Terms of Service

Except as otherwise agreed by Wilya Inc. (“Wilya”) in writing, the following terms and conditions (“Terms” or “Terms of Service”) will apply to all orders received and all sales made by Wilya. The terms and conditions set forth herein as well as any terms and conditions printed on the face of Wilya’s order acknowledgment constitute the sole and entire agreement between Seller and the customer (“Customer”) of Services from Seller with respect to the subject matter hereof.
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NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.
1. “Additional Services” means any service, other than Subscription Services.
2. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Wilya in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
3. “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer.
4. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
5. “Documentation” means Wilya’s information manuals containing operating instructions and performance specifications that Wilya generally makes available to users of its Services, whether in print or online. Documentation does not include marketing materials.
6. “Wilya IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing including any and all Confidential Information (as defined in Section 6), any computer programs (in object or source code format or any other form), know how, trade secrets, copyrights (including future copyright, rights of authorship and rights in the nature of or analogous to copyright), mask work rights, inventions (including patents), trade marks, service marks, database rights, designs rights, design and circuit layouts, and training materials whether or not now existing and whether or not registered or registrable, including, without limitation, any right to apply for the registration of such rights and all renewals, extensions, continuations and derivative works of the foregoing. For the avoidance of doubt, Wilya IP includes Aggregated Statistics and any information, data, or other content derived from Wilya’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
7. “Manufacturing Location” means the locations where Customer and Customer’s employee’s, consultants, and contractors are authorized to access and use the Services under the rights granted to Customer pursuant to these Terms of Service.
8. “Services” means, collectively, Subscription Services and any Additional Services.
9. “Subscription Services” means Wilya’s cloud-based shift scheduling software.
10. “Third-Party Products” means any third-party products described in provided with or incorporated into the Services.
2. Access and Use.
1. Provision of Access. Subject to and conditioned on Customer’s payment of fees and compliance with these Terms of Service, Wilya hereby grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(i)) right to access and use the Subscription ervices during the Term (as defined in Section 5(b)), solely for use by Authorized Users in accordance with the terms and conditions herein.
2. Documentation License. Subject to the terms and conditions contained in these Terms of Service, Wilya hereby grants to Customer a revocable, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(i)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
3. Usage Limits. The licenses granted to Customer by these Terms of Service are limited to Customer’s internal use. Wilya shall provide to Customer the necessary accounts and passwords to allow Customer and its Authorized Users to access the Subscription Services. Customer may only provide user names and passwords, and will limit access to employees and contractors of Customer accessing the Services solely for the benefit of Customer and no other person or entity. Customer may only provide user names and passwords, and will limit access to employees and contractors of Customer who work at the Manufacturing Locations provided in the SaaS Agreement. Use by Customer or any of Customer’s employees, contractors, or consultants who do not work at those Manufacturing Locations will constitute a breach of this Section 2(c) and require Customer to purchase additional subscriptions. A user’s password may not be shared with any other individual and, once assigned, a user’s identification may not be reassigned to a new individual replacing one who will no longer use the Services. Customer agrees that Customer is fully responsible for all use of the accounts and passwords, whether or not authorized, and fully assumes (and will defend and indemnify Wilya against) any and all damages, liabilities, losses, costs, and expenses (including reasonable attorney fees) resulting or in any manner arising from any use (including, any improper, unauthorized, or fraudulent use) of any account or password.
4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms of Service. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Subscription Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Subscription Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Subscription Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) frame or mirror the Subscription Services or any part thereof; (vii) access the Subscription Services or Documentation or any part thereof to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Subscription Services, (C) copy any ideas, features, functions or graphics of the Subscription Services or (D) determine whether the Subscription Services are within the scope of any patent; or (viii) permit or encourage any third party to engage in the foregoing. Customer shall indemnify Wilya for any damages, loss, expenses or costs incurred by Wilya as a result of non-compliance with this Section 2.
5. Change in the Services. Wilya may change any features, functions, or attributes of the Services, or any element of its systems or processes, from time to time. Wilya will inform Customer if it makes any change that is likely to have a material adverse impact on the features, functions, and performance of the Services. If any such change requires any a modification to the fees charged for the Services, such modification will be subject to mutual agreement of the Parties.
6. License Compliance. During the Term and for a period of two (2) years after the termination or expiration of these Terms of Service, at Wilya’s request and upon reasonable prior written notice, Wilya will have the right to inspect Customer’s compliance with this Section 2.]
7. Aggregated Statistics. Notwithstanding anything to the contrary in these Terms of Service, Wilya may monitor Customer’s use of the Subscription Services and collect and compile Aggregated Statistics. As between Wilya and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Wilya. Customer acknowledges that Wilya may compile Aggregated Statistics based on Customer Data input into the Subscription Services. Customer agrees that Wilya may (i) make Aggregated Statistics available, in compliance with applicable law, to Customer, Wilya’s other customers, Wilya's vendors, and the public and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Data.
1. Customer Data. ANY CUSTOMER DATA WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER CONTINUES TO PURCHASE A SUBSCRIPTION TO THE SUBSCRIPTION SERVICES OR REQUESTS WILYA TO EXPORT SUCH DATA BEFORE THE END OF THE TERM WITH A SIXTY (60) CALENDAR DAYS NOTICE TO WILYA. CUSTOMER IS SOLELY RESPONSIBILE TO REQUEST EXPORT OF DATA OR SUCH DATA WILL BE PERMANENTLY LOST.
2. Personal Data. Where Customer provides Wilya access to any employee, customer or other individual’s personal data, or requests Wilya to provide Customer or a third Party identified by Customer with access to such data, Customer will notify all relevant employees, customers and other individuals of the fact that Wilya will have, or will be providing, access to such personal data. By providing Wilya access to such data, Customer represents and warrants that it has the requisite authority and has obtained any and all requisite consents to provide such access. Customer shall indemnify Wilya and its officers, directors, employees, subcontractors and affiliates against, and hold each of them harmless from, any and all liabilities, costs, damages, judgments and expenses (including reasonable attorney’s fees and costs) arising out of Wilya’s accessing, using, processing, sharing or providing access to such data to perform the Services and other obligations and exercise its rights as contemplated in these Terms of Service.
4. Customer Responsibilities.
1. General. Customer will cooperate with Wilya as reasonably necessary for Wilya’s delivery and performance of Services in a timely manner. Customer is responsible and liable for all uses of the Subscription Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions herein as applicable to such Authorized User’s use of the Subscription Services, and shall cause Authorized Users to comply with such provisions. Customer is responsible for regularly backing up its data and files in accordance with good computing practices. Wilya shall not be liable for any delay or failure to provide Services, and any associated costs or fees, to the extent such delay or failure is related to or is caused due to Customer’s non-cooperation, delay or non-performance of its obligations under these Terms.
2. Connectivity. Customer shall be responsible at its expense to obtain and maintain all Customer located or specific equipment, facility wiring, connectivity installation, telecommunication services, internet access and connection, including payment of connectivity related fees and charges necessary to facilitate the performance of the Subscription Services.
3. Third-Party Products. Wilya may from time to time make Third-Party Products available to Customer. For purposes of these Terms, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions (if applicable). If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
5. Fees and Payment.
1. Invoicing. Unless otherwise provided, payment of invoices is due within thirty (30) days of the date of Wilyas invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with other methods of invoicing and payment. Customer is responsible for providing complete and accurate billing and contact information to Wilya and will provide prompt notice to Wilya of any change to such information. Unless otherwise agreed any and all fees shall be paid in U.S. Dollars.
2. Subscriptions. Services are purchased as subscriptions for the Term and a subscription must be purchased for each Manufacturing Location where employees located at such Manufacturing Location will use and access the Subscription Services. Unless otherwise mutually agreed, the initial term of a subscription shall be for one (1) year from the Effective Date of these Terms (“Initial Term”) and shall automatically renew for the same period on an annual basis (“Renewal Term”) (collectively, the “Term”) until terminated in accordance with these Terms. The number of Manufacturing Locations with an active subscription cannot be decreased during the Initial Term or Renewal Term, but can be reduced prior to the start of the next Renewal Term by providing Wilya written notice of any reductions to Manufacturing Locations no less than sixty (60) days prior the end of the of the then-current Term. If Customer pays for a subscription by credit card, Customer hereby authorizes Wilya to charge any subscription renewals to such credit card. Fees for Services payable for a Renewal Term will be at Wilya’s then-current standard rates and will be payable in advance, unless otherwise agreed. Fees paid for Services are non-refundable if the agreement is terminated prior to the expiration of the subscription period.
3. Overdue Payments. Wilya may immediately suspend access to use the Subscription Services for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. Customer will reimburse Wilya for reasonable attorneys’ fees and any other costs associated with collecting overdue payments
4. Taxes. All fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Unless Customer provides Wilya with a current tax exemption certificate, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Wilya’s income.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. Each Party will protect the secrecy of all Confidential Information received from the other Party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of the Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
1. Wilya IP. Customer acknowledges that, as between Customer and Wilya, Wilya owns all right, title, and interest, including all intellectual property rights, in and to the Wilya IP and, with respect to Third-Party Products, the applicable third-party own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
2. Customer Data. Wilya acknowledges that, as between Wilya and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Wilya a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Wilya to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Wilya by mail, email, telephone, or otherwise, suggesting or recommending changes to the Wilya IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Wilya is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Wilya on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Wilya is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Wilya is not required to use any Feedback.
4. Backup Copies. Customer may create a reasonable number of archival and backup copies of the Documentation, provided all proprietary rights, notices, names and logos are duplicated on all copies.
8. Limited Warranty and Warranty Disclaimer.
   1. Wilya warrants to Customer that during the Term the Subscription Services will perform materially in accordance with the applicable Documentation and the applicable specifications from time to time promulgated by Wilya. THE FOREGOING WARRANTY DOES NOT APPLY, AND WILYA STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
   2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE WILYA IP IS PROVIDED “AS IS” AND WILYA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WILYA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WILYA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), TITLE, RELIABILITY, COMPLETENESS, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), WILYA MAKES NO WARRANTY OF ANY KIND THAT THE WILYA IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. WILYA SHALL HAVE NO RESPONSIBILITY FOR ANY LOSS OR DAMAGE ARISING IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, ANY SERVICES UNLESS ACTUALLY INCURRED AND CAUSED DIRECTLY BY WILYA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
   3. The warranty in Section 8(a) does not extend to any damages, delays, losses, malfunctions, or non-conformities caused by: (i) Customer’s use of Services in violation of these Terms or in a manner inconsistent with the Documentation; (ii) use of non-Wilya software in connection with the Subscription Services (except to the extent provided in the Documentation); (iii) Customer’s failure to follow Wilya’s instructions with respect to the use, operation or maintenance of the Subscription Services; (iv) Customer’s failure to permit Wilya timely access, remote or otherwise, to the Subscription Services; (v) failure to implement Updates (defined below) as directed by Wilya; (vi) Services that have been serviced or modified other than by Wilya. “Update” means, including all updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications made or provided by Wilya pursuant to these Terms whether or not requested by Customer.
   4. From time to time, Wilya may make beta products available to Customer at no charge. Customer may choose to try such beta products or not in Customer’s sole discretion. Beta products are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta products are provided “As-Is” with no warranties or indemnification, however, all restrictions, and Wilya’s reservation of rights and Customer’s obligations, shall apply to Customer’s use of beta products. Unless otherwise stated, any beta product trial period will expire upon the earlier of (i) one (1) year from the trial start date, (ii) the date that a version of the beta product becomes generally available without the applicable beta product designation, or (iii) upon Wilya’s providing notice to Customer of its discontinuance. Wilya may discontinue beta products at any time in Wilya’s sole discretion, may never make them generally available, and will have no liability for any harm or damage arising out of or in connection with a beta product.
9. Indemnification.
   1. Wilya shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Wilya in writing of the claim, cooperates with Wilya, and allows Wilya sole authority to control the defense and settlement of such claim.
   2. If such a claim is made or appears possible, Customer agrees to permit Wilya, at Wilya’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Wilya determines that neither alternative is reasonably available, Wilya may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund Customer any prepaid subscription fees prorated for the period after the Effective Date of such termination in which case Customer will cease all use of the infringing Services.
   3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Wilya or authorized by Wilya in writing; (B) modifications to the Services not made by Wilya; (C) Customer Data; (D) Services that are used by Customer in a country other than the country for which it was supplied by Wilya; (E) possession or use of the Services after Wilya has informed Customer of modifications or changes in the Services required to avoid such claim and offered to implement those modifications or changes, if such claim would have been avoided by implementation of Wilya’s suggestions and to the extent Customer did not provide Wilya with a reasonable opportunity to implement Wilya’s suggestions; or (F) Third-Party Products. Customer will defend Wilya against any claim, and will indemnify Wilya for any judgments, settlements and reasonable attorney’s fees resulting from a claim against Wilya to the extent such claim is based on any of subsections (A) to (F) above.
1. Wilya Indemnification.
2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Wilya’s option, defend Wilya from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Wilya or authorized by Wilya in writing; or (iv) modifications to the Services not made by Wilya, provided that Customer may not settle any Third-Party Claim against Wilya unless Wilya consents to such settlement, and further provided that Wilya will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
3. Sole Remedy. THIS 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND WILYA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability. IN NO EVENT WILL WILYA BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WILYA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL WILYA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL FEES PAID UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
11. Termination.
    1. Wilya may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Wilya’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(d) or 6;
    2. either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
1. Termination Rights. In addition to any other express termination right set forth in these Terms:
2. Effect of Expiration or Termination. Upon expiration or earlier termination, Customer shall immediately discontinue use of the Wilya IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Wilya IP and certify in writing to the Wilya that the Wilya IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
3. Survival. This Section 11(c) and ns 1, 2(g), 3(b), 5, 6, 7, 8(b), 9, 10, 12, 13, and 15 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
12. No Solicitation. During the Term and for one (1) year after termination of the Service, Customer will not solicit or hire for employment any Wilya employee. In the event that Customer hires any Wilya employee prior to the end of this period either as an employee, consultant or independent contractor, Customer will pay Wilya a finder’s fee equal to 100% of the Wilya employee’s last gross annual salary, in addition to any other remedies available to Wilya, at law or in equity.
13. Nondisparagement. Neither Party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other Party, including, but not limited to, in reviews or social media, and in the Parties’ respective official statements, will not and will instruct the members of their respective boards and executive officers not to, knowingly disparage, criticize, or otherwise make derogatory statements regarding the other Party. The foregoing will not be deemed to restrict a Party or any of a Party’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
14. Publicity. Notwithstanding Section 6, Customer agrees that Wilya may issue a public announcement regarding providing Services to Customer and include Customer’s name and logo on Wilya’s website, presentations, and marketing materials.
15. Miscellaneous.
1. Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided or agreed, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by the other party or an act of God, fire, flood, war, the engagement of hostilities, civil disturbance, court order, strike, labor dispute, embargo, government requirement, public health or travel restrictions, civil disturbances, civil or military authority, an inability to secure materials or transportation facilities, third party nonperformance, contractual impossibility, illegality of performance, or other cause (whether or not similar to the foregoing) beyond its reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment, and such nonperformance shall not be a default hereunder or ground for termination hereof, and if and to the extent necessary, such party’s time for performance shall be extended ( each a “Force Majeure”).
4. Amendment and Modification; Waiver. No amendment to or modification of these Terms are effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth per these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
5. Subcontractors. Wilya may subcontract any or all of its obligations, but will retain responsibility for the work.
6. Severability. If any provision of these Terms are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
7. Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in the city of Mechanicsburg and Cumberland County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
8. Time Limit. Actions or disputes between the Parties must be brought in accordance with this Section within two years after the cause of action arises.
9. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Wilya, which consent shall not be unreasonably withheld. Wilya may assign these Terms to any of its affiliated entities or to any entity to which Wilya may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance of Services under these Terms. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
10. No Third-Pary Beneficiaries. Except as expressly stated herein, these Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
11. Independent Parties. Customer and Wilya are and intend to remain independent parties. Nothing in these Terms shall be deemed or construed to create the relationship of principal and agent, or of partnership or joint venture, and neither Party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venture, servant or employee of the other. Neither Party nor any officer, employee, agent or representative thereof shall, in any event, have any right, collectively or individually, to bind the other Party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other Party. Customer understands and agrees that Wilya may perform similar services for others, and that Wilya’s relationship with Customer is not exclusive.
12. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
13. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14. Reservation of Rights. Wilya reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Wilya IP.