Platform Service Agreement

Wisq Platform Agreement

Effective Date: October 29, 2023

Prior versions: None

This Wisq Platform Agreement (the “Service Terms”) is a legal contract between you, the “Customer”, and Wisq Inc. (“Wisq”) that is entered into as of the date the first Order Form is entered and governs the use of and access to the Service. By executing an Order Form, selecting the “agree” or “accept” option in an online account setup form, or by using the Wisq Service offered subject to these Service Terms, Customer agrees to be bound by these Service Terms. If you are (i) an individual using the Service as part of your work or responsibilities within a company or organization or (ii) a company or organization: then “Customer” refers to that company or organization, as well as any of its Affiliates that have its personnel added as Users, and you represent and warrant that you are authorized and intend by using or subscribing to the Service to bind each such company or other organization to these Service Terms.

Please read them carefully before proceeding. If you have any questions, please contact us at legal@wisq.com.

1. DEFINITIONS
   1. “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control by a party, where control may be by either management authority, contract or equity interest.
   2. “Agreement” means these Service Terms, the DPA, and any Order Form agreed by the parties.
   3. “Data Privacy Laws” means applicable national, federal, state and provincial laws relating to data privacy, the protection of Personal Data, and the cross-border transfer of Personal Data (e.g., to the extent applicable, CCPA § 1798.140(o) and GDPR Art. 4)). The term “Data Privacy Laws” excludes any law that requires data to be stored in a specific country, as well as the laws of the Russian Federation and the People's Republic of China.
   4. “User” means an individual employee, contractor or agent (collectively “personnel”) of Customer who has been assigned unique credentials to access and use the Service.
   5. “Customer Data” consists of data that Customer and Users make available for processing by the Service and the results of the Service’s processing of the Customer Data.
   6. “Documentation” means any User guides, a User’s acceptable use policy and other instructions that Wisq provides to Users describing the proper use of the Service.
   7. “Intellectual Property Right(s)” means worldwide patent rights (including, without limitation, patent applications and disclosures), trademarks, copyrights, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
   8. “Order Form” means Wisq’s online or written order form or other written agreement (i.e. account set up form) referencing these Service Terms, as submitted by Customer and accepted by Wisq, that specifies the commercial terms and feature set for Customer’s use of the Service.
   9. "Personal Data" means (a) any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier or (b) is defined as “personal information,” “personally identifiable information” or “personal data” by any applicable Data Privacy Law.
   10. “Term” means the period stated in the Order Form that Wisq makes the Service available to Customer.
2. THE SERVICE
   1. Orders. Subject to Customer’s compliance with the Agreement, Wisq will provide Users with access to and use of the Generative AI guide, development platform and related services provided online and through mobile apps (“Service”) listed in each Order Form for the Term, solely for Customer’s internal business purposes and in accordance with the Documentation.
   2. Support; Service Level Agreement. The Order Form will set forth any applicable service level agreement (which, if applicable, is set forth at http://www.wisq.com/legal/sla) and technical support, with technical support consisting of e-mail, chat or telephone assistance in accordance with Wisq’s then-current policies. Wisq is not responsible for issues related to or caused by (i) Customer’s misuse of the Service, (ii) infrastructure, systems, software or equipment used by Customer in connection with the Service that were not provided by Wisq, or (iii) internet issues on the Customer’s side of the solution.
   3. Restrictions. Customer will not, and will not permit others to: (a) copy, modify, reverse engineer, decompile, or otherwise attempt to discover the source code, object code or algorithms from any part of the Service or any associated software or materials (except to the extent that applicable law specifically prohibits such restrictions); (b) provide any third parties with access to any of the Service, except that Customer may allow personnel of its Affiliates to use the Service if Customer is fully liable for such use and the compliance with the Agreement by each Affiliate and User; (c) evade or disable any security measure or monitoring system provided or used by Wisq in connection with the Service; (d) unless otherwise agreed in writing by Wisq, access the Service via any automated system or through any interface not provided by Wisq; (e) introduce into the Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (f) access or use the Service for any unlawful purpose, or for any benchmarking, performance-monitoring, or competitive purposes; (g) post, upload, or otherwise contribute any content to the Service which infringes, misappropriates or violates any third party right or is defamatory, obscene or pornographic; (h) allow anyone under the age of 18 to access or use the Service; or (i) create any derivative work based on any part of the Service, interfere or attempt to interfere in any manner with the proper workings of the Service. All rights in the Service and any associated software or materials not expressly granted under these Service Terms are reserved. Before being granted access to the Service, each User must agree to Wisq’s Acceptable Use Policy found at https://www.wisq.com/legal/acceptable-use-policy, and a User’s account may be suspended or terminated by Wisq for failure to comply with that policy.
   4. Third Party Integrations.Depending on the Service, Customer may decide to interact with, access or use compatible third-party services, content or solutions (“Third Party Services”), such as single sign-on. Wisq does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services. Customer is solely responsible for purchasing and maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer’s use of the Third-Party Services in connection with the Services. Wisq shall not be responsible or liable for any loss, alteration, or unauthorized disclosure or corruption of Customer Data, or any other harm arising from or in connection with Wisq’s integration with such Third Party Services.
3. FEES AND PAYMENT
   1. Fees. Customer shall pay the fees set forth in the Order Form. Wisq uses a third-party payment processor (the “Payment Processor”) for credit card payments. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Wisq is not responsible for errors made by the Payment Processor, or otherwise in connection with the processing of transactions.
   2. Taxes. The fees specified in the Order Form are exclusive of sales tax (e.g., VAT and GST), tax withholdings, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer is responsible for payment of all Taxes and any related interest and/or penalties, other than Wisq’s U.S. federal and state income taxes.
4. CUSTOMER OBLIGATIONS
   1. Responsibilities in Using Service. Customer will not permit Users to share User account credentials. Customer is liable for: (a) all actions and omissions of its Users or any third party that Customer, its Affiliates or a User permits to access the Service, as well as any activities that occur through a User’s account regardless of whether permission was granted and (b) for ensuring that its Users comply with the terms of this Agreement and Customer’s policies (e.g., its personnel, content, and security policies). Wisq reserves the right to immediately suspend, in whole or in part, a User’s or Customer’s access to the Service in order to prevent imminent harm to Wisq or a third party. Customer will provide Wisq with accurate and current information necessary for Users to use the Service.
   2. Compliance. Customer shall use the Services exclusively for proper and legal purposes. Each party will comply with all applicable laws, including without limitation, Data Privacy Laws and all international, federal, state, provincial and local laws relating to export and bribery, except that Wisq expressly disclaims any compliance with any laws of the Russian Federation and the People’s Republic of China. Wisq will not “sell” any “personal information” of Customer (as those terms are defined in the CCPA). If any variation to the Agreement between the parties is required to maintain compliance with changes to Data Privacy Laws, the parties will negotiate in good faith necessary variations to the Agreement to address changes.
5. DATA, CUSTOMER LICENSES AND OWNERSHIP
   1. Customer Data. Customer will provide Wisq with the names and contact details of its personnel necessary to provide the Service (“Account Set Up PII”), such as desired Users. Customer is the sole owner of all Account Set Up PII. Wisq will only use the Account Set Up PII to provide the Services. As part of the Services, Wisq may provide Users with coaching, guidance, learnings, feedback, and other content provided by Wisq through the Service, including through generative artificial intelligence (“Wisq Coaching Output”). Wisq is the sole owner of all Wisq Coaching Output, and the Wisq Coaching Output may only be used by the individual User that receives it for her/his personal, non-commercial use. As part of the Services, Wisq may provide Customer with access to reports detailing (a) Users that have accessed the Service, (b) quantifiable data on the usage of the Service by individual Users, and (c) aggregated and anonymized data regarding the use of the Services, such as frequency of use, most frequent areas of coaching, etc. (collectively, “Customer Analytics Data”). Customer is the sole owner of Customer Analytics Data. Some Wisq Coaching Output will be generated by an AI model (e.g., generative AI) trained on a diverse range of data, and Users may make queries to third-party generative AI tools utilized by Wisq. As a result, Wisq Coaching Outputs that are generated through artificial intelligence may not be accurate, up to date, or reflect Wisq’s views. Customer and Users should not rely on any Wisq Coaching Output that is generated from AI tools without independently confirming its accuracy. Customer understands that privacy commitments will made to individual Users that help to encourage use of the Service, and as result, Customer will not at any time have access or rights to: (i) any data collected by Wisq from a User (e.g., data inputted into the platform by an individual User in order to receive coaching) ("User Coaching Input”) and (ii) Wisq Coaching Output that an identifiable User received. Provided that Customer cannot be identified as the source of the data and no Personal Data is used, Wisq shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use any Customer Data (excluding any Personal Data contained within it) to improve the Service or any other potential service offering and for its internal business purposes. As between Wisq and Customer, the Service and all software, data and technologies embodied in or used to provide the Service, and all Intellectual Property Rights in or relating to any of the foregoing, are owned by Wisq. Except as expressly granted in these Service Terms, no other rights are granted to the Account Set Up PII, Wisq Coaching Output, User Coaching Input, or the Services.
   2. Personal Data. The processing of any Customer Data consisting of Personal Data is governed by the terms and conditions set forth in the Wisq Data Processing Addendum (“DPA”) found at https://www.wisq.com/legal/data-processing-addendum unless the parties have signed a separate data processing agreement (also the “DPA”), in which case that document controls.
   3. Treatment of Customer Data. Wisq will retain Customer Data subject to any time or storage limitations set forth in the relevant Order Form for the Service, may delete or decline to store Customer Data older than one (1) year and will not disclose the Customer Data to any third party except as stated in these Service Terms, the Wisq Acceptable Use Policy and/or the DPA.
   4. Feedback. Customer and/or Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback”) about the Service or other Wisq offerings. Wisq shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any Feedback into the Service or other offerings.
6. TERM AND TERMINATION
   1. Duration and Renewal. Customer’s right to use the Services under the Agreement shall continue through the Term set forth in the applicable Order Form.
   2. Termination. A party may terminate the Agreement for a material breach by the other party that remains uncured more than thirty (30) days after receiving written notice of the breach.
   3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s and Users’ right to access and use the Service shall immediately terminate, Customer and Users shall immediately cease all use of the Service, and each party shall return or destroy and make no further use of any Confidential Information, materials, or other items (and all copies) belonging to the other party. Wisq will continue to make the Service available for thirty (30) days after any termination solely to allow Customer to export Customer Analytics Data that it is entitled to receive using the tools in the Service. Wisq will destroy any Customer Data in its possession within (60) days after termination of the Agreement (excluding data it is entitled to retain under Section 5.1 “Customer Data” which for the avoidance of doubt will not contain any personal data of Customer’s personnel).
   4. Survival. The following provisions of these Service Terms will survive expiration or termination of the Agreement: Sections 2.3, 3, 5, 7, and 9 through 11.
7. CONFIDENTIALITY
   1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the parties’ respective use and provision of the Service that should be reasonably understood to be confidential. The Service is Wisq Confidential Information. Customer-provided Personal Data is Customer Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under these Service Terms. The receiving party will limit the distribution and communication of the disclosing party’s Confidential Information to its Affiliates, personnel, or other agents of the receiving party or the receiving party’s Affiliates (collectively, “Representatives”), who have a need to know such Confidential Information for the purposes of this Agreement, and who have a legal obligation to keep it confidential. Each party is responsible for the actions or omissions of its Representatives in connection with the Confidential Information as if it had itself acted or failed to act. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
   2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (c) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
8. WARRANTIES
   1. By Wisq. Wisq represents and warrants that: (a) the Service will materially comply with the Documentation; (b) it uses industry standard precautions to prevent the Service from containing or transmitting malicious code intended to corrupt software or systems on which it operates; and (c) to Wisq’s knowledge, the Service does not infringe or misappropriate the Intellectual Property Rights of any third party or violate any law. Wisq will have no responsibility or obligations under the foregoing warranty or otherwise with respect to the use of the Service other than in accordance with this Agreement or the Documentation, or the combination of the Service with any materials or technology provided by Customer or any third party.
   2. By Customer. Customer represents and warrants that it has all necessary rights in the Customer Data for the use contemplated in the Agreement.
   3. Disclaimers. Except as expressly provided for in these Service Terms (and without limiting remedies to which Customer may be entitled under the Service Level Agreement, if applicable), the Service is provided “as is” and “as available,” without warranty of any kind, whether express, implied, statutory or otherwise. Each party disclaims, without limitation, any warranties not set forth herein, express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose.
9. INDEMNIFICATION
   1. Indemnification Scope. Wisq will defend Customer and its respective directors, officers and employees (“Customer Indemnified Parties”) from and against all third party claims alleging (a) the Service infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights, (b) Wisq’s willful misconduct or fraud, or (c) the Service violate applicable Data Privacy Laws (“Wisq Indemnity Responsibilities”). Wisq will indemnify and hold Customer Indemnified Parties harmless against any damages and costs awarded against Customer Indemnified Parties or agreed in settlement by Wisq (including reasonable attorneys’ fees) resulting from Wisq Indemnity Responsibilities. Customer will defend Wisq, its Affiliates, and their respective directors, officers and employees (“Wisq Indemnified Parties”) from and against all third party claims alleging (x) Customer Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights; (y) Customer’s willful misconduct or fraud, or (z) Customer’s violation of applicable Data Privacy Laws (“Customer Indemnity Responsibilities”). Customer will indemnify and hold Wisq Indemnified Parties harmless against any damages and costs awarded against Wisq Indemnified Parties or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from Customer Indemnity Responsibilities.
   2. Limitations; Mitigation Measures.(a) Wisq shall have no liability for any indemnification claims to the extent they are based on: (i) any combination of the Service with products, services, methods, content or other elements not furnished by Wisq if such infringement would have been avoided by use of the Service alone; or (ii) any use of the Service in a manner that violates the Agreement or the Documentation. Section 9.1 states the entire obligation of Wisq with respect to any alleged or actual infringement or misappropriation of Intellectual Property Rights.(b) In the event of any indemnification claim concerning Wisq’s Intellectual Property Rights, Wisq may, in its discretion, seek to mitigate the impact of such claim by modifying the Service to make them non-infringing, and/or by suspending or terminating Customer’s use of the Service upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Wisq will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
   3. Procedures. Each party’s indemnity obligations are subject to the following: (a) the aggrieved party will promptly notify the indemnifier in writing of the applicable claim; (b) the indemnifier will have sole control of the defense and settlement of the claim (provided that the indemnifier may not settle any claim without the aggrieved party’s prior written consent, not to be unreasonably withheld); and (c) the aggrieved party will, at the indemnifier’s expense, provide all information and assistance the indemnifier reasonably requests for the defense of such claim.
10. LIMITATION OF LIABILITY. In this Section, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.
    1. General Limitations on Liability. Subject to section 10.2 (Exceptions to Limitations):(a) neither party will have any liability arising out of or relating to the Agreement for: (1) indirect, special, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the Effective Date); (2) exemplary or punitive damages; or (3) the other party’s lost revenues or profits; and(b) each party's aggregate liability arising out of or relating to the Agreement will not exceed the greater of the amount paid or payable to Wisq under the applicable Order Form for the 12 months preceding the subject claim.
    2. Exceptions to Limitations. Nothing in this Agreement excludes or limits either party’s liability for: (a) breach of confidentiality obligations under Section 7, (b) the indemnification obligations under Section 9, or (c) matters for which liability cannot be excluded or limited under applicable law.
11. MISCELLANEOUS
    1. Assignment and Personnel. Neither party may assign the Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer this Agreement as a whole upon written notice to the other party to any successor-in-interest by acquisition, merger, or sale of all or substantially all of the assets of the transferring party. Any attempt to assign the Agreement except as permitted under this Section will be null and of no effect. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Wisq may use subcontractors to help provide the Service, and Wisq agrees it will be fully responsible for the acts and omissions of these subcontractors. Under no circumstances will any employee of one party be deemed to be the employee of the other.
    2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
    3. Severability; Waiver. If any part of the Agreement is held unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
    4. Notices. All notices with legal effect permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt. Delivery shall be effective upon receipt.
    5. Disputes and Governing Law. If Customer is domiciled in the United States: This Agreement and all matters arising out of or relating to this Agreement is governed by California law, without regard to conflict of law, and each party irrevocably consents to exclusive jurisdiction over all claims and disputes between the parties, as follows: (a) if Wisq is the plaintiff, the state and federal courts located in the state and county of Customer address identified in the Order Form, or (b) if Customer is the plaintiff, the Superior Court of Santa Mateo County, California, or federal court in the Northern District of California. If Customer is domiciled outside of the United States: Any unresolved dispute arising out of or in connection with this Agreement shall be finally resolved by arbitration with one arbitrator conducted in English under the Rules of Arbitration of the International Chamber of Commerce that are made a part of the Agreement. Either party can obtain temporary restraining orders, preliminary injunctions, and other similar relief in a court of competent jurisdiction when necessary to preserve status quo or prevent injury pending resolution of the dispute on its merits by arbitration. The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of (without regard to conflict of law) and the location of the arbitration will be, as follows:

Customer is domiciled in Asia:

1. Entire Agreement. The Agreement, and any documents expressly referenced herein (including the Order Form) constitute the entire agreement, and supersedes all prior or contemporaneous oral or written agreements, regarding the subject matter hereof. Any amendment or modification to this Agreement must be in writing signed by both parties. Terms and conditions set forth in any purchase order or other document provided by Customer to Wisq shall not apply. This Agreement may be executed in counterparts (including by facsimile, or by email in portable document format (.pdf)), each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the case of conflict among any of the contract documents, the conflict will be resolved by the following priority of documents, where the higher document takes priority over a lower document: (1) DPA, (2) Order Form, (3) these Service Terms.