Master Services Agreement
This W&B Master Services Agreement (“Agreement”) is made between Weights and Biases, Inc., a Delaware corporation having its principal place of business at 1479 Folsom Street, San Francisco, CA 94103 (“W&B”), and Customer (defined below) and govern the Customer’s use of the W&B Assets (each as defined below).
“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses a W&B Asset. W&B reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the W&B Asset.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE W&B ASSETS. THE W&B ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
If Customer and W&B have executed a written agreement governing Customer’s access to and use of the W&B Assets as a W&B customer, then the terms of such signed agreement will govern and will supersede this Agreement.
1. Definitions. The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement, an Order Form or in W&B’s DPA or BAA:
a. “Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
b. “Authorized User” means one individual (no concurrent usage with other users is permitted), whether for themself or on behalf of their entity, that are authorized by Customer to use the Software and/or Service.
c. “BAA” means W&B’s Business Associate Agreement available at: https://wandb.ai/site/baa.
d. “Beta Features” means any W&B Asset (e.g., designated as “Private Preview” or “Public Preview”) features, functionality or services which W&B may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
e. “Bring Your Own Bucket” or “BYOB” means a Deployment Type of the Software and/or Service where Customer retains control over its Customer Data within the Customer Environment.
f. “Confidential Information” means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to W&B, the W&B Assets, Beta Features; and (ii) with respect to Customer, the Customer Data. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
g. “Customer Data” means any data, information, content, or other materials transferred to W&B via the Software or Service, or in connection with W&B’s provision of Support Services, by Customer and/or its Authorized Users including, but not limited, to Models and Projects, and any and all reproductions, visualizations, analyses, automations, scales, and other reports generated by the Software and/or Service based on such Models and Projects.
h. “Customer Environment” means equipment, systems and servers owned or managed solely by Customer.
i. “Deployment Type” means the deployment type of the Software and/or Service subscribed to by Customer as identified in an Order Form and that specifies the permitted use under this Agreement.
j. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software and/or Service, as may be provided or made available by W&B to Customer, whether in written or electronic form, including all modifications, Updates, upgrades thereto and derivative works thereof.
k. “DPA” means W&B’s Data Processing Agreement available at: https://wandb.ai/site/dpa.
l. “Malicious Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Software or Service to cease functioning; (ii) damage or corrupt any W&B owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Software or Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
m. “Model” means any machine learning model uploaded to the Service, or built, by Customer in connection with a Project.
n. “Order Form” means: (i) each order document executed in writing between the parties for the purchase of a subscription to the Software and/or Service; and/or (ii) the purchase of a subscription to the Service through the Service (e.g., by means of the Service dashboard).
o. “Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to W&B in its sole, but reasonable, discretion.
p. “Project” means a deep learning research project for which Customer utilizes the Software and/or Service, which may consist of one or more runs (e.g., a unit of computation in Python) that may generate a Model, evaluate an existing Model or process data.
q. “Service” means W&B’s proprietary software solution for building and managing machine learning Models which includes aspects of the Software (for the specified Deployment Type) and Documentation.
r. “Service Level Agreement” or “SLA” is W&B’s service level agreement that applies to the Enterprise Customers with the Deployment Types in Section 2(a), located here: https://wandb.ai/site/sla.
s. “Software” means software that W&B develops and maintains in order to provide the Service and/or Deployment Types, including the Beta Features, and all modifications, Updates, upgrades thereto and derivative works thereof.
t. “Subscription Term” is the length of the subscription specified in the Order Form.
u. “Support Services” has the meaning specified in W&B’s “SLA & Support Services” terms located here: https://wandb.ai/site/sla.
v. “Taxes” means any and all customs, duties, national and local sales, use, or value added taxes, goods and services tax, consumption tax, withholding tax, or similar charges, federal, state or otherwise, including penalties and interest however designated, which are levied or imposed by any governmental entity.
w. “Updates” means any corrections, fixes, patches, workarounds, and minor modifications, for and to the Software denominated by version changes, that W&B provides in connection with this Agreement. All version numbers shall be reasonably determined by W&B in accordance with normal industry practice.
x. “VAT ID” means any valid and existing tax identification number issued by the relevant tax authorities to Customer for the registration for value added tax, goods and services tax or any other indirect tax.
y. “W&B Assets” means the Software, Service and Documentation.
2. Grants of License to the Service & Software; Restrictions
a. W&B Multi-Tenant Public Cloud & W&B Dedicated Cloud. For W&B Multi-Tenant Public Cloud and W&B Dedicated Cloud Deployment Types, subject to the terms of this Agreement and the applicable Order Form, W&B grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Term, solely for Customer’s internal business operations and up to the number of Authorized Users and Deployment Type specified on the Order Form, to use the Service and Documentation.
b. Customer-Managed Single-Tenant Cloud & On-Premise. For Customer-Managed Single-Tenant Cloud and On-Premise Deployment Types, subject to the terms of this Agreement and the applicable Order Form, W&B grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Term, solely for Customer’s internal business operations up to the number of Authorized Users and Deployment Type specified on the Order Form, to download, install and use the Software and Documentation in the Customer Environment.
c. Service & Software Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the W&B Assets; (ii) share any W&B issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (iv) modify, adapt, or translate the Software or remove or modify any proprietary markings or restrictive legends placed on or within the W&B Assets; (v) make copies, store, or archive, any portion of the W&B Assets without the prior written permission of W&B except: (1) where necessary to accomplish the Deployment Type within the Customer Environment; and/or (2) for Customer Data generated by Customer through the intended functionality as set forth in the Documentation; (vi) use the W&B Assets in violation of any applicable law; (vii) introduce, any Malicious Code into the Software or Service; or (viii) exploit the Software or Service in any unauthorized manner including by circumventing any process W&B has put in place to safeguard the Software or Service (e.g., deleting runs), or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Software infrastructure (together, (i) through (viii) the “Restrictions”). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
d. Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date and for the period set forth on the Order Form, Customer will have the right to use the W&B Assets for the Deployment Type for evaluation purposes (“Trial Period”). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to W&B (“Trial Termination Notice”). If W&B does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Term commences upon the expiration of the Trial Period, and W&B will invoice Customer in accordance with Section 6.
e. Personal and Academic Use. Where Customer is an individual, or an academic institution pursuing research not connected to a for-profit entity, and in each case, using the W&B Assets not for any commercial purposes (“Non-Commercial User”), W&B offers the W&B Assets free of charge. If any Non-Commercial User exceeds the limits indicated in their Personal or Academic subscription plan or uses their account for commercial purposes, W&B will bill Customer at W&B’s then-current and standard pricing at https://wandb.ai/site/pricing. Notwithstanding anything else in this Agreement, W&B’s liability to any Non-Commercial User will not exceed $200.
f. Beta Features. Beta Features made available by W&B are provided to Customer for testing purposes only. W&B makes no commitments to provide Beta Features in any future versions of the W&B Assets. Customer is not obligated to use Beta Features. W&B may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, W&B does not provide Support for Beta Features. For clarity, all Beta Features are provided “AS IS” without warranty of any kind.
g. Marketing & Logo Rights. Customer grants W&B the right to use Customer’s name and logo on W&B’s website for the sole purpose of identifying Customer as a customer. Customer grants W&B the right to create, and Customer will participate in, a “Co-Branded Case Study” (e.g., collateral materials) that will include approved responses and feedback from the Customer from the usage of W&B’s products and services.
3. W&B Obligations for the Software & Service
a. Software & Service. W&B will provide the Software and Service in conformance with this Agreement, the Order Form(s) and applicable Documentation. W&B will be responsible for hosting the Service as necessary for the applicable Deployment Type or as otherwise specified in the Order Form.
b. Updates. W&B may Update the W&B Assets from time to time during the Subscription Term. W&B will notify Customer of any W&B Dedicated Cloud and/or On-Premise Deployment Type Software Updates (i.e., for new version availability W&B will publish via GitHub Releases).
c. Support Services. Unless stated otherwise in the applicable Order Form, W&B will provide Enterprise customers with the Support Services during each Subscription Term. The fee for Support is included in the cost of the subscription set forth on the Order Form.
4. Customer Obligations.
a. Internet Connections. Customer will be responsible for obtaining Internet connections necessary for Customer to access the W&B Assets and for the specified Deployment Type.
b. Updates. For Customer-Managed Single-Tenant Cloud and On-Premise Deployment Types, Customer will be responsible for implementing Updates for the Software within the Customer Environment. Customer will implement such Updates in a timely fashion. If Customer fails to do so, performance of the Software may be impacted.
c. Usage Data. W&B may collect and analyze data and other information relating to the provision, use and performance of the Software and Service (“Usage Data”), solely for internal purposes to improve and enhance the Software and Service. W&B may disclose insights drawn from Usage Data, but all Usage Data in such disclosure will be anonymized and aggregated, will not identify Customer or Customer’s users, and will not be disclosed in a manner that would permit a third party to determine Customer’s or Customer’s users’ identity. If Customer disables the usage tracker within the Software or Service, Customer will, by no later than the end of each calendar quarter during the Subscription Term, provide W&B with Usage Data reasonably requested by W&B to determine the number of additional user seats Customer requires for any true-up.
d. Export. The W&B Assets are subject to export control laws and regulations. Customer may not access or use the W&B Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the W&B Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
5. Data License & Protections.
a. Data License. In connection with its use of the Software and/or Service, Customer (including its Authorized Users) may transfer Customer Data to W&B. W&B uses Customer Data to provide the Software and Service. Customer grants W&B a limited license during each Subscription Term to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement, the DPA and BAA (as applicable).
b. DPA. W&B will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.
c. BAA. W&B will process all Customer Data for the purposes set forth in this Agreement and in accordance with the BAA, only for Enterprise Customers and if the BAA is included in Customer’s Order Form.
d. Security & Privacy. W&B maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data in accordance with the W&B’s “Security Protocols” located here: https://security.wandb.ai.
a. Payments. W&B will invoice Customer for all fees and any applicableTaxes as provided in the applicable Order Form and subsequent invoice. Unless otherwise provided for in the applicable Order Form: (i) W&B may invoice Customer at any time after the execution of the Order Form; (ii) all amounts are due and payable to W&B within thirty (30) days from the date of W&B’s invoice; and (iii) all payment obligations are non-cancellable, and all fees are based on the Software and/or Service subscription purchased, not on actual use and are non-refundable.
b. Taxes. Customer will pay all applicable Taxes excluding only those based on W&B’s net income. If Customer is required under applicable law to withhold or deduct any such Taxes, Customer will (i) withhold or deduct the required amount and promptly remit such Taxes to the applicable taxing authority and (ii) pay W&B such additional amounts as shall be necessary in order that the net amounts received by W&B after such withholding or deduction shall equal the full amount W&B would have received without the withholding or deduction. At W&B’s request, Customer shall provide W&B with reasonably satisfactory documentation evidencing the payment to the appropriate governmental entity of any amounts so withheld or deducted. Any applicable direct pay permits, VAT ID or valid Tax-exempt certificates must be provided to W&B prior to the execution of this Agreement. If W&B is required to collect and remit Taxes on Customer’s behalf, W&B will invoice Customer for such Taxes, and Customer will pay W&B for such Taxes in accordance with Section 6(a). If either party receives any refund of any Taxes that are borne by the other party pursuant to this Agreement, the party receiving such refund shall promptly pay the other party the amount of such refund (net of any additional Taxes the receiving party incurs as a result of the receipt of such refund).
c. Late Payments. In the event that W&B does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, W&B may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Software and/or Service renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend and terminate for failure to pay (if applicable) the Software and/or Service pursuant to Section 7(b).
d. Pricing and Credit Card Processing. Unless the parties agree otherwise in a separately executed written agreement for an Enterprise or other customized plan, fees and limitations for use of the Service shall be based on the pricing published at https://wandb.ai/site/pricing as of the subscription start date. For online Order Forms that require Customer’s payment by credit card, W&B uses a third-party credit card processing service to process payments. Customer consents to the use of such service and to the transfer of Customer’s credit card details to such third-party processor for the purposes of such transaction. Customer agrees to be bound by any separate terms applicable to the processing service. For the applicable Deployment Type, Customer’s credit card will be charged fees automatically for Customer’s use of the Software and/or Service at the end of each billing cycle. Online Order Forms will automatically renew for additional periods of the same duration as the expiring term. If Customer does not want to auto-renew, Customer must submit a support request at least three (3) days before the expiration of the then current term. W&B reserves the right to provide notice of non-renewal at least fifteen (15) days before the end of any online Order Form term.
7. Term & Termination
a. Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Term under an Order Form, or until terminated earlier in accordance with Section 7(b). For clarity, each Subscription Term will be set forth in the applicable Order Form.
b. Suspension & Termination for Non-Payment. W&B may suspend Customer’s access to, or use of, the Software and/or Service upon written notice to Customer if any amount due to W&B under any invoice is past due. If Customer fails to pay within 30 days of receipt of W&B’s notice of suspension for late payment, W&B may terminate this Agreement and/or the applicable Order forms immediately upon written notice to Customer.
c. Termination. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days’ notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
d. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), W&B will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination. Upon termination or expiration of this Agreement for any reason, W&B will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Term as specified in the DPA and/or BAA.
e. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 14 (Miscellaneous, as applicable).
a. Each party that receives (“Receiving Party”) Confidential Information of the other party (“Disclosing Party”) will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
b. Receiving Party may disclose, distribute, or disseminate Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
c. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
d. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
a. W&B Property. As between the parties, W&B owns and retains all right, title, and interest in and to the W&B Assets and Feedback. Except for the limited license granted to Customer in Sections 2(a) and 2(b), W&B does not by means of this Agreement or otherwise transfer any other rights to Customer.
b. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data. Except for the licenses granted to W&B in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to W&B.
c. Feedback. Customer may provide comments, suggestions and recommendations to W&B with respect to the W&B Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, “Feedback”). W&B may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing. Customer assigns to W&B any proprietary right that Customer may have in or to the Feedback.
10. Representations & Warranties; Disclaimer.
a. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
b. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to W&B; (ii) has all rights necessary to grant W&B the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to W&B whether by means of the Software and/or Service or as required for W&B’s provision of Support hereunder.
c. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE W&B ASSETS AND BETA FEATURES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. W&B AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. W&B DOES NOT WARRANT THAT THE W&B ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER’S REQUIREMENTS.
a. By W&B. W&B will defend Customer, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “Customer Indemnified Parties“), from any third-party claim, demand, dispute, suit or proceeding, and W&B will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the W&B Assets, including Customer’s permitted use thereof, infringes or misappropriates any United States patent, trademark or copyright of such third party.
If W&B becomes, or in W&B’s opinion is likely to become, the subject of an infringement or misappropriation claim, W&B may, at its option and expense: (i) procure for Customer the right to continue using the W&B Assets; (ii) replace the W&B Assets (including any component part) with a non-infringing substitute subject to Customer’s prior written approval; or (iii) modify the W&B Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, W&B shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
W&B will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the W&B Assets or W&B’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the W&B Assets or W&B’s intellectual property rights, other than as expressly approved by W&B that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
b. By Customer. Customer will defend W&B, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “W&B Indemnified Parties”), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the W&B Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the W&B Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer’s breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by W&B under this Agreement or at Customer’s request or direction, has violated any applicable law.
c. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability.
a. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
b. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS AND UNCAPPED CLAIMS (EACH AS DEFINED BELOW), IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE W&B ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
c. “Excluded Claims” means any claim and/or liability associated with any breach by W&B of Sections 5(b) (DPA), 5(c) (BAA) and 5(d) (Security & Privacy), including for clarity with respect to any claim of liability associated with the DPA, Security Protocols or BAA. W&B’s total, cumulative liability for all Excluded Claims will not exceed three (3) times the total amount of fees paid by Customer for use of the W&B Assets during the period twelve (12) months prior to the event giving rise to the claim.
d. “Uncapped Claims” means any claim or liability associated with: (i) either party’s breach of Section 8 (Confidentiality) but not relating to any liability associated with W&B’s privacy and/or security obligations with respect to Customer Data which remains subject to the Excluded Claims cap; (ii) either party’s respective indemnification obligations under Section 11; or (iii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.
W&B will maintain in full force and effect during the Term:
a. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property damage;
b. Auto liability insurance covering non-owned and hired vehicles, with coverage limits of not less than $1,000,000 per occurrence for bodily injury and property damage;
c. Worker’s compensation insurance as required by applicable law; and
d. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $3,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the W&B Assets, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Software and/or Service.
Insurance carriers will be rated A-VII or better by A.M. Best Provider. W&B’s coverage will be considered primary without right of contribution of Customer’s insurance policies. In no event will the foregoing coverage limits affect or limit in any manner W&B’s contractual liability for indemnification or any other liability of W&B under this Agreement.
This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals. To the extent there is an inconsistency between the terms of the Agreement, an Order Form, the DPA and/or the BAA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; (iii) DPA; and (iv) BAA.
This Agreement is governed by the laws of California without reference to conflicts of law rules. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the JAMS by a single arbiter who will be fluent in written and spoken English. The place of such arbitration will be in San Francisco, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts of San Francisco County, California, U.S.A.
Last Updated: Aug 10, 2023