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The Wise Agent LLC (the “Company”) respects the individuals who register to use the Services as defined below (the "Customers"), and individuals who register to access the Company’s website.

This privacy policy (“Policy”) describes the types of information we may collect from you or that you may provide when you visit the site wiseagent.com, or any affiliated site (collectively, the “Site”), use the related applications or services offered by us, or visit any sites that link to this Policy (collectively, the “Services”). This Statement describes our practices for collecting, using, maintaining, protecting, and disclosing that information.

Please read this Policy carefully to understand our policies and practices regarding your personal information and how we will treat it before you use the Site. BY USING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THIS POLICY AND OUR TERMS OF SERVICE, INCORPORATED HEREIN BY REFERENCE. If you do not agree to this Policy or the Terms of Service you must not access or use the Site.

This Site is offered and available to users who are 18 years of age. By using this Site, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site.

WHAT PERSONAL INFORMATION DO WE COLLECT?

In connection with accessing our Services, we may collect information which can be used to identify you (the “Personal Information”), such as your name, credit card information, mailing/billing address, email address, phone number and password. We may also collect information that is about you, but individually does not identify you, or information about your internet connection, equipment you use to access our Site, and Site usage details.

We collect this Personal Information:

• Directly from you when you provide it to us during registration on our Site.
• Automatically as you navigate through the Site. Information collected automatically may include usage details, IP addresses, and information collected through cookies and other tracking technologies.
• From third parties, for example, our business partners.
• When visitors come to our site, third parties (such as AdRoll) may place cookies on their browsers for targeted advertising purposes.

WHAT DO WE USE YOUR INFORMATION FOR?

Any of the Personal Information we collect from you may be used in one of the following ways:

• To personalize your experience (your information helps us to better respond to your individual needs).
• To provide you with information, products, or services that you request from us.
• To improve our Site (we continually strive to improve our Site offerings based on the information and feedback we receive from you).
• To improve customer service (your Personal Information helps us to more effectively respond to your customer service requests and support needs).
• To process billing transactions. We use a third-party service provider to manage credit card processing. This service provider is not permitted to store, retain, or use billing information except for the sole purpose of credit card processing on the Company's behalf.
• To send periodic electronic communications, including emails and text messages. By providing your email address and/or phone number, you expressly consent to receive electronic communications from us. For example, the email address or mobile number you provide for order processing, may be used to send you information and updates pertaining to your order, in addition to receiving occasional company news, updates, related product or service information, etc. we think will be of interest to you. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
• In addition, if you use the Services on behalf of or with another person, you agree that the Company may contact you for any communication made in connection with providing such Services or any legally required communications. You further agree to forward or share any such communication with any person for whom you are using the Services. Any such information shall be jointly owned by both parties; provided that the Company retains sole discretion in the event of any dispute between such parties regarding any information arising from use of the Services.
• Your Personal Information, whether public or private, will not be sold, exchanged, transferred, or given to any other company for any reason whatsoever, without your consent, other than for the express purposes described herein.

Your Personal Information, whether public or private, will not be sold, exchanged, transferred, or given to any other company for any reason whatsoever, without your consent, other than for the express purposes described herein.

From time to time, we may partner with other companies to jointly offer products or services. If you purchase or specifically express interest in a jointly-offered product or service, we may share the Personal Information collected in connection with your purchase or expression of interest with our joint promotion partner(s). We do not control our business partners' use of the Personal Information we collect, and their use of the Personal Information will be in accordance with their own privacy policies. If you do not wish for your Personal Information to be shared in this manner, you may opt not to purchase or specifically express interest in a jointly offered product or service.

We do not share your Personal Information with business partners unless you specifically opt in to such sharing via an online registration form.

HOW DO WE PROTECT YOUR PERSONAL INFORMATION?

We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, and disclosure. All Personal Information you provide to us is stored on our secure servers behind firewalls. Any payment transactions will be encrypted using Secure Socket Layer (SSL) technology. Such information will then be encrypted into our payment gateway providers database, which is only accessible by those authorized to access such systems, and who are required to keep the Personal Information confidential. After a transaction, your Personal Information (credit cards, billing address, etc.) will not be stored on our servers.

The safety and security of your Personal Information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Site, you are responsible for keeping this password confidential. We highly recommend you not share your password with anyone. Your passwords are encrypted using SHA-256 encryption algorithm.

Unfortunately, the transmission of Personal Information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to our Site. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Site.

We retain Personal Information about you for as long as necessary to provide you the Site. In some cases, we retain Personal Information for longer, if doing so is necessary to comply with our legal obligations, resolve disputes or collect fees owed, prevent fraud, enforce this Policy, or as otherwise permitted or required by applicable law, rule or regulation. Afterwards, we retain some information in a depersonalized or aggregated form but not in a way that would identify you personally.

WHAT INFORMATION DO WE COLLECT THROUGH AUTOMATIC DATA COLLECTION TECHNOLOGIES?

As you navigate through and interact with our Site, we may use automatic data collection technologies to collect information about your equipment, browsing actions, and patterns, including:

• Details of your visit to our Site, including traffic data, location data, other communication data, and the resources that you access and use on the Site.
• Information about your computer and internet connection, including your IP address, operating system, and browser type.
• We use cookies, which are small files that a site or its service provider transfers to your computer’s hard drive through your Web browser (if you allow) that enables the sites or service providers systems to recognize your browser to capture and remember certain information.
• We also use other tracking technologies such as pixels, and end-user website activity to understand how to better serve you.

We use cookies to understand and save your preferences for future visits and compile aggregate data about Site traffic and interaction so that we can offer a more personalized experience in the future.

DO WE DISCLOSE ANY INFORMATION TO OUTSIDE PARTIES?

We do not sell, trade, or otherwise transfer to outside parties your Personal Information.

We may disclose Personal Information that we collect or provide as described in this Policy:

• To our subsidiaries and affiliates.
• To contractors, service providers, and other third parties we use to support our business, who agree to keep this Personal Information confidential.
• To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of the Company's assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which Personal Information held by us about our Site users is among the assets transferred.
• To fulfill the purpose for which you provide it.
• For any other purpose disclosed by us when you provide the Personal Information.
• With your written consent.

We may also disclose your Personal Information:

• To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
• To enforce or apply our Terms of Service, and other agreements, including for billing and collection purposes.
• If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Wise Agent, our customers, or others.
• All leads generated by our customers and data stored for our customers are held and protected in strict confidence. We do not contact customer leads, nor do we sell to or share customers’ lead information with any other party.

HOW CAN YOU ACCESS AND CORRECT YOUR PERSONAL INFORMATION?

You can review and change your Personal Information by logging into the Site and visiting your account profile page. You may also send us an email at help@wiseagent.com to request access to, correct, or delete any Personal Information that you have provided to us. We cannot delete your Personal Information except by also deleting your user account. We may not accommodate a request to change Personal Information if we believe the change would violate any law or legal requirement or cause the Personal Information to be incorrect.

DO WE UTILIZE THIRD PARTY LINKS?

Occasionally, at our discretion, we may include or offer third party products or services on our Site. These third party products or services have separate and independent privacy policies. We therefore have no responsibility or liability for the content and activities of these linked sites. Nonetheless, we seek to protect the integrity of our Site and welcome any feedback about these sites.

WHAT TYPE OF COLLECTED INFORMATION DOES THE PRIVACY POLICY APPLY TO?

This online Policy applies only to information collected:

• On this Site.
• In email, text, and other electronic messages between you and this Site.
• When you interact with our advertising and applications on third party sites and services, if those applications or advertisements include links to this Policy.
• This Policy does not apply to Personal Information collected offline.

HOW TO OPT-OUT OF TARGETED ADVERTISING

• You may receive occasional text messages from Wise Agent; simply reply STOP to prevent further promotional text messages from being sent to you.
• You may receive occasional email messages from Wise Agent; simply click on the Unsubscribe link located at the bottom of email to prevent further promotional email messages being sent to you.
• You may opt-out of some of our digital advertising by using these third-party opt-out tools: Digital Advertising Alliance, the Network Advertising Initiative, and the European Interactive Digital Advertising Alliance (Europe only).

CHILDREN'S ONLINE PRIVACY PROTECTION ACT COMPLIANCE

Our Services are intended for and directed towards adults. Our Services are not directed to minors and we do not knowingly collect Personal Information from minors. If you are under the age of 18, do not provide any information on the Site, including your name, email, address, telephone number or address. If we learn that we have received any information directly from anyone under the age 18, we will use that information only to respond directly to that child (or his/her parent or legal guardian) to inform the child that he/she cannot use the Site, and we will subsequently delete that information. If you believe that a person under the age of 18 may have provided us personal information, please contact us at contactus@wiseagent.com.

YOUR CALIFORNIA PRIVACY RIGHTS

California Civil Code Section § 1798.83 permits users of our Site that are California residents to request certain information regarding our disclosure of Personal Information to third parties for their direct marketing purposes. To make such a request, please send an email to help@wiseagent.com.

TERMS OF SERVICE

Please also visit our Terms of Service section establishing the use, disclaimers, and limitations of liability governing the use of our site.

CHANGES TO OUR PRIVACY POLICY

We may from time to time and in our sole discretion, revise and update this Policy. All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter.

Your continued use of the Site following the posting of a revised Policy means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

CONTACTING US

If there are any questions regarding this privacy policy you may contact us using the information below.

• wiseagent.com
• 16766 E. Parkview Ave., Suite 201
• Fountain Hills, Arizona 85268 USA
• contactus@wiseagent.com
• 480-836-0345

This SOFTWARE LICENSE AGREEMENT (this “Agreement”) is made as of the Effective Date (as set forth on Software Subscription), by and between WISE AGENT, LLC, an Arizona limited liability company (“Wise Agent”), and the customer set forth on the Software Subscription (“Customer”). Wise Agent and Customer are sometimes referred to herein together as the “Parties” and each, individually, as a “Party”.

RECITALS

1. Wise Agent has developed and operates a real estate CRM software service (the “Service”).
2. The Service is accessed and used through (i) Wise Agent’s online, Web-based portal located at www.WiseAgent.com (the “Site”), and (ii) Wise Agent’s application (the “Application”). Wise Agent has developed and provides to Customer documentation detailing the functionality and use of the Site, Service, and Application (the “Documentation”). The Service, the Site, the Application, and the Documentation are collectively referred to in this Agreement as the “System”.
3. Customer desires to subscribe to and use the Service.

Therefore, the Parties agree as follows with the intent to be legally bound.

AGREEMENT

1. Subscription to Service. Customer hereby subscribes to the Service and purchases the subscription described in this Agreement and in the Software Subscription. In connection with Customer’s subscription, Customer agrees to perform Customer’s obligations described in this Agreement. Customer agrees to use, and Wise Agent agrees to provide, the System under the terms and subject to the conditions in this Agreement. All references to “this Agreement” include the Software Subscription and the Privacy Policy (as defined below).
2. License Grant; Use of Software.
1. License. Wise Agent grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use the System during the Term (as defined below) solely for the purposes of managing Customer’s business. Subject to the limited rights expressly granted hereunder, Wise Agent reserves all right, title and interest in and to the System, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement
2. Customer Responsibilities and Obligations.
1. Customer is solely responsible for (A) all activities occurring under Customer’s and Customer’s employees’ and agents’ accounts; (B) maintaining the confidentiality of Customer’s account and passwords and creating secure passwords; (C) the content of all documents, content, and data submitted by Customer and its employees and agents to and through the System; (D) setting and modifying Customer’s profile and preferences for the System, and specifying the access rights of those users to the System; and (E) the use of the Service by Customer’s employees and agents.
2. Customer shall (A) ensure that all of Customer’s employees and agents using the System are properly trained and do not violate any of the term and conditions set forth in this Agreement, (B) prevent unauthorized access to, or use of, the System, and will notify Wise Agent promptly of any unauthorized use Customer becomes aware of; and (C) comply with all applicable local, state, federal and foreign laws, treaties, rules, and regulations in using the System (including, without limitation, all laws, rules, and regulations governing data privacy, international communications, and transmission of technical or personal data) (collectively, “Laws”).
3. Customer shall use the System solely for the purposes permitted pursuant to Section 2(a) above. Customer shall not (A) make the System available to, or otherwise show the System to, any third party; (B) share Customer’s account password and login credentials with any third party; (C) except as expressly authorized in Section 2(a) above, use, or attempt to use, any content obtained through the System for any commercial purpose; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) install, send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the System or Wise Agent’s sites, servers, or networks; (H) use the system to violate the intellectual property rights of any third party; (I) misrepresent the identity of any user accessing the System; or (J) attempt to gain unauthorized access to Wise Agent’s systems, networks, infrastructure, or the System.
4. Customer is solely responsible for securing, providing, maintaining, upgrading, and replacing all equipment, software, and services necessary to utilize the System (including, without limitation, Internet connectivity, computers, tablets, and smart phones). Wise Agent shall have no obligation or liability of any kind with respect to such equipment, software or services.
3. Ownership of the System.
1. The System (including, without limitation, the software, technology, and documentation incorporated in and underlying the System) is Wise Agent’s sole and exclusive property. Subject to the limited rights expressly granted in this Agreement, Wise Agent reserves all right, title and interest in and to the System (including, without limitation, all software, technology, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights). No rights are granted to Customer other than as expressly described in this Agreement.
2. Wise Agent is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the System, (B) all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications, and other supporting documentation related to the System, in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by Wise Agent (whether alone or jointly with Customer) for Customer. Any of the items described in this Section 2(c)(ii) that are provided by Wise Agent, in Wise Agent’s sole discretion, to Customer will be deemed to be included in the definition of the “System” hereunder and available for use by Customer under the terms and subject to the conditions in this Agreement.
3. As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the System. Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Customer, alone or in conjunction with others, during the Term and (B) disclosed to Wise Agent (whether orally, in writing, electronically or otherwise) (“System-Related IP”) will be deemed to have been made or developed by Customer solely for Wise Agent’s benefit, will be held in trust for Wise Agent’s exclusive use and benefit, and will be Wise Agent’s sole and exclusive property. Customer will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party System-Related IP. Customer agrees to assign, and does hereby assign, to Wise Agent all right, title, and interest in and to any System-Related IP, including, without limitation, any “moral” rights which Customer may have in the System-Related IP under any copyright law or other similar law. Customer also agrees, during the Term of this Agreement and at any time thereafter, at Wise Agent’s request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for System-Related IP in any country in the world. Without limiting the generality of the foregoing, Wise Agent may, in its sole discretion, incorporate the System-Related IP into the System.
4. Customer expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, redistribute, republish, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, enhancements, revisions or modifications) based on, or infringe or violate, Wise Agent’s intellectual property or other rights in, the System; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure or organization) of the System; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the System; (D) directly or indirectly circumvent or violate the technical or security restrictions of the System; (E) publicly disseminate performance information about or analysis of the System; (F) access the System in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the System; (E) use the System for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the System to be placed in the public domain; or (H) challenge the validity of the copyright or any other rights of Wise Agent to the System or title or interest thereto. During the period commencing on the Effective Date and ending on the eighteen (18) month anniversary of the date on which this Agreement is terminated (the “Non-Competitive Period”), Customer expressly agrees that Customer will not build a competitive product or service
5. Customer warrants that it owns or has sufficient legal right to the intellectual property rights in its content and that its content (including, without limitation, any use of its content by Wise Agent as described in this Agreement), does not violate applicable Laws or the rights of any third party. Solely for purposes of delivering the Service and administering the System, Customer grants Wise Agent a worldwide, royalty-free, non-exclusive, sublicensable right during the Term to use, reproduce, distribute, publicly perform, publicly display, transfer, transmit, and distribute Customer’s content and subsequent versions thereof; and to make and/or have made, and to practice any method embodying Customer’s content. This license will apply to the distribution and the storage of Customer’s content in any form, medium, or technology now known or later developed.
6. Provided that Wise Agent does not personally identify Customer, Customer hereby grants Wise Agent the right to use the data generated, in aggregated form, from Customer’s use of the System to maintain, support, and improve the System, and for any other legal purpose.
4. Modification of the System. Wise Agent shall be entitled to modify, change, and upgrade the functionality, features, and capabilities of the System and the underlying technical infrastructure, in its sole and absolute discretion.
3. Privacy Policy. All of the information that Wise Agent collects from Customer is subject to Wise Agent’s privacy policy (the “Privacy Policy”) and applicable privacy laws. Go to https://wiseagent.com/privacy.asp/ to see Wise Agent’s full Privacy Policy. The Privacy Policy may be amended, from time to time, by Wise Agent in its sole and absolute discretion, and is incorporated into and made part of this Agreement.
4. FEES.
1. Fees. Wise Agent will provide Customer with access to and use of the System for the fees described in the Software Subscription, and Customer agrees to pay such fees. All fees paid to Wise Agent are non-refundable. Wise Agent reserves the right to adjust the fees at any time at Wise Agent’s sole and absolute discretion upon at least thirty (30) days’ prior written notice to Customer.
2. Late Fees; Taxes. Wise Agent may charge interest on all overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable Laws) on the unpaid amount until such amounts are paid. Customer will be solely responsible for, and will pay, any sales, use, transaction privilege, gross receipts, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on Wise Agent’s income) that are imposed by any governmental authority in connection with this Agreement.
3. Suspension. If Customer fails to pay, when due, any fees, late fees, or other charges due to Wise Agent under this Agreement, Wise Agent may, in Wise Agent’s sole and absolute discretion and without notice to Customer, immediately suspend Customer’s use of the System. Customer expressly acknowledges and agrees that Wise Agent will have no liability to Customer whatsoever if Wise Agent elects to suspend Customer’s use of the System (even if Wise Agent has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).
5. Term and Termination.
1. Term. The term of Customer’s subscription will start on the Effective Date and will continue until terminated pursuant to Section 5(b) below (the “Term”).
2. Termination. This Agreement may be terminated pursuant to any of the following provisions:
1. Upon Notice. Either Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party.
2. Insolvency/Bankruptcy. If Customer shall: (A) be unable to pay or admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then Wise Agent may terminate this Agreement effective immediately upon written notice to Customer.
3. Default of Certain Customer Obligations. If Customer breaches any of its obligations under Sections 2(b), 2(c), 4, or 10(a), Wise Agent may terminate this Agreement effective immediately upon written notice to Customer.
3. Effect of Termination.
1. When this Agreement is terminated, (A) Customer will immediately stop using the System, (B) Customer’s license to the System will immediately terminate, (C) Wise Agent will immediately cease provision of the Service to the Customer, and (D) Customer will pay Wise Agent, within three (3) days following the termination date, all fees and other charges which accrued prior to such termination date but remain unpaid. Customer expressly acknowledges and agrees that Wise Agent will have no liability to Customer whatsoever with respect to the termination of Customer’s use of the System (even if Wise Agent has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).
2. Customer will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.
6. Representations and Warranties. Customer represents and warrants to, and covenants with, Wise Agent as follows:
1. Customer has the requisite power and authority to execute, deliver, and perform Customer’s obligations under this Agreement.
2. Customer’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Customer’s part. This Agreement is valid and binding on Customer, enforceable against Customer in accordance with its terms.
3. The execution, delivery and performance of this Agreement by Customer do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Customer are bound, or (ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Customer is subject.
4. No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Customer to execute, deliver, and perform under this Agreement.
7. Warranties: Disclaimers. THE SYSTEM IS PROVIDED ON AN "AS IS" BASIS. WISE AGENT MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SYSTEM OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH. WISE AGENT DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (A) THE SYSTEM WILL BE AVAILABLE, 100% SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (B) THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED USING THE SYSTEM WILL BE ACCURATE, RELIABLE, OR SECURE; (D) ERRORS OR DEFECTS IN THE SYSTEM WILL BE CORRECTED; OR (E) THE SYSTEM OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY WISE AGENT IN CONNECTION WITH THE SYSTEM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WISE AGENT DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED BY CUSTOMER THROUGH THE USE OF THE SYSTEM.
8. Limitation of Liability.
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WISE AGENT WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (I) THE SYSTEM, (II) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SYSTEM, OR (II) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR WISE AGENT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY WISE AGENT HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF WISE AGENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, WISE AGENT’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED FIVE HUNDRED DOLLARS ($500.00).
2. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR WISE AGENT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY WISE AGENT HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 5(b)(i) ABOVE. CUSTOMER ACCEPTS THE RESTRICTIONS ON CUSTOMER’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF CUSTOMER’S BARGAIN WITH WISE AGENT, AND CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
9. Indemnification. Customer will defend, indemnify and hold harmless Wise Agent and Wise Agent’s affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in this Agreement; or (b) Customer’s use or misuse of the System.
10. Miscellaneous.
1. Confidentiality.
1. Except as provided in Section 10(a)(ii) below, during the Term of this Agreement and at all times thereafter, Customer will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (B) use the Confidential Information solely for purpose of utilizing the System during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.
2. Customer shall be permitted to disclose Confidential Information to the extent, but only to the extent, (A) Wise Agent provides Wise Agent’s express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Customer must notify Wise Agent of Customer’s intent to make such disclosure, so that Wise Agent may seek a protective order or other appropriate remedy and may participate with Customer in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.
3. Promptly after the expiration or termination of this Agreement or upon Wise Agent’s request at any time, Customer shall return to Wise Agent, or confirm in writing the destruction of, any Confidential Information which is in tangible form and which is then in Customer’s possession. As used herein, “Confidential Information” means all information concerning or related to Wise Agent’s business, operations, financial condition or prospects (whether prepared by Wise Agent, Wise Agent’s affiliates or advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) the terms of this Agreement (including, without limitation, all System pricing information), (B) all information regarding Wise Agent’s members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (C) all of Wise Agent’s Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the System); (D) all of Wise Agent’s financial statements, audit reports, budgets and business plans and forecasts; and (E) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Customer containing, based on, generated or derived from, in whole or in part, any Confidential Information.
2. Customer Reference. During the Term and at all times thereafter, Wise Agent has the right to (i) reference Customer as a customer (or former customer) of Wise Agent in all advertising, marketing and promotional materials designed to promote Wise Agent and its products and services anywhere in the world (with such reference to include Customer’s name, logo, and any quotes provided by Customer), (ii) distribute a public announcement indicating that Customer has selected Wise Agent’s System (which announcement will include any quotes provided by Customer), and (iii) provide Customer as a reference for future potential customers of Wise Agent. Customer hereby grants to Wise Agent a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use Customer’s name, logo and any quotes provided by Customer in Wise Agent’s advertising, marketing and promotional materials as set forth above. Customer agrees that no monetary or other consideration shall be due from Wise Agent for the rights granted or the uses described in this Section 10(b).
3. Entire Agreement; Amendment. This Agreement (including, without limitation, the Software Subscription and the Privacy Policy) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions. Except as expressly set forth herein, this Agreement may be amended, supplemented, or otherwise modified only in a writing signed by both of the Parties.
4. Equitable Relief. Customer acknowledge and agrees that Wise Agent would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 5(c), and 10(a) are not performed by Customer in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach. Accordingly, Customer agrees that Wise Agent will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity
5. Expenses. Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.
6. Force Majeure. Wise Agent shall not be liable to Customer for any delay in or failure of Wise Agent’s performance under this Agreement (including, without limitation, Wise Agent’s failure to make available the System or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state or local authorities, pandemics (including, without limitation, Covid-19), strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond Wise Agent’s reasonable control (“Force Majeure”). Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, Wise Agent shall be relieved from fulfilling Wise Agent’s obligations under this Agreement during the period of such Force Majeure event.
7. Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
8. Non-Disparagement. During the Term of this Agreement, Customer agrees that Customer will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage Wise Agent or the System.
9. Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices shall be addressed to the mailing address and email address set forth in the Software Subscription or such other addresses as a Party provides to the other Party.
10. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
11. Successors and Assigns. Customer may not assign Customer’s rights or delegate or cause to be assumed Customer’s obligations hereunder without Wise Agent’s prior written consent (which consent may be withheld in Wise Agent’s sole and absolute consent). Any attempted assignment, delegation or assumption not in accordance with this Section 10(k) shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
12. Survival. The provisions of Sections 2(b)-(d), 4, 5(c), 6-10 and the portions of the Software Subscription referenced therein will survive any termination or expiration of this Agreement.
13. Waivers. The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy. The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.