and who are authorized by Subscriber to access and use the Services upon the terms herein. Subscriber may inform the End Users that Pattyrn data is available. For the avoidance of doubt where Subscriber is an individual contracting on his/own personal behalf and not a company or employer, there shall only be one End User who is Subscriber. For the avoidance of doubt, End Users who do not contract as individuals but are authorised by a third party Subscriber to access and use Pattyrn upon the terms herein are not a Party to this PSA and may not enforce any of its terms. In such circumstances, Subscriber is responsible for the acts and omissions of each End User and shall ensure End Users’ compliance with the provisions of this PSA;
Excluded Operating Scenarios means excluded from the Availability target (and WNDYR support pursuant to the SLA) will be any:
Force Majeure means, in relation to either Party, a cause beyond the reasonable control of that Party including but not limited to natural disasters, armed conflict, terrorist attacks, strikes, labour disputes, work stoppages, fire, acts of government, computer worms or viruses, (but not a failure by the Subscriber to implement adequate virus protection), acts or omissions of any telecommunications or other supplier or any power failure, power surge or breakdown in equipment and, in relation to Pattyrn only, further including any cause beyond its reasonable control affecting the proper performance of Pattyrn Services, including issues with or availability of Third Party Product, software, hardware or platforms;
Force Update means the provision of functionality by Pattyrn to enable the Subscriber to update all End Users to the latest version of the Services;
GDPR means Regulation (EU) 2016/679 (General Data Protection Regulation);
Host means Google Cloud in the USA. WNDYR has an agreement with the Host which is on standard terms and can be found at the following website: https://cloud.google.com/terms/.
Intellectual Property Rights or IPR means copyright and all other intellectual property rights (including, without limitation, patents, trademarks, service marks, designs, domain names, database and sui generis rights, moral rights (whether registered or unregistered) and any other similar protected rights in any country). The Intellectual Property of WNDYR includes, without limitation, the Services, Products and system, the software, or any portions thereof (including the design, look and feel, structure, organization, specifications, system architectures, works of authorship, data, formulas, files, HTML, computer source and object code, concepts, patent applications, format, graphics (including all custom logos or graphics created by WNDYR or its licensees) associated with the system or the software) and any modifications or derivative works therefrom, Success Booster programs and content, the Pattyrn Agreement documentation (including MSA, PSA and SLA documentation) and all content of app.pattyrn.com and other Pattyrn apps and websites. WNDYR IPR includes all reports, analyses, conclusions, materials, data and databases compiled by WNDYR and computer generated works and derivative works generated by Pattyrn (whether from using Uploaded Content uploaded to or accessed by Pattyrn in connection therewith or otherwise). Subscriber acknowledges and agrees that WNDYR is the author and exclusive owner of and has full control of, and shall be taken to be the person by whom the arrangements necessary are undertaken for the creation of, all data, reports, databases and other works which are created, compiled or produced by Pattyrn, whether or not with human intervention; neither Subscriber nor any Administrative User nor End User will assert, or authorize, assist, encourage, or enable any third party to assert, any claim, or pursue any actions, suits, proceedings, or demands, against WNDYR or its affiliates that allege that the Services infringe, misappropriate, or otherwise violate any intellectual property rights (including patents) anywhere in the World and will not themselves assert or apply for such rights in respect of WNDYR IPR.
Manuals means any documents, instructions or other information provided by Pattyrn to the Subscriber for facilitating the correct use and operation of any Products or Services supplied under this Agreement, as amended or updated by Pattyrn from time to time, including those in electronic format.
MSA means master service agreement between the Parties for deployment of Pattyrn as agreed by the Pattyrn Order Form.
Personal Data means any personal data relating to identifiable natural persons as more particularly defined in GDPR, including a picture or icon or other avatar from which a data subject may be identified directly or indirectly;
Products means the latest release of software programs, technology and associated products and services, including Pattyrn Services as are detailed herein and all other software programs as may be supplied from time to time by WNDYR to the Subscriber;
Receiving Party means the Party receiving Confidential Information;
Schedule(s) means any schedule attached to this Agreement, as may be supplemented by the Parties by agreement from time to time when agreeing a package upgrade;
Scheduled Maintenance means a planned period of which Subscriber is notified in advance, during which WNDYR may suspend Availability of all or part of Pattyrn in order to carry out maintenance activities.
SLA means service level agreement which forms part of the Pattyrn Agreement between the Parties.
Subscriber Group Company means any person or entity Controlling, Controlled by or under common Control with the Subscriber;
Termination Charges means the Charges which Subscriber shall pay on the effective date of termination of the PSA, being the total amount of Charges which would fall due for the remainder of the Term if there was no such termination. For the avoidance of doubt Subscriber shall not seek a refund of Charges already paid pursuant to the PSA.
Third Party Product means any product (whether hardware of software), platform or service that is not provided by WNDYR pursuant to this Agreement and is used by the Subscriber in conjunction with, or is affected by the Products or Pattyrn Services. Third party platforms such as (without limitation) JIRA, Slack, Salesforce, Telegram software licensed by Subscriber other than from Pattyrn and which Subscriber enables to be accessed and integrated with Pattyrn to enable the Pattyrn Services to be deployed are included in the definition of Third Party Product. For the avoidance of doubt, any agreement between the Parties regarding deployment of Third Party Product is unrelated to this Agreement which is strictly standalone.
Uploaded Content means content owned or controlled by Subscriber, including Subscriber resources’ Personal Data, Third Party Products usage and activities, links to Third Party Products and platforms and metadata, which once uploaded to Host or otherwise accessible by Pattyrn Services is the Uploaded Content. As between Subscriber and WNDYR, all right, title, and interest in the Uploaded Content (excluding, with respect to the foregoing, any digitized files produced by WNDYR hereunder, the physical and tangible embodiments thereof, and all WNDYR Intellectual Property Rights and derivative works created by or on behalf of WNDYR) is the sole property of Subscriber. Notwithstanding anything herein to the contrary: WNDYR may access Uploaded Content (including any copy thereof) for the purpose of performing the Services hereunder according to the terms and conditions set forth herein.
Year means the period of 12 months from the Effective Date and from each anniversary of the Effective Date thereafter.
2.1 In accordance with and subject to the terms and conditions of this Agreement, Pattyrn hereby grants to the Subscriber a limited, non-exclusive, non-transferable, non-assignable and revocable right for the Term to:
sub-license its Subscriber Group Companies, once they have registered an account with Pattyrn, to use the Services as provided by clause 2.1 (a) to (c) herein.
2.2 The Subscriber agrees and acknowledges that it shall have no right to access or use any object code or source code related to Pattyrn Services.
2.3 Subscriber shall manage its own Administrative and End User access and use of Pattyrn. Various End Users can be granted different access rights to use Pattyrn. Subscriber shall set the access and distribution parameters and other rights of the various End Users (such as access to Pattyrn reports and data). Subscriber shall set the date and time the Uploaded Content shall be available for analysis by the Pattyrn Services.
2.4 Subscriber shall be directly liable for the acts, omissions and any breaches of this Agreement by Subscriber Group Companies, Administrative Users and End Users and Subscriber agrees that its obligations, warranties and indemnities in this Agreement, including payment of all Charges, are given by it to WNDYR on behalf of itself and by it on behalf of each Subscriber Group Company, Administrative Users and End Users. WNDYR is not responsible and shall not be liable for any error by Subscriber in the selection of Subscriber Group Companies, Administrative Users or End Users.
Subscriber will automatically be binded to the Basic package (which may be free of Charges) or upgrade to a more comprehensive package (Pro, Success, or other), for which Charges apply. Subscriber may upgrade its package upon written request to WNDYR or through in-app purchase. Paid Charges are non-refundable; if a Subscriber during the Term wishes to switch to a cheaper package, the full Charges shall nonetheless continue to apply for the remainder of the then current Term in respect of the package previously agreed. Any WNDYR integration and deployment of Pattyrn fees shall be agreed pursuant to a Master Services Agreement (“MSA”) SOW.
3.2 The Charges invoiced under this Agreement are expressed exclusive of any applicable Transaction Taxes, for which the Subscriber shall be additionally liable. “Transaction Taxes” means sales tax, excise tax, value added tax, goods and services tax, withholding tax or consumption tax. All charges pursuant to this Agreement shall be in $US.
3.3 WNDYR will issue a valid tax invoice to the Subscriber in respect of the Charges for the Term in advance on the Effective Date (or as otherwise agreed by the Parties) and the Subscriber shall pay the Charges and any applicable Transaction Tax due within 30 days of transmission of the invoice unless a PSA Purchase Order (“PO”) agrees to the contrary.
3.4 WNDYR shall have the right to increase the applicable Charges once per calendar year, provided that not less than 60 days’ prior written notice is given to the Subscriber.
3.5 In the event the Subscriber disputes, with good reason, any invoice submitted by WNDYR for Charges, then the Subscriber shall pay the invoice in full and shall separately challenge the invoice directly with WNDYR, but only if it does so as soon as practicable and at latest within 3 months after it becomes aware of the problem and in writing by notice to WNDYR. The Subscriber shall explain the circumstances surrounding the disputed invoice and the reasons behind the rejection of the disputed amount and both Parties shall fully cooperate in efforts to resolve the dispute. In the event the dispute is not resolved within 60 days from the date of the notification by the Subscriber to WNDYR, Subscriber may invoke any remedy available to it. If Subscriber does not pay the invoice in full by the due date, WNDYR may suspend the Services at its discretion.
3.6 The Subscriber shall pay all Charges that are not disputed. In the event the Subscriber fails to pay in full on the due date any amount which is payable to WNDYR pursuant to this Agreement then, without prejudice to Clause 15, the amount outstanding shall bear interest, both before and after judgment, at 6% per annum or the prevailing maximum statutory rate plus 2% (whichever is the higher) from the due date until payment is made in full.
4.3 The Services shall operate on app.pattyrn.com as specified by WNDYR from time to time. The Subscriber shall be notified by WNDYR of the versions of each web browser that shall be supported by Pattyrn and shall use best endeavors commercial in the circumstances to enable the system for latest versions of such web browsers.
4.4 The Subscriber is responsible for all equipment necessary to make connection to the internet, including a computer and modem or other access device and for Uploaded Content and API access to Pattyrn and WNDYR has no responsibility nor does WNDYR warrant uninterrupted use of the Pattyrn Services and/or Products which are subject to access availability via the internet.
4.5 Subscriber shall receive the following specific Services:
WNDYR shall reasonably endeavour to exceed the Availability target of 99%
4.6 WNDYR shall obtain and pay for all licenses, rights, permissions, and consents, and pay all costs, relating to the exercise of its rights and performance of its obligations under this Agreement and in connection with the Services, including any costs associated with the hosting and storage of Uploaded Content.
5.1 Products include Pattyrn Services and all other software programs as may be supplied from time to time by WNDYR to the Subscriber;
5.2 Unless specifically permitted under this Agreement, the Subscriber may not without the prior written consent of WNDYR:
5.3 WNDYR may from time to time provide to the Subscriber new releases or alternative Products. WNDYR may update (including force update) any Products to the new release or alternative Product at its sole discretion. From the implementation date of any new release, the terms and conditions of this Agreement will apply to that new release and the Subscriber will discontinue using the superseded release.
5.4 WNDYR may retire, withdraw, modify or replace all or part of any of the Products, Services and/or additional services from time to time by giving a minimum of 1 month’s prior written notice (or such shorter notice as reasonably appropriate in the circumstances) to the Subscriber of any such action (or as otherwise agreed by the Parties).
5.5 WNDYR may make certain Manuals available to the Subscriber which will, unless WNDYR agrees otherwise, be made available in electronic format.
5.6 Products (including Pattyrn Services) may be provided with preconfigured workflows and rules which may be revised by the Subscriber. If the Subscriber requests consulting and configuration services from WNDYR then the Subscriber agrees to pay WNDYR’s then current fees for such Services.
5.7 In the event that the Subscriber, Subscriber Group Company, Administrative User or End User uses the Pattyrn Services or any Products to access or include Third Party Product or content (whether via a third party application made available by WNDYR or otherwise) then the Subscriber agrees that WNDYR shall have no liability whatsoever to the Subscriber with respect to such Third Party Product and/or content and/or the third party application (if applicable). Subscriber may be responsible for contracting directly with the Third Party Product or content provider or the third party application provider and shall fully indemnify WNDYR for all claims, costs, demands or expense that WNDYR might incur as a result of the Subscriber’s failure to comply with its obligations in relation to the Third Party Product or content/application provider. In any event, WNDYR is not responsible for and provides no warranty indemnity or other liability for Third Party Products and applications.
6.1 WNDYR (or its authorized third party licensor, if applicable) shall at all times retain all right, title and interest in and to the Products (including Pattyrn Services) and to any Intellectual Property Rights in respect thereof. The Subscriber shall have no right, title or interest in the same other than to use the same upon the terms and conditions contained in this Agreement.
6.2 The Subscriber shall properly record that the Pattyrn Services and the Products are owned or licensed by WNDYR and shall not account for the same in its books in any way as assets of the Subscriber, nor shall it sell or subject any part of the Pattyrn Services or Products to any lien, pledge, mortgage, charge or other encumbrance.
7.2 The Subscriber shall be responsible and take all reasonable precautions to prevent any unauthorised use of the Products (and prevent access after the Term). Subscriber is responsible for all login credentials, including usernames and passwords, for Administrative User and End User accounts. WNDYR will not be responsible for any damages, losses or liability to Subscriber, Administrative Users nor End Users, if such information is not kept confidential by Subscriber or its authorized users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services. The Subscriber acknowledges and agrees that the Subscriber shall be responsible for all acts and omissions of each Subscriber Group Company, Administrative User and End User in their use or access of the Products.
7.4 The Subscriber shall be solely responsible for ensuring the accuracy and lawfulness of including of all content, Uploaded Content, End User Personal Data (including name and email address) provided to WNDYR to enable use by Subscriber of the Services. The Subscriber warrants and represents that it shall take reasonable steps to keep Uploaded Content and Personal Data accurate, up to date and to ensure inaccurate Personal Data is erased or rectified within the Services in compliance with GDPR. Subscriber shall only upload data to which it owns all required rights or is otherwise entitled to upload under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements) and shall do so only in a manner consistent with applicable law.
7.5 The Subscriber warrants and represents that it shall provide WNDYR with reasonable notice in advance of any updates, downtime or maintenance or termination of links or deletion of Uploaded Content by the Subscriber which affects Pattyrn Services.
7.6 WNDYR shall be solely responsible for providing customer assistance services to End Users using the Products as the SLA provides. WNDYR is not responsible and shall not be liable for any errors by Third Party Products or web sites or systems that link to or access the Services or to which the Services link or grant access.
7.7 The Subscriber warrants and represents that it shall not remove any copyright, trademark or other proprietary notices contained on the Products.
7.8 The Subscriber agrees not to undertake or allow any activity that has (or is likely to have) an adverse effect on the Products or the provision of the Products to other users.
7.9 The Subscriber shall not provide, sub-license or otherwise make available Pattyrn Services or the Products to any third party or person other than the Subscriber Group Companies, Administrative users and End Users and the Subscriber shall procure that such End Users shall use and access the same in accordance with the provisions of this Agreement only;
7.10 The Subscriber shall comply with all laws, regulations, rules, orders or directives that relate to its use of the Products, including but not limited to all intellectual property, data, privacy and export control laws, and regulations promulgated by any government agencies, including but not limited to the US Securities and Exchange Commission, and any rules of any national and other securities exchanges;
7.11 Each Party shall at all times comply with the eCommerce Directive.
7.12 The Subscriber hereby warrants and undertakes that any content or data supplied by it to WNDYR (whether stored on or sent over the Pattyrn Services or on the Products or otherwise pursuant to this Agreement) will not contain anything obscene, offensive or defamatory, or which is in breach of any laws or regulations.
7.13 Subscriber shall use commercially reasonable efforts to prevent unauthorised access to or use of Pattyrn, shall keep passwords and all other login information confidential, monitor and control all activity conducted through its account in connection with Pattyrn, promptly notify WNDYR if it becomes aware of or reasonably suspect any illegal or unauthorised activity or a security breach involving its accounts or teams, including any loss, theft or unauthorised disclosure or use of a username, password or account
8.1 If the Subscriber requires additional Services or Products from WNDYR for and in respect of Pattyrn Services which may include, but not be limited to, integration, implementation, configuration, consulting or training services, the Parties shall agree to these Services in advance and in writing via a statement of work schedule to be added to an MSA and any Charges for these Services shall be as advised by WNDYR from time to time.
8.2 WNDYR may add, modify or delete optional services offered to the Subscriber at any time.
9.1 The Subscriber shall ensure that any Third Party Products meet WNDYR’s minimum technical standards for access to and use in association with the Products. If, in WNDYR’s reasonable opinion, any Third Party Product does not meet Pattyrn’s minimum technical standards, WNDYR will notify the Subscriber of the reasons in writing.
9.2 The Subscriber warrants that it has obtained all necessary consents, approvals and licences for the use of the Third Party Products and the use of such Third Party Products and links thereto will not violate any Intellectual Property Rights belonging to any third party.
9.3 If the Subscriber’s use of a Third Party Product adversely affects the use of the Products by any other party, then WNDYR may require that the Subscriber discontinue its use of such Third Party Product until the Subscriber can demonstrate that it has resolved the adverse effect.
9.4 The Subscriber acknowledges and agrees that WNDYR will have no liability whatsoever with respect to any Third Party Product and that WNDYR does not make any warranties, representations or undertakings in respect thereof, including but not limited to the content of any third party website which may be referred to or accessed by hypertext link with the Products and the content of any such third party websites is neither endorsed nor approved by WNDYR.
9.5 The Subscriber shall at all times be responsible for its Third Party Products including the obtaining, installation, operation, support and maintenance thereof.
10.1 Each of the Subscriber and WNDYR hereby represents and warrants that it has the requisite authority and power to enter into this Agreement and perform its obligations hereunder.
10.2 WNDYR represents and warrants that (i) WNDYR is the owner or licensee of the Products and related software, and, (ii) WNDYR has the right to provide the Services offered by WNDYR Services and Products; the facilities and process used by or on behalf of WNDYR pursuant to this Agreement will not contain any computer viruses, spyware, back doors, trojans or any other computer programming device that is intended to or could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or Personal Data. Subscriber must provide WNDYR with prompt written notice of any claim against Susbcriber for use of or in connection with Pattyrn and allow WNDYR the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting WNDYR’s defense and settlement of such matter.
10.3 The Subscriber acknowledges that Pattyrn Services, software and content, licensed by WNDYR herein is provided to Subscriber ‘as is’ without warranties. WNDYR makes no representation or warranty regarding the accuracy, reliability, timeliness or continued availability of such Services or the Products or content therein and the Subscriber hereby releases and waives any claims against WNDYR concerning the efficiency or reliability of such Services and any data or analysis provided. Pattyrn does not warrant, represent or provide any undertakings in respect of data analysis or its effects. SUBSCRIBER ACKNOWLEDGES THAT WNDYR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10.5 Except as expressly provided in this Agreement, WNDYR makes no representation or warranty of any kind, and to the maximum extent permitted by law, expressly disclaims and excludes all conditions, warranties, representations, undertakings and terms, whether implied, statutory, or arising out of custom, course of dealing or usage of or in trade, including warranties of merchantability or fitness for a particular purpose, and does not warrant that the Services and Products are or will be error-free. The Subscriber has no right to pass on any representation or warranty on behalf of WNDYR to any third party.
11.1 If WNDYR is prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of the Subscriber (this does not apply to free Basic Package), then the Subscriber shall pay to WNDYR all reasonable costs, charges and losses sustained or incurred by WNDYR as a result.
11.2 Save in respect of a breach of infringement of Intellectual Property Rights or activity by Administrative Users or End Users which results in damage to Products, in no event will either Party (including its directors, officers, employees, representatives, agents and suppliers) be liable for any damages resulting from:
any losses or damages that are indirect or secondary consequences of any act or omission of the party, its employees, representatives, contractors or agents. In either case, regardless of whether such losses or damages were reasonably foreseeable or actually foreseen.
11.3 WNDYR hereby excludes any liability of any kind relating to any problems of whatever nature which have been caused in the reasonable opinion of WNDYR by the Subscriber’s failure to comply with its obligations under this PSA or any act or omission of the Subscriber or of Third Party Product suppliers.
11.5 All liability that is not expressly assumed by either Party in this Agreement is hereby excluded to the fullest extent permitted by law. Nothing in this Clause 11 shall be interpreted as placing a limit on either Party’s liability for fraud, death or personal injury caused by negligence or any other liability that cannot by law be excluded or limited.
11.6 The limitations set out in this Clause 11 will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this Clause, a reference to a Party includes that Party’s employees, agents, contractors, representatives and suppliers.
11.7 WNDYR shall defend or settle any suit, action, claim, demand or proceedings alleging that the Pattyrn Services or any Products , other than watermarking software, infringes any Intellectual Property Rights (a “Claim”) and shall, subject to the Subscriber complying with the procedure for notifying claims set out in Clause 11.9 below, indemnify the Subscriber against any liability, costs, claims, damages or expenses under or in respect of any proceedings brought by any third party against the Subscriber alleging that the use of the Pattyrn Services or any Products (other than watermarking software) constitutes such an infringement. Following receipt of any Claim against it relating to the Services, the Subscriber shall promptly give written notice thereof to WNDYR together with a copy of all documents setting out the Claim and the Subscriber shall provide WNDYR with reasonable assistance and shall give sole authority to WNDYR to defend or settle the Claim.
11.9 Except as expressly provided in this Agreement, and to the maximum extent permitted by law, the Subscriber hereby waives, and releases WNDYR from, any and all obligations and liabilities and any and all rights, claims and remedies of the Subscriber against WNDYR express or implied, arising by law or otherwise, due to any defects, errors, malfunctions, performance, failure to perform, use of, or interruptions of service to the Products; including any liability, obligation, right, claim or remedy in tort, and including any liability, obligation, right, claim or remedy for loss of revenue, profits or data or any other direct, indirect, incidental, special or consequential damages.
11.10 The Parties each acknowledge and agree that the exclusions and limitations set forth herein represent the Parties’ agreement as to the allocation of risk between them in connection with their obligations under this Agreement. The Charges payable to WNDYR reflect and are set in reliance upon the allocation of risk agreed herein and the exclusion of consequential damages, caps and limitations of liability agreed.
11.11 Where Subscriber is an individual: Pattyrn is a workplace tool intended for use by businesses and organisations and not for consumer purposes. To the maximum extent permitted by law, Subscriber hereby acknowledges and agrees that consumer laws do not apply. If however any consumer laws (e.g. in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and cannot otherwise be lawfully excluded, nothing in these terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies Subscriber has and WNDYR’s liability is limited (at its option and in its discretion) to the replacement, repair or resupply of the Services or the pro-rata refund to the Subscriber of pre-paid Charges for Subscriber’s subscription covering the remainder of the Term.
12.1 Each Party shall maintain all pre-existing rights, title and interest in Intellectual Property Rights and/or proprietary rights. Each Party's trademarks, or trademarks licensed to a Party shall not be used by the other Party except as expressly authorized by the Party in writing. Nothing in this Agreement shall be construed to grant any interest to any Party in the trademarks of the other Party or licensed to such other Party. Any goodwill arising from use of a trademark embedded or comprising the Uploaded Content shall inure to the benefit of such trademark’s owner, whether the Subscriber, its Subscriber Group Companies or otherwise. WNDYR shall not nor authorize any third party to use or display any trademarks of Subscriber or licensed to Subscriber in any way detrimental to the trademark’s owner or in any way that associates any good or service with such trademark other than that of the trademark’s owner.
12.2 The Subscriber acknowledges and agrees that it does not acquire any Intellectual Property Rights, proprietary rights or other rights in, or to:
any reports, conclusions, materials, data and databases compiled by WNDYR and computer generated works and derivative works generated by Pattyrn (whether from Uploaded Content uploaded to or distributed in connection therewith or otherwise). Subscriber acknowledges and agrees that WNDYR is the author and exclusive owner and has full control of, and shall be taken to be the person by whom the arrangements necessary are undertaken for the creation of, all data, reports, databases and other works which are created, compiled or produced by Pattyrn, whether or not with human intervention . All such rights are, and shall remain, vested in WNDYR or its licensors, including any right, title and interest in and to any software resulting from work undertaken by or on behalf of Subscriber.
12.3 The Subscriber agrees and acknowledges that it shall have no right to use for any purpose any trademark (whether in word and/or logo device form) or any other Intellectual Property Rights of WNDYR without the prior written consent of WNDYR and then only in such form and upon such terms as WNDYR may from time to time specify in writing.
12.4 Notwithstanding any other provision in this Agreement, all rights, title, interest in the Subscriber’s Intellectual Property Rights provided by the Subscriber to Pattyrn, as part of the underlying content to be analysed by the Services, shall remain in the ownership of the Subscriber, and Pattyrn shall only use such Intellectual Property Rights as this Agreement provides. Without limiting the foregoing, WNDYR shall not, absent Subscriber’s prior written approval, (i) transmit or distribute any promotion or advertisement in connection with the Uploaded Content, including during the transmission, downloading, viewing or other use of any Uploaded Content, or (ii) take any action, directly or indirectly, that implies that Subscriber endorses either WNDYR or WNDYR’s services, or that implies that any commercial tie-in exists between WNDYR, on the one hand, and Subscriber on the other hand. Except as expressly set forth herein, WNDYR shall not use or offer for sale any Uploaded Content or any other property of Subscriber (including any Personal Data embodied in Uploaded Content). Subscriber may, at any time, request that WNDYR cease any or all use and analysis of Uploaded Content via the Services Within 24 hours of WNDYR’s receipt of any such notice, WNDYR shall: (ii) immediately cease to use the affected Uploaded Content on a prospective basis (including analysis); and (ii) promptly following such notice, delete or destroy, at Subscriber’s option and in accordance with Subscriber’s instructions, the links to the Services. So that Subscriber can recommence the Service after termination promptly following written notice to WNDYR to recommence, Subscriber’s (and its employees’, where applicable) Personal Data shall be retained for 12 months and then anonymised. However, Subscriber may request that its Personal Data (and its employees’ Personal Data, where applicable) be anonymised immediately upon termination.
12.5 The Subscriber warrants and represents that it owns, or has a licence to use the trademarks, service marks, designs, domain names and any other content and Uploaded Content, including Third Party Product, made available to WNDYR by the Subscriber for the purposes of the Services or Products (if applicable). Subscriber grants to WNDYR a limited, non-exclusive and revocable right to include the Subscriber’s Intellectual Property Rights for the Services (as applicable), for the purpose of providing Subscriber with access to the Services and Products and any related service as this Agreement provides.
12.6 Each Party shall indemnify the other Party in respect of all loss or damage, monetary or otherwise, that the other Party may sustain or incur as a result of any unauthorized disclosure of Confidential Information or breach of the other Party’s Intellectual Property Rights as provided herein.
13.1 The Subscriber agrees that WNDYR may collect, use and disclose interactions by Administrative Users and End Users with the Services and Products for the purposes of the Services and, in addition, for its own purposes provided that the data is anonymised. In addition, WNDYR may collect, use and disclose interactions by End Users with the Services and Products, for sharing with Subscriber, provided that Subscriber takes responsibility for obtaining necessary consent from Administrative Users and End Users for this purpose pursuant to GDPR.
13.2 Use of Aggregate Data: The Subscriber agrees that WNDYR may collect, use, and disclose quantitative anonymised data derived from the use of the Products and Services for industry analysis, benchmarking, analytics and other business purposes. WNDYR may use its own WNDYR IPR without restriction (subject to GDPR).
13.3 WNDYR shall have the right to extract, use and disclose anonymised Product data accessible through the Services and Products.
Where Subscriber is a company:
14.1 The Parties, both during and after the Term of this Agreement:
shall not do, or cause or permit to be done, anything that may cause or otherwise result in a breach by the Subscriber, Pattyrn or any third party of the Data Protection Laws.
14.2 The Subscriber warrants that in the collection, control and management of Personal Data it has complied with all applicable Data Protection Laws and has obtained from Administrative Users and End Users and other data subjects all necessary consents to authorize WNDYR to process and control Personal Data as this Agreement provides. Each of WNDYR and the Subscriber warrant to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
14.3 The Parties acknowledge and agree that in respect of all Personal Data included in the Services, Subscriber (which in this clause includes its Subscriber Group Companies) is Data Controller; WNDYR is Data Controller in respect of WNDYR IPR which includes Personal Data; WNDYR is Data Processor for Subscriber in respect of other Personal Data.
14.4 WNDYR shall only use and process such Personal Data to the extent required to provide the Services and as agreed by the Agreement. WNDYR may store and display avatars on a public accessible site. Further, WNDYR shall: (i) process such Personal Data only in accordance with Subscriber’s (or Data Subject’s) written instructions; (ii) impose confidentiality obligations on all personnel (employees, contractors and volunteers) who process the relevant data; – (iii) ensure the security of the Personal Data that it processes with appropriate technical and organizational measures and assist Subscriber in meeting its Article 32 obligation to keep Personal Data secure; – (iv) abide by the GDPR rules regarding appointment of sub-processors; – (v) implement measures to assist Subscriber in complying with the rights of Data Subjects at Subscriber’s cost; – (vi) assist Subscriber at Subscriber’s cost in obtaining approval from Data Subjects where required; – (vii) at Subscriber’s election either return or destroy the Personal Data 12 months after termination of the Agreement; (viii) WNDYR shall at Subscriber’s cost provide to Subscriber all information necessary to demonstrate compliance with GDPR. WNDYR shall submit to reasonable audits and inspections following reasonable notice and at Subscriber’s cost, and thereby provide Subscriber with whatever information it needs to ensure that both Parties are both meeting their Article 28 obligations, and tell Subscriber immediately if it is asked to do something infringing GDPR though Subscriber acknowledges that this is a matter in respect of which Subscriber must take its own professional advice and does not impose any liability on WNDYR. (ix) WNDYR shall not transfer Personal Data to any other person or entity without the prior written consent of Subscriber or Data Subject. Notwithstanding, Pattyrn may disclose Personal Data in the following cases: a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; b)as provided by this clause; c) to detect, prevent, or otherwise address fraud, security or technical issues; d) to respond to Data Subject's support requests; e) respond to claims that any Uploaded Content violates the rights of third-parties; f) to protect the rights, property, or personal safety of WNDYR, Subscriber, Data Subjects, or the general public; g) to collect, hold and/or manage Personal Data through its authorized third party service providers, as reasonable for business purposes, provided that they are located in countries inside Europe, and only if approved in writing by Subscriber and upon the basis of a written contract which includes identical provisions to this clause and is fully GDPR compliant; g) pursuant to Subscriber’s explicit written approval prior to the disclosure.
14.5 WNDYR shall use best efforts commercial in the circumstances to prevent any unauthorized copying of or unauthorized access to the Uploaded Content.
15.1 Subject to Clauses 15.2 and 15.5 below, Subscriber may terminate this PSA by giving the other Party at least 30 days’ prior written notice (or as a PSA purchase order provides).
15.2 Notwithstanding Clause 15.1 above, either Party may immediately terminate this Agreement by giving written notice to the other Party if:
that other Party ceases, or threatens to cease, to carry on business.
15.3 For the purposes of Clause 15.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
15.4 If the Subscriber is in material breach of this Agreement at any time (or delays payment of the Charges due to dispute or otherwise), Pattyrn may suspend provision of any or all of the Products and associated Services to be provided by it under this Agreement until such breach is remedied to Pattyrn’s satisfaction and all late payments are made. In the event of such suspension, the Subscriber agrees to pay Pattyrn’s then current re-connection charges where applicable.
15.5 Notwithstanding Clause 15.1 above, WNDYR may, in its sole discretion on written notice to the Subscriber, terminate or suspend this Agreement immediately if:
Subscriber fails to pay the Charges as the PSA provides.
15.6 Upon the termination of this Agreement for any reason:
16.1 All Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall treat as confidential all Confidential Information of the Disclosing Party. The Receiving Party shall take all reasonable measures available to it, and in any event not less than those used to protect its own Confidential Information (being no less than reasonable care) to protect the Confidential Information.
16.2 In this clause, “Recipient(s)” means the directors, employees, auditors and professional advisers of the Parties. Subject to the provisions of this clause, the Receiving Party may disclose the Confidential Information of the Disclosing Party to those Recipients that have, in the reasonable opinion of the Disclosing Party, a need to know such Confidential Information for the purposes of the proper performance of their obligations under this Agreement provided it informs the Recipients of the confidential nature of the Confidential Information before disclosure and obtains from the Recipients enforceable undertakings to keep the Confidential Information confidential in terms at least as extensive and binding upon the Recipients as the terms of this Clause are upon the Parties.
16.3 The Receiving Party shall, and shall ensure that the Recipients shall, at all times, except with the prior written consent of the Disclosing Party:
not make any use of any Confidential Information (in whole or in part) other than for the purposes of performing the Receiving Party’s obligations and/or exercising the Receiving Party’s rights under this Agreement.
16.4 The Receiving Party may disclose such part of the Confidential Information of the Disclosing Party to any governmental, judicial or other competent authority or competent regulatory body to such extent only as is necessary for the purposes contemplated by this Agreement or as is required by law, provided, however, that before disclosing such Confidential Information to any such party, the Receiving Party shall, except to the extent that the Disclosing Party is in the process of seeking without notice injunctive relief, use reasonable efforts to:
Disclosing Party so wishes, and the Receiving Party shall take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by the governmental, judicial or other competent authority or competent regulatory body.
16.5 Within thirty (30) days of the termination of this Agreement for any reason and final closure of Subscriber’s account (1 Year after termination) or on demand by the Disclosing Party, whichever occurs first, the Receiving Party shall:
deliver written certification to the Disclosing Party that all of the Confidential Information which it had in its possession or control and which has not been returned has been securely destroyed.
16.6 The provisions of this clause shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
17.1 WNDYR may issue press releases stating that the Subscriber has entered into this Agreement, and will utilise Pattyrn Services. WNDYR may at any time reference the Subscriber (including its logo) as a customer in websites and other marketing materials pertaining to Pattyrn’s Products and Services. WNDYR and Subscriber may agree jointly and separately to engage in publicity on the launch of the Services for Subscriber. Pattyrn’s involvement in the Services shall be credited in the Subscriber’s press releases related to the Services.
18.1 If any act of Force Majeure occurs in relation to either Party which affects or may affect the performance of any of its obligations under this Agreement, it shall immediately notify the other Party in writing of its nature and extent.
18.2 Neither Party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to the other Party, by reason of any delay in performance, or the non-performance, of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly. Obligations to pay Charges are excused only to the extent that payments are entirely prevented by the Force Majeure event.
18.3 If the performance by either Party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of 30 days, the other Party shall be entitled to terminate this Agreement with immediate effect by giving written notice to the Party so affected.
19.1 Any notice required or authorized by this Agreement to be given by either Party to the other must be in English and in writing and may be:
sent by email, to the other Party at the address or email address appearing at the top of this Agreement, or to such other address or email address as may be notified in writing by that other Party from time to time in accordance with this provision.
19.2 Any notice sent by post shall be deemed to have been received on the second Business Day after being posted (unless sent by airmail in which case it shall be deemed to have been received on the seventh Business Day after being posted). Any notice delivered by hand or sent by email shall be deemed to have been received on the day of delivery or transmission where such delivery or transmission takes place before 5:00 pm on a Business Day, or on the following Business Day where delivery or transmission takes place on a day not being a Business Day or after 5:00 pm on a Business Day.
20.1 WNDYR shall have the right to assign, subcontract or otherwise delegate all or any of its rights or obligations under this Agreement. WNDYR shall remain responsible and liable for each such subcontractor’s compliance with the terms and conditions of this Agreement applicable to WNDYR and such subcontractor shall be bound by a confidentiality agreement with WNDYR equivalent in scope and at least stringent as the confidentiality provisions set forth herein. If any subcontractor takes any action or omits to take any action that would breach this Agreement if it were WNDYR, WNDYR shall be deemed to be in breach of this Agreement as if such action or omission were or were not taken by WNDYR (subject to clause 11.8 and the cure provision set forth in clause 15). The Subscriber may not assign this Agreement or any right or obligation hereunder without the prior written consent of WNDYR which shall not be unreasonably withheld or delayed. In the event of any permitted assignment this Agreement shall continue to bind the successors in title and assigns of the relevant Parties.
20.2 Nothing in this Agreement shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the Parties.
20.3 The Parties acknowledge that this Agreement is a non-exclusive agreement, and that WNDYR may enter similar agreements with any other party.
20.4 This Agreement may not be modified except by an instrument in writing duly executed by or on behalf of the Party or as otherwise expressly stated in this Agreement.
20.5 This Agreement supersedes any and all previous agreements or arrangements between the Parties relating to the subject matter of this Agreement, and any such agreement or arrangement shall, with effect from the Effective Date, be deemed to be terminated by mutual consent of the Parties; and, except for any accrued right or liability of any of the Parties at the Effective Date, none of the Parties shall be deemed to have any further right or obligation, or any accrued right or liability, under any such agreement or arrangement.
20.6 This Agreement, which includes these terms and conditions, Schedule(s), and any other addenda constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof. Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but nothing in this Agreement shall affect the liability of any Party for any fraudulent misrepresentation.
20.7 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part or is so rendered by any applicable code, regulation or law, such provision or the relevant part of the affected provision, as the case may be, shall be deemed deleted without prejudice to the remainder of the affected provision and the remaining provisions of this Agreement which shall continue in full force and effect notwithstanding such deletion and the Parties shall promptly after such deletion negotiate in good faith to agree a substitute provision or provisions complying with the said code, regulation or law.
20.8 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, or otherwise prejudice, affect or restrict the rights or remedies of that party in relation to the other Party, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement.
20.9 The Parties agree that they will comply with the anti-bribery provisions of the United States Foreign Corrupt Practices Act, the Bribery Act 2010 and any other associated legislation and with any equivalent legislation in the jurisdictions in which the Subscriber operates (or is established) and the territory all as may be updated from time to time. The Subscriber agrees that it shall disclose immediately to WNDYR if any government official acquires any direct or indirect ownership interest in the Subscriber or in this Agreement. The Subscriber shall provide WNDYR Pattyrn with any information reasonably requested by Pattyrn with respect to this provision. A breach by the Subscriber of this clause shall give WNDYR the ability to terminate this Agreement immediately.
20.10 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law, in equity or otherwise in this Agreement
WNDYR shall have the right to assign, subcontract or otherwise delegate all or any of its rights or obligations under this PSA. WNDYR shall remain responsible and liable for each such subcontractor’s compliance with the terms and conditions of this PSA applicable to WNDYR and such subcontractor shall be bound by a confidentiality agreement with WNDYR equivalent in scope and at least stringent as the confidentiality provisions set forth herein. If any subcontractor takes any action or omits to take any action that would breach this PSA if it were WNDYR, WNDYR shall be deemed to be in breach of this PSA as if such action or omission were or were not taken by WNDYR (subject to clause 11.8 and the cure provision set forth in clause 15). The Subscriber may not assign this PSA or any right or obligation hereunder without the prior written consent of WNDYR which shall not be unreasonably withheld or delayed. In the event of any permitted assignment this PSA shall continue to bind the successors in title and assigns of the relevant Parties.
Nothing in this PSA shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the Parties.
The Parties acknowledge that this PSA is a non-exclusive agreement, and that WNDYR may enter similar agreements with any other party
This PSA may not be modified except by an instrument in writing duly executed by or on behalf of the Party or as otherwise expressly stated in this PSA or the Pattyrn Order Form.
This PSA supersedes any and all previous agreements or arrangements between the Parties relating to the subject matter of this PSA, and any such agreement or arrangement shall, with effect from the Effective Date, be deemed to be terminated by mutual consent of the Parties; and, except for any accrued right or liability of any of the Parties at the Effective Date, none of the Parties shall be deemed to have any further right or obligation, or any accrued right or liability, under any such agreement or arrangement.
This PSA, which includes these terms and conditions, Schedule(s), and any other addenda constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof. Each Party acknowledges that, in entering into this PSA, it does not rely on any representation, warranty or other provision except as expressly provided in this PSA, and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but nothing in this PSA shall affect the liability of any Party for any fraudulent misrepresentation.
If any provision of this PSA is held by any court or other competent authority to be invalid or unenforceable in whole or in part or is so rendered by any applicable code, regulation or law, such provision or the relevant part of the affected provision, as the case may be, shall be deemed deleted without prejudice to the remainder of the affected provision and the remaining provisions of this PSA which shall continue in full force and effect notwithstanding such deletion and the Parties shall promptly after such deletion negotiate in good faith to agree a substitute provision or provisions complying with the said code, regulation or law.
No failure or delay by either Party in exercising any of its rights under this PSA shall be deemed to be a waiver of that right, or otherwise prejudice, affect or restrict the rights or remedies of that party in relation to the other Party, and no waiver by either party of a breach of any provision of this PSA shall be deemed to be a waiver of any subsequent breach of the same or any other provision of this PSA.
The Parties agree that they will comply with the anti-bribery provisions of the United States Foreign Corrupt Practices Act, the Bribery Act 2010 and any other associated legislation and with any equivalent legislation in the jurisdictions in which the Subscriber operates (or is established) and the territory all as may be updated from time to time. The Subscriber agrees that it shall disclose immediately to WNDYR if any government official acquires any direct or indirect ownership interest in the Subscriber or in this PSA. The Subscriber shall provide WNDYR Pattyrn with any information reasonably requested by Pattyrn with respect to this provision. A breach by the Subscriber of this clause shall give WNDYR the ability to terminate this PSA immediately.
Except as expressly provided in this PSA, the rights and remedies provided under this PSA are in addition to, and not exclusive of, any rights or remedies provided by law, in equity or otherwise in this PSA
21.1 Those provisions in this Agreement which by their nature should survive termination of the Agreement, including the provisions relating to Intellectual Property Rights and Confidential Information, shall survive notwithstanding the termination.
21.2 For the avoidance of doubt and without prejudice to the generality of clause
22.1 herein, clauses 1, 5, 6, 7, 10, 11, 12, 15, 16, 20, 21, 22 and 23, shall in all cases survive the expiration, termination or cancellation of this Agreement.
22.1 This PSA and any disputes or claims arising out of, or in connection with, its subject matter, arising between the Parties, are governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.. The courts of Texas shall have exclusive jurisdiction to settle such dispute or claim and both Parties irrevocably submit to the exclusive jurisdiction of the Texas Courts.
22.2 The Parties acknowledge that damages alone would not be an adequate remedy for the breach of any of the provisions of this PSA. Accordingly, without prejudice to any other rights and remedies it may have, each Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this PSA. The Parties hereby irrevocably waive all right to trial by jury in any proceeding (whether based in contract, tort or otherwise) arising out of or relating to this MSA (including, but not limited to, any termination of employment) or any transaction or agreement contemplated hereby or the actions of any Party hereto in the negotiation, administration, performance or enforcement hereof. Further, any claim, dispute, or controversy arising out of or relating to this PSA or the relationships among the Parties hereto must be brought in the respective Party’s individual capacity, not as a class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The Parties hereto expressly waive any ability to maintain any Class Action in any forum. The prevailing Party in any litigation in connection with this Agreement shall be entitled to recover attorneys’ fees and costs of litigation incurred in prosecuting or defending such litigation from the non-prevailing Party.
22.3 In the event that this Agreement is translated into any language other than English then it is agreed that the English language version shall prevail.