These Terms of Service (the “Terms of Service”), together with the applicable Order Form (defined in Section 1 below), govern the use of the Whendu Platform (defined in Section 1 below) by the account holder identified in the applicable Order Form (“Account Holder”). These Terms of Service together with the applicable Order Form (collectively, the “Agreement”) constitutes the full legal agreement between Account Holder and SpiderMonkey, LLC d/b/a Whendu. (“Whendu”) with respect to Account Holder’s use of the Whendu Platform.PLEASE NOTE, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 13 BELOW WHICH WILL REQUIRE ACCOUNT HOLDER TO SUBMIT CLAIMS AGAINST US TO BINDING AND FINAL ARBITRATION.
BY ACCESSING OR USING THE WHENDU PLATFORM AND/OR RELATED SERVICES, SUBMITTING AN ORDER FORM AND/OR REGISTRATION INFORMATION TO OPEN AN ACCOUNT, ACCOUNT HOLDER ACKNOWLEDGES THAT ACCOUNT HOLDER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THE AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED IN THESE TERMS OF SERVICE). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT ACCOUNT HOLDER ACCEPTS THIS AGREEMENT BY ONE OF THE METHODS DESCRIBED ABOVE.
The “Whendu Platform” as used in this Agreement collectively means and refers to Whendu’s hosted software platform and related services and documentation (“Documentation”) that provides Account Holder with access to certain products and services designed to connect applications and automate workflows. Included within the Whendu Platform is the ability to use and create automated workflows to enable one or more actions that are carried out across multiple software applications based on the occurrence of a designated trigger event (“Reactions”). Each Reaction has a unique ID that identifies. Reactions may use one or more software scripts or application programming interfaces to enable the transfer of data between software applications (“Connections”) Connections can be developed by Whendu, by Account Holder or by third party application services providers. The scope of Account Holder’s subscription plan for the Whendu Platform is set forth in the applicable order form entered into between Account Holder and Whendu (each an “Order Form”). In the event of any inconsistency between the Order Form and these Terms of Service, the Order Form will prevail, provided that the Order Form specifically states the section of these Terms of Service that such subsequent agreement amends and restates. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
(a) Whendu warrants that, during the applicable term of Account Holder’s subscription to use the Whendu Platform (the “Subscription Period”), the Whendu Platform will function in accordance with the Documentation in all applicable respects and that Whendu will use industry standard technology designed to prevent the introduction of viruses or malicious code into the Whendu Platform. Whendu hereby represents and warrants the Whendu Platform will perform substantially in accordance with the applicable Documentation. Should a failure to conform to this warranty be reported to Whendu during the warranty period, Account Holder’s sole and exclusive remedy shall be for Whendu to correct the nonconformance within a reasonable period of time. With respect to any beta, trial or nonpaid subscriptions to the Whendu Platform, those versions are provided as “AS IS” and no warranty or indemnification provisions of this Agreement will apply to such subscription uses of the Whendu Platform, notwithstanding any other provision of this Agreement.
(b) Whendu will maintain data security protections in accordance with the Whendu Security Overview located at whendu.com/legal/security and will undertake commercially reasonable efforts to make the Whendu Platform available to Account Holder. Notwithstanding the foregoing, Whendu reserves the right to suspend Account Holder’s access to the Whendu Platform in the event Account Holder or its users are in breach of this Agreement or are otherwise engaging in any actions that threaten the security or stability of the Whendu Platform.
(c) Whendu may interrupt access to the Whendu Platform (i) for scheduled maintenance typically performed during the hours of 10pm to 6am PDT, beginning Friday evening, and typically lasting no more than two hours; (ii) emergency or unscheduled maintenance of up to 120 minutes per calendar month.
(d) Account Holder acknowledges and agrees that Account Holder and its authorized users’ use of the Whendu Platform is dependent upon access to telecommunications and Internet services. Account Holder shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Whendu Platform, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Whendu shall not be responsible for any loss or corruption of content, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
(a) Account Holder shall pay all applicable fees, as specified in each Order Form or as otherwise agreed upon with Whendu if there is no Order Form. Except as otherwise specified or in an Order Form: (i) fees are based on the scope of the plan for the Whendu Platform purchased and not actual usage; (ii) fees paid are non-refundable and payment obligations are non-cancelable; and (iii) the scope of the plan purchased and the applicable fees cannot be reduced during the relevant Subscription Term (defined in Section 10(a) below). Subscription fees are based on annual periods. For purposes of this Agreement and the applicable Order Form, a “Whendu Integration Transaction” occurs each time a Recipe performs a task (i.e., each time a Recipe makes an API call).
(b) Fees will be invoiced in accordance with the relevant Order Form or as otherwise specified by Whendu if there is no Order Form. Fees are due net fifteen (15) days from the invoice date unless otherwise stated in the Order Form or otherwise specified by Whendu. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Account Holder is responsible for providing complete and accurate billing and contact information to Whendu, and notifying Whendu of any changes thereto.
(c) If any amounts invoiced hereunder are not received by Whendu by the due date, then at Whendu's discretion: (a) such charges may accrue late interest at the lower of the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid; and/or (b) Whendu may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3(a) above, including requiring full payment in advance of the renewal period. Account Holder shall pay on demand all of Whendu's reasonable attorney fees and other costs incurred by Whendu to collect any fees or charges due to Whendu under this Agreement following Account Holder’s breach of Section 3 of these Terms of Service.
(d) Account Holder acknowledges that, if Account Holder receives access to the Whendu Platform through an authorized reseller (the “Reseller”) and that if such Reseller is in breach of its obligations to Whendu (including a failure to pay Whendu the fees owed), then Whendu may at its discretion terminate this Agreement and cease providing the Whendu Platform to Account Holder without incurring any liability to either the Account Holder or the Reseller.
(e) Unless otherwise stated, Whendu fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Account Holder is responsible for paying all Taxes associated with Account Holder’s purchases hereunder. If Whendu has the legal obligation to pay or collect Taxes for which Account Holder is responsible under this paragraph, Account Holder shall indemnify Whendu for such Taxes and the appropriate amount shall be invoiced to and paid by Account Holder, unless Account Holder provides Whendu with a valid tax exemption certificate authorized by the appropriate taxing authority. Whendu is solely responsible for taxes assessable against Whendu based on Whendu's net income.
Account Holder will not, will not agree to, and will not authorize or encourage any third party to, directly or indirectly: (a) interfere or attempt to interfere with the proper working of the Whendu Platform or any other Account Holder’s use of the Whendu Platform, including through abuse of server capacity; (b) use the Whendu Platform for any fraudulent or unlawful purpose; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Whendu Platform or any software, documentation or data related to the Whendu Platform (“Software”), provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable statute); (d) sell, copy, alter, modify, or create derivative works of the Whendu Platform or otherwise use the Whendu Platform in any way that violates the use restrictions contained in this Agreement; (e) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Whendu Platform; (f) remove or otherwise alter any proprietary notices or labels from the Whendu Platform or any portion thereof; (g) bypass any measures Whendu may use to prevent or restrict access to the Whendu Platform (or other accounts, computer systems or networks connected to the Whendu Platform); or (h) use the Whendu Platform in violation of any applicable local, state, national and foreign laws, treaty or regulation or a third party’s proprietary or contractual rights. Account Holder shall ensure that all its authorized users comply with the terms and conditions of this Agreement and will be responsible for all of such authorized users’ activity in connection with the Whendu Platform. Account Holder further acknowledges and agrees that Account Holder’s subscription to the Whendu Platform is limited to use for Account Holder’s own business operations and no right is granted hereunder to use the Whendu Platform for the benefit of third parties in a service bureau, time-sharing or managed service provider arrangement. Whendu competitors or individuals acting on behalf of a Whendu competitor may not access the Whendu Platform. The Whendu Platform may not be accessed for any benchmarking, comparative or competitive purposes unless preauthorized in writing by Whendu.
(a) Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full corporate power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the Term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
(b) OTHER THAN THE EXPRESS WARRANTIES IN SECTION 5(A), WHENDU MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. WHENDU MAKES NO WARRANTIES WITH RESPECT TO THE RESULTS OF OR USE OF THE WHENDU PLATFORM, AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
(a) Account Holder shall defend, indemnify and hold harmless Whendu, its affiliates and each of its and its affiliates’ officers, directors, agents and employees from all liabilities, claims, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party, that arise from or relate to any third party claim (i) alleging that any Account Holder Data (as defined in Section 8(a) below) infringes or misappropriates such third party’s intellectual property rights or proprietary rights, or (ii) arising from Account Holder’s use of the Whendu Platform in violation of this Agreement, the Documentation, or applicable law (each a “Claim against Whendu”), provided Whendu (a) promptly gives Account Holder written notice of the Claim against Whendu, (b) Whendu gives Account Holder sole control of the defense and settlement of the Claim against Whendu (except that Account Holder may not settle any Claim against Whendu unless Account Holder unconditionally releases Whendu of all liability), and (c) Whendu gives Account Holder all reasonable assistance in the defense and settlement of the Claim against Whendu (at Account Holder’s sole expense).
(b) Whendu shall defend, indemnify and hold harmless Account Holder from liabilities, claims, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party, that arise from or relate to any third party claim brought against Account Holder by an unaffiliated third party to the extent that it is based upon a third party claim that the Whendu Platform (excluding the Account Holder Data, and the Reactions or Connections created by Account Holder or any third party)infringe or misappropriate the intellectual property rights of such third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded by a court against Account Holder. Whendu’s obligations under this Section 6(b) are contingent upon: (i) Account Holder providing Whendu with prompt written notice of such claim; (ii) Account Holder providing reasonable cooperation to Whendu, at Whendu’s expense, in the defense and settlement of such claim; and (iii) Whendu having sole authority to defend or settle such claim. In the event that Whendu’s right to provide the Whendu Platform is enjoined or in Whendu’s reasonable opinion is likely to be enjoined, Whendu may obtain the right to continue providing the Whendu Platform, replace or modify the Whendu Platform so that they become non-infringing (in which case, Whendu shall be relieved of all liability pursuant to this clause if Account Holder fails to promptly implement such replacement or modification), or, if such remedies are not reasonably available, terminate this Agreement without liability to Account Holder other than payment of the pro rata portion of fees for the remaining term of this Agreement subsequent to Whendu’s notice of such claim. THE FOREGOING STATES THE ENTIRE OBLIGATION OF WHENDU AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE WHENDU PLATFORM. Whendu shall have no liability under this Section 6(b) to the extent that any third-party claims described herein are based on (i) use of the Whendu Platform in a manner that violates this Agreement or the instructions given to Account Holder by Whendu or that is not strictly in accordance with this Agreement or the Documentation; (ii) any information, technology, materials or data (or any portions or components of the foregoing) not created or provided by Whendu, (iii) any portion of the Whendu Platform that was modified after delivery by Whendu; (iv) combination of the Whendu Platform with other products, processes or materials not provided by Whendu (where the claim arises from or relates to such combination); or (v) where Account Holder continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED IN THE AGGREGATE THE AMOUNTS PAID AND/OR PAYABLE BY ACCOUNT HOLDER OR THE RESELLER, AS APPLICABLE, TO WHENDU HEREUNDER FOR ACCOUNT HOLDER’S SUBSCRIPTION TO THE WHENDU PLATFORM IN THE TWELVE MONTH PERIOD ENDING ON THE DATE SUCH DAMAGES, LOSSES OR CAUSES OF ACTION AROSE. WHENDU SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ACCOUNT HOLDER’S USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEB SITES.
(a) Account Holder Data As between the parties, Account Holder shall retain all right, title and interest in and to all documents, messages, graphics, logos, images, files, data and other information transmitted through the Whendu Platform by Account Holder (collectively, the “ Account Holder Data ”), provided, however, that Account Holder hereby grants to Whendu a worldwide, royalty-free, fully sublicenseable, non-exclusive license to use the Account Holder Data solely for the purposes of implementing, maintaining and improving the Whendu Platform and fulfilling its obligations hereunder. Notwithstanding the foregoing, Account Holder Data does not include non-identifiable aggregate data and usage statistics compiled by Whendu in connection with Account Holder’s use of the Whendu Platform, which data and statistics each party may use in its discretion (but which Whendu may not disclose to any third party in a manner that identifies Account Holder in connection therewith), and which Whendu shall make available to Account Holder on an ongoing basis during the term hereof.
(b) Reactions and Connections. Whendu will own and retain all right, title, and interest in and to the Reactions or the Connections and all derivatives thereto on the Whendu Platform, excluding any Reactions or Connections created by Account Holder. Whendu grants to Account Holder a non-exclusive license to make, use, and share Reactions and Connections with other Whendu users. Reactions and Connections created by Account Holder are private by default, meaning that Account Holder can decide whether to share such private Reactions with certain users with the Whendu Platform; however, Account Holder can make Reactions created by it public, meaning that any Whendu user can view, copy and modify such Reactions and Connections. Whendu has no right to resell or reuse any private Reaction or any private Connection. Account Holder grants Whendu an irrevocable, perpetual, transferable and sublicensable and worldwide license under any rights Account Holder owns in the Reactions and Connections created by Account Holder that are marked public, to use, modify and distribute such Reactions and Connections. Account Holder further agrees that Account Holder will not assert any claim or prosecute any action against Whendu or any of Whendu’s customers for infringement or misappropriation of any Reactions or Connections created by Account Holder based on or arising from Reactions and Connections that are developed by Whendu or its customers which are similar to or the same as any Reactions and Connections created by Account Holder. Rights to use Reactions and Connections not created by Account Holder will continue as long as Account Holder has an active subscription to the Whendu Platform.
(c) Whendu Platform. Whendu shall own and retain all right, title, and interest in and to the Whendu Platform as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Account Holder or any other party relating to the Whendu Platform, which are hereby assigned to Whendu. Subject to the terms of this Agreement and during the Term of this Agreement only, Whendu hereby grants to Account Holder a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, limited term license (for internal use only), to use the Whendu Platform in accordance with this Agreement and the terms of the applicable Order Form. Except as otherwise expressly set forth herein, Whendu does not grant to Account Holder any license, express or implied, to the intellectual property of Whendu or its licensors.
“Confidential Information” shall mean (a) information relating to a party’s (the “Disclosing Party”) technology or business that is disclosed hereunder to the other party (the “Receiving Party”); or (b) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” Any statistics or other user data relating to the Whendu Platform which specifically identify Account Holder shall be deemed Account Holder’s Confidential Information. During the Term of this Agreement, and for a period of two (2) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the Receiving Party without use of or access to the Disclosing Party's Confidential Information; (b) has become publicly known through no breach of this Section 9 by the Receiving Party; (c) has been rightfully received by the Receiving Party without obligation of confidentiality from a third party authorized to make such disclosure; (d) has been approved for release in writing by the Disclosing Party; (e) was known by the Receiving Party without obligation of confidentiality prior to receipt from the Disclosing Party; or (f) is required to be disclosed by a competent legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure (if legally permissible).
(a) The term of this Agreement will commence on the Effective Date and will continue for as long as the Whendu Platform is being provided to Account Holder under this Agreement (the “Term”). The term of each subscription will continue for the period set forth in the applicable Order Form between Whendu and the Account Holder or Reseller, as applicable, governing Account Holder’s subscription, unless terminated earlier in accordance with this Agreement (the “Subscription Term”). Each Subscription Term shall automatically renew for successive one (1) year periods at Whendu’s then-current pricing for Account Holder’s subscription, unless either party provides the other party written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
(b) In the event of a material breach of this Agreement by either party, the other party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
(c) Upon termination of this Agreement, Whendu will delete all transaction log data for Account Holder’s account in accordance with Whendu retention policy. In addition, Whendu may destroy Account Holder Data left in Whendu’s system after termination or expiration of this Agreement upon Account Holder’s written request.
To the extent that Whendu is a Processor for Account Holder of Personal Data that is subject to certain Data Protection Laws and for which the Account Holder is the Controller (each as defined in the DPA), the EU Data Processing Addendum located at whendu.com/dpa (the “DPA”) is hereby incorporated into the Agreement with respect to the processing of such Personal Data.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each party agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for San Francisco, California, and each party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action (subject to the provision of Section 13 hereof). Notwithstanding Section 13, each party shall have the right to pursue injunctive or other equitable relief at any time from a court of competent jurisdiction.
Should a dispute arise out of or relating to this Agreement, the parties shall engage in good faith, informal dispute resolution for a period of thirty (30) days to resolve the dispute. Should the parties fail to resolve such dispute informally, they shall engage in mediation with JAMS (as defined below). Should the mediation fail to resolve such dispute, the parties thereafter shall engage in binding arbitration conducted in accordance with the then-current Commercial Dispute Rules of JAMS/Endispute (“JAMS”) strictly in accordance with the terms of this Agreement and the substantive law of the State of California, without regard to its conflict of laws principles. The arbitration shall be held at the office of JAMS located in San Francisco, California, and it shall be conducted by one arbitrator, pursuant to JAMS arbitration rules, and shall be conducted in accordance with JAMS’ Optional Expedited Arbitration Procedures. The binding arbitration shall be at the parties’ joint and equal expense, except that reasonable attorneys’ fees and costs will be awarded to the prevailing party upon conclusion.
This Agreement, and any rights and obligations hereunder, may not be transferred or assigned by either party without the other party’s prior written consent, except that no such consent shall be required for assignment to a successor or an acquirer of all or substantially all of the assigning party’s business or assets to which this Agreement relates. Any purported assignment in violation of the foregoing shall be void and without effect. Whendu and Account Holder are independent contractors, and neither Whendu nor Account Holder is an agent, representative or partner of the other. Whendu and Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. Neither party shall have any obligation for any employee-related benefits or withholding taxes applicable to the other party’s personnel performing services pursuant to this Agreement. This Agreement sets forth the entire agreement between Whendu and Account Holder, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be in writing and shall be sent to the email address associated with the account (in the case of Account Holder) or to email@example.com (in the case of Whendu) by facsimile, electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.