END-USER LICENSE AGREEMENT
This End-User License Agreement (hereinafter, “Agreement”) creates a legally binding agreement between you, as an end user of our software (hereinafter, “End User,” “you,” or “your”), and WizNiche, Inc. (hereinafter, “WizNiche,” “us,” or “ours”). Collectively, you and WizNiche may be referred to as the “Parties” and individually as “Party.” YOUR USE OF THE SERVICES ARE SUBJECT TO AN ARBITRATION PROVISION IN SECTION 12.1 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE REVIEW SECTION 12.1 CAREFULLY FOR MORE INFORMATION.
BY CLICKING “ACCEPT,” ACCESSING, DOWNLOADING, INSTALLING, OR OTHERWISE USING OUR SOFTWARE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE, YOU MUST CEASE USE OF THE SOFTWARE IMMEDIATELY.
1.1. Services. Our proprietary software allows you, a natural person and/or, as the case may be, the organization represented by such natural person, to access, install, and/or use services via our business services products (the “Services”). Specifically, the Services allow businesses to track and automate service calls, inventory, financial details, and other business management features through both an internal tracking system and through compatible plug-ins with other providers. The Services include optional ability to integrate with third-party services such as tax planning, payment processing, and other third-party providers. WizNiche is not responsible for your account with any third-parties whom you chose link to your WizNiche account with, and you will likely be subject to such third-party provider’s terms and conditions and privacy policies. You should review such third-party terms and conditions and privacy policies carefully.
1.2. Agreement. By using the Services, you agree to be bound by this Agreement. If you don’t agree to be bound by this Agreement, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity (such as a trust or limited liability company of which you are a member), you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, “you” and “your” will refer to that entity.
1.3. License. Subject to your compliance with this Agreement, we grant you, a non-exclusive, non-transferable, limited, revocable license to use and access the Services solely in accordance with this Agreement (“License”). This License terminates upon your cessation of use of the Services or upon the end of your payment plan term (“Term”). This License covers end-user applications for all plans, including Starter, Team, and Professional plans. The level of access individual users will be granted and number of users who can be granted levels of permission will depend on the user plan which you subscribe to.
1.4. Ownership. WizNiche holds all right, title and interest in and to the Services, including without limitation all underlying software, data compilations and information, all materials related to the Services and all intellectual property derived from the Services, including without limitation, all patents, trademarks, copyrights, copyright related rights, database rights and trade secrets, notwithstanding that portions of the Services may be derived in whole or in part from publicly available sources. You shall not reverse engineer the Services.
1.5. Modifications; Maintenance. We reserve the right to, at any time, modify, update, suspend or discontinue the Services without notice to you. We will not be liable to you or any third party for any modification, update, suspension, or discontinuation of the Services or any part thereof. The License includes reasonable maintenance and support. Please contact WizNiche for assistance. WizNiche may, in its sole discretion, choose to not provide maintenance and support to you if it deems such request is unreasonable.
2. Your Obligations.
2.1. User Representations. You represent and warrant to WizNiche that: (i) you are at least eighteen years of age and have the right and authority to enter into this Agreement (alternatively, if you are entering into this Agreement on behalf of a company, organization, or entity, that you have the right and authority to legally bind such entity to this Agreement); (ii) you will provide and maintain true, accurate, current and complete information as prompted by the Services; (iii) you are solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you in connection with your use of the Services; (iv) you will not act in any manner which conflicts or interferes with any existing commitment or obligation you may have and no agreement previously entered into by you interferes with your performance of this Agreement; (v) you will only use the Services in the manner and for the purposes as permitted by this Agreement; (vi) you will, at all times, comply with all applicable law, rules or regulations; (vii) Your Content (defined below) does not and will not violate, misappropriate, or infringe any third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other intellectual property rights; (viii) you have obtained all licenses and consents necessary to provide Your Content and any other information to WizNiche; (ix) You shall take reasonable measures to prevent unauthorized access to the Services, including without limitation by protecting passwords and other log-in information; and (x) Your Content uploaded to the Services is not discriminatory, obscene, threatening, libelous, hateful or otherwise unlawful or tortious. If you violate this section, we reserve the right to terminate your account and access to the Services.
2.2. Acceptable Uses. You agree not to use the Services for any unlawful purpose, or any purpose prohibited under this clause. You also agree not to use the Services in any way that could damage WizNiche’s Service or the general business of WizNiche. You further agree not to use the Services to: (i) harass, abuse, or threaten others or otherwise violate any third party’s legal rights; (ii) violate any intellectual property rights of WizNiche or any third party; (iii) upload or otherwise disseminate any computer viruses or other software that may damage the property of WizNiche or any third party; (iv) perpetrate any fraud or engage in or create any unlawful gambling, sweepstakes, or pyramid scheme; (v) resell the Services or any data received in connection therewith or otherwise disclose, disseminate, reproduce or publish any portion of the Services in any manner or permit the same, or use the Services to create derivative products or other derivative works; (vi) publish, store or distribute any infringing, discriminatory, obscene, threatening, libelous, hateful, defamatory or otherwise unlawful or tortious material; (vii) publish or distribute any material that incites violence, hate, or discrimination towards any group; (viii) unlawfully gather information about WizNiche or any third party; (ix) send spam or other duplicative or unsolicited messages in violation of applicable or for other illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails; (x) attempt to or to modify, translate, alter, decompile, disassemble reverse engineer, the Services or any code within or related to the Services or the WizNiche website; (xi) violate the security of the Services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network; (xii) copy, transfer or otherwise distribute copies of the Services unlawfully, such as through any peer-to-peer network or other intellectual property circumvention tool; (xiii) reproduce, modify, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party any portion of the Services or software (or any related documentation) in any form; (xiv) use the Services or software in order to build a similar or competitive product or service; or (xv) publish or disclose to any third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the software or Services or the use thereof.
3. Proprietary Rights.
3.1. Your Content. You are the exclusive owner of any business information, and all content, contacts, facts, information, data or materials made available by you to WizNiche via the Services, including, without limitation, client or business names, payment details, or addresses (“Your Content”). You grant WizNiche an exclusive, transferable, sub-licensable, irrevocable, royalty free, worldwide, perpetual license to use, display, distribute and otherwise make available Your Content to you in order to provide you with the Services. You hereby waive any moral rights or other rights with respect to attribution of authorship or integrity in Your Content.
3.2. Utilization Data. You acknowledge and agree that to the extent permitted by law, the information related to how You access and use the Services does not constitute Your Content, and that the aggregated data derived from such information is owned by WizNiche.
3.3. Trademarks. “WizNiche,” the WizNiche logo and all WizNiche product names are trademarks or service marks of WizNiche or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that you shall have the limited right to use the Marks solely as they appear in the Services.
3.4. Feedback. We shall have a royalty-free, worldwide, perpetual, irrevocable, assignable and, sublicensable license to use, incorporate, or otherwise exploit any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Services (“Feedback”). Such Feedback will include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features
4. Retention of Content and Data. You acknowledge and agree that the Services are not intended to be for record retention and will not use them as such. If desired or required, you shall keep a copy of Your Content that you upload to the Services in another location. WizNiche is not liable to you for any corruption, loss or inability to access Your Content. You acknowledge and agree that we are not obligated to return Your Content or any data or information to you unless required by applicable legislation or we agree in writing to such return. You specifically understand and agree that WizNiche has no control over the data which you choose to export to various third-party providers, has no ability to control what information those third-party providers retain, or how that information is used by third-party providers you choose to link with the WizNiche Services. You should carefully read and understand the data retention and use policies of any third-party provider that you link to your WizNiche account.
5. Third-Party Providers. Certain items of software code provided with the Software are subject to “open source” or “free software” licenses or otherwise made available through application program interface (“API”) permissions (“Third Party Code”). Each item of Third-Party Code is licensed or accessed under the terms of the license that accompanies such Third-Party Code or in compliance with that third-party’s API permissions. Nothing in this document limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Third-Party Code, including any rights to copy, modify, or distribute Third-Party Code under the applicable license or permissive uses through the Services.
6. Term; Termination.
6.1. Term and Termination. This Agreement shall be effective as of your acceptance of such and will remain in full force and effect until either you or we terminate your access to the Services. To cancel an account, please send an email to firstname.lastname@example.org. If you terminate your account, it will be disabled within fourteen (14) days. Note, if your account is terminated prior to the end of your Term, you will not receive a refund of any fees unless explicitly stated otherwise. Any decision to terminate your account by WizNiche shall be made at WizNiche’s sole and unfettered discretion.
6.2. Effects of Termination. Upon termination of this Agreement, neither Party shall have any further obligations under this Agreement, and you shall cease to use the Services. We may immediately deactivate or delete your account or terminate your access to the Services, Your Content, all related information in your account, and/or prohibit any further access by you to the Services. We will not be liable to you or any third party for any termination of your account or your access to the Services.
6.3. Survival. The following sections shall survive the expiration or termination of this Agreement: §3 Proprietary Rights, §6 Term; Termination; §7 Warranty Disclaimer, §8 Limitation of Liability, §9 Indemnification, and §12 General, and any other sections which, by their very nature, are intended to survive the expiration or termination of this Agreement.
7.1. Service. End User shall contact WizNiche support for warranty service. WizNiche represents and warrants that the Services substantially conform to any documentation provided to you applicable to your Services for ninety (90) days.
7.2. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUBJECT ONLY TO SECTION 7.1, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, WIZNICHE MAKES NO WARRANTY THAT THE SERVICES (INCLUDING ANY RELATED MATERIALS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL BE VIRUS-FREE, THAT THE SERVICES IS COMPATIBLE WITH ALL EQUIPMENT OR SOFTWARE CONFIGURATIONS, OR THAT THE SERVICES WILL BE AVAILABLE 24/7. WIZNICHE WILL HAVE NO LIABILITY FOR ANY LOSS CAUSED BY DOWNTIME OR ANY LOSS OF DATA.
8. Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY LAW, WIZNICHE SHALL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF USE, LOSS OF ANTICIPATED PROFITS, INCOME, OR ECONOMIC LOSSES OF ANY KIND, THAT RESULT FROM YOUR USE OR MISUSE OF THE SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY IN ANY ACTION, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, PRODUCTS LIABILITY OR ANY OTHER THEORY. UNDER NO CIRCUMSTANCES WILL WIZNICHE’S LIABILITY EXCEED FIVE HUNDRED U.S. DOLLARS ($500.00) OR PAYMENTS YOU ACTUALLY MADE TO WIZNICHE IN THE 6 MONTHS PROCEEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS GREATER. TO THE EXTENT PERMITTED BY LAW, YOU MAY NOT BRING ANY ACTION UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
9. Indemnification. You agree to defend, indemnify and hold harmless WizNiche, its affiliates, officers, directors, employees, shareholders and representatives and against any and all loss, liability, costs, claims, damages, expenses (including attorneys’ and legal fees), suffered, incurred or sustained by WizNiche as a result of any claim, action or proceeding arising out of or related to (i) your use or misuse of the Services; (ii) our use of Your Content; (iii) your actual or alleged violation of this Agreement; (iv) your actual or alleged infringement or violation of any intellectual property, proprietary, or privacy rights of any third party; or (v) your actual or alleged violation of applicable law in connection with your use of the Services. We reserve the right to participate in any defense of any such claims, and we may choose our legal counsel in such case.
11. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, any documentation and/or software provided by WizNiche shall be considered WizNiche’s Confidential Information. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party shall not use or disclose any Confidential Information except as expressly authorized by this Agreement and shall protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Receiving Party shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Receiving Party shall promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.
12. General Provisions.
12.1. Dispute Resolution & Governing Law. PLEASE READ THIS SECTION CAREFULLY AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. The laws of the State of Kansas shall govern any matter or dispute relating to or arising from this Agreement or our relationship with you. To the extent permitted by law, any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held in Johnson County, Kansas and the arbitration proceedings shall be conducted in English. The award shall be final and binding upon the Parties and enforceable in any court of competent jurisdiction. Nothing in this Agreement shall be deemed to limit the right to seek interim injunctive relief or to enforce an arbitration award in any court of law. Notwithstanding the foregoing, any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in Johnson County, Kansas or the U.S. District Court for the District of Kansas in Johnson County, Kansas and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum.
12.2. Audit Rights. WizNiche will have the right, during normal business hours and upon at least ten (10) days prior notice, to have an independent audit firm selected by WizNiche and reasonably acceptable to you inspect your facilities and audit your records relating to your activities pursuant to this Agreement to verify that you have complied with the obligations and limitations with respect to software.
12.3. Assignment. This Agreement, or the rights granted hereunder, may not be assigned or otherwise transferred in whole or part by you. Assignments made in violation of this section will be null and void and of no force or effect.
12.4. Headings. Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
12.5. Independent Contractors. No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
12.6. Force Majeure. We will not be liable for any failure to perform due to causes beyond our reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
12.7. Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8. Export. The software, Services and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from WizNiche, or any products incorporating such data, in violation of the United States export laws or regulations
12.9. U.S. Government End Users. The Software, its software and related documentation, are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.
12.10. No Advisory Services. Notwithstanding any other provision of this Agreement, the Services do not and shall not include (A) investment advisory services, or those of a “broker” or “dealer”, (B) accounting services, (C) legal services, or (D) actuarial services rendered to. It is specifically intended by the Parties that WizNiche’s provision of the Services pursuant to this Agreement not subject WizNiche to any regulation or registration under any federal or state laws.
12.11. Changes. We reserve the right, at our sole discretion, to modify or revise this Agreement at any time without prior notice to you. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Services.
12.12. Contact Us. If you have any questions or comments about the Services or this Agreement, please contact us at: