This SOFTWARE LICENSE USER AGREEMENT (this “Agreement”) is made by and between WISE AGENT, LLC, an Arizona limited liability company (“Wise Agent”), and the customer set forth on the Software Subscription (“Customer”). Wise Agent and Customer are sometimes referred to herein together as the “Parties” and each, individually, as a “Party”.

RECITALS

1. Wise Agent has developed and operates a real estate CRM software service (the “Service”).
2. The Service is accessed and used through (i) Wise Agent’s online, Web-based portal located at www.wiseagent.com (the “Site”), and (ii) Wise Agent’s application (the “Application”). Wise Agent has developed and provides to Customer documentation detailing the functionality and use of the Site, Service, and Application (the “Documentation”). The Service, the Site, the Application, and the Documentation are collectively referred to in this Agreement as the “System”.
3. Customer desires to subscribe to and use the Service.

Therefore, the Parties agree as follows with the intent to be legally bound.

AGREEMENT

1. Subscription to Service. Customer hereby subscribes to the Service and purchases the subscription described in this Agreement. In connection with Customer’s subscription, Customer agrees to perform Customer’s obligations described in this Agreement. Customer agrees to use, and Wise Agent agrees to provide, the System under the terms and subject to the conditions in this Agreement. All references to “this Agreement” include the Software Subscription and the Privacy Policy (as defined below).
2. License Grant; Use of Software.
1. License. Wise Agent grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use the System during the Term (as defined below) solely for the purposes of managing Customer’s business. Subject to the limited rights expressly granted hereunder, Wise Agent reserves all right, title and interest in and to the System, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement
2. Customer Responsibilities and Obligations.
1. Customer is solely responsible for (A) all activities occurring under Customers and Customer’s employees’ and agents’ accounts; (B) maintaining the confidentiality of Customer’s account and passwords and creating secure passwords; (C) the content of all documents, content, and data submitted by Customer and its employees and agents to and through the System; (D) setting and modifying Customer’s profile and preferences for the System, and specifying the access rights of those users to the System; and (E) the use of the Service by Customer’s employees and agents.
2. Customer shall (A) ensure that all of Customer’s employees and agents using the System are properly trained and do not violate any of the term and conditions set forth in this Agreement, (B) prevent unauthorized access to, or use of, the System, and will notify Wise Agent promptly of any unauthorized use Customer becomes aware of; and (C) comply with all applicable local, state, federal and foreign laws, treaties, rules, and regulations in using the System (including, without limitation, all laws, rules, and regulations governing data privacy, international communications, and transmission of technical or personal data) (collectively, “Laws”).
3. Customer shall use the System solely for the purposes permitted pursuant to Section 2(a) above. Customer shall not (A) make the System available to, or otherwise show the System to, any third party; (B) share Customer’s account password and login credentials with any third party; (C) except as expressly authorized in Section 2(a) above, use, or attempt to use, any content obtained through the System for any commercial purpose; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) install, send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the System or Wise Agent’s sites, servers, or networks; (H) use the system to violate the intellectual property rights of any third party; (I) misrepresent the identity of any user accessing the System; or (J) attempt to gain unauthorized access to Wise Agent’s systems, networks, infrastructure, or the System.
4. Customer is solely responsible for securing, providing, maintaining, upgrading, and replacing all equipment, software, and services necessary to utilize the System (including, without limitation, Internet connectivity, computers, tablets, and smart phones). Wise Agent shall have no obligation or liability of any kind with respect to such equipment, software or services.
3. Ownership of the System.
1. The System (including, without limitation, the software, technology, and documentation incorporated in and underlying the System) is Wise Agent’s sole and exclusive property. Subject to the limited rights expressly granted in this Agreement, Wise Agent reserves all right, title and interest in and to the System (including, without limitation, all software, technology, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights). No rights are granted to Customer other than as expressly described in this Agreement.
2. Wise Agent is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the System, (B) all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications, and other supporting documentation related to the System, in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by Wise Agent (whether alone or jointly with Customer) for Customer. Any of the items described in this Section 2(c)(ii) that are provided by Wise Agent, in Wise Agent’s sole discretion, to Customer will be deemed to be included in the definition of the “System” hereunder and available for use by Customer under the terms and subject to the conditions in this Agreement.
3. As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the System. Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Customer, alone or in conjunction with others, during the Term and (B) disclosed to Wise Agent (whether orally, in writing, electronically or otherwise) (“System-Related IP”) will be deemed to have been made or developed by Customer solely for Wise Agent’s benefit, will be held in trust for Wise Agent’s exclusive use and benefit, and will be Wise Agent’s sole and exclusive property. Customer will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party System-Related IP. Customer agrees to assign, and does hereby assign, to Wise Agent all right, title, and interest in and to any System-Related IP, including, without limitation, any “moral” rights which Customer may have in the System-Related IP under any copyright law or other similar law. Customer also agrees, during the Term of this Agreement and at any time thereafter, at Wise Agent’s request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for System-Related IP in any country in the world. Without limiting the generality of the foregoing, Wise Agent may, in its sole discretion, incorporate the System-Related IP into the System.
4. Customer expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, redistribute, republish, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, enhancements, revisions or modifications) based on, or infringe or violate, Wise Agent’s intellectual property or other rights in, the System; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure or organization) of the System; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the System; (D) directly or indirectly circumvent or violate the technical or security restrictions of the System; (E) publicly disseminate performance information about or analysis of the System; (F) access the System in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the System; (E) use the System for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the System to be placed in the public domain; or (H) challenge the validity of the copyright or any other rights of Wise Agent to the System or title or interest thereto. During the period commencing on the Effective Date and ending on the eighteen (18) month anniversary of the date on which this Agreement is terminated (the “Non-Competitive Period”), Customer expressly agrees that Customer will not build a competitive product or service
5. Customer warrants that it owns or has sufficient legal right to the intellectual property rights in its content and that its content (including, without limitation, any use of its content by Wise Agent as described in this Agreement), does not violate applicable Laws or the rights of any third party. Solely for purposes of delivering the Service and administering the System, Customer grants Wise Agent a worldwide, royalty-free, non-exclusive, sublicensable right during the Term to use, reproduce, distribute, publicly perform, publicly display, transfer, transmit, and distribute Customer’s content and subsequent versions thereof; and to make and/or have made, and to practice any method embodying Customer’s content. This license will apply to the distribution and the storage of Customer’s content in any form, medium, or technology now known or later developed.
6. Provided that Wise Agent does not personally identify Customer, Customer hereby grants Wise Agent the right to use the data generated, in aggregated form, from Customer’s use of the System to maintain, support, and improve the System, and for any other legal purpose.
4. Modification of the System. Wise Agent shall be entitled to modify, change, and upgrade the functionality, features, and capabilities of the System and the underlying technical infrastructure, in its sole and absolute discretion.
3. Privacy Policy. All of the information that Wise Agent collects from Customer is subject to Wise Agent’s privacy policy (the “Privacy Policy”) and applicable privacy laws. Go to https://wiseagent.com/privacy.asp/ to see Wise Agent’s full Privacy Policy. The Privacy Policy may be amended, from time to time, by Wise Agent in its sole and absolute discretion, and is incorporated into and made part of this Agreement.
4. FEES.
1. Fees. Wise Agent will provide Customer with access to and use of the System for the fees described at the time of purchase and Customer agrees to pay such fees. Customer’s subscription will begin at time of registration. The subscription payment will begin at the conclusion of the given trial period. These fees will be collected on an automated recurring billing (ARB) subscription via a valid credit card on file. All fees paid to Wise Agent are non-refundable. Wise Agent reserves the right to adjust the fees at any time at Wise Agent’s sole and absolute discretion upon at least thirty (30) days’ prior written notice to Customer.
2. Forms of Payment Customer agrees to pay Wise Agent via a valid credit card that will be on file with Wise Agent’s payment processor. The Customer agrees to pay either a monthly or annual fee for the purpose of subscribing to have access to Wise Agent.
3. Late Fees; Taxes. Wise Agent may charge interest on all overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable Laws) on the unpaid amount until such amounts are paid. Customer will be solely responsible for, and will pay, any sales, use, transaction privilege, gross receipts, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on Wise Agent’s income) that are imposed by any governmental authority in connection with this Agreement.
4. Suspension. If Customer fails to pay, when fees are due, any fees, late fees, or other charges due to Wise Agent under this Agreement, Wise Agent may, in Wise Agent’s sole and absolute discretion and without notice to Customer, immediately suspend Customer’s use of the System. Customer expressly acknowledges and agrees that Wise Agent will have no liability to Customer whatsoever if Wise Agent elects to suspend Customer’s use of the System (even if Wise Agent has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)). In order to regain access to Wise Agent, all fees due must be paid in full to Wise Agent. To request access for your account to be reinstated please submit a request to billing@wiseagent.com.
5. Term and Cancellation.
1. Term. The term of Customer’s subscription will start upon completion of free trial and will continue until terminated pursuant to Section 5(b) below (the “Term”).
2. Cancellation. This Agreement may be terminated pursuant to any of the following provisions:
1. Upon Notice. Customer may terminate this Agreement at any time with written notice to Wise Agent. Customer must notify Wise Agent via email indicating their request to cancel any of the add-on products, or their account and their subscription payment via email to billing@wiseagent.com. If the Customer fails to cancel their account prior to their renewal date, their credit card will be charged the fees due.
2. Insolvency/Bankruptcy. If Customer shall: (A) be unable to pay or admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then Wise Agent may terminate this Agreement effective immediately upon written notice to Customer.
3. Default of Certain Customer Obligations. If Customer breaches any of its obligations under Sections 2(b), 2(c), 4, or 10(a), Wise Agent may terminate this Agreement effective immediately upon written notice to Customer.
3. Effect of Termination.
1. When this Agreement is terminated, (A) Customer will immediately stop using the System, (B) Customer’s license to the System will immediately terminate, (C) Wise Agent will immediately cease provision of the Service to the Customer, and (D)Customer will be responsible for exporting and/or deleting any data prior to the end of their term and(E) Customer will pay Wise Agent, within three (3) days following the termination date, all fees and other charges which accrued prior to such termination date but remain unpaid. Customer expressly acknowledges and agrees that Wise Agent will have no liability to Customer whatsoever with respect to the termination of Customer’s use of the System (even if Wise Agent has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).
2. Customer will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.
6. Representations and Warranties. Customer represents and warrants to, and covenants with, Wise Agent as follows:
1. Customer has the requisite power and authority to execute, deliver, and perform Customer’s obligations under this Agreement.
2. Customer’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Customer’s part. This Agreement is valid and binding on Customer, enforceable against Customer in accordance with its terms.
3. The execution, delivery and performance of this Agreement by Customer do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Customer are bound, or (ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Customer is subject.
4. No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Customer to execute, deliver, and perform under this Agreement.
7. Warranties: Disclaimers. THE SYSTEM IS PROVIDED ON AN "AS IS" BASIS. WISE AGENT MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SYSTEM OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH. WISE AGENT DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (A) THE SYSTEM WILL BE AVAILABLE, 100% SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (B) THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED USING THE SYSTEM WILL BE ACCURATE, RELIABLE, OR SECURE; (D) ERRORS OR DEFECTS IN THE SYSTEM WILL BE CORRECTED; OR (E) THE SYSTEM OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY WISE AGENT IN CONNECTION WITH THE SYSTEM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WISE AGENT DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED BY CUSTOMER THROUGH THE USE OF THE SYSTEM.
8. Limitation of Liability.
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WISE AGENT WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (I) THE SYSTEM, (II) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SYSTEM, OR (II) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR WISE AGENT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY WISE AGENT HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF WISE AGENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, WISE AGENT’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED FIVE HUNDRED DOLLARS ($500.00).
2. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR WISE AGENT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY WISE AGENT HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 5(b)(i) ABOVE. CUSTOMER ACCEPTS THE RESTRICTIONS ON CUSTOMER’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF CUSTOMER’S BARGAIN WITH WISE AGENT, AND CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
9. Indemnification. Customer will defend, indemnify and hold harmless Wise Agent and Wise Agent’s affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in this Agreement; or (b) Customer’s use or misuse of the System.
10. Miscellaneous.
1. Confidentiality.
1. Except as provided in Section 10(a)(ii) below, during the Term of this Agreement and at all times thereafter, Customer will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (B) use the Confidential Information solely for purpose of utilizing the System during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.
2. Customer shall be permitted to disclose Confidential Information to the extent, but only to the extent, (A) Wise Agent provides Wise Agent’s express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Customer must notify Wise Agent of Customer’s intent to make such disclosure, so that Wise Agent may seek a protective order or other appropriate remedy and may participate with Customer in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.
3. Promptly after the expiration or termination of this Agreement or upon Wise Agent’s request at any time, Customer shall return to Wise Agent, or confirm in writing the destruction of, any Confidential Information which is in tangible form and which is then in Customer’s possession. As used herein, “Confidential Information” means all information concerning or related to Wise Agent’s business, operations, financial condition or prospects (whether prepared by Wise Agent, Wise Agent’s affiliates or advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) the terms of this Agreement (including, without limitation, all System pricing information), (B) all information regarding Wise Agent’s members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (C) all of Wise Agent’s Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the System); (D) all of Wise Agent’s financial statements, audit reports, budgets and business plans and forecasts; and (E) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Customer containing, based on, generated or derived from, in whole or in part, any Confidential Information.
2. Customer Reference. During the Term and at all times thereafter, Wise Agent has the right to (i) reference Customer as a customer (or former customer) of Wise Agent in all advertising, marketing and promotional materials designed to promote Wise Agent and its products and services anywhere in the world (with such reference to include Customer’s name, logo, and any quotes provided by Customer), (ii) distribute a public announcement indicating that Customer has selected Wise Agent’s System (which announcement will include any quotes provided by Customer), and (iii) provide Customer as a reference for future potential customers of Wise Agent. Customer hereby grants to Wise Agent a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use Customer’s name, logo and any quotes provided by Customer in Wise Agent’s advertising, marketing and promotional materials as set forth above. Customer agrees that no monetary or other consideration shall be due from Wise Agent for the rights granted or the uses described in this Section 10(b).
3. Entire Agreement; Amendment. This Agreement (including, without limitation, the Software Subscription and the Privacy Policy) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions. Except as expressly set forth herein, this Agreement may be amended, supplemented, or otherwise modified only in a writing signed by both of the Parties.
4. Equitable Relief. Customer acknowledge and agrees that Wise Agent would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 5(c), and 10(a) are not performed by Customer in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach. Accordingly, Customer agrees that Wise Agent will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity
5. Expenses. Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.
6. Force Majeure. Wise Agent shall not be liable to Customer for any delay in or failure of Wise Agent’s performance under this Agreement (including, without limitation, Wise Agent’s failure to make available the System or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state or local authorities, pandemics (including, without limitation, Covid-19), strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond Wise Agent’s reasonable control (“Force Majeure”). Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, Wise Agent shall be relieved from fulfilling Wise Agent’s obligations under this Agreement during the period of such Force Majeure event.
7. Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
8. Non-Disparagement. During the Term of this Agreement, Customer agrees that Customer will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage Wise Agent or the System.
9. Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices shall be addressed to the mailing address and email address set forth in the Software Subscription or such other addresses as a Party provides to the other Party.
10. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
11. Successors and Assigns. Customer may not assign Customer’s rights or delegate or cause to be assumed Customer’s obligations hereunder without Wise Agent’s prior written consent (which consent may be withheld in Wise Agent’s sole and absolute consent). Any attempted assignment, delegation or assumption not in accordance with this Section 10(k) shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall insure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
12. Survival. The provisions of Sections 2(b)-(d), 4, 5(c), 6-10 and the portions of the Software Subscription referenced therein will survive any termination or expiration of this Agreement.
13. Waivers. The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy. The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.