WALK.IN SUBSCRIPTION AGREEMENT
This Subscription Agreement (the Subscription Agreement
and combined with the Order Form, the Agreement ) is entered into
between Walk In Corp. ( Walk In )
and the client named on the applicable Order Form ( Client ) as of the date
of the last signature to such Order Form (the Effective Date ). By
executing an Order Form with Walk In, Client agrees to be bound by the terms
and conditions of this Subscription Agreement and such Order Form, as of the
Effective Date. As used in this Agreement, Party means either Client
or Walk In, as appropriate, and Parties means Client and Walk In. This
Agreement governs, as applicable, Client s access to and use of the Walk In Products and receipt of the Services.
1. SCOPE
1.1 Products. Walk In offers a property management software-as-a-service
platform (the Platform ) with one or more modules (each, a Module )
for use by Client s employees for Client s internal business operations ( Client
Users ), as well as several end-user applications (the Apps ) for
use by residents, lessees, visitors, potential lessees, or other individuals
who download, access or use an App ( End Users ), each as described more
fully in the applicable Order Form. In addition, Walk In may make available as
part of the Platform certain application programming interfaces ( APIs )
for use by Client Users in interfacing with the Platform (collectively, the
Platform, including all Modules thereto, the Apps, and the APIs, the Walk In Products ). The specific Products that Client will be
entitled to receive under this Agreement and other applicable details, such as
the Subscription Period (as defined in Section 4.1 below) and the number of
Units (as defined in Section 1.3 below) that may be linked to Client s account
on the Platform will be set forth in the applicable Order Form (i.e.,
a quotation, purchase order, confirmation or similar ordering documentation)
entered into by Client (either directly with Walk In or through a Reseller (as
defined in Section 4.3 below)). All Order Forms are subject to acceptance by Walk
In and shall be deemed to incorporate the terms set forth herein with or
without reference to this Subscription Agreement.
1.2
Services. In addition, an Order Form may
identify Services that Walk In will provide under this Agreement. As used
herein, Services means (a) the initial onboarding and training
services that Walk In provides to Client for the Platform ( Onboarding
Services ), (b) the support and maintenance services that Walk In provides
to Client with respect to the Walk In Products and/or to End Users on Client s
behalf ( Support Services ), and [c) any additional professional
services requested by Client and agreed to by Walk In in an Order Form entered
into by the Parties hereto ( Additional Services ). The applicable Order
Form (which, for the avoidance of doubt, may be in the format of a statement of
work) will also include any additional terms that may apply to an engagement
for Additional Services.
1.3 Units; Owners. The Walk In Products are designed
to be used by Client for residential and/or commercial property management of
multiple units, which may include an individual apartment, room, unique access
point or other similar designation (each, a Unit ). Client may be
either the owner of Units or the manager of Units on behalf of another owner
(the Owner ). If Client is operating as a manager of Units on behalf of
one or more Owners in its use of the Walk In Products,
then Client represents that Client is the duly appointed agent of each applicable
Owner for the applicable Units and has the authority to enter into this Agreement
on the terms set forth herein. The Owner and Client shall at all times be jointly
and severally liable for the payment of all Fees and compliance with the terms
and conditions of this Agreement.
1.4 Client
Account; Administrators. In order to access and use the Platform, Client must
create a company account (a Client Account ). Client will (a) provide
accurate, truthful, current and complete information with respect to its Client
Account, including with respect to Units and Owners (if applicable); and (b)
maintain and promptly update all Client Account information. Client is solely
responsible for protecting and safeguarding any passwords, user IDs or other
credentials and login information that have been provided to Client or that are
generated in connection with the Client Account, including for Client Users
(collectively, Credentials ). Client will use industry standard safeguards
to prevent unauthorized access to, or use of, its Client Account and is
responsible for all activity that occurs within its Client Account. Client will
immediately notify Walk In in writing of any unauthorized use of its Client
Account that comes to Client s attention. Walk In shall have no liability for any loss or
damage arising from Client s failure to comply with its obligations related to
the Client Account and/or Credentials as set forth herein.
1.5 Client
Users. In order to access and use the Platform or any APIs, all Client
Users must register for a user account with Walk In and will be required to
accept the applicable terms and conditions under which Walk In makes such
Platform and/or APIs available to users (the Platform Terms of Service ).
For the avoidance of doubt, Client is liable for the acts and omissions of all
Client Users, including their compliance with the Platform Terms of Service.
1.6 End
Users. In order to download, access and use one or more Apps, all End Users
must register for an account with Walk In and will be required to accept the
applicable terms and conditions under which Walk In makes such App(s) available
(the App Terms ). For the avoidance of doubt, Client is liable for the
acts and omissions of any Client employees, contractors, service providers,
agents or other representatives who download, access, or use the Apps on
Client s behalf, including their compliance with the applicable App Terms. Notwithstanding
anything herein to the contrary, Client acknowledges and agrees that Walk In
shall have the right to suspend or terminate an End User s ability to use one
or more Apps in the event such End User breaches the App Terms and Walk In will
have no liability in connection with any such suspension or termination,
including, without limitation, in connection with such End User s inability to
use any Apps.
2. WALK.IN
RESPONSIBILITIES
2.1
Access to Products and Services. Subject to Client s
compliance with the terms and conditions of this Agreement, Walk In will,
during the applicable Subscription Period: (a) provide Client and its End Users
with access to and use of the applicable Modules of the Platform and any APIs,
each as specified in the applicable Order Form, and (b) make the Apps specified
in the applicable Order Form available for use by Client s End Users. Walk In
is responsible for the performance of its employees and contractors and their
compliance with Walk In s obligations under this Agreement. Walk In may
use non-employee contractors, service providers or agents for the purpose of
providing Walk In Products and Services
hereunder.
2.2
License to Walk In Content. Subject to compliance with
the terms and conditions of this Agreement, Walk In grants to Client a fully
paid-up, non-transferable, non-sublicensable right and license, during the
Subscription Period, to access and use the content and other materials
(collectively, Walk In Content ) made
available via the Walk In Products, solely for Client s internal business
purposes.
2.3
Changes. From time-to-time during the Term, Walk In may update or
change the features, functionality or other aspects of the Walk-In Products or
Services, provided that such changes do not materially reduce the functionality
of such Walk In Products or Services unless deemed necessary or useful, such
as: (a) to maintain or enhance (i) the quality or delivery of the Walk In
Products or Services to Walk In s customers, (ii) the competitive strength of
or market for the Walk In Products or Services, or (iii) the Walk In Products
and/or Services efficiency or performance; or (b) to comply with applicable
law and regulation. Walk In will use reasonable efforts to provide notice to
Client of any such updates or changes. Client agrees
that its purchase of the Walk In Products and/or
Services is not contingent upon the delivery of any future functionalities or
features.
2.4
Platform Availability. Walk In shall use commercially reasonable
efforts to make the Platform available twenty-four (24) hours a day, seven (7)
days a week, except for: (a) Scheduled Maintenance; (b) Client Error Incidents;
(c) Emergency Maintenance; (d) any unavailability caused by circumstances
beyond Walk In s reasonable control, including without limitation, Force
Majeure Events; and (e) Internet service provider failures or delays. As used
herein: (i) Scheduled Maintenance is defined as any maintenance
performed during Walk In s then-current standard maintenance windows and any
other maintenance of which Client is given at least eight (8) hours advance
notice, including without limitation via a notice in the Platform; (ii) Client
Error Incident is defined as any unavailability related to Client s
applications, Client Data, or Client s equipment, or the acts or omissions of
any Client User; and (iii) Emergency Maintenance is defined as
unavailability due to the application of urgent patches or fixes, or other
urgent maintenance that is performed outside of Scheduled Maintenance. Client
acknowledges that Walk In does not control the transfer of data over
telecommunications facilities, including the Internet. Walk In does not warrant
and hereby expressly disclaims any warranty that the Platform will be available
or error free, or that it will be able to prevent third party disruptions of
such Platform. Client acknowledges further that the Platform may be subject to
limitations, delays, and other problems inherent in the use of the internet and
electronic communications. Walk In is not responsible for, and will have no
liability in connection with, any delays, delivery failures, or other damage
resulting from such problems.
2.5
Support Services. Walk In will provide to Client the Support Services as indicated
in the Order Form; provided, however, that Walk In is under no obligation to provide
Support Services with respect to: (a) alterations or modifications made by
anyone other than Walk In or its licensors or agents; (b) use of the Walk In Products
other than in accordance with the documentation for such Walk In Products
provided by Walk In to Client; (c) discrepancies that do not significantly
impair or affect the operation of the Walk In Products; (d) any systems or
programs not supplied by Walk In; or (e) any configurations or other
customization of the Walk In Products, unless otherwise expressly agreed in the
applicable Order Form.
2.6
Client Content; Safeguards. Walk In will only process Client Content in
accordance with the rights granted by Client to Walk In under this Agreement. Client
Content means any data, content, or other materials in electronic form
which Client provides, uploads, or inputs into the Walk In
Products. During the Term, Walk In will maintain reasonable
administrative, physical and technical safeguards designed to protect Client
Content, consistent with any law or regulation applicable to Walk In and its
performance of this Agreement and consistent with Walk In s then-current
practices and procedures. Walk In will promptly report to Client any compromise
of security that it becomes aware of with regard to Client Content.
3. CLIENT
RESPONSIBILITIES
3.1
Approved Use; Restrictions. Client will use the Walk In Products and
Services in accordance with the terms and conditions of this Agreement, the
documentation provided by Walk In, and the applicable Order Form, including any
applicable usage restrictions included therein, such as the Subscription
Period, number of Units, number or type of Client Users, and/or any other usage
parameters for the Walk In Products or Services set forth in an Order Form
(collectively, Approved Use ). Client is permitted to access and use
the Walk In Products and Services solely for its
internal business purposes. Client will use the Walk In Products and Services in accordance with all applicable
laws and government regulations. Without limitation of the foregoing, Client will
not (and will ensure that its Client Users and any Client employees, contractors, service providers,
agents or other representatives who download, access, or use the Apps on Client s
behalf do
not): (a) modify, disassemble, decompile, reverse engineer or do anything that
might discover source code or bypass or circumvent measures employed to prevent
or limit access to any part of the Walk In Products or Services; (b) use or
access the Walk In Products or Services to build a competitive product or
service; (c) download any portion of or information contained within the Walk
In Products or Services other than as expressly permitted by Walk In; (d)
disclose any benchmarking or performance testing of the Walk In Products or
Services; (e) sell, license, rent, lease or assign the Walk In Products or
Services or distribute, display, host, disclose, outsource or otherwise
commercially exploit the Walk In Products or Services as part of a product or
service provided to any third party (except with respect to Owners, in
accordance with this Agreement; (f) use any Walk In Confidential Information to
contest the validity of any Walk In intellectual property; (g) remove or
destroy any copyright notices, other proprietary markings or confidentiality
legends placed on or made available through the Walk In Products or Services;
or (h) use the Walk In Products or Services other than for their respective
intended use. Client may access the Walk In Products
and Services only through interfaces and protocols provided or authorized by Walk
In and may not copy, co-brand, frame or mirror any Walk In Content (in whole or
in part) without Walk In s prior written consent in each instance. Finally,
the Walk In Products licensed by Walk In are not
designed, intended or authorized for use in life support, life sustaining,
nuclear, or other applications in which the failure of such Walk In Products
could reasonably be expected to result in personal injury, loss of life or
catastrophic property damage.
3.2
Unit
Information; Transfers. Client
shall keep Walk In informed in writing at all times of the identity and contact
information of each Owner (if applicable) and the location and status of all
Units, and will immediately notify Walk In if Client s relationship changes
with respect to an Owner or Unit such that Client is no longer authorized as an
agent of such Owner and/or otherwise no longer possesses the authority to lease
or manage a Unit. If Client s relationship with an Owner or a particular Unit terminates
for any reason, Client shall: (a) continue to be liable for any and all fees
related to the Unit through the end of the then-current Subscription Period, regardless
of when such fees are billed by Walk In; and (b) immediately deactivate the
ability of any such sold or transferred Units to use or benefit from any Walk
In Products or Services.
3.3
Client Content. Client hereby grants Walk In the worldwide,
non-exclusive, irrevocable (except as set forth below), royalty-free,
sublicensable right and license to use, copy, display, store, adapt, and
distribute Client Content so that Walk In can operate, deliver, and improve its
Walk In Products and Services, including, without limitation, making such
Client Content available to End Users in accordance with Client s settings,
selections, and other functionality of the Platform. The foregoing license
granted to Walk In is revocable by Client by removing or deleting any such
Client Content uploaded to the Platform, using the functionality provided
therein. Client acknowledges and agrees that other users may download or make
copies of any Client Content shared by Client with such End Users, and that Walk
In will not be responsible for any liability incurred in connection therewith. Client
represents and warrants that it controls, owns, or has all necessary rights to
authorize Walk In to process as set forth herein, all
such Client Content. Client
shall further have sole responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness and ownership of all Client Content and,
without limiting the foregoing, will not provide to Walk In any Client Content
that (a) may violate applicable laws, including without limitation, any Client
Content that may menace or harass any person, cause damage or injury to any
person or property, or violate the privacy rights or other rights of any
individual, (b) includes any sensitive
personal information that would subject Walk In to additional legal,
regulatory, or similar obligations, or (c) contains viruses or other malicious code. Client shall be
responsible for obtaining any necessary licenses, permits, and/or consents for Walk
In and for providing any required notices with respect to Client s use of the Walk
In Products and Services and the provision of the
Client Content by Client to Walk In. Walk In may, but is not obligated to, remove any violating
Client Content posted on and/or transmitted through the Walk In Products and/or
Services, without notice to Client.
3.4
Use of
Interactive Features. Client, its Client Users, and/or
any Client employees,
contractors, service providers, agents or other representatives who download,
access, or use the Apps on Client s behalf may elect to
interact with others through the Walk In Products
and/or Services, including, but not limited to, via messaging and scheduling
capabilities included therein ( Interactive Features ). Client is solely
responsible for its and its Client Users interactions, as well as any
interactions by any Client employees,
contractors, service providers, agents or other representatives who download,
access, or use the Apps on Client s behalf with other
individuals through the Walk In Products and/or
Services. Walk In may, but
has no obligation to, monitor the use of the Interactive Features to ensure
compliance with this Agreement. Client, its Client Users, and/or any Client employees, contractors, service providers,
agents or other representatives who download, access, or use the Apps on
Client s behalf will not: (a) use the Interactive Features in a way that
negatively affects others or Walk In s ability to provide its Products or
Services, (b) use the Interactive Features for any illegal or unauthorized
purpose, or (c) use the Interactive Features to infringe upon or violate the
rights of Walk In, other people using the Interactive Features, or any third
party. Walk In will not be responsible for any liability incurred as the result
of interactions with others on the Interactive Features or use of content
provided by other users via the Interactive Features. Client is solely
responsible for any Client Content shared by Client, its Client Users, and/or
any Client employees,
contractors, service providers, agents or other representatives who download,
access, or use the Apps on Client s behalf using the
Interactive Features.
3.5
Cooperation. Client s cooperation may be required in order
for Walk In to efficiently and effectively perform the Services and provide the
Walk In Products. Client agrees to comply with all of Walk
In s reasonable requests made in connection with the provision of the Walk In Products or Services to Client. Walk In will have no
liability for any delays, deficiencies or failures that occur in the
performance of Services or provision of Walk In Products
as a result of (a) delays due to unanticipated Client requests, (b) Client s failure
to cooperate (including the cooperation of third parties under Client s
control), or (c) Client s breach of this Agreement.
3.6
Client Required Materials;
Third-Party Materials.
Client is responsible for obtaining and maintaining, at its sole cost and
expense, any devices, hardware, or other resources necessary to use the Walk In
Products or Services, including, without limitation, smart locks and other IOT
devices that are compatible with the Walk In Products and any other equipment,
tools, or services necessary to access and/or use the Walk In Products and/or
Services ( Required Client Materials ). Unless otherwise agreed in an
Order Form, Client is further responsible for upgrading and configuring all
Client Required Materials to be and remain compatible with the Walk In Products and/or Services. Walk In shall not be
responsible for, and shall no liability in connection with (b) any Required
Client Materials, (b) any third-party data, content, materials, products or
services, whether provided with the Walk In Product and/or Services or
otherwise (including, without limitation, open source software and content that
may be provided by other uses of the Walk In Products or Services via
Interactive Features) (collectively, Third-Party Materials ), or (c) the
contents of any linked external web sites operated by third parties that may be
referenced within the Walk In Products or Services. Walk In has no control over Third-Party Material providers
or the availability of any such Third-Party Materials. In its discretion, Walk
In may add, remove, and/or substitute any Third-Party Materials. The provision
of Third-Party Materials is subject to the availability from third party
providers and Walk In shall have no liability should such Third-Party Materials
become unavailable for any reason or if such Third-Party Materials are no
longer available under reasonable commercial terms.
3.7
Designated Support Contact. For the purposes of this Agreement, Designated Support Contacts means the
Client employees so designated by Client on the Order Form or otherwise
communicated to Walk In by Client in writing. Client may
have up to the number of Designated Support Contacts as designated on the applicable
Order Form. Only a Designated Support Contact shall be permitted to contact Walk
In for any Support Services needed on behalf of Client.
3.8
Pre-Release
Materials. Client may have the opportunity to
receive access to certain new or updated pre-release , beta or other
materials or features prior to their full commercial release ( Pre-Release Materials ), at Walk In s option.
Client may choose to use such Pre-Release Materials or not in its sole
discretion. Client acknowledges and agrees that: (a) the Pre-Release Materials
may impact the availability of, and Client s use of, the Walk In Products or
Services; (b) the Pre-Release Materials may not operate properly or be fully
functional; (c) use of the Pre-Release Materials may result in unexpected
results, loss of data, or business interruption; and (d) Walk In has the right
unilaterally to abandon development, maintenance, and operation of the
Pre-Release Materials, at any time and without any obligation or liability to
Client. Client s use of any Pre-Release Materials may be conditioned on
acceptance of additional terms and, in any event, is subject to the
confidentiality obligations in Section 5 below. All such Pre-Release Materials
shall be considered to be made available on a trial basis and will be subject
to Section 4.7 below.
4. FEES
AND PAYMENT
4.1
Subscriptions; Approved Use. The Walk In Products and certain Services are offered on a
subscription basis (each, a Subscription ) on an annual or other periodic basis
as set forth in the applicable Order Form, starting from the date of delivery
of or access to the applicable Walk In Products or Services, unless otherwise
specified in the applicable Order Form (the Subscription Period ). In addition, certain Walk
In Products or Services are subject to other Approved
Use metrics, as specified in an Order Form. Client will notify Walk In (or the
applicable Reseller) within 30 days upon exceeding the Approved Use set forth
in the applicable Order Form, and will pay, on a pro-rated basis, any and all
amounts due for such overage through the remainder of the then-current
Subscription Period.
4.2
Fees. Client will pay fees for the Walk In
Products and Services provided by Walk In as specified in the applicable Order
Form ( Fees ). With respect to Subscriptions, Walk In reserves the
right to increase the Fees for a subsequent Subscription Period, upon notice to
Client.
4.3
Resellers. From time-to-time, Walk In may offer sales of Walk In Products and Services through one or more of its
authorized reseller partners (each, a Reseller ). If Client
purchases Walk In Products or Services through a
Reseller, Client shall pay the Fees set forth in the applicable Order Form to
Reseller in accordance with the terms and conditions set forth in the
applicable Order Form. All Fees are due and payable by Client to its Reseller.
Any disputes related to the Fees or invoicing shall be handled directly between
Client and the Reseller. In no event will Walk In be liable for the acts or
omissions of a Reseller. Except for terms related to invoicing and
payment, no Resellers are authorized to modify the terms of this Agreement.
4.4
Invoiced Payment. Fees are payable in advance of each
Subscription Period or the commencement of Services, as applicable. All Fees
are shown in U.S. dollars, unless otherwise specified. Unless different payment
terms are expressly set forth in the applicable Order Form, Client will pay
invoiced Fees at the address or account designated by Walk In or the applicable
Reseller within 30 days from receipt of the invoice. Client will only dispute
invoices in good faith. To be eligible for an invoice adjustment, Client must
provide a written description of the disputed portion of the invoice within thirty
(30) days of receipt, otherwise Client will waive the right to dispute any
invoice. Client is responsible for
providing an accurate billing contact on the applicable Order Form and updating
that billing contact as needed from time to time such that Walk In always has
an accurate billing contact for Client.
4.5 Remedies.
Interest accrues on past due Fees balances at the lesser of a one and a half
percent (1 %) per month compounded or the highest rate allowed by law. If
Client fails to make payments of any Fees due under the Agreement, Client shall
be in material breach of this Agreement. Walk In will be entitled to suspend
its performance upon ten (10) days written notice to Client and/or to require
full payment before any additional performance is rendered by Walk In, at Walk
In s sole discretion. Client shall be responsible to pay any collection
expenses (including attorneys fees) incurred by Walk In to collect any Fees
due hereunder.
4.6 Taxes. Unless expressly provided otherwise, the Fees set
forth in the Order Form do not include taxes. Client agrees to pay any taxes,
other than those based on Walk In s net income, arising out of the Agreement,
including, without limitation all sales and use taxes, excise taxes, goods and services
taxes, consumption taxes, value-added taxes, and any other similar taxes,
duties, and charges of any kind imposed by any national, federal, state, or
local governmental or regulatory authority on any amounts payable by Client hereunder. If Client is tax-exempt, Client agrees to send Walk
In a copy of its tax-exempt certificate prior to execution of this Agreement.
Client agrees to indemnify Walk In from any liability or expense incurred by Walk
In as a result of Client s failure or delay in paying taxes when due.
4.7
Free or Trial Access to Products. From time-to-time, Walk In may grant Client access to or
license certain Walk In Products and/or Services on a
free and/or trial basis. If Client is granted access under this Agreement to a
free or trial version of any Walk In Products and/or Services in accordance
with the foregoing, Client agrees that (a) Walk In has no obligation to provide
any particular level of service or Support Services with respect thereto; and
(b) Walk In may cease providing access to such Walk In Products and/or Services
or terminate the license to such Walk In Products and/or Services at any time upon
notice. For the avoidance of doubt and without limiting the foregoing, all Walk
In Products made available by Walk In for no charge
will be subject to this Section 4.7. NOTWITHSTANDING
SECTION 9 BELOW, ALL WALK.IN PRODUCTS AND/OR SERVICES PROVIDED TO CLIENT ON A
FREE AND/OR TRIAL BASIS ARE PROVIDED AS-IS WITHOUT ANY WARRANTY AND WALK.IN
AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR THE USE OF SUCH WALK.IN PRODUCTS
OR SERVICES, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING
OUT OF OR IN CONNECTION WITH ANY OF SUCH WALK.IN PRODUCTS OR SERVICES,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY
OR OTHERWISE. This Section supersedes any conflicting provision of this
Agreement.
5.
CONFIDENTIALITY
5.1
Definition. By virtue of this Agreement, the Parties may be exposed to or be
provided with certain confidential and proprietary information of the other
Party or third parties, including but not limited to information designated as
confidential in writing or information which by its nature ought to be in good
faith considered confidential and proprietary to the disclosing Party ( Confidential
Information ). Confidential Information of Walk In and/or its
licensors includes but is not limited to the terms and conditions (but not
the existence) of the Agreement, including, without limitation, all Order Forms,
fees and charges, trade secrets, specifications, documentation, business plans,
Pre-Release Materials, customer lists and customer-related information,
financial information, proposals, budgets, product roadmap, data and other information
of Walk In and its licensors relating to or embodied in the Walk In
Products, the Services and/or the documentation therefore. Each Party reserves any and all
right, title and interest (including, without limitation, any Intellectual
Property Rights) that it may have in or to any Confidential Information that it
may disclose to the other party under this Agreement.
5.2
Non-Disclosure. Each Party will protect the other Party s Confidential
Information from unauthorized use or dissemination and use the same degree of care
that each such Party uses to protect its own confidential information, but in
no event less than a reasonable amount of care. Neither Party will use
Confidential Information of the other Party for purposes other than to perform
its obligations or exercise its rights under this Agreement. The receiving Party will not
disclose any Confidential Information of the disclosing Party other than: (a)
as required by applicable law, provided that the receiving Party uses
reasonable efforts to give the disclosing Party reasonable advance notice
thereof (unless prohibited by law), so as to afford the disclosing Party an
opportunity to intervene and seek an order or other appropriate relief for the
protection of its Confidential Information; (b) with the written consent of the
disclosing Party (which, for the avoidance of doubt, shall be deemed to include
any selections, settings or other configurations made by Client to share Client
Content with others via the Walk In Products or Services); or (c) to employees,
contractors, service providers, agents, or other representatives who are
subject to confidentiality obligations at least as stringent as contained in
this Agreement. Notwithstanding anything in this Agreement to the contrary, Client
agrees that, upon request by an Owner, Walk In may communicate directly with
the Owner about all aspects of the Agreement, any Client Content that relates
to a Unit owned by such Owner, and any other relevant Client Confidential
Information, if applicable.
5.3
Exceptions. Information shall not be considered Confidential Information to
the extent, but only to the extent, that the receiving Party can establish that
such information (a) is or becomes generally known or available to the public
through no fault of the receiving Party; (b) was rightfully in the
receiving Party s possession before receipt from the disclosing Party free
of any obligation to keep it confidential; (c) is lawfully obtained from a
third party who has the right to make such disclosure; or (d) has been
independently developed by the receiving Party without use of or reference
to any Confidential Information of the disclosing Party.
5.4
Remedy/Injunctive Relief. The Parties acknowledge that disclosure of any
Confidential Information may give rise to irreparable injury to the Party whose
information is disclosed, which injury may be inadequately compensated in
damages. Therefore, either Party may seek injunctive relief against the other
Party s breach or threatened breach of this Section 5, in addition to any other
legal remedies that are available under the law, without the necessity of
posting a bond.
5.5
Return
of Confidential Information. Upon expiration or termination
of this Agreement for any reason, the receiving Party will, upon request of the
disclosing Party, return to the disclosing Party, or destroy (with written
certification of the same), all copies of the disclosing Party s Confidential
Information.
6. DATA
PROTECTION
6.1 Client
Personal Data. Client agrees to only input into, transfer into the Walk.in
Products or Services, or otherwise provide to Walk In Client Content that is
Personal Data ( Client Personal Data ): (a) if and to the extent that
Client is authorized to do so under applicable law, including obtaining any
relevant consents from or providing any required notices to the individual for
such disclosure; (b) if and to the extent that such Client Personal Data is necessary
to enable Walk In to provide the Walk In Products and/or Services, or otherwise
fulfill its obligations, under this Agreement; and (c) and to do so only in
fields specifically designed to house such Client Personal Data. Walk In shall
have no liability to Client, and Client shall indemnify Walk In for all claims
by third parties resulting from Client s failure to comply with its obligations
this in Section 6.1. Client shall remove any Client
Personal Data from the Walk In Products and Services
once it is no longer necessary for that purpose and may engage Walk In (at Walk
In s then-current rates) to assist in such deletion. As used herein, Personal
Data means data that (i) identifies a person, and (ii) is regulated by
applicable data protection legislation, including, without limitation, the CCPA
(as defined below).
6.2 Data Processing.
Walk In shall: (a) only act upon and process the Client Personal Data as
set forth in this Agreement, as outlined in Walk In s Privacy Policy, or as
otherwise required or permitted by applicable data protection laws from time to
time. Walk In s Privacy Policy may be updated from time to time by Walk In.
Without limiting the generality of the foregoing, for purposes of Client
Personal Data related to residents of California, Walk In further agrees that:
(i) shall process Client Personal Data as a service provider for purposes of
the California Consumer Privacy Act (the CCPA ); (ii) Walk In shall
not: (1) sell or share Client Personal Data as those terms are defined
under the CCPA; (2) retain, use, disclose, or otherwise process Client Personal
Data except as necessary for the business purposes specified in this Agreement;
(3) retain, use, disclose, or otherwise process Client Personal Data in any
manner outside of the direct business relationship between Client and Walk In
except as necessary for the business purposes specified in this Agreement; or
(4) combine any Client Personal Data with Personal Data that Walk In receives
from or on behalf of any other third party or collects from Walk In s own
interactions with individuals, provided that Walk In may so combine Personal
Data for a purpose permitted under the CCPA if directed to do so by Client or
as otherwise expressly permitted by the CCPA; and (iii) Walk In shall: (1)
notify Client if Walk In becomes aware that it is no longer able to meet its
obligations under the CCPA; and (2) take reasonable and appropriate steps to
help ensure that Personal Data use is consistent with Client s obligations
under the CCPA.
7. LIMITED
RIGHTS AND OWNERSHIP
7.1
Reservation of Rights. All rights not expressly granted in this Agreement
are reserved by Walk In and/or its licensors. Client acknowledges and agrees that:
(a) all Walk In Products and Walk In Content are licensed and not sold; and
(b) Client acquires only the right to use the Walk In Products and Services,
including, without limitation, applicable Walk In Content and Walk In and
its licensors shall retain sole and exclusive ownership of all rights,
title, and interest therein, including all Intellectual Property Rights embodied
in or associated with the such Walk In Products or Services, any reports,
deliverables or other output created via such Walk In Products or Services, and
all copies and derivative works thereof. Client further acknowledges that the Walk
In Products and Services, including the source and
object codes logic and structure thereof, embody valuable confidential information of Walk
In and/or its licensors, the development of which required the expenditure of
considerable time and money and
constitute valuable trade secrets of Walk In and its licensors. As used
herein, Intellectual
Property Rights means all patents, copyrights, moral rights, trademarks,
trade names, service marks, trade dress, trade secrets and any other form of
intellectual property rights now or hereafter recognized in any jurisdiction,
including applications and registrations for any of the foregoing.
7.2
Further Restrictions. In addition to the other restrictions and
limitations on Client s license as set forth herein, Client will not: (a)
alter, or permit the alteration of, the Walk In Protected Materials or any
component thereof, (b) copy, or permit the copying of, the Walk In Protected Materials
or any component thereof, except reasonable copies of documentation for
Client s internal use, (c) seek to acquire any ownership interest in or to the Walk
In Protected Materials or any component thereof, or (d) take or encourage any
action during or after the Term that will in any way impair the rights of Walk
In in and to the Walk In Protected Materials. Client shall indemnify Walk In for any and all liabilities or expenses
that Walk In may incur (including, without limitation, attorneys fees and
other legal expenses) in connection with Walk In s efforts to enforce its
rights against Client with respect to the Walk In
Protected Materials. As used
herein, Walk In Protected Materials means the Walk
In Protected Materials. Products, Services, Walk In
Content, documentation therefor, any proprietary
software or technology of Walk In, or any Intellectual Property Rights in and
to any of the foregoing.
7.3
Client Content; Client Branding. Notwithstanding anything in this Agreement to the
contrary, Client and/or its licensors retains sole and exclusive ownership to
any and all Client Content. Walk In acquires no right, title or interest
in or to the Client Content, except for the limited licenses set forth herein. To
the extent that an Order Form specifies that Walk In will apply Client s
branding to an App hereunder, Client hereby grants Walk In the right, during
the Term, to use Client s name, logos, trademarks, servicemarks or any other
branding provided by Client to Walk In ( Client Branding ) for the
purposes of applying such Client Branding to the applicable App and to
distribute such App, with the Client Branding, for use by End Users. For the
avoidance of doubt, any such App with Client Branding will continue to be
licensed by Walk In to End Users under the applicable
App Terms, and may also contain Walk In branding and/or proprietary notices.
7.4
Service Analyses. Client
hereby agrees that Walk In may compile statistical and other information
related to the performance, operation and use of the Walk In
Products and Services by Client ( Service Analyses ), which will assist Walk
In in improving the user experience and other aspects of its products and
services. Walk In may make Service Analyses publicly available; however,
Service Analyses will not incorporate Client Content or other Client
Confidential Information in a form that could serve to identify Client or any
individual. Walk In retains all Intellectual Property Rights in Service
Analyses.
7.5
Feedback. Client may have the option to provide Walk In with
feedback, suggestions or comments regarding the Walk In
Products and/or Services ( Feedback ) and consents to receive requests
for such Feedback from Walk In periodically. Client hereby grants Walk In a
non-exclusive, perpetual and irrevocable license to use and exploit such
Feedback for any purpose, including incorporating such Feedback within its
products and services, without providing payment or any other consideration to
Client. Walk In has no confidentiality or other obligations with respect to Feedback.
8.
INDEMNIFICATION
8.1 Indemnification by Walk In. Walk In will defend or settle, at its option and
expense, any action, suit or proceeding brought against Client by a third party
that the Walk.in Products or Services infringe a third party s US patent,
registered copyright, or registered trademark ( IP Claim ). Walk In will indemnify Client against all damages and
costs finally awarded or those costs and damages agreed to in a monetary
settlement of such action, which are attributable exclusively to such IP Claim,
provided that Client: (a) promptly gives written notice of the IP Claim to Walk
In; (b) gives Walk In sole control of the defense and settlement of the IP
Claim; (c) provides Walk In, at Walk In s expense, with all available
information and assistance relating to the IP Claim and cooperates with Walk In
and its counsel; (d) does not compromise or settle such IP Claim; and (e) is
not in material breach of any agreement with Walk In. Notwithstanding the foregoing, Walk In has no obligation under this Section to the
extent any IP Claim results from: (i) Client having modified the Walk.in Products
or Services, (ii) Client Required Materials, Client Content, or Client
Branding, (iii) Third Party Materials, or (iv) the combination, operation or
use of the Walk In Products and/or Services with
software or data not provided by Walk In.
8.2 Indemnification by Client. Client shall defend Walk In, against: (a) any
claim, demand, suit, or proceeding made or brought against Walk In by a
third party arising out of or related to (i) any Client Required Materials,
Client Content or Client Branding; (ii) Client s or its Client Users use of
the Walk In Products and/or Services, and any use of the Walk In Products
and/or Services by any Client employees, contractors, service providers, agents
or other representatives who download, access, or use the Apps on Client s
behalf, in violation of the Agreement or any other breach of the terms of this
Agreement by Client or its Client Users; or (iii) any infringement or
misappropriate of the Intellectual Property Rights of a third party
or violation of applicable law by Client, a Client User, or any Client
employees, contractors, service providers, agents or other representatives who
download, access, or use the Apps on Client s behalf; or (b) any claim, demand,
suit or processing made or brought against Walk In by an End User or other
individual arising out of or related to (i) Walk In s performance of its
obligations or exercise of its rights under the Agreement, (ii) Client s or any
Owner s breach of any agreement with any such End Users or individuals, or
(iii) any such End Users or other individuals ability or inability to access
a Unit (any claim under subpart (a) and/or (b) hereof, a Client Claim .
Client shall indemnify Walk In for all damages, liabilities, settlement
amounts, costs and/or or expenses (including, without limitation, attorneys
fees) incurred by Walk In in connection with any Client Claim; provided
that Walk In (i) promptly gives Client written notice of the Client Claim,
(ii) gives Client sole control of the defense and settlement of the Client
Claim (provided that Client may not settle or defend any Client Claim unless it
unconditionally releases Walk In of all liability), and (iii) provides
Client all reasonable assistance, at Client s cost. Notwithstanding the
foregoing, Walk In shall have the right to engage its own counsel and/or
participate in the defense of any such Client Claim, as its own expense. For
purposes of this Section 8.2 only, Walk In shall include Walk In and its affiliates,
and each of their members, owners, officers, directors, employees, agents, contractors,
licensors, successors and assigns.
8.3 Infringement Remedies. If it is adjudicated in connection with any IP
Claim for which Walk In is obligated to indemnify Client pursuant to Section
8.1 above that the Walk In Products and/or Services, as used in accordance with
this Agreement infringe any patent, registered copyright, or registered
trademark, Walk In shall, at its option: (a) procure for Client the right
to continue using the Walk.in Products and/or Services; (b) replace or
modify the same so they become non-infringing; or (c) terminate this
Agreement with respect to the affected Walk In Products or Services and refund
to Client, on a pro-rated basis, the pre-paid portion of the Fees for the
affected Walk In Product or Service for the remainder of the then-current
Subscription Period. THIS SECTION 8 STATES WALK.IN S ENTIRE OBLIGATION TO
CLIENT AND CLIENT S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF
INFRINGEMENT.
9. LIMITED
WARRANTY AND DISCLAIMER
9.1 Limited Warranty. During the Term, Walk In warrants that the Walk In Products will be free of Errors. As used herein, Error
means a material failure of a Walk In Product to
conform to the documentation for such Walk In Product, as provided by Walk In
to Client, that is reported by Client to and replicable by Walk In.
9.2 Remedies. If a Walk In Product
does not perform as warranted, Walk In shall use commercially reasonable
efforts to correct such Errors, as Client s exclusive remedy for any claim
under this warranty. Client shall promptly notify Walk In in writing of its
claim. Provided that such claim is determined by Walk In to be Walk In s
responsibility in accordance with this Agreement, Walk In shall, within thirty
(30) days of its receipt of Client s written notice, (a) correct such Error; or
(b) provide Client with a plan reasonably acceptable to Client for correcting
the Error; or (c) if neither (a) nor (b) can be accomplished with reasonable
commercial efforts from Walk In, then Walk In shall so notify Client and
either Walk In or Client may terminate this Agreement with respect to the
applicable Walk In Product, and Client will be entitled to a refund, on a pro rated basis, of the pre-paid portion of the Fees paid
for the affected Walk In Product for the remainder of the then-current
Subscription Period. The preceding warranty cure shall constitute Walk In s
entire liability and Client s exclusive remedy for cure of the warranty set
forth herein. If Client elects not to terminate this Agreement with respect to
the affected Walk In Product, Client waives all rights
for the applicable warranty cure set forth herein.
9.3 Exclusions. Walk In is not responsible for any claimed breach
of any warranty set forth in this Section 9 caused by: (a) modifications
made to the Walk In Products by anyone other than Walk In or its authorized
representatives; (b) the combination, operation or use of the Walk In Products with
any items not provided by Walk In; (c) Walk In s adherence to Client s
specifications or instructions; (d) Errors caused by or related to
internet connections or Client Required Materials; or (e) Client deviating from
the operating procedures described in the applicable documentation.
9.4 Disclaimer. THE WARRANTY SET FORTH ABOVE IN THIS SECTION 9 IS IN
LIEU OF, AND WALK.IN AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (A) ANY
WARRANTY THAT ANY WALK.IN PRODUCTS OR SERVICES ARE ERROR-FREE OR WILL OPERATE
WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (B) ANY AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, (C) ANY WARRANTY, CONDITION OR OTHER TERM THAT WALK.IN CONTENT
AND/OR THIRD PARTY MATERIALS WILL BE ACCURATE, RELIABLE AND ERROR-FREE AND (D)
ANY AND ALL IMPLIED WARRANTIES, CONDITION OR OTHER TERM ARISING FROM STATUTE, COURSE
OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR
INFORMATION GIVEN BY WALK.IN, ITS AFFILIATES, CONTRACTORS, EMPLOYEES,
RESELLERS, OR OTHER REPRESENTATIVES SHALL CREATE OR CHANGE ANY WARRANTY
PROVIDED HEREIN. CLIENT ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE
INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT
SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE WALK.IN PRODUCTS,
SERVICES AND/OR CLIENT CONTENT. ACCORDINGLY, WALK.IN CANNOT AND DOES NOT
GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO
TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WALK.IN MAKES NO WARRANTY WITH
RESPECT TO ANY THIRD-PARTY MATERIALS; AND CLIENT S SOLE REMEDY
WITH RESPECT TO SUCH THIRD-PARTY MATERIALS SHALL BE PURSUANT TO THE
WARRANTIES OFFERED BY THE PROVIDER OF SUCH THIRD-PARTY MATERIALS, IF ANY. THIRD-PARTY
MATERIALS ARE MADE AVAILABLE ON AN AS IS, AS AVAILABLE BASIS BY WALK-IN.
10. LIMITATION
OF LIABILITY
10.1 No
Special Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE ANOTHER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS,
STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON
BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS PREVIOUSLY BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH
PARTY S TOTAL LIABILITY TO CLIENT FOR ANY CLAIM UNDER THIS AGREEMENT WILL BE
LIMITED TO THE FEES PAID BY CLIENT IN THE PRIOR TWELVE (12) MONTHS FOR THE
WALK.IN PRODUCT OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.
10.3 Exceptions.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS ON THE TYPES AND AMOUNTS OF
DAMAGES SET FORTH IN SECTION 10.1 AND 10.2 HEREIN SHALL NOT APPLY WITH RESPECT
TO: (A) A PARTY S INDEMNIFICATION OBLATIONS PURSUANT TO SECTION 8, (B) CLIENT S
INFRINGEMENT OF WALK.IN S INTELLECTUAL PROPERTY RIGHTS, (C) CLIENT S
OBLIGATIONS TO PAY FEES, AND (D) A PARTY S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
10.4 Time to Bring Claim. NO CLAIM ARISING OUT OF THIS AGREEMENT, REGARDLESS
OF FORM, MAY BE BROUGHT AGAINST WALK.IN MORE THAN ONE YEAR AFTER THE EVENT
LEADING TO THE CAUSE OF ACTION HAS OCCURRED.
10.5 Survival. THIS SECTION SHALL SURVIVE THE FAILURE OF
ANY EXCLUSIVE REMEDY.
11. TERM
AND TERMINATION
11.1 Term; Subscription Periods. The term of this Agreement shall commence on the
Effective Date and shall continue in full force and effect until the expiration
or termination of all Subscription Periods under the Order Form
, unless otherwise terminated earlier as provided hereunder.
11.2 Termination. Either Party may terminate this Agreement immediately
upon written notice in the event that the other Party commits a
non-remediable material breach of this Agreement, or if the other Party fails
to cure any remediable material breach or provide a written plan of
cure acceptable to the non-breaching Party within thirty (30) calendar
days of being notified in writing of such breach.
11.3 Post-Termination Obligations.
Following expiration or termination
of this Agreement (for whatever reason), Client shall certify that it has
returned or destroyed all copies of the applicable Walk In
Content and Confidential Information of Walk In and acknowledges that its
rights to use the same are relinquished. Termination of this Agreement for any
reason shall not excuse Client s obligation to pay in full any and all amounts
due, nor shall termination by Walk In result in a refund of Fees paid. Client
shall use its commercially reasonable efforts to remove all Client Content from
any Walk In Products prior to termination of this
Agreement. Client may engage Walk In to assist Client in removing such Client
Content at Walk In s then standard rates. If any Client Content remains in the Walk
In Products or Services more than thirty (30) calendar
days after the effective date of termination, Walk In may, in its sole
discretion and without notice, delete any and all Client Content. At any time
before or after expiration or termination, if an Owner requests that any
Client Content related to such Owner s Units be provided directly to such
Owner, Client agrees that Walk In may transfer such Client Content directly
to such Owner, and that Walk In shall not be liable for any damages that
result from the transfer of Client Content to an Owner.
11.4 Survival. Sections 3.1, 4, 5, 7, 8, 9, 10, 11.3, 11.4 and 12,
as well as any other provisions that by their nature are intended to survive,
shall survive any expiration or termination of this Agreement.
12. GENERAL
PROVISIONS
12.1 Independent Contractors. This Agreement
does not create any agency, partnership, or joint venture between the parties.
This Agreement does not create any third-party beneficiary rights in any
individual or entity that is not a party to this Agreement, except as expressly
stated herein.
12.2
Publicity. Client agrees that Walk In may refer to Client by name,
logo, trade name, service marks and trademarks and may briefly reference
Client s business in Walk In s marketing, promotional and other related
materials and on Walk In s web site, and Client hereby grants Walk In a limited
license to do so.
12.3
Non-Solicitation. During the Term of this
Subscription Agreement and for a period of one (1) year following any
expiration or termination hereof, Client will not employ or solicit for
employment, directly or through other parties, any individual employed by Walk
In during the Term hereof, without Walk In s prior written consent in each
instance; provided, however that the foregoing shall not apply to any
individuals who respond to a generally available job posting issued by Client.
12.4
Compliance. During the Term of this Subscription Agreement and
for a period of one (1) year following any expiration or termination hereof,
Client shall maintain and make available to Walk In records sufficient to
permit Walk In or an independent auditor retained by Walk In to verify, upon
written notice, Client s full compliance with the terms and requirements of the
Agreement. Such an audit shall be performed during regular business hours. If
such verification process reveals any noncompliance by Client with the Agreement,
Client shall reimburse Walk In for the reasonable costs and expenses of such
verification process (including, but not limited to the fees of an independent
auditor) incurred by Walk In, and Client shall promptly cure any such
noncompliance, including without limitation through the payment of any and all
fees owed to Walk In during the period of noncompliance; provided, however,
that the obligations under this Section do not constitute a waiver of Walk In s
termination rights or any other rights or remedies available to Walk In.
12.5
Force Majeure. Neither Party shall incur any liability to the other Party on
account of any loss, claim, damage or liability to the extent resulting from
any delay or failure to perform all or any part of this Agreement (except
for payment obligations), if and to the extent such delay or failure is
caused, in whole or in part, by events, occurrences, or causes beyond the
control of the Party seeking protection under this Section. Such events,
occurrences, or causes shall include, without limitation, acts of God, strikes,
lockouts, riots, acts of war, terrorism, earthquake, fire, explosions,
telecommunications and Internet failures( Force Majeure Events ). Dates by which
performance obligations are scheduled to be met will be extended for a period
of time equal to the time lost due to any delay so caused.
12.6
Assignment. Walk In may novate, transfer, or assign the
Agreement and all of its rights and obligations herein without Client s
approval to its parent company or other affiliated company, to a successor by
operation of law, or by reason of the sale or transfer of all or substantially
all of its stock or assets to another entity. Neither Party may otherwise
assign or transfer the Agreement without the prior written consent of the other
Party. Any purported assignment in contravention of the foregoing shall be
void.
12.7
Export. Client will comply with all applicable law regarding the
export of items, software or technology, including ensuring that: (a) no
equipment, technical data or software received from Walk In is exported or
re-exported to any country, person or entity in violation of any U.S. sanctions
or export controls (including to any sanctioned or restricted entities); and
(b) that anything received from Walk In is not used or re-exported for a
prohibited use under applicable law. Further, Client represents and warrants that
it and its Client Users (i) are not located in, under the control of, or a
national or resident of any country to which the United States has embargoed
goods or services, or that has been designated by the U.S. Government as a
terrorist supporting country; (ii) have not been identified as a Specially
Designated National by the Office of Foreign Assets Control; (iii) have not
been placed on the U.S. Commerce Department s Denied Persons List; and (iv)
will not use any equipment, technical data or software received from Walk In if
any applicable laws it from doing so in accordance with this Agreement.
12.8
Notices. Any notice required or permitted to be sent under this Agreement
shall be delivered by hand; by overnight courier; by certified mail, return
receipt requested; or via email, to the Parties at their respective addresses
as set forth in the applicable Order Form or to such other address of the
Parties as may be designated in writing in accordance with this
subsection.
12.9
Entire Agreement; Severability; Waiver; Remedies. The Agreement constitutes the
complete and exclusive statement of all mutual understandings between the
parties with respect to the subject matter hereof, superseding all prior or
contemporaneous proposals, communications and understandings, oral or written.
Any preprinted terms appearing in any Client purchase order or similar document
that differ from, are inconsistent with, or are in addition to the terms of
this Agreement, shall be void. If a conflict occurs between this Agreement
and any Order Form, the Order Form will control. Any amendment to the Agreement
must be in writing and signed by both parties. If any provision or part of a
provision of this Agreement is determined to be illegal, invalid, or
unenforceable, the validity of the remaining provisions will not be affected
and will be enforced to the fullest extent of applicable law. Neither party
will be treated as having waived any rights by not exercising (or delaying the
exercise of) any rights under this Agreement. The rights and remedies herein provided are cumulative and none is
exclusive of any other, or of any rights or remedies that any Party may
otherwise have at law or in equity, except as otherwise expressly set forth
herein.
12.10
Governing Law and Venue. The Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
principles of conflict of laws. Any dispute shall be litigated in the state or
federal courts located in Westchester County, New York to whose exclusive
jurisdiction the Parties hereby consent. For purposes of establishing
jurisdiction in New York under this Agreement, each Party hereby waives, to the
fullest extent permitted by applicable law, any claim that: (a) it is not personally
subject to the jurisdiction of such court; (b) it is immune from any legal
process with respect to it or its property; and (c) any such suit, action or
proceeding is brought in an inconvenient forum. Each Party irrevocably waives
its rights to trial by jury in any action or proceeding arising out of or
relating to this Agreement or the transactions relating to its subject matter.
The Parties agree that this contract is not a contract for the sale of goods;
therefore, the Agreement shall not be governed by any codification
of Article 2 or 2A of the Uniform Commercial Code, or any codification of
the Uniform Computer Information Technology Act ( UCITA ), or any
references to the United National Convention on Contracts for the
International Sale of Goods.
12.11
Legal Fees and Costs. In the event of a dispute
between the Parties regarding the enforcement of the Agreement, the prevailing
Party in such dispute will be entitled to collect from the other Party the
prevailing Party's reasonable legal fees, expert witness fees, and costs.
12.12
Headings and Drafting. The headings in the Agreement shall not be used to
construe or interpret the Agreement. The Agreement shall not be construed in
favor of or against a Party based on the author of the document.
12.13
Counterparts.
The Master Agreement and each Schedule may be executed
in one or more counterparts, each of which shall constitute an enforceable
original of the Agreement, and that facsimile and/or pdf scanned copies of
signatures shall be as effective and binding as original signatures.
12.14
Treatment in the Event of Insolvency of Client. The Parties acknowledge and agree that this
Agreement is an executory contract as such term is defined in Section 365 of
the United States Bankruptcy Code ( USBC ). The Parties further
acknowledge and agree that this Agreement does not provide a license of
intellectual property as defined in Section 101(35) of the USBC and that the
provisions of Section 365(n) of the USBC are therefore not applicable. Client
acknowledges that Walk In will be harmed if this Agreement was assigned to
a competitor, direct or indirect, or any other party whose use of Walk In Products
or Services pursuant to the Agreement would be detrimental to the business
and rights of Walk In, and Client hereby grants Walk In the right to consent
to any proposed assignment of this Agreement in a bankruptcy and that the
rights of consent to the assignment provided in Section 365(c)(1) of the
USBC shall be applicable to any proposed assignment of this Agreement in
any bankruptcy case filed by Client.