Terms & Conditions

WAYLEADR INC.

PARKPNP LIMITED T/A WAYLEADR

THESE TERMS AND CONDITIONS GOVERNS CUSTOMER’S ACQUISITION AND USE OF PARKPNP LIMITED T/A WAYLEADR AND WAYLEADR INC.’S SERVICES (“WAYLEADR”). CAPITALISED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THESE TERMS, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR (3) USING SERVICES CUSTOMER AGREES TO THE TERMS OF THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

WAYLEADR’s direct competitors are prohibited from accessing the Services, except with WAYLEADR’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

These Terms were last updated in July 2023. They are effective between the Customer and WAYLEADR as of the date of the Customer’s acceptance of these Terms.

1.         DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Terms” means these Terms and Conditions.

“Authorised Users” are employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.

“Beta Services” means WAYLEADR services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by WAYLEADR from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures”: are all as defined in the Data Protection Legislation.

“Customer” means in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

“Customer Data” the data inputted by the Customer or Authorised Users on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, excluding Content and Non-WAYLEADR Applications.

“Data Protection Legislation” means the Irish Data Protection Legislation, European Union and United States of America’ legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

“Documentation” meaning any existing or herein agreed upon order form, statement of work, quote, invoice, purchase order, or communication used to confirm Customer’s purchase of services from WAYLEADR.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Non-WAYLEADR Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by the Customer or a third party and/or listed on a Marketplace. Non-WAYLEADR Applications, other than those obtained or provided by Customer, will be identifiable as such.

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and WAYLEADR or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of these Terms as if it were an original party hereto.

“Purchased Services” means Services that the Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal.

“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, and made available online by WAYLEADR, including associated WAYLEADR offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-WAYLEADR Applications.

“WAYLEADR” means the WAYLEADR.com company described in the “WAYLEADR Contracting Entity, Notices, Governing Law, and Venue” section below.

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting these Terms on behalf of a company or other legal entity, an individual who is authorised by the Customer to use a Service, for whom the Customer has purchased a subscription (or in the case of any Services provided by WAYLEADR without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, WAYLEADR at the Customer’s request) has supplied user identification and password (for Services utilising authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

2.         WAYLEADR RESPONSIBILITIES

2.1.      Provision of Purchased Services. WAYLEADR will (a) make the Services and Content available to Customer pursuant to these Terms, and the applicable Order Forms and Documentation, (b) provide applicable WAYLEADR standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which WAYLEADR shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond WAYLEADR’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving WAYLEADR employees), Internet service provider failure or delay, Non-WAYLEADR Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to WAYLEADR’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with these Terms, the Documentation and the applicable Order Form.

2.2.      WAYLEADR Personnel. WAYLEADR will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with WAYLEADR’s obligations under these Terms, except as otherwise specified in these Terms.

3.         USE OF SERVICES AND CONTENT

3.1.      Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the price agreed an addendum prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. The Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by WAYLEADR regarding future functionality or features.

3.2.      Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, WAYLEADR may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding WAYLEADR’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon WAYLEADR’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

3.3.     Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with these Terms, Documentation and Order Forms, (b) be responsible for the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-WAYLEADR Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content, and notify WAYLEADR promptly of any such unauthorised access or use, (d) use Services and Content only in accordance with these Terms, Documentation, the Acceptable Use, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-WAYLEADR Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in WAYLEADR’s judgement threatens the security, integrity or availability of WAYLEADR’s services, may result in WAYLEADR’s immediate suspension of the Services, however WAYLEADR will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.4.      Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-WAYLEADR Application to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-WAYLEADR Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorised access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of WAYLEADR intellectual property except as permitted under these Terms, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

3.5.      Removal of Content and Non-WAYLEADR Applications. If Customer receives notice that Content or a Non-WAYLEADR Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in WAYLEADR’s judgement continued violation is likely to reoccur, WAYLEADR may disable the applicable Content, Service and/or Non- WAYLEADR Application. If requested by WAYLEADR, Customer shall confirm such deletion and discontinuance of use in writing and WAYLEADR shall be authorised to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if WAYLEADR is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, WAYLEADR may discontinue Customer’s access to Content through the Services.

4.         NON-WAYLEADR PRODUCTS AND SERVICES

4.1.      Non-WAYLEADR Products and Services. WAYLEADR or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-WAYLEADR Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-WAYLEADR provider, product or service is solely between Customer and the applicable Non-WAYLEADR provider. WAYLEADR does not warrant or support Non-WAYLEADR Applications or other Non-WAYLEADR products or services, whether or not they are designated by WAYLEADR as “certified” or otherwise, unless expressly provided otherwise in an Order Form. WAYLEADR is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-WAYLEADR Application or its provider.

4.2.      Integration with Non-WAYLEADR Applications. The Services may contain features designed to interoperate with Non-WAYLEADR Applications. WAYLEADR cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non- WAYLEADR Application ceases to make the Non-WAYLEADR Application available for interoperation with the corresponding Service features in a manner acceptable to WAYLEADR.

5.         FEES AND PAYMENT

5.1.           Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

5.2.     Invoicing and Payment. Customer will provide WAYLEADR with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to WAYLEADR. If Customer provides credit card information to WAYLEADR, Customer authorises WAYLEADR to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, WAYLEADR will invoice the Customer in advance and otherwise in accordance with the relevant Order Form. Payments for all services provided, as stated in the order form will commence in accordance with the contract period stipulated on the corresponding Order Form. Unless otherwise stated in the Order Form, invoiced fees are due within 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to WAYLEADR and notifying WAYLEADR of any changes to such information. Except as otherwise stated in the Order Form, all fees are quoted and payable in the currency set out in the Order Form. Unless otherwise set forth herein, Fees paid by Customer are non-refundable.

5.3.     Overdue Charges. If any invoiced amount is not received by WAYLEADR by the due date, then without limiting WAYLEADR’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) WAYLEADR may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section below.

5.4.     Suspension of Service and Acceleration. If any charge owing by Customer under these terms or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorised WAYLEADR to charge to Customer’s credit card), WAYLEADR may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, WAYLEADR will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

5.5.     Payment Disputes. WAYLEADR will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

5.6.     Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Wayleadr’s income. To the extent that Wayleadr is required by law to pay any such taxes, duties, or other charges to any governmental or regulatory authority, Wayleadr may invoice Customer for such taxes, duties, or other charges and Customer will pay such invoiced amounts in accordance with this Agreement, unless Customer provides WAYLEADR with a valid tax exemption certificate authorised by the appropriate taxing authority.

6.         PROPRIETARY RIGHTS AND LICENSES

6.1.      Reservation of Rights. Subject to the limited rights expressly granted hereunder, WAYLEADR, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

6.2.      Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, these Terms and the Documentation.

6.3.      License by Customer to WAYLEADR. Customer grants WAYLEADR, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-WAYLEADR Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for WAYLEADR to provide and ensure proper operation of, the Services and associated systems in accordance with these Terms. If Customer chooses to use a Non- WAYLEADR Application with a Service, Customer grants WAYLEADR permission to allow the Non-WAYLEADR Application and its provider to access Customer Data and information about Customer’s usage of the Non-WAYLEADR Application as appropriate for the interoperation of that Non-WAYLEADR Application with the Service. Subject to the limited licenses granted herein, WAYLEADR acquires no right, title or interest from Customer or its licensors under these Terms in or to any Customer Data, Non-WAYLEADR Application or such program code.

6.4.      License by Customer to Use Feedback. Customer grants to WAYLEADR and its Affiliates a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of WAYLEADR’s or its Affiliates’ services.

7.         CUSTOMER DATA

7.1.      The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data (including personal data).

7.2.      WAYLEADR shall follow its archiving procedures for Customer Data as set out in its Privacy Policy available at https://WAYLEADR.com/legal/privacy-policy, as such document may be amended by WAYLEADR in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against WAYLEADR shall be for WAYLEADR to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by WAYLEADR. WAYLEADR shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by WAYLEADR to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under Clause 7.9).

7.3.      WAYLEADR shall, in providing the Services, comply with its privacy policy relating to the privacy and security of the Customer Data available at [https://WAYLEADR.com/legal/privacy-policy] or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time WAYLEADR in its sole discretion. WAYLEADR will process under these Terms the types of Personal Data relating to the categories of data subjects as set out in Annex 1 on behalf of the Customer.

7.4.      Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.

7.5.      The parties acknowledge that:

(a)    WAYLEADR is the processor in respect of the Personal Data processed on behalf of the Customer (as data controller) as set out in Annex 1, for the purposes of the Data Protection Legislation.

(b)   Personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and WAYLEADR’s other obligations under these Terms.

7.6.      Without prejudice to the generality of Clause 7.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to WAYLEADR for the duration and purposes of these Terms so that WAYLEADR may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer’s behalf. If and to the extent a legal entity other than the Customer is the controller of all or part of the Personal Data processed by WAYLEADR on behalf of the Customer under these Terms, the Customer confirms that it has the necessary authority and mandate to enter into these Terms on behalf of such legal entity.

7.7.      Without prejudice to the generality of Clause 7.4, WAYLEADR shall, in relation to any personal data processed in connection with the performance by WAYLEADR of its obligations under these Terms:

(a)    process that personal data only on the documented written instructions of the Customer unless WAYLEADR is required by the laws of any member of the European Union, the laws of the European Union or the United States of America applicable to WAYLEADR and/or Domestic Law (where Domestic Law means the Data Protection Legislation and any other law that applies in Ireland or the United States of America) to process personal data (Applicable Laws). Where WAYLEADR is relying on Applicable Laws as the basis for processing personal data, WAYLEADR shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit WAYLEADR from so notifying the Customer;

(b)   not transfer any personal data outside of the European Economic Area and Ireland unless the following conditions are fulfilled:

(i)             the Customer or WAYLEADR has provided appropriate safeguards in relation to the transfer;

(ii)             the data subject has enforceable rights and effective legal remedies;

(iii)           WAYLEADR complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)            WAYLEADR complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data.

(c)    assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(d)   notify the Customer without undue delay on becoming aware of a personal data breach;

(e)     at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and

(f)     maintain complete and accurate records and information to demonstrate its compliance with this Clause 7 and promptly inform if an instruction infringes the Data Protection Legislation.

7.8.      Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

7.9.      The Customer consents to WAYLEADR appointing:

Heroku for Application Management, Deployment, Server & Database Hosting
https://devcenter.heroku.com/articles/security-privacy-compliance ,

AWS for third party service connectors
https://aws.amazon.com/compliance/data-privacy-faq ,

Intercom for Customer Interaction
https://www.intercom.com/legal/eu-us-privacy-shield-policy ,

SendGrid for Email Delivery Services
https://www.twilio.com/legal/data-protection-addendum ,

Stripe for Payment Processing
https://stripe.com/docs/security/stripe ,

And the following for WAYLEADR’s platform functionality:
Datadog for Vulnerability Scanning
https://www.datadoghq.com/security/ ,

Cloudfare for Cloud performance and Content Delivery
https://www.cloudflare.com/en-gb/cloudflare-customer-dpa/ ,

Rollbar for Application Error Tracking
https://docs.rollbar.com/docs/data-processing-agreement ,

NewRelic for Application Monitoring and Observability
https://newrelic.com/termsandconditions/dataprotectionfaq

under these Terms. WAYLEADR confirms that it has entered or (as the case may be) will enter with the third-party processors a written agreement incorporating terms which are substantially similar to those set out in this Clause 7. As between the Customer and WAYLEADR, WAYLEADR shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 7.

7.10.    Either party may, at any time on not less than 30 days’ notice, revise this Clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).

8.         CONFIDENTIALITY

8.1.     Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Customer includes Customer Data; Confidential Information of WAYLEADR includes the Services and Content, and the terms and conditions of these Terms and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional WAYLEADR services.

8.2.     Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and (ii) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of these Terms or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, WAYLEADR may disclose the terms of these Terms and any applicable Order Form to a subcontractor or Non-WAYLEADR Application Provider to the extent necessary to perform WAYLEADR’s obligations under these Terms, under terms of confidentiality materially as protective as set forth herein.

8.3.     Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

9.         REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

9.1.     Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so.

9.2.      WAYLEADR warrants that during an applicable subscription term (a) these Terms, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) WAYLEADR will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-WAYLEADR Applications” section above, WAYLEADR will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

9.3.      Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

9.4.      WAYLEADR are not liable for any hardware or third-party costs or damages as the software provider.

9.5.      WAYLEADR offers the option for customers to receive SMS messages for profile verification purposes. Message frequency varies. Users will typically receive one request per self-signup. Message and data rates may apply. Text HELP to (+1) 2406891234 for help. Reply STOP to cancel. Carriers are not liable for any delays or undelivered messages.

9.6.      No mobile information will be shared with third parties/affiliates for marketing/promotional purposes. All the above categories exclude text messaging originator opt-in data and consent; this information will not be shared with any third parties.

10.      MUTUAL INDEMNIFICATION

10.1. Indemnification by WAYLEADR. WAYLEADR will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by WAYLEADR in writing of, a Claim Against Customer, provided Customer (a) promptly gives WAYLEADR written notice of the Claim Against Customer, (b) gives WAYLEADR sole control of the defence and settlement of the Claim Against Customer (except that WAYLEADR may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives WAYLEADR all reasonable assistance, at WAYLEADR’s expense. If WAYLEADR receives information about an infringement or misappropriation claim related to a Service, WAYLEADR may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching WAYLEADR’s warranties under “WAYLEADR Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with these Terms, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by WAYLEADR, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-WAYLEADR Application or Customer’s breach of these Terms, the Documentation or applicable Order Forms.

10.2. Indemnification by Customer. Customer will defend WAYLEADR and its Affiliates against any claim, demand, suit or proceeding made or brought against WAYLEADR by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-WAYLEADR Application provided by Customer, or (c) the combination of a Non-WAYLEADR Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against WAYLEADR”), and will indemnify WAYLEADR from any damages, attorney fees and costs finally awarded against WAYLEADR as a result of, or for any amounts paid by WAYLEADR under a settlement approved by Customer in writing of, a Claim Against WAYLEADR, provided WAYLEADR (a) promptly gives Customer written notice of the Claim Against WAYLEADR, (b) gives Customer sole control of the defence and settlement of the Claim Against WAYLEADR (except that Customer may not settle any Claim Against WAYLEADR unless it unconditionally releases WAYLEADR of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defence and indemnification obligations do not apply if a Claim Against WAYLEADR arises from WAYLEADR’s breach of these Terms, the Documentation or applicable Order Forms.

10.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

11.      LIMITATION OF LIABILITY

11.1.    Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

11.2.    Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12.      TERM AND TERMINATION

12.1.    Term of Agreement. This Agreement commences on the Effective Date and continues until the term outlined in the Order Form(s) has: (i) expired; (ii) been terminated in accordance with the terms of this Agreement; or (iii) been extended pursuant to the joint agreement of the parties. The Service commences on the date, and is for the period, set out in the applicable Order Form.

12.2.    Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.

Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at WAYLEADR’s applicable list price in effect at the time of the applicable renewal.

12.3. Termination. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party if the other party commits a material breach and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) 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.

12.4.    Refund or Payment upon Termination. If these Terms are terminated by WAYLEADR in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to WAYLEADR for the period prior to the effective date of termination.

12.5.    Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-WAYLEADR Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of these Terms, and the section titled “Customer Data” will survive any termination or expiration of these Terms for so long as WAYLEADR retains possession of Customer Data.

13.      GENERAL PROVISIONS

13.1.    Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

13.2.    Entire Agreement and Order of Precedence. These Terms are the entire agreement between WAYLEADR and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) these Terms, and (3) the Documentation. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.

13.3.    Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

13.4.    Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.

13.5.    Waiver. Failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.

13.6.    Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect.

13.7.    Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate these Terms upon written notice. In the event of such a termination, WAYLEADR will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, these Terms will bind and insure to the benefit of the parties, their respective successors and permitted assigns.

13.8.    WAYLEADR Contracting Entity and Notices. The WAYLEADR entity entering into these Terms and the address to which Customer should direct notices under these Terms, depend on where Customer is domiciled.