This Master Services Agreement (the “Agreement”) is made and entered into as of the Effective Date of that certain Proposal executed by Client (the “Effective Date”), to which this Agreement is incorporated into by reference (the “Client” and the “Proposal” respectively), and Woven Brands, LLC, an Indiana limited liability company (“Woven”, “us”, or “we”). This Agreement, together with any documents incorporated herein by reference, governs Client’s use of and access to the Site, Software, and all related documentation and professional services (collectively, the “Services”), as such Services are more specifically described in the Proposal.Certain defined terms used in this Agreement are set forth in Schedule I (Schedule of Definitions) attached hereto and made a part hereof.
1. Engagement of Woven.Client hereby retains Woven to provide, and Woven hereby agrees to provide, Services to Client in accordance with the terms set forth in the Proposal. Any modifications to the Services listed the Proposal shall be documented in writing and signed by Client. Client’s use of the Services shall at all times be subject to this Agreement, the Proposal, User compliance with Woven’s then current Terms of Service which shall be incorporated herein by reference (the “Terms of Service”), and Woven’s then current Privacy Policy which shall be incorporated herein by reference (the “Privacy Policy”).
2. Access and Registration.(a) Subject to the terms of this Agreement and payment of the applicable Fees (as defined herein), Woven grants to Client and its Users, during the Term, a personal, limited, non-exclusive, non-transferable license, in object code format only, to permit Users to use the Software, Services, or Site in accordance with the use parameters, pricing, and payment terms described in this Agreement and the Proposal, solely for Client’s own purposes, and in accordance with the terms and conditions of this Agreement. The provision of the Services and license hereunder is not contingent upon the delivery of any future features or functionality of the Software, Services, or Site, nor dependent on any verbal or written promises made by Woven regarding future features, use or functionality of the Software, Services, or Site. This license shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.(b) In order to access some of the Services, Client will be required to create a separate account and password for each User within the Software and Site, as applicable, by completing the required registration form, unless an alternative method of registration is established between Client and Woven (“Registration”), which requests certain information and data (“Registration Data”), and maintain and update each User’s Registration Data as required. Client shall provide Woven with accurate, current, and complete information on each User and throughout the Term maintain and promptly update this information if it should change.(c) Client hereby acknowledges and agrees that we may send Client important information and notices regarding the Services by email or through other means, and that We shall have no liability associated with or arising from Client’s failure to maintain accurate contact or other information, including but not limited to, Client’s failure to receive critical information about the Services. Client acknowledges, consents, and agrees that we may access, preserve, and disclose Client’s registration and any other information Client provides if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third-parties; (iv) respond to Client’s requests for Client service; or (v) protect the rights, property, or personal safety of Woven, the Site, its Users, and the public.(d) Client hereby acknowledges that any 3rd party data source, from which User Registration is automated, is their responsibility to pay for and maintain. In the case where a 3rd party data source is desired, Woven will support a flat file (CSV) or API integration into Woven to process hires, terminations, and updates from the Client’s 3rd party system within the sole discretion of Woven. Client shall be responsible for coordination with 3rd party and ensuring that 3rd party is able to deliver a well-formed and clean data file consistently to a location determined by Woven, in its sole discretion. Client is responsible for all costs associated with the use of the 3rd party data source as well as any Fees charged by Woven to maintain an integration with the 3rd party data source.
3. Woven’s Rights and Obligations.Client’s use and access to the Services shall be subject to the following:(a) Client understands and agrees that temporary interruptions of the Software, Services, or Site may occur as normal events, and further understands and agrees that Woven may have no control over third party networks Client or its Users may access in the course of the use of the Software, Services, or Site, and therefore, delays and disruption of other network transmissions are completely beyond Woven’s control.(b) Client understands and agrees that Woven assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Client or User Content, communications, or personalization settings. Woven neither endorses nor assumes any liability for the contents of any material uploaded or submitted by Users. We shall not be responsible for any pre-screening, monitoring, or editing of the Content Users post or provide to Woven.(c) Client agrees that the Services may, at Client’s election, automatically download and install updates, upgrades and additional features that Woven deems reasonable or beneficial and/or reasonably necessary. Client acknowledges and agrees that any obligation Woven may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features.(d) Client acknowledges that we reserve the right to cooperate fully with investigations of violations of systems or network security owned or controlled by any Third Party Applications, including by cooperating with law enforcement authorities in investigating suspected criminal violations.(e) We, and our agents, have the right in our sole discretion to remove any Content, Client Data, or communications that, in our sole discretion or judgment, do not comply with this Agreement, any other acceptable use standards we implement, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such Content, Client Data, or communications. Client hereby consents to such removal and waives any claim against us arising out of such removal of Content, Client Data, or communications.(f) Client acknowledges and agrees that it is solely responsible for causing its Users to comply with the Terms of Service, and understands and agrees that Woven may (i) terminate this Agreement pursuant to Section 7; or (ii) with timely telephonic or electronic notice to Client, suspend access to the Software, Services, or Site if Woven reasonably concludes that the Software, Services, or Site (A) are being used to engage in denial of service attacks or illegal activity; (B) are causing immediate, material, and/or ongoing harm to Woven or others; (c) are being used in violation of the Terms of Service or Privacy Policy. If Woven suspends Client’s access to the Software, Services, or Site, Woven shall use commercially reasonable efforts to limit the suspension to the offending portion of the Software, Services, or Site and resolve the issues causing such suspension. Client further agrees that Woven shall not be liable to Client nor to any third party for any suspension of the Software, Services, or Site under such circumstances as described in this section. Client acknowledges that Woven will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.(g) Woven may make messaging services available to Users. Woven will not inspect the contents of private messages except in the narrowly defined situations provided under the Electronic Communications Privacy Act, or as other required by law or by court or governmental order. Woven will make User messaging data available for Client’s inspection upon request but will not otherwise disclose such data unless otherwise required by applicable law or by court or governmental order.
4. Client Responsibilities.(a) Client is responsible for procuring and maintaining the network connections, high-speed internet, and all software and equipment that may be necessary to connect the Client network to the Services, including, but not limited to, “browser” software that supports protocols utilized by the Software, Services, or Site such as the latest versions of Mozilla Firefox, Chrome, Edge, or Safari. Woven assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Woven.(b) Client shall authorize access to and assign unique passwords and usernames for the Users associated with the Client’s Registration. User logins are for designated Users and cannot be shared or used by more than one User. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software, Services, or Site and shall promptly notify Woven of any unauthorized access or use and any loss or theft or unauthorized use of any User’s usernames or passwords by emailing Woven at support@startwoven.com. Client is solely responsible for maintaining the confidentiality of Client’s password, usernames, and account and for any and all statements made and acts or omissions that occur through the use of Client’s password and account, including any mail sent and any charges incurred. Therefore, Client must take steps to ensure that others do not gain access to Client’s password and account. Woven will never ask Client for Client’s password. Client may not transfer, sell, or share Client’s account with anyone, and we reserve the right to immediately terminate Client’s account in the event of any unauthorized transfer or sharing thereof. We have the right but not the obligation to assume, without further inquiry, that any communication we receive through Client’s account has been made by Client.
5. Representations and Warranties.(a) Each party represents and warrants, individually, that (i) it has the legal power and authority to enter into this Agreement; and (ii) entering into this Agreement does not conflict with or result in any breach or violation of any of the terms and provisions of any agreement, judgment, order, statute or other instrument or restriction of any kind binding that party.(b) Client represent and warrant that (i) it has not falsely identified itself nor provided any false information to gain access to the Software, Services, or Site; (ii) that all billing information provided to Woven is correct.(c) Client represents and warrants that all information provided in the Registration Data is true, complete, and accurate, and Client agrees to maintain and update this information as required in order to keep it current, complete and accurate.(d) Client represents and warrants that Client shall cause its Users to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, Services, or Site, including without limitation those related to privacy, electronic communications, and anti-spam legislation.(e) Client represents, warrants, and covenants that Client shall only use the Services, Software, and Site for lawful purposes and directly in connection with the purposes for which the Services are intended to be used.
6. Fees and Payment:(a) Fees. In consideration for the Services provided by Woven, Client shall pay to Woven the amounts specified in the Proposal (“Fee” or “Fees”). The Fee does not include sales, use or similar taxes, which (if due) shall be paid by Client. Woven shall invoice Client in accordance with the terms of the Proposal for Fees. Payment for any undisputed Fees is due in accordance with payment terms established in the Proposal or 30 days from the date Client receives the invoice if such payment terms are not specified in the Proposal. Any fees, payments, reimbursements or credits owing to either party pursuant to this Agreement not paid when due shall accrue simple interest at the rate of one percent (1%) per month, but in no event to exceed the highest lawful rate of interest, calculated from the date such amount was due until the date payment is received by the party to whom debts are owed.(b) Failure to Pay; Suspension. Woven reserves the right to suspend Client’s and any Users’ access to and/or use of the Software, Site, or Services for any accounts for which any undisputed payment is due but unpaid, provided, that Woven has provided Client at least two (2) delinquency notices and at least thirty (30) days have passed since the transmission of the first notice. Client agrees that Woven shall not be liable to Client or to any Users or other third party for any suspension of the Services pursuant to this section. If either Woven or Client employs an attorney to enforce the payment terms of this Agreement, it may recover its actual attorney’s fees and costs, including expert witness fees.(c) Modification of Fees. Woven reserves the right to modify its Fees and charges, upon at least thirty (30) days prior notice to Client, which notice may be provided by e-mail, provided that such modification is at all time in accordance with the terms of the Proposal. If Client elects to add additional products, services, features, functionalities, or service levels, Woven may increase the Fees or amounts due from Client, subject to the agreement of both parties, which may be obtained by email. All pricing terms are confidential, and Client shall not disclose them to any third party.(d) Billing. Woven charges and collects in advance for use of Software, Services, or Site, which are provided on an monthly or annual basis. Woven will automatically renew and bill Client’s credit or debit card or EFT account or issue an invoice to Client on a monthly/yearly basis, unless otherwise specified by Woven. Recurring charges are billed in advance. Client agrees to provide us with accurate and complete billing information, including valid credit card information, Client’s name, address and telephone number, and to provide us with any changes in such information within three (3) days of the change. If, for any reason, Client’s credit card company refuses to pay the amount billed for the Service, Client agrees that we may, at our option, suspend or terminate Client’s subscription to the Software, Services, or Site and require Client to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts. Client agrees that until Client’s subscription to the Software, Services, or Site are terminated, Client will continue to accrue charges for which Client remains responsible, even if Client does not use the Software, Services, or Site.(e) Special Projects. If Client requests a feature, enhancement, or third party integration to the Software, Woven reserves the right to deliver the request under a special project subject to an hourly rate of one hundred and fifty dollars ($150) per hour. Woven will quote and obtain written approval from the Client before any special project work commences.(f) Travel. Travel is not expected and is uncommon in delivering the Woven Services. If Client requests, and Woven agrees, to travel as part of delivering the Woven Services, then Client will reimburse Woven for all reasonable expenses, including but not limited to meals, lodging, air, and ground travel related to delivering the Services. All travel and travel expenses will be pre-approved in writing by Client to be eligible for reimbursement.
7. Termination.(a) Without Cause. Either party may terminate this Agreement, without cause, upon the expiration the Initial Term or expiration of a Renewal Term (each as defined in the Proposal), by providing the other party written notice of its intent to terminate the Agreement at least thirty (30) days prior to the expiration of the then-current Term.(b) Termination with Cause. A party may terminate this Agreement for cause: (i) upon a material breach of this Agreement, if such breach remains uncured for thirty (30) days after written notice of such breach was delivered, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding anything herein to the contrary, the termination rights contained in this Section 7 shall not limit Woven’s right to suspend Services in accordance with the terms of this Agreement.(c) Termination Policies. The following policies apply to any termination or expiration of this Agreement:(i) Upon termination or expiration of this Agreement for any reason, Woven shall be entitled to all of the Fees due under this Agreement for any Services rendered prior to the date of termination or expiration.(ii) Upon termination or expiration of this Agreement for any reason, Client shall have no rights to continue use of the Software, Site, or Services.(iii) Upon termination or expiration of this Agreement, upon written request, Woven shall make available to Client a copy of the Client Data within thirty (30) days of termination. Client agrees and acknowledges that after thirty (30) days following a termination or expiration of this Agreement, Woven has no obligation to retain the Client Data or any Content related to Client or Users and may delete or destroy such Client Data or Content in its sole and absolute discretion.(iv) Upon termination of this Agreement caused by Client’s material breach of this Agreement, Client acknowledges and agrees that Woven may immediately deactivate or delete Client’s account and all related information and files in that account and/or bar any further access to such files, Client Data or the Services.(v) Client further agrees that Woven shall not be liable to Client nor to any third party for deletion or destruction of Client Data, provided that Woven is in compliance with the terms of this Section. Client agrees to hold us harmless and indemnify us from any third party claims arising for the termination of Client’s account in accordance with this Agreement.(vi) Client agrees that any material breach of this Agreement will result in irreparable harm to Woven for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Woven will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. Client waives any requirement for posting of a bond or other security if Woven seeks such an injunction.
8. Intellectual Property Rights.(a) Ownership of Client Data. As between Woven and Client, all title and Intellectual Property Rights in and to the Client Data is owned exclusively by Client, provided, that, in the event Woven aggregates and/or anonymizes Client Data resulting from Client’s use of any Services and aggregates such Client Data with that of other Clients in a way that does not reveal Client’s identity or personally identifiable information, Woven may use such aggregated and/or anonymized Client Data in the manner and for such purposes as are set forth in the Privacy Policy.(b) Responsibility for Client Data. Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and content permissions for all Client Data. All Client Data available through the Software or Services by Client and Users has been created, designed, or provided solely by Client or third parties without the participation or involvement of Woven. Woven assumes no responsibility and makes no representations, warranties, or guarantees as to the Client Data or any other content available on the Software or Services as to accuracy, relevance, propriety, legality, or usefulness to the Client, Users or any third parties.(c) License to Client Data. Subject to the terms and conditions of this Agreement, Client grants to Woven a nonexclusive, paid-up or royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license right to copy, distribute, display, perform, publish, translate, adapt, modify, sublicense, and otherwise use certain Client Data including templates, samples, or information regarding or relating to the Software or Services provided that such materials do not include Client’s Confidential Information. In addition, Woven shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into Software or Services any suggestions, enhancement requests, recommendations, or other feedback provided by Client, including Users, relating to the operation of the Software or Services.(d) Woven Intellectual Property. Client agrees that all rights, title, and interest in and to all intellectual property in Software or Services and documentation (including all updates, enhancements, and derivative works thereof and thereto) are owned exclusively by Woven or its licensors. Client agrees that all content on the Software, including the logo, articles, other text, and graphics (“Woven Marks”) are the intellectual property of Woven and are protected under trademark, trade dress, patent, copyright, and other laws. Client agrees that it may not reverse engineer, decompile, or disassemble any software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to Client does not convey any rights in the Software or Services, express or implied, or ownership in the Software or Services or any Intellectual Property Rights thereto. Any rights not expressly granted herein are reserved by Woven. Client agrees not to display or use the Woven Marks in any manner without Woven’s express prior written permission. The trademarks, logos, and service marks of third-party application providers (“Marks”) are the property of such third parties. Client shall not use these Marks without the prior written consent of such third party who may own the Marks.Users posting their own content (the “User Material”) on the Software pursuant to the terms of this Agreement retain the copyright in such User Material, but they are deemed to have given Woven a license to the User Material sufficient for the purposes of operating the Software, which means Woven can copy the User Material for backup and archival purposes, display it on the Software, use the User Material in advertising and/or lead generation for the Software, allow viewers to view (including by downloading a copy to the viewer’s machines) and edit the User Material for length or in compliance of the rules applicable to User postings on the Software. This license is perpetual, worldwide, transferable as part of any transfer of the Software in whole or in part, and fully paid up. Woven also has the right to remove User content from the Software at any time for any purpose.By accepting this Agreement, Client acknowledges and agrees that all content presented on the Software or Services is protected by Intellectual Property Rights and is the sole property of Woven. Client and Users are only permitted to use the content as expressly authorized by Woven. Except as otherwise permitted expressly herein, Client may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from the Software in any form or by any means without prior written permission from Woven, and Client is solely responsible for obtaining permission before reusing any copyrighted material that is available on the Software or Services. Except as expressly set forth herein, Client disclaims all rights to or ownership of any information and data generated by a product or service obtained from or through the Software or Services.Any unauthorized use of the materials appearing on the Software or Services may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. Woven does not warrant or represent that Client’s use of materials displayed on or obtained through the Software or Services will not infringe the rights of third parties. In compliance with the Digital Millennium Copyright Act, Users and other persons can report an infringement of Intellectual Property Rights to support@startwoven.com.
9. Confidentiality.(a) Confidential Information. The Client and Woven, as the case may be, (the “Receiving Party”) shall hold in trust for the other party hereto (the “Disclosing Party”), shall not disclose to any person, firm or entity other than the Receiving Party’s employees and agents who have a need to know such information in order to perform the Services, and shall not use in any way detrimental to the Disclosing Party, any confidential or proprietary information of the Disclosing Party (“Confidential Information”). For purposes of this Agreement, “Confidential Information” will include the terms of this Agreement, Client Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Services, and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party; (iv) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (vi) is aggregate data regardinguse of Woven’s products and services that does not contain any personally identifiable or Client-specific information.(b) Non-Disclosure Obligations. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (iv) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
10. Indemnification.(a) By Woven. Woven agrees to defend, indemnify, and hold harmless Client, and its agents, assigns, directors, employees, officers, successors, and affiliates (the “Client Indemnitees”) against any and all claims, demands, damages, liabilities, losses, or judgments (including reasonable attorneys’ fees) asserted by any third-party and arising directly or indirectly out of Woven’s negligence or willful misconduct in the performance of its obligations under this Agreement (“Claim” or “Claims”). The obligation to defend, indemnify and hold harmless applies only to the extent that the negligence or willful misconduct of Woven or its agents, subcontractors, or employees directly caused the alleged damage, injury, or death. The obligation to defend, indemnify and hold Client Indemnitees harmless does not apply to the extent that the negligence or willful misconduct of Client caused the alleged damage.(b) By Client. Client agrees to defend, indemnify and hold harmless Woven, and its agents, assigns, directors, employees, officers, successors, and affiliates (the “Woven Indemnitees”) against any and all Claims arising directly or indirectly out of Client’s, or its Users’, negligence or willful misconduct in the access and use of the Services. The obligation to defend, indemnify and hold harmless applies only to the extent that the negligence or willful misconduct of Client or its agents, subcontractors, or employees caused the alleged damage, injury, or death. The obligation to defend, indemnify and hold Woven Indemnitees harmless does not apply to the extent that the negligence or willful misconduct of Woven caused the alleged damage.(c) Indemnification Requirements. The obligation to defend, indemnify and hold the Indemnitees harmless is expressly conditioned on the following: (i) the indemnified party shall promptly notify the indemnifying party, in writing, of any Claim or demand for which an indemnified party will seek indemnification; (ii) the indemnifying party shall control the defense of any action, Claim or demand and the negotiations for their settlement or compromise, provided that any settlement or compromise that requires contribution from indemnified party must be approved by the indemnified party; and (iii) the indemnified party shall cooperate with the indemnifying party in a reasonable way to facilitate the negotiation, settlement or defense of any Claim or demand. The provisions of this paragraph shall survive the termination of this Agreement.
11. Limitation of Liability.Woven hereby agrees to (a) have its insurance companies that issue general liability insurance and excess liability insurance waive any rights of subrogation, and (b) ensure that such insurance policies contain an express waiver of any right of subrogation by the insurance companies against Client and Client’s affiliates. AS LONG AS SUCH WAIVERS OF SUBROGATION ARE CONTAINED IN WOVEN’S INSURANCE POLICIES, CLIENT HEREBY WAIVES ANY AND ALL CLAIMS AND RIGHTS OF RECOVERY AGAINST WOVEN FOR ANY LOSS OR DAMAGE TO ITS PROPERTIES OR INTERESTS (INCLUDING BUSINESS INTERRUPTION), TO THE EXTENT SUCH LOSS OR DAMAGE IS COVERED BY INSURANCE PROVIDED BY WOVEN PURSUANT TO THE TERMS OF THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW). THIS INCLUDES, WITHOUT LIMITATION DAMAGES DUE TO: (i) THE USE OF OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH THE SITE; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (iv) SITE CONTENT OR INFORMATION CLIENT MAY DOWNLOAD, USE, RELY UPON, MODIFY, OR DISTRIBUTE.
12. Warranties.(a) Limited Warranty. Woven warrants that the Software, Site, and Services will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for (i) any Malicious Code contained in Client-uploaded attachments or otherwise originating from Client or its Users, and (ii) any Malicious Code contained in any third-party applications. Woven warrants that the Software and Services provided to Client pursuant to the Proposal will comply with the requirements of this Agreement and all exhibits or schedules hereto, including, without limitation and as applicable, Exhibit A, attached hereto and expressly incorporated herein by reference.(b) DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SERVICES AND ALL MATERIALS AND SERVICES ON THIS SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WOVEN MAKES NO WARRANTY THAT: (i) THE SOFTWARE OR SERVICES WILL MEET CLIENT’S REQUIREMENTS, (ii) THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SOFTWARE, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY CLIENT FROM WOVEN WILL MEET CLIENT’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS; (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SOFTWARE OR SERVICES OR THE SERVER(S) THAT MAKE THE SOFTWARE OR SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.THE SOFTWARE OR SERVICES COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WOVEN MAY MAKE CHANGES TO THE SOFTWARE OR SERVICES, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME WITHOUT NOTICE, UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN. THE SOFTWARE OR SERVICES MAY BE OUT OF DATE, AND WOVEN MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR INFORMATION.THE SOFTWARE OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WOVEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE USE OF THE SOFTWARE OR SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SOFTWARE OR SERVICES IS DONE AT CLIENT’S OWN RISK AND WITH CLIENT’S AGREEMENT THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, MOBILE DEVICE, OR ANY OTHER PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.WOVEN IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF COMMENTS, OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SOFTWARE TO ANYONE.ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY SOFTWARE, SERVICES, PRODUCTS, OR MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE SOFTWARE OR SERVICES FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY WOVEN. THROUGH CLIENT’S USE OF THE SOFTWARE OR SERVICES, CLIENT MAY HAVE OPPORTUNITIES TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH OTHER USERS AND VENDORS. CLIENT ACKNOWLEDGES THAT ALL TRANSACTIONS RELATING TO ANY PRODUCTS OR SERVICES OFFERED BY ANY PARTY, INCLUDING, BUT NOT LIMITED TO THE PURCHASE TERMS, PAYMENT TERMS, WARRANTIES, GUARANTEES, MAINTENANCE AND DELIVERY TERMS RELATING TO SUCH TRANSACTIONS, ARE AGREED TO SOLELY BETWEEN CLIENT, THE SELLER OR PURCHASER, OF SUCH PRODUCTS AND SERVICES. WOVEN MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED BY AND BETWEEN CLIENT AND THIRD PARTIES WHEN FACILITATED THROUGH, OR IN CONNECTION WITH THE SOFTWARE OR SERVICES, AND CLIENT UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT ITS OWN RISK.WOVEN DOES NOT WARRANT OR REPRESENT THAT CLIENT’S USE OF MATERIALS OR CONTENT DISPLAYED ON OR OBTAINED THROUGH THE SOFTWARE OR SERVICES, OR OTHERWISE PROVIDED TO CLIENT BY WOVEN, WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. SUBJECT TO WOVEN’S PRIVACY POLICY, ANY COMMUNICATION THAT CLIENT TRANSMITS TO WOVEN OR THROUGH THE SOFTWARE OR SERVICES, WHETHER BY ELECTRONIC MAIL OR OTHER MEANS, FOR ANY REASON, WILL BE TREATED AS NON-CONFIDENTIAL AND NON-PROPRIETARY.WOVEN DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS; THEREFORE, WOVEN DECLINES ALL LIABILITY FOR INACCURATE INFORMATION; FRAUD; NEGLIGENCE; WILLFUL MISCONDUCT; OR ANY OTHER INAPPROPRIATE USE OF THE SITE.SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT.(c) Warranty Breach. Client’s sole and exclusive remedy for Woven’s breach of an express warranty relating to the functionality of the Software or Services shall be that Woven will use commercially reasonable efforts to modify the Software or Services to achieve, in all material respects, the functionality described in this Agreement. If Woven is unable to restore such functionality, Client shall be entitled to terminate the Agreement and receive a full refund of any prepaid Fees for the remaining terminated portion of the Term. Woven shall have no obligation with respect to such a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material functionality problem.
13. Security.Woven shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Client Data. Woven uses Microsoft Azure native cloud services providing high availability and their automatic backup systems to protect all data contained in the Software or Services. If the Software or Services are impacted by any failure or incident involving data loss, Woven shall take all commercially reasonable actions to restore the data. NOTWITHSTANDING THE FOREGOING, WOVEN MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING RECOVERY FROM DATA LOSS. Client acknowledges and agrees that Client is solely responsible for conducting regular backup of the information and data exchanged through the Software or Services. The Software or Services are not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although Woven takes reasonable precautions to preserve and protect the material Client uploads to the Software or Services, Client should not rely on Woven as Client’s storage facility. Client should preserve backup copies of any digital data, information or other materials that Client has uploaded or downloaded from the Software or Services. Client agrees not to hold Woven responsible for any damage to, any deletion of or any failure to store Client’s files, data or information exchanged through the Software or Services.
14. Implementation.Implementation and training services ordered by Client as set forth in the applicable Proposal shall be performed in accordance with Woven’s customary practices for the level of services purchased. Woven does not provide dedicated project management for Client during implementation unless separately purchased or provided by Woven at its sole discretion. Implementation is performed remotely unless otherwise specified. Woven is not responsible, and shall not be liable, for Client’s configuration decisions or Client’s compliance with all laws and regulations in Client’s unique circumstances, nor for any delays in implementation caused by Client, including but not limited to, Client delays in providing clean and validated data, if needed, or Client delays in making necessary business decisions with respect to the configuration of the Software, Services, or Site.(a) Initial Implementation & Training. Unless otherwise specified in the Proposal, Woven will provide instructor lead and customized training sessions for the Client’s district managers (or equivalent) and senior management above the district managers (or equivalents), including a corporate support team. Woven will coordinate with Client on the time, content, and method of training delivery.(b) On-going Training. Training shall be provided to Client, as requested, on an on-going basis without charge, if the requests are reasonable. Woven reserves the sole right to determine if continued training outside of the initial implementation period is reasonable, and if such additional training requests will incur additional Fees or not.
15. Compliance with Laws.Client and Woven shall each perform its respective obligations under this Agreement in accordance with the prevailing reasonable commercial standards applicable thereto, and will comply with all applicable statutes, acts, ordinances, laws, rules, and regulations necessary for the performance of this Agreement.
16. Force Majeure.No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”):(a) acts of God; (b) flood, fire, earthquake, other potential disasters or catastrophes, such as pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national, regional or local emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party.The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of ten (10) consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon five (5) days’ written notice.
17. Successors in Interest.This Agreement and all of the provisions of this Agreement shall be binding upon and enforceable by and against the successors in interest and permitted assigns of the Parties.
18. Notices.All notices or other communications required or contemplated herein shall be sufficient and deemed delivered if in writing and sent via email or deposited with the United States Postal Service, postage prepaid via certified mail, or by overnight delivery by any nationally recognized carrier, addressed to Woven at the address below and to Client at the address provided in the Proposal, or to such other address as may be changed from time to time.
To:
Matt Goebel
Woven Brands, LLC
11350 N. Meridian St. Suite 400
Carmel, Indiana 46032
matt.goebel@startwoven.com
With a copy to:
Wormser Legal LLC
6219 Guilford Ave.
Indianapolis, IN 46220
Attn:
Barry Wormser
barry@wormserlegal.com
19. Arbitration; Governing Law and Jurisdiction.(a) Informal Dispute Resolution. The Parties agree to attempt in good faith to resolve and settle all disputes about or relating to this Agreement through informal dispute resolution.(b) Arbitration. All disputes, controversies and claims of any kind arising out of or relating to this Agreement or the rights and obligations of the Parties not resolved through informal dispute resolution shall be resolved through arbitration by the American Arbitration Association in Hamilton County, Indiana in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules. This provision shall survive the termination or expiration of this Agreement. Nothing contained herein shall prevent a party from applying to and obtaining from any court having jurisdiction, a temporary or preliminary injunction, and/or other emergency relief to enforce its rights and obligations under this Agreement prior to the filing of any arbitration proceeding or pending the trial, or rendering of a decision or award pursuant to any arbitration proceeding conducted hereunder. The foregoing shall not prevent a party from terminating this Agreement as set forth in this Agreement.(c) Governing Law and Jurisdiction. This Agreement shall be governed, construed, and enforced under and in accordance with the laws of the State of Indiana, both substantive and remedial, without regard to conflict of laws principles.
20. Assignment.This Agreement, and all rights and obligations under this Agreement, may be assigned by Woven provided that the assignee is capable of performing Woven’s obligations under this Agreement. Notwithstanding the foregoing, Woven may not assign its indemnification obligations set forth in herein above without the express written consent of Client. Client may assign this Agreement to the surviving entity in any acquisition, merger, or corporate reorganization of Client.
21. Severability.Should any term or provision of this Agreement be held to be unenforceable, invalid, or prohibited under law, then such provision shall be deemed restated to reflect the original intent of Woven and Client as nearly as possible in accordance with applicable law and the remainder of this Agreement.
22. Interpretation.This Agreement has been freely negotiated and entered by Woven and Client. This Agreement shall not be construed in any manner against a party because of such party’s role in drafting this Agreement.
23. Waiver.The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement.
24. Counterparts.This Agreement may be executed in several counterparts (which may be delivered electronically or by facsimile), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
25. International Use.Although this Software or Site may be accessible worldwide, Woven makes no representation the Software, Services, or Site are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. The materials on the Site may not be appropriate or functional for use outside the United States of America. Clients located outside the United States of America who use the Site understand this limitation. Those who choose to access the Software, Services, or Site from other locations do so on their own initiative and are solely responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Software, Services, or Site is void where prohibited.
26. Entire Agreement.This Agreement, including all documents referred to herein and attached hereto, including, but not limited to, the Proposal and Privacy Policy, constitutes the entire agreement of the Parties on the subject matter hereof and supersedes all prior representations, understandings and agreements between the Parties with respect to such subject matter. No provision of this Agreement may be amended, waived, or discharged unless a written amended, waiver or discharge has been signed by duly authorized officers or representatives of both Parties.
SCHEDULE I
SCHEDULE OF DEFINITIONS
“Affiliates” means any of Woven Brands, LLC’s owners, subsidiaries, affiliated companies, officers, directors, members, managers, suppliers, partners, sponsors, advertisers, and, without limitation, all other parties involved in creating, producing, and/or delivering this Site and/or its contents.“Agreement” means these terms and conditions, together with any and all other documents, agreements, or understandings referenced herein.“Content” means any information, data, materials, templates, examples, forms, text, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by Users.“Client Data” means all electronic data or information submitted by Client or its affiliates to and stored by the Software, Services, or Site.“Intellectual Property Rights” means all copyrights, trademarks, service marks, patents or other proprietary rights and laws relating to the protection of intellectual property.“Site” means the access controlled, server-based site made available to Client and Client’s Users of the Software and Services located on the Internet at www.startwoven.com or app.woven.team.“Software” means access to and use of certain cloud-based software-as-a-service offering(s) for work and home services utilizing Woven’s software application.“Term” means the Initial Term specified in the Proposal and any Renewal Terms.“Third Party Applications” means online, Web-based applications or services, and offline software products that are provided by third parties and may operate in conjunction with the Services.“Users” means individuals who are authorized by Client to use the Services, for whom Client has completed Registration.“User Content” means User’s name, contact information, business information, and other personal information put into Woven by Client or other Users.
EXHIBIT A
CLIENT SUCCESS AND SUPPORT SERVICES
Capitalized terms used in this Exhibit that are not otherwise defined in this Exhibit shall have the meaning given such terms in the Master Terms of Service Agreement (the “Agreement”) governing the relationship between the Woven and Client.
1. Definitions.1.1 “Error” means a reproducible defect or combination of defects in the Software that results in a failure of the Software, when used in accordance with the Woven’s instructions (including the applicable documentation), to function substantially in accordance with the applicable documentation. As used in this definition, a reproducible defect means a defect that the Woven can reproduce using the Software in accordance with the terms of the Agreement.1.2 “Support and Maintenance Period” means the period specified in the Proposal, as long as the Client is current on all payments.1.3 “Support Hours” means 8:00 a.m. U.S. Eastern time to 9:00 p.m. U.S. Eastern time, Monday to Friday, excluding U.S. Government holidays.1.4 “Support Level” means the support level specified in the plan selected by the Client.1.5 “Supported Software” means the then-current version of the Software specified within the Proposal and the Agreement.
2. Technical Support.
During the Support and Maintenance Period, Woven shall use commercially reasonable efforts to diagnose and resolve Errors in the Software during Support Hours.
3. Severity Levels.
Woven recognizes the following severity levels of Errors, determined by Woven in its reasonable discretion:3.1 Severity 1 – Urgent. The Error stops Client’s production use of the Software or so severely impacts the Software that Client cannot reasonably continue production use of the Software. Woven shall begin work on the Error within two (2) hours of notification during Support Hours and shall engage development staff until a resolution or reasonable workaround is achieved.3.2 Severity 2 – High. The Error materially affects the performance of the Software, or materially restricts Client’s use of the Software (e.g., important features of the Software are affected but reasonable workarounds exist to still use the system to some degree). Woven shall begin work on the Error within four (4) hours of notification during Support Hours and shall engage development staff until a resolution or reasonable workaround is achieved.3.3 Severity 3 – Normal. The Error causes only a minor impact on Client’s use of the Software. Woven shall begin work on the Error within one (1) business day of notification and shall engage development staff to work on the problem on a time-available basis.3.4 Severity 4 – Low. The Error does not affect the operation of the Software but causes minor inconveniences such as cosmetic problems. Alternatively, Client requests information or clarification regarding the operation of the Software or the applicable documentation. Woven shall provide an initial response within two (2) business days and shall consider enhancements to the Software for inclusion in a subsequent Technical Update.
4. Excluded Services.
Woven shall have no obligation to provide Technical Support with respect to the following:4.1 Software that is not the Software.4.2 Any aspect of the Software that has been modified other than by Woven without Woven’s written authorization.4.3 Errors arising from (i) any failure of hardware, equipment or software not provided by Woven, including without limitation computers and network settings and code created outside of the Software application, (ii) any cause beyond the reasonable control of Woven (including floods, fires, hurricanes, tornadoes, tsunamis, loss of electricity or other utilities), negligence of Client or any third party, operator error, improper use of the Software or attempted maintenance by unauthorized persons, (iii) use of the Software other than in accordance with the Agreement or the applicable documentation, or (iv) the operation (or failure to operate) of third party software (other than any third party software Integrated with the Software and delivered by Woven as part of the Software).4.4 On-site or formal classroom training that is or isn’t part of the Services.
5. Maintenance Services.
During the Support and Maintenance Period, Woven shall, from time to time, make available to Client any Technology Updates and Technology Upgrades to the Software that Woven, in its sole discretion, chooses to release.
6. Means of Performing Technical Support and Maintenance Services.
Woven shall perform Technical Support and Maintenance Services to the extent possible by telephone and remote access, unless the parties agree otherwise. Client shall use its best efforts to assist and enable Woven to perform the Technical Support and Maintenance Services remotely to the extent possible.
