Terms of Service Agreement

REVISED AS OF FEBRUARY 18, 2022

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.

W2 ONBOARDER, LLC (“W2O”) SERVICES (AS DEFINED BELOW) ARE MADE AVAILABLE TO CUSTOMERS AND USERS (AS SUCH TERMS ARE DEFINED BELOW) SUBJECT TO THIS TERMS OF SERVICES AGREEMENT (THE “AGREEMENT”). ANY PERSON WHO EITHER PURCHASES A SUBSCRIPTION (A “CUSTOMER”) OR OTHERWISE USES, OR ACCESSES THE SERVICES (A “USER”), AGREES TO BE BOUND BY THIS AGREEMENT EITHER BY SIGNING AN APPLICABLE ORDER FORM (AS DEFINED BELOW), CLICKING “I ACCEPT”, DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE SERVICES. IF YOU ARE USING AN APPLICATION OR PURCHASING A SUBSCRIPTION ON BEHALF OF YOUR COMPANY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY OR ORGANIZATION TO THIS AGREEMENT AS A CUSTOMER.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY SERVICES.

Please review Section 12(h) of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires Customers and Users to resolve disputes with W2O through final, binding arbitration on an individual basis. By entering into this Agreement, each Customer and User is acknowledging that it has read and understands the terms of this Agreement and that its agrees to be bound by the arbitration provision and class action waiver.

In consideration of the mutual promises and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties agree as follows:

1. General

W2O provides subscription based enterprise level human resources management software-as-a-service (SaaS) solution (the “Application”) to Customers for access within the SFDC Platform (as defined below). Customer access to the W2O Services is granted pursuant to the: (a) terms and conditions of this Agreement; (b) the business terms in an applicable Order Form (as defined below); and (c) the SFDC Terms. In case of conflict between the foregoing, the SFDC Terms shall control over this Agreement and the Order Form, and the Order Form shall control over this Agreement.  Customers may make the Services (or certain portions of the Services) available to their employees, contractors and other representatives by assigning such persons access credentials to allow such Authorized Users to access and use the Services in connection with their relationship to the Customer.

2. Definitions

(a) “Application” has the meaning set forth in Section 1 of this Agreement.

(b) “Authorized User(s) or User(s)” means persons affiliated with a given Customer as employees, consultants, contractors or temporary employees to whom Customer grants access to the Services, or whose user record is accessed through Customer’s use of the Services.

(c) “Confidential Information” means any written, oral or electronic non-public business information, know-how, and trade secrets in any form, including information regarding product plans, roadmap, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party (each a “Disclosing Party”) to the other party (each a “Receiving Party”). However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

(d) “Customer” means the individual, company, organization, business entity or group purchasing the Services and accessing the Application pursuant to an Order Form.

(e) “Customer Data” means any and all information entered or inputted by Customer and its Authorized Users in the course of accessing and utilizing the Services.

(f) “Customer Org” means the Customer’s Salesforce.com organization in which the Customer implements the Services.

(g) “Materials” means any deliverables, documentation, templates, or other work product created by W2O as part of the Services, Additional Services, or in connection with the Application.

(h) “Order Form” means an order form executed by the parties concerning the Services or Additional Services identified in such Order Form. The Order Form will specify the applicable fees, Subscription Term, number of Authorized Users and Additional Services, if any, to be provided by W2O.  An Order Form may be completed online by completion and acceptance of an online form, including as part of an installation application or may be in a separate written document.

(i) “Personal Data” means any information given to W2O by Customer relating to an identified or identifiable natural person who can be directly or indirectly identified in particular by reference to an identifier.

(j) “Services” means, (i) with respect to a Customer, the Application, Materials, and any services and/or related products provided to Customer by W2O pursuant to an Order Form and (ii) with respect to a User, such portion of the items described in clause (i) to which such User is given access by a Customer.

(k) “SFDC Platform” means the web-based technology platform provided by Salesforce that includes a user interface, operating system, customization and integration capabilities for Salesforce.com’s on-demand customer relationship management service.

(l) “Subscription” means Customer’s right to access the Services and to allow its Authorized Users to access the Services, in each case, pursuant to an Order Form.

(m) “Subscription Term” or “Term” means the period of time specified in an Order Form during which Customer and its Authorized Users may access the Services covered by the applicable Order Form.  Unless otherwise indicated on the Order Form, the Term begins on the date of execution of the Order Form by the Customer.

3. Fees for Paid Services

(a) Fees. As consideration for the rights granted and Services provided by W2O pursuant to an Order Form, Customer shall pay W2O the fees set forth in the applicable Order Form. Payment shall be in USD unless otherwise designated in the Order Form and in accordance with the terms set forth therein.

(b) Payment Terms.  Payments of fees due to W2O are due and payable on the due date(s) set forth in the Order Form, without any requirement of W2O to provide an invoice.  If a due date is not specified in the Order Form, then net payment terms are 30 days from the date of invoice unless indicated otherwise on the Order Form.  Customer’s failure to timely provide W2O with a purchase order, or any other supporting document required by Customer to release payment, does not relieve or change Customer’s duty to comply with the contracted net payment terms set forth in the Order Form.

(c) Late Payment.  Any payment not received from Customer when due shall incur interest at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever is less.   Any payments not received within the payment terms may be sent to a collection agency to secure payment without any requirement of written notice to Customer, except as required by law.  Customer shall be responsible for all costs and fees associated in the collection of monies due and owing, including reasonable attorney fees.

(d) Taxes. Any and all amounts payable hereunder are exclusive of any goods and services, value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer is solely responsible for paying any applicable Taxes. If W2O has the legal obligation to collect any Taxes, Customer shall pay W2O same as indicated on the invoice provided by W2O.

(e)  Admin User Access. Customer understands and agrees that selected W2O technical support personnel may require access to the Customer Org and the Customer Data in the ordinary course of providing customer support and system administrative services in connection with delivery of the Services and Customer hereby consents to any such access solely for the aforementioned limited purpose.

4. Subscription Services

(a) Subscription. Subject to Customer’s compliance with the terms and conditions of this Agreement, W2O shall give Customer a non-exclusive, non-transferable license to access and use the Services during the Subscription Term specified in the Order Form solely for Customer’s internal business purposes.

(b) Authorized Users. Subscriptions may be accessed by no more than the number of Users specified in the applicable Order Form. Additional User Subscriptions may be added during the applicable Subscription Term at the same pricing as pre-existing Subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added. Any such additional User subscriptions terminate on the same date as the pre-existing Subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User and cannot be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

(c) Restrictions. Except as expressly permitted under this Agreement, neither Customer nor any Authorized User shall not itself or permit any other party to: (a) translate, download, reproduce, modify, adapt or create derivative works based on or derived from the Services; (b) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Services; (c) access the Services for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; (d) use the Services in any way that does not comply with applicable laws and regulations, for illegal activities, or for activities outside the scope expressly permitted hereunder; (e) use the Services in any way that could damage the reputation of W2O or the goodwill or other rights associated with the Services; (f) engage in harassing or other inappropriate behavior with respect to any W2O employee; (g) modify or remove any copyright or other proprietary notices on the Services, or (h) use any part of Salesforce CRM functionality (Leads, Campaigns, Opportunities, Cases, etc.) without a subscription from Salesforce for use of that functionality.

(d) Support. Installation service (i.e. assistance to configure and set up the Applicatio within Customer’s Salesforce Org) and other technical support is available for an additional fee generally on an hourly basis.  These Services can be purchased through the Order Form process.

(e) No Professional Advice; No Warranty of Results. Customers and Users acknowledge that W2O is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, compliance, or other professional or legal advice. Any information provided by the Services is intended for general use only, including with respect to any Materials made available via the Services, and does not constitute legal or professional advice. Customers and Users understand that each Customer and User is responsible for any actions taken based upon information received from W2O, and where professional advice is needed, that each Customer and User should seek independent professional advice from a person who is licensed or qualified in the applicable area.  W2O does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.

(f) Eligibility and Jurisdiction. The Services are only available for persons in those jurisdictions in which they may legally be sold, offered or made available. Nothing on the Services shall be considered a solicitation to buy or an offer to sell anything to any person in any jurisdiction in which such offer, solicitation, purchase or sale would be unlawful. The technology and software underlying the Services or distributed in connection therewith and the transmission of any applicable data, (the “Software”) may be subject to United States export controls. No such Software or data may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using such Software or data is at Customers’ and at Users’ sole risk. The Services are designed primarily for use within the United States. Recognizing the global nature of the Internet, Customers and Users agree to comply with all local rules and laws regarding use of the Services, including as it concerns online conduct and acceptable content. W2O hereby disclaims any and all liability with respect to any use of the Services outside of the terms of this Agreement.

(g) User Limitations. The Services may only be accessed and used by Users who are at least 13 years of age and otherwise not barred from using the Services under applicable law. Customer is responsible for ensuring that any User that Customer allows to access the Services is authorized to do so by law, and that such individual’s use of the Services complies with all wage and hour laws, employment laws, and any other applicable laws and regulations.

(h) Unauthorized Access. Customers and Users will take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting Customer and User passwords and other log-in information. Customer will notify W2O immediately of any known or suspected unauthorized use of the Services or breach of its security and will use best efforts to stop said breach.

(i)  Third Party Platforms, Applications and Services.

(i) Salesforce.com (SFDC).  Company provides the Services to Customer for implementation on third party software technology platforms, including that provided by Salesforce.com (SFDC).  To the extent that Customer is purchasing any SFDC products or services (as indicated on the Order Form) via W2O in its capacity as an SFDC reseller, then Customer’s execution of the Order Form constitutes acceptance of the SFDC Service Agreement located at https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf (the “W2O Reseller Pass Through Terms”).  To the extent Customer purchased any SFDC products or services from Salesforce or a reseller other than W2O, then Customer’s use of such SFDC products and services shall be governed by the applicable terms and conditions of use between Customer and either SFDC or the applicable reseller (a “Non-W2O SFDC Terms” and together with the W2O Reseller Pass Through Terms, the “SFDC Terms”).  Notwithstanding anything to the contrary herein or in any Order Form, Customer agrees that W2O shall have no responsibility or liability arising out of or related to any Service provided by SFDC.

(ii) SFDC Embedded Edition Restriction. To the extent that Customer is purchasing any SFDC products or services (as indicated on the Order Form) via W2O in its capacity as an SFDC reseller, Customer agrees that the following definition is incorporated into and made part of the W2O Reseller Pass Through Terms applicable to Customer: “Combined Solution” means W2Onboarder. Customer may use the Services solely as part of the Combined Solution. Customer may use the Services solely to use the functionality of the Combined Solution in the form it has been provided to Customer by Reseller. Unless otherwise indicated in an Order Form, Customer may not use the Services to create or use custom objects beyond those that appear in the Combined Solution in the form that it has been provided to Customer by Reseller. If Customer’s access to the Combined Solution provides Customer with access to any Services functionality within it that is in excess of the functionality described in the Combined Solution’s user guide, Customer agrees to not access or use such functionality. Customer agrees that Customer’s noncompliance with the terms set forth in this paragraph would be a material breach of these [SFDC Terms].

(iii) Other Third Party Services.  “Other Third Party Services” means software applications and related services that are provided by entities or individuals other than W2O and that interoperate with the Services. Customer agrees that W2O shall have no responsibility or liability arising out of or related to Other Third Party Services even if W2O is the reseller of such Other Third Party Services.  Other Third Party Services are solely the responsibility of the applicable third party providing such Services and may be subject to additional terms and conditions that Customers and/or Users must enter into with the applicable third party service provider in connection with accessing and using such Other Third Party Services.

(iv)  Customer Data and Use of SFDC and Other Third Party Services.  Customer acknowledges that W2O may allow SFDC and providers of any Other Third Party Services that Customer has elected to use in connection with the Services to access Customer Data to the extent required for the interoperation of SFDC and/or such applicable Other Third Party Services with the Services. W2O shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by SFDC or third parties providing Other Third Party Services.  Use of Customer Data by SFDC and/or any provider of Other Third Party Services will be governed by the terms of any privacy policy or user terms applicable to Customer or User use and access to such other services and applications.

5. Intellectual Property Rights, Confidentiality and Privacy

(a) Ownership.

(i) W2O Intellectual Property.  W2O and its licensors and suppliers own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, including any trademarks, service marks, logos and other distinctive brand features and all intellectual property and all proprietary rights embodied in any of the foregoing.  No rights are granted to any Customer or User hereunder other than the right to access and use the Services as expressly set forth herein.

(ii)  Customer Data.  Each Customer owns all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the contents of Customer Data entered by such Customer and its Authorized Users in the Application.  Each Customer grants W2O and its affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, in connection with use of the Services by Customers and Users, as reasonably necessary for W2O to provide the Services in accordance with this Agreement and for W2O to maintain and improve the Services.  Subject to the above, W2O acquires no right, title or interest from Customer or Customer’s Users in or to the contents of the Customer Data.  For clarity, W2O’s use of Customer Data shall be subject to all applicable terms of the Privacy Policy.

(b) Suggestions. W2O shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Services to the extent that such information does not include the Confidential Information of Customer.

(c) Trademark License. W2O may use the names, logos and trademarks of Customer to publicize the existence of the business relationship established by this Agreement.

(d) Usage Statistics. W2O may collect and analyze anonymous usage statistics (e.g., number of records and page views), but not the contents of any Customer Data, relating to use of the Services for purposes of benchmarking, troubleshooting or improving the performance and functionality of the Services.

(e) Confidential Information.

(i) To the extent either party (the “Receiving Party”) has access to the Confidential Information of any other party (the “Disclosing Party”), the Receiving Party agrees to treat such information with at least the same degree of care it would use to protect its own Confidential Information.  The Receiving Party must give prompt written notice to the Disclosing Party of any disclosure by the Receiving Party (mandatory, inadvertent or otherwise) of Confidential Information of the Disclosing Party. Customer agrees that the pricing and other terms given to Customer are considered Confidential Information of W2O under this Agreement and shall not be disclosed to any third party. Notwithstanding any of the foregoing, Customer agrees that the disclosure to Salesforce of the existence of this Agreement is not considered a disclosure of Customer’s Confidential Information to a third party.

(ii) The Receiving Party acknowledges that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information will constitute a material breach of the Agreement and cause substantial harm to the Disclosing Party for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, the Disclosing Party shall have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.

(iii) In the event that the Receiving Party is requested or required by law or legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall give prompt written notice to the Disclosing Party and the Disclosing Party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Receiving Party shall disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose.

(iv) Within thirty (30) days following the expiration or termination of the Agreement and/or upon written request of the Disclosing Party, the Receiving Party will return or destroy all Confidential Information of the Disclosing Party and related materials in the Receiving Party’s possession and discontinue all further use of such Confidential Information; provided that the Receiving Party shall not be required to purge any Confidential Information of the Disclosing Party from its electronic storage or communication systems; provided that, in such case, any Confidential Information retained continues to be held confidential and not used pursuant to, and in accordance with, the terms of the Agreement.

(f) Privacy. W2O’s treatment of Personal Data is governed by its Privacy Policy.

(g) Customer Acknowledgements. Customer acknowledges and agrees that W2O does not exercise any control over Customer’s specific human resource practices implemented using the Services or Customer’s decisions as to employment by Customer of any individual person. Customer is solely responsible for all contact, questions, Personal Data updates and collection, with and from Customer’s employees (including its Authorized Users). In addition, Customer is solely responsible for the privacy (including adopting and posting Customer’s own privacy policies governing Customer’s treatment of Customer’s employees’ Personal Data to which Customer has access via the Services), collection, use, retention and processing of Customer’s employees’ Personal Data, and providing any and all notices and information to Customer’s employees regarding the foregoing, in compliance with all applicable laws. W2O hereby disclaims all liability arising from Customer’s decisions and from harmful data or code uploaded to the Services by Customer and/or Customer’s Authorized Users. In no event shall W2O be responsible or liable for Customer’s failure to comply with applicable laws in connection with Customer’s use of the Services. 

6. Term and Termination

(a) Term. The term of this Agreement shall continue in effect until the expiration or termination of all existing Subscription Terms as defined in Order Forms, and as otherwise agreed in writing and signed by the parties, or as earlier terminated pursuant to Section 6(b).

(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows:

(i) Material Breach.  Either party may terminate this Agreement and all Order Forms between the parties in the event of a material breach of this Agreement or any Order Form by the other party that remains uncured thirty (30) days after the non-breaching party gives the breaching party written notice of such material breach; provided, however, that termination may be limited by the non-breaching party, at its sole discretion, to the applicable Order Form under which a material breach arose; or

(ii) Insolvency.  Either party may terminate this Agreement in the event that the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business; or

(iii) Suspension.  In the event that Customer fails to make any payment when due under this Agreement, W2O may immediately suspend Customer’s access to the application and suspend the Services.  If any such payment remains unpaid more than thirty (30) days after it becomes due, then W2O may immediately terminate this Agreement.

(iv) Termination for Convenience.  W2O may terminate Customer’s Subscription in whole or in part at any time with or without notice.

(v) Other Terminations by W20.  W2O may also terminate any Customer Subscription with immediate effect in the following scenarios: W2O is required to do so by law or a court order; W2O has reasonable grounds to believe Customer or any User is carrying out a prohibited or illegal activity; W2O is unable to verify Customer’s business’s identity, or any other information regarding Customer’s account; W2O is unable to operate the Services despite its commercially reasonable efforts or due to causes beyond its reasonable control, including, without limitation, due to acts of war, acts of God or internet connectivity issues, hacking or similar circumstances.

(v) W2O Remedies.  Upon any termination by W2O under this Section 6(b)(i)-(iii) or (v), Customer shall immediately owe the full balance of total contracted fees for the remaining Subscription Term and Customer shall not be entitled to any refund or credit for any period of suspension or any period following termination.  Any suspension or termination by W2O pursuant to this Section 6(b)(i)-(v) shall be without prejudice to any other rights or remedies available to W2O under this Agreement.  If there are pending payment transactions at the time the termination takes effect, they will be processed pursuant to these terms unless prohibited by law.

(vi) Customer Remedies.  Upon (A) any termination by W2O under Section 6(b)(iv) or (B) any termination by Customer under Section 6(b)(i) or (ii), W2O shall refund to Customer a pro rata portion of fees pre-paid by Customer relating to the remaining portion of any Subscription Term that is terminated prior to its natural expiration date.  Such pro-rated refund shall be determined by W2O in its reasonable discretion, which determination shall be final and binding on the parties.

(c) Results of Termination. Sections 3 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement) 4(c), 4(e)-(h), 5, 6, 7, 8(b)-(c), and 9-12 of this Agreement, and any sections of the Agreement which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.  Upon termination of any of the Service(s) and/or termination of this Agreement, the applicable Customers’ and Users’ right to access and use such terminated Services(s) will automatically terminate; provided, however, that W2O will generally continue to provide Customer with the ability to access Customer Data in a limited capacity and for a limited period with respect to such terminated Service(s) to view and download Customer Data existing at the time of termination of such Service(s). (the “Limited Access Rights”). While any Customer has Limited Access Rights, all applicable provisions of this Agreement shall continue to apply to such Customer’s limited access to the Services.

7. Representations and Warranties

Each of W2O, each Customer and each User hereby represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of the party or conflict with any condition of any contract to which it is a party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon the party; and (e) it possesses all governmental approvals and licenses necessary to perform its obligations under this Agreement.

8. Indemnification

(a) Customer Indemnification. Customer agrees that W2O shall have no liability and Customer shall indemnify, defend and hold W2O harmless against any loss, damage, cost, liability and expense (including reasonable attorney’s fees) arising from any third-party action or claim (collectively, “Losses”) arising from any: (1) infringement or misappropriation of a third party’s intellectual property rights attributable to Customer Data, any materials provided by Customer or any Authorized User, or Customer’s or an Authorized User’s use of the Services in breach of this Agreement; (2) Customer’s or an Authorized User’s use of the Services in breach of this Agreement; (3) Customer’s or an Authorized User’s violation of applicable law; or (4) gross negligence or willful misconduct of Customer or any Authorized User.

(b) Indemnification Procedure. The indemnified party shall: (1) give the indemnifying party prompt written notice of any Loss or threat of Loss; (2) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Loss or threat of Loss; and (3) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

9. Disclaimer of Warranties

THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.”  W2O, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) GUARANTEES RELATING TO, AND IMPLIED WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DUE CARE AND SKILL; AND (B) ANY GUARANTEE AND ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE SERVICES, OR THAT CUSTOMER’S USE OF THE SERVICES WILL BE ERROR-FREE, FREE FROM VIRUSES OR OTHER HARMFUL CODE, UNINTERRUPTED, SECURE, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS; AND (C) ANY GUARANTEES OR WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

10. Limitation of Liability

IN NO EVENT SHALL W2O BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS (INCLUDING LOSS OF DATA) OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.

THE TOTAL LIABILITY OF W2O FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO W2O UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.  NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF W2O TO ANY USER OR GROUP OF USERS SHALL NOT EXCEED $100 WITH RESPECT TO ANY AND ALL CLAIMS OF USERS DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIMS AROSE. THE FOREGOING LIMITATIONS OF LIABILITY ARE CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THE AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE AGREEMENT AND HAS BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THE AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THE AGREEMENT.

11. Additional Disclaimers & Limitations.

W2O undertakes no responsibility for, and disclaims all liability arising from, any defects or failures in any communication lines, the internet or internet service provider, Customer’s computer hardware or software, the SFDC Platform or any other product or service used to access the application.  

W2O is not responsible for the accuracy of any Customer Data contained in or generated by the Services, and W2O shall not be liable for any losses or damages resulting from reliance on any such Customer Data under any circumstances.   

W2O shall not be liable for any losses or damages resulting from Customer’s grant of access to W2O to its Customer Org via Customer, its Authorized Users, or any other mechanism.  

W2O has no obligation to retain any Customer Data at any time. Retention of Customer Data resident within the Customer’s SFDC instance is governed solely by the applicable SFDC Terms.

W2O shall not be liable for any losses or damages resulting from any Customer’s or User’s denial of access to the Services, including which access is denied pursuant to a Customer’s direct subscription agreement with SFDC.

The Services have a range of features and functionalities. Not all Services or features will be available to all Customers or Users at all times. Except where prohibited by applicable law, W2O reserves the right to modify the Services or any part thereof for any reason, without notice and at any time and disclaims all liability to Customers and Users arising from any modifications.

W2O expressly disclaims any responsibility for making sure that documents which are electronically signed via the any electronic signature made available as part of the Services are valid and enforceable under any applicable U.S., local, state, or federal laws, or the laws of any other jurisdiction.

12. General

(a) Notice. Notices given under this Agreement shall be in writing and may be delivered by hand or sent by internationally-recognized courier service, e-mail or fax to the physical address, e-mail address or fax number for each party set forth in the most current Order Form.  Any such notice shall be deemed successfully given: (1) if delivered personally, at the time of delivery; (2) in the case of an internationally-recognized courier service, the date of delivery confirmation; (3) in the case of fax, at the time of successful transmission or (3) in the case of e-mail, upon confirmation of receipt.  Customers and Users agree that any notice provided to them by W2O may also be provided by electronic transmission via any notification functionality within such Customer’s or User’s account used by such Customer and User when accessing the Services.

(b) Assignment. Customer may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of W2O; provided, however, that no consent shall be required with respect to an assignment as part of any transfer by merger, acquisition, stock transfer or other consolidation of a Customer with another entity, or sale of all or substantially all of Customer’s assets. The terms of this Agreement shall be binding upon Customer with respect to an assignment by W2O made pursuant to a transfer, merger, acquisition, stock transfer or other consolidation of W2O with another entity, or sale of all or substantially all of W2O’s assets relating to the Services.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.   Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(c) Entire Agreement. This Agreement, (and with respect to a Customer, including all Order Forms, annexes, exhibits and schedules, and the attached SFDC Service Agreement) contains the final and entire agreement of the parties on the subject matter herein and supersedes all previous and contemporaneous oral or written negotiations, email correspondence, or agreements regarding such subject matter, including any oral or written terms contained in W2O proposals and/or demos during the sales process and Requests for Proposals submitted pursuant to Customer’s internal buying processes.

(d) Amendment. The Agreement and any Order Form may be amended by mutual written agreement of the parties.  This Agreement also may be amended unilaterally by W2O. W2O shall notify Customer of any unilateral amendments in writing, which requirement may be satisfied by posting any such amendments (or an amended and restated version of this Agreement) on its website or any electronic portal available to Customer.   No unilateral amendment of this Agreement by W2O shall amend the terms of any Order Form.  Customer’s continued use of the Services after the effective date of any amendment constitutes acceptance of the amendment.

(e) Severability. If any provision of this Agreement or any Order Form shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

(f) Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to rules regarding conflicts of laws. Subject to the agreement to arbitrate below, any dispute arising out of this Agreement shall be submitted to a state or federal court sitting in Orange County, California, which shall have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.

(h) Agreement to Arbitrate.

(i) If Customer or User has any issues with the Services, W2O, or any issue covered by this Agreement, Customer or User must provide written notice to W2O and try to resolve the issue first through W2O customer support or Customer’s W2O sales representative. If the issue is not resolved through such means within sixty (60) days of the initial written notice, Customer or User may pursue the dispute resolution procedures detailed in the remainder of this Section 12(h).

(ii) Agreement to Arbitrate. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO CUSTOMER’S OR A USER’S USE OF OR ACCESS TO THE SERVICES OR ANY DISPUTE OR CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT (INCLUDING UNDER W2O’S PRIVACY POLICY) OR ANY ORDER FORM OR ANY OTHER AGREEMENT, DOCUMENT OR ARRANGEMENT BETWEEN THE PARTIES RELATING HERETO (EACH A “COVERED DISPUTE”), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THIS SECTION 12(h), RATHER THAN IN COURT. FOR CLARITY, COVERED DISPUTES SHALL INCLUDE ANY TYPE OF CONTROVERSY, BROUGHT UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS, INCLUDING CONTROVERSY AS TO WHETHER THE AGREEMENT IS ENFORCEABLE OR WAS INDUCED BY FRAUD OR OTHERWISE.  NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION AGREEMENT SHALL NOT APPLY IF AND TO THE EXTENT ANY ELIGIBLE PARTY ELECTS TO BRING A CLAIM OUTSIDE ARBITRATION IF SUCH CLAIM FITS IN ONE OF THE EXCEPTIONS IDENTIFIED IN SECTION 12(h)(vi).  FOR FURTHER CLAIRITY, CLAIMS AGAINST ANY AFFILIATED ENTITIES OF W2O AND/OR ANY OF W2O’S OR ITS AFFILIATES’ OWNERS, AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS RELATING TO ANY COVERED DISPUTE SHALL ALSO BE SUBJECT TO EXCLUSIVE AND BINDING ARBITRATION UNDER THIS SECTION 12(h).

(iii) EACH CUSTOMER AND USER ACKNOWLEDGES THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM.

(iv) IN ANY COVERED DISPUTE, NO PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. EACH CUSTOMER AND USER ACKNOWLEDGES THAT YOU ARE GIVING UP YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM(S).

(vi) Exceptions to Agreement to Arbitrate. The parties agree that the agreement to arbitrate set forth in this Section 12(h) will not apply to any disputes relating to W2O’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that, upon the election of W2O, in its sole discretion, such disputes may be brought by W2O in (or removed by W2O to) any court that has jurisdiction over such claims. Also, any party may elect to bring a claim in small claims court in Orange County, California (or small claims court in another place if both parties agree in writing), if it qualifies to be brought in that court. Notwithstanding anything contained herein to the contrary, any party hereto may elect to seek equitable relief, including preliminary or permanent injunctive relief with respect to any matter in any court of competent jurisdiction.

(vii) Arbitration Procedures applicable to Covered Disputes.  All Covered Disputes shall be settled exclusively by final and binding arbitration to be entrusted to and administered by JAMS upon request of any of the parties in accordance with the JAMS Comprehensive Arbitration Rules & Procedures in effect at the time of the arbitration request (the “Rules”). The arbitration shall be conducted by an arbitration panel comprised of one (1) arbitrator appointed in accordance with the Rules. The arbitration shall take place in Orange County, California. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon. All decisions of the arbitrator shall be final, binding and conclusive on all parties.  In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, unless otherwise required by law or judicial or arbitral decision.

(i) Non-Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

(j) Survival. The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination, including, but not limited to, sections, 3(b), 3(c), 4(c), 4(d), 5, 7, 8, 9, 10, 11 and 12.

(k) Independent Contractors. The parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in the Agreement shall be interpreted as constituting either party the joint venturer, employee or partner of the other party or as conferring upon either party the power of authority to bind the other party in any transaction with third parties.

(l) Third-Party Beneficiaries. The Agreement does not confer any third-party beneficiary rights upon any person or entity except as expressly set forth herein.

(m)  Force Majeure. W2O shall not be liable for any damages, costs, expenses or other consequences incurred by Customer or by any other person or entity as a result of delay in or inability to deliver any Services due to circumstances or events beyond W2O’s reasonable control, including, without limitation: (i) acts of God; (ii) changes in or in the interpretation of any law, rule, regulation or ordinance; (iii) strikes, lockouts or other labor problems; (iv) transportation delays; (v) unavailability of supplies or materials; (vi) fire or explosion; (vii) riot, military action or usurped power; or (viii) actions or failures to act on the part of a governmental authority.

(n) Attorneys’ Fees. Should either party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of the Agreement, the prevailing party shall be entitled to recover from the losing party all reasonable attorneys’ fees and costs related to the Action.