This License Agreement (the “Agreement”) is made and entered into by and between the Customer (as defined below), and Wonde Inc, A Delaware Corporation (“Wonde”). This Agreement contains the terms and conditions that govern Wonde’s provision, and the Customer’s use, of the Services (as defined below).
This Agreement is applicable to all Authorized Users. If an Authorized User is agreeing to this Agreement on behalf of the Customer, Authorized User represents and warrants that the Authorized User has the authority to bind the Customer to this Agreement, and Authorized User’s agreement to this Agreement will be treated as the agreement of the Customer. By accessing or using the Services, Authorized User agrees, as of the Effective Date, to be bound by this Agreement. If you do not accept the terms of this Agreement, you may not use the Services. The Customer and Wonde may be referred to individually as a “party” or collectively as the “parties.”
Please review Section 15.12 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires the Customer to resolve disputes with Wonde through final, binding arbitration on an individual basis.
By entering into this Agreement, the Customer is acknowledging that the Customer has read and that the Customer understands the terms of this Agreement and that the Customer agrees to be bound by the arbitration provision.
1. DEFINITIONS
1.1 The definitions in this Section apply in this License Agreement (the “Agreement”).
(a) Applicable Data Protection Laws: all privacy, security, and data protection laws, rules, regulations, ordinances and regulatory guidance applicable to Wonde’s processing of Customer Personal Information, including all related amendments and implementing regulations, all as may be amended, restated or replaced from time to time.
(b) Applicable Law: all applicable laws, statutes, regulations, orders, regulatory policies, mandatory guidance or code of practice, judgments of a relevant court of law, or directives or requirements of any regulatory body from time to time.
(c) Authorized Users: those employees, agents, students and/or parents of the Customer who are authorized by the Customer to use and access the Services and the Documentation. Where the Customer contracts with Wonde on behalf of more than one educational establishment, this shall include the employees, agents, students and parents of all educational establishments represented by the Customer who are named on the Proposal Information.
(d) Authorized User Account: an individual account linked to the Software, established by an Authorized User for use of the Services.
(e) Business Day: a day other than a Saturday, Sunday or public holiday in the United States when banks in the United States are open for business.
(f) Claims: claims, demands, disputes, actions, proceedings, losses, liabilities, damages, expenses and costs (including without limitation court costs and reasonable legal fees).
(g) Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Section 11.1.
(h) Customer: the school, educational establishment or other customer organization which is receiving the Services.
(i) Customer Data: includes Customer Personal Information and any data, text, documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Services by the Customer, Authorized Users, or Wonde on the Customer’s behalf including, but not limited to identity, address, financial and educational attainment records and special category data).
(j) Customer’s Network: the network or networks owned by the Customer and connected devices owned by the Customer, including all software and hardware included in such networks.
(k) Customer Personal Information: all Personal Information, including Sensitive Personal Information, that is Processed by or on behalf of, or made available to, Wonde in the course of providing the Services under the Agreement.
(l) Documentation: any documentation or information made available to the Customer by Wonde, in whatever form, describing the Services (including the features for each version of the Services) and the user instructions for the Services, as amended from time-to-time.
(m) Effective Date: the date that Customer or Authorized User first accesses or uses the Services.
(n) Initial Term: the initial term of this Agreement which shall be 12 months from the Effective Date (unless a different length term is set out in the Proposal Information or if otherwise agreed in writing between the parties).
(o) Insolvency Event: if a party: (i) becomes insolvent or is unable to meet its debts as they mature; (ii) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors; (iii) files an answer or other pleading admitting, or fails to deny or contest, the material allegations of an involuntary petition filed against it pursuant to any Applicable Law relating to bankruptcy, arrangement or reorganization; (iv) shall be adjudicated a bankrupt or shall make an assignment for the benefit of its creditors generally; shall apply for, consent to, or acquiesce in the appointment of any receiver or trustee for all or a substantial part of its property, and any such receiver or trustee shall be appointed and shall not be discharged within 30 days after the date of such appointment; or (v) generally is unable to pay its debts as such debts become due.
(p) Live Date: the date upon which the Customer is to have access to the Software and Services, as set out in the Proposal Information or otherwise agreed between Wonde and the Customer in writing.
(q) Personal Information has the meaning given in Applicable Data Protection Laws.
(r) Platform: The online school platform provided by Wonde. The Platform shall be considered Services for purposes of this Agreement.
(s) Proposal Information: the proposal document or information (including any such information issued via the Platform or email or any other method used by Wonde from time to time) issued by Wonde to the Customer, and agreed by the Customer (such agreement will include the Customer’s continued use of the related Services), detailing the scope of Services, Subscription Fees, number of initial Authorized Users, and other matters.
(t) Renewal Period: the period as defined and described in Section 13.1.
(u) Sensitive Personal Information has the meaning given in Applicable Data Protection Laws.
(v) Services: the subscription services provided by Wonde to the Customer under this Agreement via the Platform or such other platform, application or website (as may be updated, modified, or otherwise changed from time to time upon notice from Wonde), as set out in the Proposal Information and as more particularly described in the Documentation.
(w) Software: the online software applications provided by Wonde as part of the Services, with the functionality as described in the Proposal Information and Documentation. The Software shall be considered Services for purposes of this Agreement.
(x) Subscription Fees: the subscription fees (if any) payable by the Customer to Wonde for use of the Services, as set out in the Proposal Information and subsequently varied in accordance with Section 8.2.
(y) Subscription Term: the Initial Term together with any subsequent Renewal Period(s).
(z) Support Terms: the support terms that are relevant to the Customer’s scope of Services from time to time.
(aa) Third-Party Applications: applications provided by third-party providers (“Third-Party Providers”), with which the Customer shares data via the Software.
(bb) Virus: worms, defects, spyware, malware, Trojan horses, viruses, time bombs, and other similar software, code, files, scripts, or programs designed to interrupt, destroy, or limit the functionality or operation of any computer software, hardware device, telecommunications service, equipment.
2. GRANT OF LICENSE
2.1 Wonde hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right and license to permit the Customer (acting by its Authorized Users) and its Authorized Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal operations.
2.2 With respect to the Authorized Users, the Customer agrees that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the maximum number of Authorized Users specified in the Proposal Information, or otherwise agreed with Wonde in writing from time-to-time;
(b) it will not allow or suffer an Authorized User Account to be used by more than one individual Authorized User; and
(c) each Authorized User shall keep a secure password for their Authorized User Account.
2.3 The Customer shall not, and ensures that its Authorized Users shall not:
(a) post, upload, publish, submit, share, distribute, or transmit any Customer Data that: (i) Customer lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) contains any Virus or uses the Services to access, store, distribute or transmit any Viruses; (iv) violates, or encourages any conduct that would violate, any Applicable Law or would give rise to civil liability; (v) is fraudulent, false, misleading, or deceptive; (vi) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (viii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (ix) promotes illegal or harmful activities or substances;
(b) use the Services or Documentation other than the purpose for which they were provided to the Customer;
(c) subject to Section 15.7(a), license, sell, resell, sublicense, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any other school, educational establishment, or third party except the Authorized Users;
(d) introduce or permit the introduction of any Virus into Wonde’s network and information systems;
(e) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation (as applicable) in any form or media or by any means;
(f) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Platform;
(g) access all or any part of the Services or Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(h) interfere or attempt to interfere with the proper working of the Services (including, but not limited to, any application, function, or use of the Services) or any activities conducted on the Services;
(i) take any action that imposes or may impose (as determined by Wonde in Wonde’s sole discretion) an unreasonable or disproportionately large load on Wonde’s infrastructure;
(j) attempt to probe, scan, or test the vulnerability of any Wonde system or network or breach any security or authentication measures;
(k) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Wonde or any of Wonde’s providers or any other third party (including another Authorized User) to protect the Platform and Services;
(l) collect from or store on the Platform or Services any personally identifiable information or sensitive information of other Authorized Users without their express permission;
(m) impersonate or misrepresent Authorized User’s affiliation with any person or entity; or
(n) engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities.
2.4 The Customer shall use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Wonde.
2.5 The rights provided under this Section 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer, except where expressly agreed upon in the Proposal Information.
3. SERVICES
3.1 This Agreement shall only apply to the Services specified in the Proposal Information. Wonde shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement. Use of the Services and Documentation are each conditioned upon Customer and its Authorized Users’ full compliance with this Agreement and all Applicable Law.
3.2 Wonde will, as part of the Services, provide the Customer with support in accordance with the current Support Terms applicable to the version of the Services subscribed for by the Customer, which will be agreed separately between the parties at the point of purchase. Wonde may update the Support Terms from time to time at its discretion.
3.3 To use the Services, Authorized User must have an Authorized User Account. Authorized User hereby authorizes Wonde to obtain and store Authorized User Account information as necessary to make the Services available to Authorized User, subject to Wonde’s Data Processing Agreement.
3.4 Authorized User may use the Platform or access the Services only if Authorized User is thirteen (13) years of age or older, has not been previously suspended or removed from using the Services and is not barred from using the Services under Applicable Law.
3.5 Wonde will provide other Services not provided via the Platform at such times as specified by Wonde in accordance with the Documentation, or such other times as agreed between the Customer and Wonde.
4. DATA PROTECTION
4.1 The terms of Wonde’s data processing agreement apply between Wonde and the Customer. Such agreement will be entered into via the Platform or such other method as agreed from time to time.
4.2 Wonde’s privacy notice (as amended from time to time) applies to personal data collected by Wonde. You agree to our privacy notice when on the Platform but you can also find our privacy notice on our website.
4.3 Wonde and the Customer each agree to comply with the terms and conditions of the Data Processing Agreement, which forms part of and is hereby incorporated into this Agreement by reference, as it may be updated from time to time.
4.4 The Customer and Wonde agree that Wonde acts both as a controller and processor for the purposes of Applicable Data Protection Laws.
4.5 Wonde’s privacy notice (as amended from time to time) applies to Personal Information collected by Wonde in its capacity as controller. The current privacy notice is located here.
4.6 Each party shall comply with Applicable Data Protection Laws with respect to all Personal Information transferred by the other party to it in connection with the Services.
4.7 The Customer warrants that it has in place all necessary notices and consents to permit the transfer of Personal Information from the Customer to Wonde in connection with the Services, and the use of such Personal Information by Wonde in performing the Services.
4.8 Wonde may publish data regarding trends and performance, observed by Wonde from its Customers and their respective Authorized Users. Where such data is compiled in whole or in part, from Personal Information collected by Wonde, Wonde shall ensure that such data is aggregated and anonymized before publication.
5. DISCLAIMERS; THIRD-PARTY APPLICATIONS
5.1 The Services may perform actions initiated by Customer that may irrevocably modify and/or delete Customer Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT WONDE IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY CUSTOMER DATA AS A RESULT OF CUSTOMER INITIATED ACTIONS AND THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK.
5.2 TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, DOCUMENTATION, AND/OR OTHER INFORMATION OBTAINED BY THE CUSTOMER THROUGH THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY WONDE. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WONDE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT.
5.3 WONDE:
(a) DOES NOT WARRANT THAT: THE CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THE SERVICES, DOCUMENTATION AND/OR OTHER INFORMATION OBTAINED BY THE CUSTOMER THROUGH THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS; THE SERVICES WILL BE FREE FROM VULNERABILITIES OR VIRUSES; OR THE INFORMATION CONTAINED IN THE SOFTWARE OR DOCUMENTATION IS ACCURATE, UP-TO-DATE, OR COMPLETE;
(b) CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF CUSTOMER DATA AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO CUSTOMER DATA; AND
(c) IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND DOCUMENTATION MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
5.4 This Agreement shall not prevent Wonde from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5.5 Wonde shall follow its archiving procedures for Customer Data and any such procedure may be amended by Wonde 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 Wonde shall be for Wonde to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Wonde in accordance with its then-current archiving procedure. Wonde 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 Wonde to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
5.6 The Services allow the Customer to connect with, and share data with Third-Party Applications.
5.7 Third-Party Providers are solely responsible for their Third-Party Applications. The Customer is responsible for conducting its own due diligence on Third-Party Applications, including the data protection status and processes of each Third-Party Application and the applicable Third-Party Provider with whom the Customer shares data using the Services. The Customer is solely responsible for, and assumes all risk from, the Customer’s election to receive, and the Customer’s receipt of, any Third-Party Application. Wonde does not carry out any checks on the data protection procedures, or suitability, of Third-Party Applications and the applicable Third-Party Providers. WONDE IS NOT RESPONSIBLE FOR THIRD-PARTY APPLICATIONS OR ANY MATERIAL, INFORMATION, OR RESULTS MADE AVAILABLE THROUGH THIRD-PARTY APPLICATIONS AND IS NOT RESPONSIBLE FOR ANY DAMAGES OR COSTS OR ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE CUSTOMER’S DEALINGS WITH THIRD-PARTY PROVIDERS. WONDE MAKES NO REPRESENTATION, WARRANTY OR COMMITMENT AND SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE WITH, THIRD-PARTY APPLICATIONS. WONDE DOES NOT ENDORSE OR APPROVE ANY THIRD-PARTY APPLICATION WHICH CAN BE CONNECTED TO VIA THE SERVICES.
5.8 The applicable Third-Party Providers may require the Customer to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to the Customer. Any contract entered into with a Third-Party Provider, and any transaction completed via any Third-Party Application, is between the Customer and the relevant Third-Party Provider, and not Wonde. The Customer is responsible for ensuring it only shares data with Third-Party Providers, and their applicable Third-Party Applications, with whom the Customer has entered into a contract and data sharing agreement, even where that Third-Party Application is shown as accessible via the Software.
5.9 To the extent necessary to provide the Services, the Customer consents to Wonde sharing information regarding the Customer’s accounts and Customer Data with any Third-Party Provider with which the Customer shares Customer Data.
5.10 If the Customer elects to receive a Third-Party Application, the Customer authorizes Wonde to submit to the applicable Third-Party Provider with which the Customer shares Customer Data any and all documents and information about the Customer, the Customer’s business, Customer Data, and the Customer’s business that are necessary for such Third-Party Provider to provide the Third-Party Application to the Customer or as otherwise necessary to provide the Services (“Shared Information”). The Customer is solely responsible for the accuracy of all Shared Information and must ensure that any Third-Party Application to which Shared Information is transferred using the Services is appropriate for the Customer’s needs. The Customer represents and warrants that the Customer has all the rights in and to any Shared Information necessary to provide Shared Information to Wonde and for Wonde to provide it to Third-Party Providers, and that Wonde’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any Applicable Law. The Customer agrees that by electing to use a Third-Party Application, and by consenting and authorizing Wonde to submit the Customer’s Shared Information to a Third-Party Provider, the Customer has waived and released any Claim against Wonde and its directors, officers, and employees arising out of a Third-Party Provider’s use of the Customer’s Shared Information, even if that use is not authorized by the applicable agreement between the Customer and the Third-Party Provider.
5.11 The Services may contain links to third-party websites or resources that are not owned or controlled by Wonde. Wonde provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. The Customer acknowledges its sole responsibility for, and assumes all risk arising from, the Customer’s use of any third-party websites or resources.
5.12 Wonde has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that the Customer interacts with through the Services. In addition, Wonde will not and cannot monitor, verify, censor, or edit the content of any third-party site or service. Wonde encourages the Customer to be aware when the Customer leaves the Services and to read the terms and conditions and privacy policy of each third-party website or service that the Customer visits or utilizes. By using the Services, the Customer releases and holds Wonde harmless from any and all liability arising from the Customer’s use of any third-party website or service.
6. WONDE’S OBLIGATIONS
6.1 Wonde represents and warrants that (a) the Services will conform in all material respects with the Documentation, (b) that it will perform the Services in a good and workmanlike fashion, in accordance with Applicable Law and industry standards, and (c) it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.2 Section 6.1 shall not apply to the extent that the Services (a) are used in violation of this Agreement or Wonde’s instructions, or (b) modified or altered by any party other than Wonde or Wonde’s duly authorized contractors or agents. In the event of a breach of Section 6.1(a), the Customer will notify Wonde within 30 days of discovering the issue and Wonde will use reasonable efforts to correct the non-conformity. If Wonde is unable to correct the non-conformity, Wonde will be entitled to terminate the license to the affected Services upon written notice to the Customer and Wonde shall promptly provide a pro-rata refund of all prepaid and unused Subscription Fees. The foregoing are the Customer’s sole and exclusive remedy for any breach of Section 6.1(a).
7. CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
(a) provide Wonde with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Wonde;
in order to allow Wonde to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all Applicable Law with respect to its activities and obligations under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Wonde may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) comply with, and ensure that the Authorized Users comply with, the terms and conditions of this Agreement and any other terms of use for the Wonde website, Platform, or Software applicable from time to time, and shall be responsible for any Authorized User’s breach of this Agreement;
(e) ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement any other terms of use for the Software applicable from time to time, and shall be responsible for any Authorized User’s breach of this Agreement;
(f) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Wonde, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by Wonde from time to time;
(h) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Wonde’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
(i) shall cause Authorized Users to use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Wonde; and
(j) shall cause Authorized Users to (i) not allow an Authorized User Account to be used by more than one individual Authorized User, (ii) keep a secure password for each Authorized User Account, and (iii) take reasonable steps to adequately secure and keep confidential any Authorized User Account passwords or credentials, and any information accessible via the Authorized User Account. If the Customer believes or suspects that an Authorized User Account has, or passwords or credentials for an Authorized User Account have, been disclosed to, accessed by, or compromised by unauthorized persons, the Customer must immediately notify Wonde. Wonde reserves the right to prevent access to the Services if Wonde has reason to believe that an Authorized User Account or passwords or credentials for an Authorized User Account have been compromised.
8. CHARGES AND PAYMENT
8.1 Subject to Section 8.3, the Customer shall pay the Subscription Fees (if any) to Wonde as follows (unless agreed otherwise in the Proposal Information or in writing between Wonde and the Customer):
(a) the Subscription Fees for the Initial Term shall be due on the later of the Live Date and the date at which Wonde notifies you that you are liable for the Subscription Fees. Wonde shall not be required to make the full Services available unless and until the Subscription Fees have been paid. Pursuant to clause 13.2, the Subscription Fees will relate to a 12 month period commencing at the date at which the Customer becomes liable for such amount; and
(b) Wonde shall issue an invoice for the Subscription Fees for each Renewal Period not more than 3 months before the commencement for that Renewal Period, and the Subscription Fees shall be payable within 30 days of the date of the invoice.
8.2 Wonde may modify the Subscription Fees for each Renewal Period upon at least 3 months’ written notice to the Customer, except as otherwise agreed in the Proposal Information. Upon receipt of such notice, the Customer shall be entitled to object to the modification by providing written notice to Wonde within 10 Business Days of receipt of such notice. Where the Customer gives such notice, the modification shall not apply, and this Agreement shall continue on the existing terms for the then-current Subscription Term; provided, however, that Wonde shall be entitled to terminate this Agreement at the end of the next occurring Renewal Period notwithstanding the Section 13.1(a) requirement for 3 months’ notice.
8.3 In addition to Section 8.2, Wonde may, at its sole discretion, on an annual basis with effect from each anniversary of the Effective Date, increase the Subscription Fees in accordance with the rate of inflation during the 12-month period preceding the date of such increase, as reflected by the U.S. Consumer Price Index– Urban for all US Cities, unadjusted (“CPI”) .
8.4 Wonde may, from time to time, offer new Customers a free, 6-month trial period for its Services (“Trial”). A Trial will commence on the date that Customer’s initial Authorized User Account is created. At the expiry of such Trial, Wonde shall have the right to automatically charge the Customer on a yearly basis for the continued use of the Services at the then-current rates published by Wonde from time to time. Any failure by Wonde to charge the Customer immediately upon expiration of a Trial shall not prejudice or compromise the right for Wonde to charge the Customer for such amounts at any time afterwards.
8.5 If Wonde has not received payment of the relevant Subscription Fees by the due date (and the Customer has not notified Wonde that they want to downgrade the Services), without prejudice to any other rights and remedies of Wonde:
(a) may, without liability to the Customer, downgrade all or part of the Services; and/or
(b) may without liability to the Customer, disable the Customer’s and its Authorized Users’ password, account and access to all or part of the Services and Wonde shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(c) interest shall accrue on a daily basis on such overdue amounts at an annual rate equal to 4% over the rate of inflation as reflected by CPI, commencing on the due date and continuing until fully paid.
8.6 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in U.S. dollars;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to Wonde’s invoice(s) at the applicable rate.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that Wonde and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Services or the Documentation.
9.2 Wonde is authorized to grant to the Customer, all rights and licenses as are granted pursuant to this Agreement and as are required for the Customer to receive Services as contemplated by this Agreement.
9.3 The Customer represents and warrants that the Customer owns all Customer Data or the Customer has all rights that are necessary to provide the Customer Data to Wonde and grant Wonde the license rights in Customer Data under this Agreement. The Customer is solely responsible for all Customer Data. Wonde may retain copies of Customer Data as necessary to comply with legal or regulatory requirements, and its internal compliance and record retention policies and procedures. The Customer shall own all rights, title and interest in and to all of the Customer Data that is not Personal Information and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9.4 Wonde does not claim any ownership rights in any Customer Data and nothing in this Agreement will be deemed to restrict any rights that the Customer may have to use and exploit Customer Data to the extent the Customer has the authority to do so. Without liming the foregoing, by making any Customer Data available through the Services, the Customer hereby grants to Wonde an irrevocable, perpetual, non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute Customer Data in connection with operating and providing the Services.
9.5 Any feedback, comments, and suggestions User may provide for improvements to the Services (“Feedback”) is given entirely voluntarily and Wonde will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes any feedback, however provided.
10. FEATURE SPECIFIC TERMS
10.1 The terms in this Section 10 apply to specific features of the Services (“Features”), where these are included within the Services provided to the Customer. Please note that some of the Features set out below may not be included in every Customer’s subscription.
App Privacy Audit and Documentation
10.2 Where Wonde provides details of a Third-Party Application to the Customer for the purpose of the Customer conducting due diligence and/or a data protection impact assessment with respect to its use of the Third-Party Application:
(a) Wonde will use reasonable efforts to ensure the information supplied is accurate. WONDE DOES NOT WARRANT OR REPRESENT THAT THE INFORMATION PROVIDED IS ACCURATE OR COMPLETE.
(b) WONDE IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY WITH RESPECT TO, ANY OMISSIONS OR INACCURACY IN THE INFORMATION PROVIDED.
(c) The Customer is responsible for conducting its own assessment (including any data protection impact assessment) of the Third-Party Application and the risks and benefits of sharing data with the Third-Party Application. Wonde does not analyze or assess the information provided.
Data Sharing Agreements
10.3 Where Wonde provides access to data processing or data sharing agreements of Third-Party Applications accessible through the Services, Wonde is not responsible for the content of those agreements, which are the responsibility of the Third-Party Provider. The Customer must review all such agreements, and take legal advice, on its own behalf.
Enterprise School Management
10.4 With respect to this Feature:
(a) the scope of the Services provided will be agreed between the parties from time to time; and
(b) the Customer shall at all times have sufficient authority and consent to act or make decisions on behalf of any school (or any other relevant organization) including, but not limited to, processing or transferring any Personal Information or any purchasing commitments.
Data Protection Impact Assessments
10.5 With respect to this Feature:
(a) the scope of the Services provided will be agreed between the parties from time to time;
(b) where Wonde provides access to a data protection impact assessment (“DPIA”) template through the Services, and where possible pre-populates with information, Wonde is not responsible for the content, or ongoing maintenance of the template, or the accuracy of the information which are the responsibility of the Customer. The Customer must review all such DPIAs, and take legal advice, on its own behalf;
(c) Wonde will use reasonable efforts to ensure the DPIA template and any related information provided to a Customer is accurate. HOWEVER, WONDE DOES NOT WARRANT, OR REPRESENT THAT THE INFORMATION PROVIDED IS ACCURATE OR COMPLETE, AND DOES NOT ANALYZE OR ASSESS THE INFORMATION ON BEHALF OF A CUSTOMER;
(d) WONDE IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY WITH RESPECT TO, ANY OMISSIONS OR INACCURACY IN THE INFORMATION PROVIDED; and
(e) the Customer is responsible for determining whether it is required to conduct a DPIA before undertaking any data processing that presents a privacy risk by virtue of its nature, scope or purposes, conducting all necessary requirements of a DPIA including, but not limited to, compliance with Applicable Data Protection Laws, keeping any DPIA under review and implementing measures and safeguards to mitigate any identified risks.
Record of Processing Activity
10.6 With respect to this Feature:
(a) the scope of the Services provided will be agreed between the parties from time to time;
(b) where Wonde provides access to a record of processing activity (“ROPA”) template through the Services, and where possible pre-populates with information, Wonde is not responsible for the content, or ongoing maintenance of the template, or the accuracy of the information which are the responsibility of the Customer. The Customer must review all such ROPAs, and take legal advice, on its own behalf;
(c) WONDE IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY FOR ANY OMISSIONS OR INACCURACY IN THE INFORMATION PROVIDED; and
(d) the Customer is responsible for determining whether it is required to conduct a ROPA, conducting all necessary requirements of a ROPA including, but not limited to, compliance with Applicable Data Protection Laws, keeping any ROPA under review, and implementing measures and safeguards to mitigate any identified risks.
Subject Access Requests
10.7 With respect to this Feature:
(a) the scope of the Services provided will be agreed between the parties from time to time;
(b) as part of any data subject access request (“SAR”) Services provided, Wonde shall use commercially reasonable efforts to provide information regarding the type of data the Customer has shared with Third-Party Applications. HOWEVER, WONDE DOES NOT WARRANT OR REPRESENT THAT THE INFORMATION PROVIDED TO THE CUSTOMER AS PART OF SUCH SERVICES WILL BE COMPLETE OR ACCURATE, AND IT IS THE RESPONSIBILITY OF THE CUSTOMER TO CHECK ALL OTHER ACCESSIBLE REPOSITORIES FOR SUCH INFORMATION REQUIRED TO COMPLETE ANY SUBJECT ACCESS REQUEST. Wonde also recommends that for a copy of any data, the Customer requests any data directly from the Third-Party Applications;
(c) the Customer must also review all such information provided by Wonde, and take legal advice, on its own behalf in relation to any obligations to complete a SAR;
(d) the Customer is responsible for obtaining any and all personal data from Wonde and any Third-Party Applications as required to comply with their obligations to complete a SAR; and
(e) further, it will be the responsibility of the Customer to comply with all other requirements of any SAR to which it is subject, including but not limited to timescales, the format and method of delivery in which the information is provided.
11. CONFIDENTIALITY
11.1 Each party shall not at any time, disclose to any person any Confidential Information of the other party including any information concerning the business, assets, affairs, staff, students, Authorized Users, Customer Data, clients or suppliers of the other party, except as permitted by this Section 11. Each party shall adopt and maintain reasonable measures to protect the other party’s Confidential Information, but in no event shall such measures be less than those taken by such party with respect to its own Confidential Information.
11.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information are subject to written confidentiality obligations no less restrictive than this Section 11; and
(b) as may be required by Applicable Law. However, to the extent permitted by Applicable Law, the disclosing party must promptly notify the other party of such disclosure requirement in writing to permit the disclosing party an opportunity to limit or contest such disclosure.
11.3 Neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
11.4 The obligations with respect to Confidential Information do not apply to the extent that such information (i) at the time of disclosure or thereafter, becomes available to the public other than as a result of a breach of a duty of confidentiality to the disclosing party, or was properly and lawfully in the receiving party’s possession prior to its disclosure by the disclosing party; (ii) is now generally known or available or which, hereafter through no act or failure to act on the part of the receiving party, becomes generally known or available; (iii) is rightfully known to the receiving party on a non-confidential basis at the time of receiving such information; (iv) is furnished to the receiving party by a third party without restriction on disclosure and without the receiving party having actual notice or reason to know that the third party lacks authority to so furnish the information; or (v) is independently developed by the receiving party without reference to the Confidential Information of the other party.
11.5 This Section 11 shall remain in full force and effect in the event of any termination of this Agreement.
12. INDEMNITY AND LIMITATION OF LIABILITY
12.1 The Customer shall defend, indemnify and hold harmless Wonde from and against any Claims arising out of or in connection with: (a) the Customer’s breach of this Agreement or access or use of the Services and/or Documentation in breach of this Agreement; (b) Customer Data; (c) Customer’s violation or alleged violation of any third-party right, including without limitation, any right of privacy or publicity, or any right provided by any Applicable Law related to labor or employment, or any intellectual property or proprietary right; (d) Customer’s violation or alleged violation of any Applicable Law, including, but not limited to, wage and hour laws; (e) the Customer’s negligence, fraudulent activity, or willful misconduct; (f) Wonde’s use of or reliance on information or data furnished by the Customer, an Authorized User, an employee or independent contractor of the Customer, or otherwise in connection with this Agreement; (g) actions or activities that Wonde undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Wonde reasonably believes to be the Customer or an Authorized User (each such action or activity, a “Requested Action”); (h) Wonde’s use of or reliance on information or data resulting from such Requested Actions; or (i) the Customer’s failure, or the failure of any Authorized User, to properly follow Wonde’s instructions with respect to the Services.
12.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for use of the Services and the Documentation, and the transfer of Customer Data to third parties by the use of the Services. Wonde shall have no liability for any damages arising out of or resulting from:
(i) the Customer using the Services;
(ii) any transfer of Customer Data using the Services, including any actual or alleged infringement of Applicable Data Protection Laws relating to sharing of Customer Data with Third-Party Providers;
(iii) errors or omissions in any information, instructions or scripts provided to Wonde by the Customer in connection with the Services (including errors in Customer Data);
(iv) any actions taken by Wonde at the Customer’s direction; or
(v) any errors or omissions in any information contained within the Documentation or the Software.
12.3 EXCEPT AS PROVIDED BY APPLICABLE LAW, WONDE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CUSTOMER DATA, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WONDE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
12.4 WONDE’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SUBSCRIPTION FEES PAID BY THE CUSTOMER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12.5 If Customer becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Wonde or Customer in connection with this Agreement, Customer must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
13. TERM AND TERMINATION
13.1 Except as otherwise agreed in writing between Wonde and the Customer, this Agreement shall, unless otherwise terminated as provided in this Section 13, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall automatically renew for successive periods of 12 months (each a “Renewal Period”) and the Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term, unless:
(a) either party notifies the other party of termination, in writing, at least 30 days (or such other period as agreed between the parties from time to time) before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement.
13.2 For the avoidance of doubt, if the Customer opts to downgrade the Services, or Wonde exercises its rights in accordance with clause 8.5(a), this shall not constitute a termination of the Agreement and all applicable provisions of the Agreement will continue to apply.
13.3 In accordance with Section 8, if the Customer becomes liable for Subscription Fees either during the Initial Term or any subsequent Renewal Period then, unless a new license agreement is entered into between the parties, the Renewal Period will restart its 12 month period at such point notwithstanding if it is part way through such Initial Term or Renewal Period (whichever is relevant at that date).
13.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment (except in relation to the Subscription Fees if the Customer has notified Wonde that they have chosen to downgrade the Services);
(b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing by the other party to do so;
(c) the other party is subject to an Insolvency Event; or
(d) the other party suspends or ceases carrying on all or a substantial part of its business.
13.5 For the purposes of Section 13.3(b), a material breach shall include any breach of Section 2.2 (Grant of License).
13.6 On termination of this Agreement for any reason:
(a) all licenses granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Software, Documentation and other items (and all copies of them) belonging to the other party; provided that a party may retain archival copies of such items of the other party as necessary to comply with legal or regulatory requirements, and its internal compliance and record retention policies and procedures;
(c) Wonde may destroy or otherwise dispose of any of the Customer Data in its possession, and the Customer shall have no right to access the Customer Data stored in the Services; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. FORCE MAJEURE
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from acts of God, riots, insurrections, criminal activity, boycotts, strikes, pandemics, lockouts or other labor unrest, civil unrest, fire, flood, or any other events, circumstances or causes beyond its reasonable control (provided that this shall not apply to any obligation of the Customer to pay the Subscription Fees or other sums due under this Agreement). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 weeks, the party not seeking to excuse its performance may terminate this Agreement by giving 30 days’ written notice to the other party.
15. GENERAL
15.1 Authority: the Customer shall ensure that any person approving this Agreement or any other document or terms relating to the Services, has authority to enter into the Agreement, document or terms on behalf of the Customer. Wonde is entitled to rely upon such person having sufficient authority to bind the Customer, and shall not be required to otherwise confirm or validate the authority of any such person.
15.2 Conflict: If there is an inconsistency between any of the provisions in this Agreement and the Proposal Information, the provisions in the Proposal Information shall prevail.
15.3 Updating this Agreement: Wonde may update the terms of this Agreement at any time.
15.4 Waiver
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
15.5 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
15.6 Entire agreement
(a) This Agreement, and the other agreements referred to in it, constitute the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter (excluding any Proposal Information).
(b) Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
15.7 Assignment
(a) Except as set out in Section (b) below, neither the Customer nor Wonde shall, without the prior written consent of the other, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) Wonde may at any time assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement to any member of its Group. For these purposes, “Group” shall mean any entity controlling, controlled by or under common control with Wonde; where “control” in this context means the legal, beneficial, or equitable ownership, directly or indirectly, of ownership interest in such entity sufficient to elect a majority of the board of directors (or equivalent governing body) of such entity.
15.8 No partnership or agency: Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other.
15.9 Third party rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
15.10 Notices
(a) Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company or corporate body) or its principal place of business (in any other case); or
(ii) sent by email to the addresses for service given in the Proposal Information.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission.
(c) This Section does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.11 Governing law and Jurisdiction
(a) This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to its conflicts of law provisions.
(b) Each party irrevocably: (i) agrees that the state and federal courts situated in Wilmington, Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims); and (ii) WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF, RESULTING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT.
15.12 Dispute Resolution: Except with respect to any claim of injunctive relief or other equitable remedy by a party, any dispute arising between the parties concerning this Agreement will be submitted to and settled by binding arbitration before JAMS by a single arbitrator (to the extent permitted) under JAMS’ Comprehensive Arbitration Rules in effect at the time the dispute arose. Arbitration will take place in Wilmington, Delaware. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by certified mail or by commercial express mail, in accordance with Section 15.10 (Notices) above. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT CUSTOMER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
15.13 Interpretation
(a) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
(b) A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(c) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
(d) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
(e) A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
(f) A reference to “writing” or “written” includes email or through our platform but not fax.
(g) Any words following the terms “including,” “include,” “in particular,” “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.