Platform Service Agreement

1. Parties

In these Service Terms, “Wisq” refers to Wisq Inc., and “Customer” refers to the subscriber to the Platform Service identified on an executed Order Form. Any individual subscribing to or using the Platform Service in the name of or as part of his or her responsibilities within a company or other organization, or who submits to the Platform Service data controlled by such company or organization, represents and warrants that they are authorized and intends by those actions to bind the company or other organization to these Service Terms.

2. Definitions

• 2.1. “Agreement” means these Service Terms and an Order Form agreed by the parties.
• 2.2. “User” means an individual employee or agent of Customer who has been assigned unique credentials to access and use the Platform Service, whether or not that individual is accessing or using the Platform Service at any particular time.
• 2.3. “Customer Data” consists of data that Customer and Users make available for processing by the Platform Service and the results of the Platform Service’s processing of the Customer Data.
• 2.4. “Documentation” means the user guide and other instructions that Wisq provides to its customers describing the proper use of the Platform Service.
• 2.5. “Platform Service” means Wisq’s hosted services (including any application programming interface if made available) for enterprise social connection and networking as stated on the Order Form.
• 2.6. “Order Form” means Wisq’s online or written order form or account setup form or other written agreement 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 Platform Service
• 2.7. “Service Description” means the description of the Platform Service feature set which Customer has purchased, as referenced in the Order Form.
• 2.8. “Term” means the period for which Wisq makes the Platform Service available to Customer as stated in the Order Form.

3. Platform Service

• 3.1. Authorization to Use. Subject to Customer’s compliance with the Agreement, Wisq will provide Users with access to and use of the Platform Service for the Term, solely for Customer’s internal business purposes and in accordance with the Documentation. Customer and its Users will access the Platform Service using the credentials assigned by Wisq. The use of the Platform Service is further subject to any usage limitations indicated in the Order Form or in the applicable Service Description.
• 3.2. Support; Service Level Agreement. If the Order Form or the Service Description provides for Customer to receive technical support in connection with the Services, then (unless otherwise set forth in the Order Form or Service Description) such technical support will consist of e-mail, chat or telephone assistance in accordance with Wisq’s then-current policies, and if applicable under the Service Description, the Service Level Agreement at www.wisq.com/legal/sla (“Service Level Agreement”).
• 3.3. Restrictions. Customer will not, and will not permit others to: (a) copy, modify, or reverse engineer the Platform Service or any associated software or materials (except to the extent that applicable law specifically prohibits or restricts reverse engineering restrictions); (b) provide any third parties with access to any of the Platform Service, except that Customer may allow personnel of its corporate affiliates to access and use the Platform Service if Customer is fully liable for such use and such personnel’s and corporate affiliates’ compliance with the Agreement: (c) evade or disable any security measure or monitoring system provided or used by Wisq in connection with the Platform Service; (d) unless otherwise agreed in writing by Wisq, access the Platform Service via any automated system or through any interface not provided by Wisq; (e) introduce into the Platform Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (f) access or use the Platform Service for any unlawful purpose, or for any benchmarking, performance-monitoring, or competitive purposes; (g) post, upload, or otherwise contribute any content to the Platform Service which (1) infringes, misappropriates or violates any third party right, or (2) is defamatory, obscene or pornographic; or (h) interfere or attempt to interfere in any manner with the proper workings of the Platform Service. All rights in the Platform Service and any associated software or materials not expressly granted herein are reserved.
• 3.4. Third Party Integrations. Wisq may offer Customers the option of sending data and information to and receiving data and information from single sign-on, workplace management, analytics or other services provided by third parties (“Third Party Integration Providers”). Such functionality may be subject to additional fees. Customer is solely responsible for establishing and complying with the contractual relationship with any such Third Party Integration Providers. 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 Integration Providers.

4. Customer Obligations

• 4.1. Responsibilities in Using Platform Service. Customer is and shall remain liable for: (a) all activities that occur under its Platform Service Account, (b) all actions and omissions of its Users hereunder or under any applicable separate agreement, and (c) for ensuring that its Users comply with the terms of this Agreement, Customer’s policies, including without limitation its personnel, content, and security policies. Wisq reserves the right to immediately suspend, in whole or in part, Customer’s access to the Platform Service and Wisq’s provision of the Platform Service in order to prevent imminent harm to Wisq or a third party.
• 4.2. Compliance. Customer shall use the Services exclusively for proper and legal purposes. Customer will comply with all applicable laws, and all policies of and Customer agreements with, any Third Party Integration Provider that Customer elects to use.

5. Data, Customer Licenses and Ownership

• 5.1. Customer Data. During the Term of this Agreement, Customer hereby grants Wisq a royalty-free, nonexclusive, worldwide license under all of Customer’s intellectual property rights in and to the Customer Data to adapt, modify, create derivative works of, perform, display, reformat, translate, excerpt (in whole or in part), publish, transmit and distribute the Customer Data, in each case to enable Wisq to operate the Platform Service on Customer’s behalf. Customer may, using the tools if and as provided in the Platform Service, export a copy of Customer Data at reasonable intervals and subject to any limitations in the Order Form or Service Description.
• 5.2. Personal Data. The processing of any Customer Data consisting of personally identifiable information, personal information, or personal data (collectively “personal information”), as such terms are defined under the California Consumer Privacy Act, EU General Data Protection Regulation 2016/679 and other applicable privacy laws shall be governed by the terms and conditions set forth in the Wisq Data Processing Addendum (“DPA”) found at www.wisq.com/legal/dpa unless the parties have signed a separate data processing agreement, in which case that document controls.
• 5.3. 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 Platform Service, may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation, and will not disclose the Customer Data to any third party except as stated in these Service Terms and/or the DPA.
• 5.4. Ownership; Feedback. Wisq agrees that as between Wisq and Customer, Customer will own the Customer Data. As between Wisq and Customer, the Platform Service and all software, data and technologies embodied in or used to provide the Platform Service, and all intellectual property rights in or relating to any of the foregoing, is owned by Wisq. Customer and / or Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback”) about the Platform 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 Platform Service or other Wisq offerings. Provided that neither Customer nor any individual can be identified from the data in the form retained by Wisq, Wisq may retain and use Customer Data solely in a de-identified, aggregated form to provide, improve, support, and report on the use of the Platform Service.

6. Term and Termination

• 6.1. Duration and Renewal. Customer’s right to use the Platform Services under the Agreement shall continue through the Term.
• 6.2. Termination. A party may terminate these Service Terms for a material breach by the other party that remains uncured more than 7 days after receiving written notice of the breach.
• 6.3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s and Users’ right to access and use the Platform Service shall immediately terminate, Customer and Users shall immediately cease all use of the Platform Service, and each party shall return or destroy and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Wisq will continue to make the Platform Service available for thirty (30) days after any termination solely to allow Customer to export Customer Data (if permitted under the relevant Service Description) using the tools in the Platform Service. Wisq will destroy any Customer Data in its possession following such thirty (30) day period.
• 6.4. Survival. The following provisions will survive expiration or termination of the Agreement: Sections 1, 2, 3.3, 5, 6.3, 6.4, 7 (to the extent of any outstanding payments), and 8 through 12.

7. Fees and Payment

• 7.1. Fees. Customer shall pay the fees set forth in the Order Form. Wisq may change the Platform Service fees at any time after the initial Term set forth in the Order Form effective as of the start of the first renewal after notice of such changes. 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.
• 7.2. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Wisq’s U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.

8. Confidentiality

• 8.1. 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 Platform Service that should be reasonably understood to be confidential. The Platform Service is Wisq Confidential Information. The Customer Data are 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 and the employees, subcontractors, 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 shall be 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.
• 8.2. 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.

9. Warranties

• 9.1. By Wisq. Wisq represents and warrants that: (a) the Platform Service and Wisq API will materially comply with the Documentation; (b) it uses industry standard precautions to prevent the Platform Service and Wisq API from containing or transmitting malicious code intended to corrupt software or systems on which it operates; and (c) to Wisq’s knowledge, the Platform Service and Wisq API do 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 Platform Service other than in accordance with this Agreement or the Documentation, or the combination of the Platform Service or Wisq API with any materials or technology provided by Customer or any third party.
• 9.2. By Customer. Customer represents and warrants that it has all necessary rights in the Customer Data for the use contemplated in the Agreement.
• 9.3. 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 Platform 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.

10. Indemnification

• 10.1. Indemnification. Subject to the terms of this Section 10, each party will defend the other party against claims, demands, suits or proceedings made or brought by a third party (“Claims”) against the other party, and will indemnify the other party against any damages awarded by a court or settlement amounts agreed to be paid in connection with such Claims, to the extent based upon: (a) for Wisq as the indemnifying party, an allegation of infringement or misappropriation of such third party’s intellectual property rights in connection with the provision of the Platform Service; and (b) for Customer as the indemnifying party, an allegation of violation of applicable law or infringement or misappropriation of such third party’s intellectual property rights in connection with Customer Data or the use of the Platform Service.
• 10.2. Limitations; Mitigation Measures.

(a) Section 10.1 states the entire obligation of Wisq with respect to any alleged or actual infringement or misappropriation of intellectual property rights. Wisq shall have no liability under this Section 10 to the extent that any Claims are based on: (i) any combination of the Platform Service with products, services, methods, content or other elements not furnished by Wisq if such infringement would have been avoided by use of the Platform Service alone; or (ii) any use of the Platform Service in a manner that violates the Agreement or the Documentation.

(b) In the event of any Claim or potential Claim concerning intellectual property infringement or misappropriation covered by Section 10.1, Wisq may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Service to make them non-infringing, and/or by suspending or terminating Customer’s use of the Platform 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).

• 10.3. 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.

11. Limitation of Liability

In this Section, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence. To the maximum extent permitted by applicable law: (a) Wisq will have no liability arising out of or relating to the Agreement for indirect, special, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the Effective Date), exemplary or punitive damages, or lost revenues, profits, or data; and (b) Wisq's aggregate liability arising out of or relating to the Agreement will not exceed the amount paid by Customer to Wisq under the applicable Order Form for the 12 months preceding the event giving rise to liability. The remedies expressly provided in any Service Level Agreement applicable to Customer are Customer’s sole and exclusive remedy, and Wisq’s entire obligation with respect to any violation of the service level commitments set forth therein.

12. Miscellaneous

• 12.1. Assignment. 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: (a) to any corporate affiliate of the transferring party or (b) 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.
• 12.2. 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.
• 12.3. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions in connection with the Platform Service, and any direct product.
• 12.4. 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.
• 12.5. 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.
• 12.6. Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
• 12.7. Entire Agreement; Priority. 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.