Wizer Training Terms of Service
These terms and conditions (the "Agreement') set out the terms on which Wizer Inc., a Delaware corporation, ("Wizer'', "we", "us" or" our'') provides access to and use of certain employee security awareness training services (the "Service") available on or through the website https://wizer-training.com (the “Site") to you, a user of the Service ("you'' or "User''). For the purpose of this Agreement, “you” and “User” refer also to any organization or legal entity on behalf of whom the Service will be used or on whose network and systems the Service will be deployed (each such organization shall be referred to herein as an “Entity”). If you are using the Service on behalf of an Entity, you represent that you have the full power and authority to bind such Entity to this Agreement, and that you acknowledge that the terms "User" and "you" will include both you, the individual user, and such organization or legal entity. You should read this Agreement carefully, by indicating acceptance of this Agreement, executing a quote that references this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us. You hereby represent that you are of legal age, and are otherwise fully able, authorized, and competent, to enter into this binding Agreement. If you do not have the Entity on behalf of whom the Service will be used authority to enter this Agreement or if you do not agree with the terms of this Agreement, you must not accept this Agreement and must not use the Service. If you have fully executed a master service agreement with Wizer, then such master service agreement will govern your access and use of the Service. Capitalized terms have the definitions set forth herein. You and Wizer may be referred to in this Agreement as a “Party” or jointly as the “Parties”.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND WIZER AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
- Nature of the Service. The Service is a proprietary end-to-end software-as-a service platform, accessible from desktop or mobile devices, through which employers can train their employees in security awareness (the "Specified Purpose"). The free version of the Service includes access to a library of security and compliance training videos, mandatory quizzes, a learning management system, and progress reports and notifications (the “Free Plan”). The paid ‘Boost’ version of the Service includes additional features such as exportable SCORM-compliant videos, interactive phishing games, single sign-on and phishing simulation exercises (the “Boost Plan”).
- Registration. To use certain parts of the Service, you may be required to provide us with your first name, last name, title, name of organization, and email address, and to create a password and register with us. To the extent you are using the Service on behalf of an Entity, you may need to also provide us with information in order to confirm, or permit us to confirm, the relationship between you and such Entity. You may only assign user accounts to individual users with an email address with business domain that you either own or are authorized to use, and in accordance with the Specified Purpose. We may also request additional information from you. You represent and warrant that you will provide us with accurate, current, and complete registration information and you agree to notify Wizer during your Subscription Term (as defined below) of any changes made to your registration information, including changes in billing address and expiration dates. You are responsible for your registration, and for all use of the Service using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential. In addition, you will notify us immediately upon discovering any unauthorized disclosure of credentials or upon discovering execution of any unauthorized access to the Service. We may use your registration information to contact you for marketing purposes related to our Service.
- Direct Purchases. The Free Plan of the Service is available free of charge. We offer the Boost Plan of the Service with paid subscription plans that allow you to access additional or exclusive features or content included in the Boost Plan. The fees for the Boost Plan subscriptions will be specified by Wizer through its Site or through a designated quote addressed to you and will be applicable for the period specified therein. Boost Plan subscription prices may increase upon their renewal or if you upgrade your Boost Plan or subscribe for add-ons to the Service not included in the Boost Plan. A Subscription Term or any part thereof not covered by your designated quote will be charged according to our applicable pricing specified through our Site. If you will purchase a paid subscription, renewal for a paid subscription, upgrade, or add-on to the Service, Wizer will charge your credit card for the applicable fee in effect on the date of such purchase. Fees are based on acquired subscriptions to the Service and not actual usage. Unless explicitly provided otherwise herein, payment obligations are non-cancellable, and all fees paid are non-refundable. You agree and represent that all information you provide for the purpose of subscribing to the Service is accurate, complete, and current, and you agree to notify Wizer of any changes to the credit card information associated with your Wizer account, including changes in billing address and expiration dates. If Wizer does not receive payment from the issuer of the credit card associated with your Wizer account, you agree to pay all amounts due upon demand directly to Wizer, and Wizer further reserves the right to either suspend or terminate your Wizer account and your subscription to the Service in such circumstances. All amounts due hereunder are exclusive of all sales, use, excise, service, VAT, or other taxes, duties, and charges of any kind (whether foreign, federal, state, local or other) associated with the Service. You shall be solely responsible for all such taxes, duties, and charges (except for taxes imposed on Wizer's income), which may be invoiced or charged by Wizer from time to time.
- Channel Partner Purchases. If you acquire a subscription to the Service via a Channel Partner (as defined below), then without derogating from any other provisions of this Agreement, all payment-related terms will be determined in the applicable agreement between you and such Channel Partner. Any agreements you enter with a Channel Partner shall be between you and such Channel Partner and shall not be binding upon Wizer. “Channel Partner” means an authorized reseller, distributor, or managed service provider of Wizer from or through which you may subscribe to or acquire access to or right of use in the Service or any part thereof.
- Our Ownership Rights. The Service, including all aspects of the Wizer platform and the Site (including Our Property, as defined below), is the property of, and owned by, Wizer or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content, files (including SCORM files), Offline Content (as defined below) and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via the Service or otherwise are "Our Property''. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation, or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph. The marks WIZER and WIZER TRAINING, the Wizer logo, and any associated logos are registered or unregistered trademarks or service marks of Wizer or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Subject to the terms and conditions herein, we grant you the non-exclusive, non sublicensable, non-transferable, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service for the Specified Purpose (as defined above) during the Subscription Term, as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not market, sell, resell, distribute, or otherwise commercialize Our Property. Continuous use of Our Property, including any part of the Offline Content, following termination or expiration of your Subscription Term is strictly prohibited.
- Restrictions on Use of Content. Except as expressly prohibited herein or under applicable law, you are permitted to access and use the Service, subject to your agreement that the Service is offered, and your use of the information is permitted, for informational, instructional, and non-commercial purposes only, and use for any other purpose is expressly prohibited by law and may result in civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. You may not copy the design elements, look and feel, or layout of the Service. Those elements of the Service are protected by law, such as trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. No logo, graphic, video, sound or image from the Service may be copied or retransmitted unless expressly permitted by Wizer.
- General Restrictions. You must not use the Service in a way that infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party; or introduce any software viruses, malware, spyware or any other code, file or program into the Service that is designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment. You must not (i) use the Service in any way that would violate any law or the rights of any person: (ii) impersonate any person or entity, or forge or manipulate headers to disguise your identity; (iii) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Service: (iv) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Service (or other accounts, networks or services connected thereto): (v) use manual or automated software, devices, or other processes to "crawl", "scrape" or "spider" any of the Service or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Service, including any of Our Property; (vi) distribute or otherwise make available any information or other content obtained through the Service to any third party, except as expressly permitted herein: (vii) otherwise interfere in any manner with the use or operation of the Service: or (viii) use the Service in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Service.
- User Content.
- User Content. As a subscriber for certain plans of the Service, you may be entitled to upload to and host in the Service content, assets, and other materials, such as policies, guides, tutorials, documents, video and audio files, photos, etc. for the use of your employees through the Service (the “User Content”). Subject to compliance by you and anyone using the Service on your behalf with the provisions of this Agreement, we will provide you and your employees with access to your User Content through the Service. You hereby grant us, our third-party providers, and each of their respective licensees, successors, and assigns the right to use, distribute, modify, reproduce, display, and otherwise disclose the User Content as necessary to make it available and accessible to you and your employees through the Service platform. You are solely responsible for all User Content uploaded, entered, or otherwise transmitted by you through the Service. We have no obligation to monitor any User Content and will have no liability to you or any other person or entity with respect thereto. You shall remain the owner of all User Content.
- Representations and Warranties Regarding User Content. You hereby represent and warrant that: (i) you are the owner of all rights in and to the User Content; and (ii) you have the right to transfer, upload or otherwise disclose the User Content to us and to our third-party providers and each of their respective licensees, successors, and assigns and by doing so you are not breaching any contractual obligation, law or regulation; and (iii) all User Content complies and will continue to comply with the provisions of this Agreement and all applicable laws. You further represent and warrant that the User Content does and will not: (a) infringe any trademark, patent, trade secret, copyright, intellectual property rights or other rights of any person or entity; (b) violate the legal rights of others or include materials that may give rise to civil or criminal liability under applicable laws or regulations; (c) contain any material which is obscene, indecent, defamatory, inflammatory, offensive, violent, abusive, hateful, or otherwise objectionable; (d) promote pornographic or sexually explicit, or violent materials, or discrimination based on sex, religion, race, disability, nationality, sexual orientation, or age; (e) solicit, assist or otherwise promote illegal activity, or unlawful act; (f) intentionally create unreasonable disturbances to any other person or organization; or (g) contain any trojan horse, back door, time bomb, drop dead device, worm, virus, or any other code, software or hardware devices that may impair, disable, erase, or otherwise harm any content, code, software, or system or may otherwise harm our or any of our users lawful rights under this Agreement or applicable law. In addition to any indemnification obligation, you may have according to this Agreement, you shall indemnify, defend, and hold us harmless against all claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) incurred by us as result of any third-party claim arising from our hosting of or enabling access to your User Content according to this Agreement.
- We reserve the right to: (i) take any action that we deem as necessary or appropriate, in our sole discretion, with regard to the User Content or any part thereof including in the case that we reasonably believe that such User Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the safety of any person or organization, or creates potential liability to us; (ii) take appropriate legal action including, without limitation, referral to law enforcement related to any unauthorized or illegal User Content provided by you; or (iii) suspend or terminate your access to the Service for breach or violation of this Agreement Section 8.
- Feedback. If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Service (collectively "Feedback”), the Feedback will be the sole property of Wizer. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
- Services Analytics. We may reproduce and use data in a de-identified, aggregated, and generic manner (“De-Identified Data”) for the purpose of: (i) maintenance, support, and development of our Service; (ii) tracking subscriber’s Service usage statistics and metrics; (iii) reporting and analysing threat intelligence; or (iv) other similar purposes. If we disclose De-Identified Data, it will only be in a generic or aggregated form that will not identify the Users or any individuals, personal data, or Confidential Information (as defined below) of User.
- Warranty Disclaimers and Limitations of Liability.
- General Disclaimer. THE SERVICE IS PROVIDED "AS IS", WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE SERVICE OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT, OBTAINED FROM THE SERVICE OR OUR PROPERTY. THE CONTENT PUBLISHED ON THE SERVICE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. WIZER AND/OR ITS RESPECTIVE LICENSORS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SERVICE AND THE CONTENT THEREIN AT ANY TIME WITHOUT NOTICE. WIZER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RESULTS OF USERS' USE OF THE SERVICE. WE MAY PAUSE OR INTERRUPT THE SERVICE AT ANY TIME, AND YOU SHOULD EXPECT PERIODIC DOWNTIME FOR UPDATES TO THE SERVICE. YOU ACKNOWLEDGE THAT THE INFORMATION CONTAINED IN THE SERVICE IS FOR GENERAL INFORMATION PURPOSES ONLY AND THAT WE ARE NOT A LAW FIRM, NOR DO WE PROVIDE ANY PROFESSIONAL OR ADVISORY SERVICES. THE INFORMATION PRESENTED IN THE SERVICE IS NOT LEGAL ADVICE AND IS NOT TO BE ACTED ON AS SUCH. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY OTHER WARRANTY. WIZER HEREBY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OF THE SERVICE OR THIRD PARTIES.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF (i) ONE HUNDRED DOLLARS ($100) OR (ii) THE TOTAL FEES PAID BY YOU TO WIZER UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- Indemnity. You will indemnify us, and our licensors, providers and agents, against all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses, and attorney’s fees ("Liabilities") arising out of or related to your breach of this Agreement or your use of the Service (but excluding any Liabilities to the extent caused by our negligence or willful misconduct). We reserve the right to assume the sole control of the defence and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defence and settlement.
- Support. Wizer offers standard support services only to its direct Boost Plan subscribers for no additional charge (the “Support Services”). The Support Services are made available in accordance with the terms and conditions set forth on https://wizer-training.com/sla Wizer will have no obligation to support: (i) services, hardware, or software provided by anyone other than Wizer; (ii) issues caused by your negligence, abuse, or mis-application; or (iii) unauthorized use of the Service. The Support Services are not offered to subscribers of the Free Plan or to customers who purchased a subscription to the Service through Channel Partners.
- Digital Millennium Copyright Act. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material hosted by the Service, you may contact our Designated Agent at the following address:
735 Sawmill Brook Pkwy, Newton, MA 02459
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of the material that you claim is infringing and where it is located on the Service; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Counter Notices. If material that you have posted to the Service has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (i) a physical or electronic signature of the subscriber; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Wizer may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
- Term This Agreement is effective as soon as you click the "agree" button (the "Effective Date"). Your "Initial Subscription Term" will be for the period specified in your subscription plan or quote and commences on the Effective Date. At the end of Your Initial Subscription Term, your subscription shall automatically renew for successive renewal subscription terms (each a "Renewal Subscription Term") equal in duration to the Initial Subscription Term at our then current subscription fees. You may elect not to renew your subscription by notifying us at least 30 days prior to the start of a Renewal Subscription Term. To notify us of non-renewal, you will need to contact us through email@example.com. The "Initial Subscription Term" together with any "Renewal Subscription Term" are referred to herein as the "Subscription Term".
- Suspension and Termination.
- Suspension. We reserve the right to suspend your account and/or access to the Service at any time in the event that: (i) you will breach any of the provisions of this Agreement (including failure to make any payment due hereunder by its due date), (ii) we believe that your use or access will pose a security risk to the Service or to other users of the Service, (iii) it is necessary in order to prevent damage to our Service and systems or to any third party systems, (iv) your use or access violates any law, regulation, court order, or other governmental instructions, or (v) We suspect that your account may be subject to fraud or abuse. We will make commercially reasonable efforts to: (a) limit any suspension only to the affected part of the Service; and (b) resolve the issues causing the suspension in a timely manner. Nothing in this Section 19.1 shall limit our right to terminate this Agreement in accordance with its provisions.
- Free Subscriptions. If you use the Free Plan or other non-paid subscription to the Service of any kind, you may terminate this Agreement at any time by requesting via email that we close your account (firstname.lastname@example.org) and ceasing to use the Service. We reserve the right to terminate this Agreement for any non-paying user of the Service or to cease to offer the Free Plan or any other free version of the Service at any time upon written notice to you (including by posting on the Service or the Site), for any reason or no reason.
- Paid Subscriptions. If you have a paid subscription to the Service, your Subscription Term shall commence on the Effective Date and, unless earlier terminated as described in this Section 19.2.2, shall continue in accordance with the provisions of Section 18 above. We may terminate this Agreement for convenience and without cause at any time by providing you with a thirty (30) days' prior written notice. Either Party may terminate this Agreement: (i) if the other Party materially breaches this Agreement, the nonbreaching Party provides written notice of such breach and the breaching Party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or (ii) if the other Party (a) becomes insolvent or is unable to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not dismissed or vacated within forty-five (45) days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Our exercise of the right to terminate this Agreement will be in addition to any other rights or remedies provided under this Agreement or under any applicable law, that are not otherwise excluded or limited under this Agreement.
- If your account is terminated for any reason or no reason, you agree: (i) to immediately stop using the Service, (ii) that the license and rights provided by us under this Agreement shall terminate, and (iii) that we shall not be liable to you, nor to other any third party, for compensation, refund, reimbursement, or damages in connection with your use of the Service or for termination of access to your account. Notwithstanding the above, in the event that we shall terminate this Agreement for convenience only (and not for any other reason), you will be entitled to receive a refund for the pro rata period of your annual subscription paid by you and not yet used due to such termination.
- Modification of Service and Agreement. We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by posting on our Site, through the Service platform or in any other reasonable way according to our sole discretion. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service. Except as set forth above, this Agreement may be amended or modified only by Wizer. Without derogating from the abovesaid, If the Service is modified by Wizer in a manner that has a material adverse effect on your capability of using the Service for the Specified Purpose and Wizer has not remediated the issue causing such material adverse effect within 30 days after receipt of a written notice sent by you regarding such matter, you will be entitled to terminate this Agreement and to receive a refund for the pro rata period of the annual subscription paid by you and not yet used by you until the date of termination. It is hereby clarified that other than the pro rata refund specified above you shall not be entitled to any other compensation of any sort for such termination. We will not be responsible for any breach of the warranty contained in this Section 20 resulting from your misuse of the Service or use of the Services not as described in this Agreement.
- Confidentiality. Both Parties agree to keep and maintain the confidentiality of any proprietary information received by a Party hereto (the “Recipient”) from the other Party (the “Discloser”) during or prior to entering into this Agreement, that a Party hereto should know is confidential or proprietary based on its nature or the circumstances surrounding its disclosure including, without limitation, non-public technical, technological, commercial, and business information (the "Confidential Information"). During the Subscription Term and for a period of five (5) years after the termination of this Agreement or your Subscription Term (according to the latter). This Section 21 shall not apply to any publicly available or independently developed information. The Recipient of any Confidential Information agrees not to use the Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights according to this Agreement. Recipient shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used, or obtained by any person or entity except in accordance with the terms of this Agreement.
- Applicable Law. You and we each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the Commonwealth of Massachusetts, U.S.A., without regard to it’s or any other jurisdiction's conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the International Sale of Goods is hereby disclaimed.
- Arbitration. We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At Wizer's option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims"). In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking. You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US. If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid, and the arbitration clause shall be void.
- Jurisdiction. With respect to any IP Claims (as defined above) that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within the Commonwealth of Massachusetts, U.S.A., with respect to any suit, claim or cause of action arising from or relating to the Service or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within the Commonwealth of Massachusetts, U.S.A.
- Force Majeure. In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control (including acts of war, terrorism, plagues, acts of God, natural disasters, fires, explosions, earthquakes, hurricanes, flooding, storms, infestations, embargos, riots, sabotage, governmental acts, failure of the Internet, power failures, energy interruptions or shortages, other utility interruptions, or telecommunications interruptions). Without limitation of the foregoing, in the absence of our gross negligence or wilful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Service.
- Compliance with Laws. You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations, and executive orders.
- Geography. We are based in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- Children. The Service is not directed to users under the age of 13. The Service does not knowingly collect personal information from children under the age of 13. If you are under the age of 13, you are not permitted to register as a User or to send personal information to Wizer.
- Miscellaneous Provisions. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements, or representations, whether written or oral, regarding such subject matter. In the event of any conflict between the body of this Agreement and any quote, or additional agreements entered by the Parties, the body of this Agreement will control, unless otherwise expressly stated in a signed writing by authorized representatives of the Parties. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the Parties to the greatest extent permitted by law. Your registration to the Service, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, and any other provisions which must survive to give effect to their meaning will survive the termination of this Agreement. This Agreement will be binding upon and inure to the benefit of the Parties' successors and permitted assigns. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed electronically, and your electronic assent or use of the Service shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes. You further agree that this Agreement will constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such “printouts,” if introduced as evidence in any arbitral, judicial, mediational, or administrative proceeding, will be admissible as between the Parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. As used herein and unless the intent is expressly otherwise in a specific instance, the terms "include," "includes" or "including" shall not be limiting and "or" shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement. There shall be no third-party beneficiaries to this Agreement. Wizer specifically objects to any additional terms being added through a user purchase order or a similar document provided by you. If a purchase order is required by you, the parties agree that any additional terms contained therein will not become part of the agreement between the parties and, specifically, that the terms of this agreement will supersede and replace any and all terms in any purchase order.
Last Updated: Jun 14, 2023
Copyright© 2021: Wizer, Inc