WIZPRESSO SOFTWARE AS A SERVICE (SaaS) SUBSCRIPTION
PLEASE READ THE WIZPRESSO SOFTWARE AS A SERVICE AGREEMENT CAREFULLY BEFORE YOU START TO USE THE SERVICE. BY USING THE SERVICE, OR BY OTHERWISE ACCEPTING THESE TERMS (EITHER BY CLICKING “ACCEPT” OR IN CONNECTION WITH AN ORDER FORM OR OTHER AGREEMENT WITH WIZPRESSO WHICH INCORPORATES THESE TERMS OF SERVICE BY REFERENCE), YOU ARE AGREEING TO BE BOUND AND ABIDE BY THESE TERMS OF SERVICE. IF YOU DO NOT WANT TO AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT ACCESS OR USE THE SERVICE.
This Wizpresso Software as a Service (SaaS) Subscription Agreement ("Agreement") constitutes a legal agreement between Wizpresso Limited, a Hong Kong corporation with its principal place of business located at Room 11, 4/F, Cyberport 3 Core C, 100 Cyberport Road, Hong Kong and you, the subscriber (“Subscriber”).
WHEREAS, Wizpresso will provide to Subscriber its software application and/or certain monitoring services as part of the Wizpresso Cloud Service offerings as referred to in the Wizpresso Sales Quote, or in the authorized Wizpresso Reseller Sales Quote. In addition, Subscriber may seek certain additional services at a separate cost as reflected in an associated Wizpresso Sales Quote and that for the purposes of this Agreement both may be jointly or individually referred to as "Service"). For the purpose of clarity, the parties acknowledge that the Services include software applications, as well as third-party data under license to various third-party data providers and offer within the service, all of which are governed by the terms of this Agreement and that Service and Software may be jointly referred to throughout this Agreement as Software. With regard to all Services, Wizpresso's performance is conditional upon Subscriber fulfilling its obligations set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS: The terms referenced in this Agreement have the following meaning:
- "Wizpresso Cloud Services" are certain specified Services that are run on the Wizpresso Cloud Services Environment and made commercially available by Wizpresso under the terms of this Agreement.
- "Wizpresso Cloud Services Environment" refers to the combination of hardware and software owned, licensed, subscribed to, or managed by Wizpresso to which Wizpresso grants the Subscriber and Users access to a portion of the Wizpresso Cloud Service Environment as part of the Wizpresso Cloud Services that are described in the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote.
- "Wizpresso Reseller" is the entity authorized by Wizpresso to offer Wizpresso Services, subject to the terms of this agreement to the Subscriber under the terms of this Agreement.
- "Wizpresso Reseller Sales Quote” means the formal offer for the sale of specified Wizpresso products and services pursuant to this Agreement made available to Subscriber by a Wizpresso Reseller.
- "Wizpresso Sales Quote" is a formal Wizpresso offer for the sale of specified products and services pursuant to this Agreement, which shall be effective upon Subscriber’s execution thereof.
- "Wizpresso Software Service Description" is the formal Wizpresso description of the commercial service offering defining the scope and coverage of the service, referenced in the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote and attached to this Agreement as Attachment B.
- "Services" means, collectively the Wizpresso Cloud Services, Professional Services and Software in the Wizpresso Software Service Description referenced on the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote.
- "Software" refers to the application software developed and or distributed by Wizpresso, as referenced on the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote, and as described in the Wizpresso Software Service Description, and including any new release, version, update or upgrade that to the application software (including any Subscription Upgrade) that the Subscriber chooses to adopt.
- "Subscriber" means you, the entity subscribing to Wizpresso Services and the subscriber named above.
- "Subscriber Data" means any data, content, document, file, video, image, or other materials of any type that Subscriber, submits or otherwise transmits to or through Services.
- "Users" means those employees, contractors, and end-users, as applicable, authorized by the Subscriber to use the Services in accordance with this Agreement. For Services that are specifically designed to allow the Subscriber’s clients, customers, suppliers or other third parties to access the Services to interact with the Subscriber, such third parties will be considered "Users" subject to the terms of this Agreement.
- "Third-Party Data" means data sources provided from public sources or by a third-party vendor for use with the Service, such as stock exchange data or the Wizpresso Reseller Sales Quote.
I. SOFTWARE AS A SERVICE ("SaaS") END USER LICENSE AGREEMENT
1.1 SaaS End User License. The Software provides the functionality as specified in the printed Wizpresso Software Service Description and product documentation, Attachment B. The Software including any pre-existing data, is the proprietary property of Wizpresso and its suppliers and Wizpresso retains any and all rights, title, and interest in and to the Software, including in all copies, improvements, enhancements, modifications, and derivative works of the Software. Such pre-existing data includes but is not limited to Wizpresso-provided data feeds, model data, or performance metadata derived from the use of service. Subscriber accepts and agrees to be bound by the terms of this Agreement which, upon execution, supersede any clickwrap or click-through terms in the event of any conflict. The Software includes analysis and suggestions generated by various proprietary models and algorithms for streamlining workflow. The analyses and suggestions may not be accurate or complete, or up-to-date and are subject to ongoing and continual change without notice. Wizpresso does not make any representations or warranties regarding the analysis and suggestions and assumes no responsibility for the accuracy, completeness, or currency of the analysis and suggestions or any decisions Subscriber makes based in whole or part on this analysis or suggestion. The analysis and suggestions are not a substitute for Subscriber’s own judgment, professional advice, or the need to seek additional input and research before making any decisions and should NOT be used alone to make decisions.
1.2 Third-Party Data License. The Software includes access to various confidential and proprietary Third-Party Data that is utilized along with the Service as a comparative data source in processing the Subscriber Data and generating various reports and reporting data. This information is compiled from third-party sources, including but not limited to, public records, user submissions, and other commercially available data sources. These sources may not be accurate or complete, or up-to-date and are subject to ongoing and continual change without notice. Neither Wizpresso nor its Third-Party Data sources make any representations or warranties regarding the data and assume no responsibility, for the accuracy, completeness, or currency of the data, or any decisions Subscriber makes based in whole or part on this data or information. This data and information are not a substitute for Subscriber’s own judgment, professional advice, or the need to seek additional input and research before making any decisions and should NOT be used alone to make decisions. Wizpresso further represents they will use reasonable commercial efforts to: (i) help ensure the appropriateness of all Third-Party Data before it is selected for use with the Service; (ii) to promptly remove any Third-Party Data from the Service that is identified as inaccurate data; and (iii) promptly advise Subscriber of known or suspected problems and/or concerns with any Third-Party Data.
1.3 Software License Grant. Except as otherwise expressly agreed upon in writing by the parties, and subject to Subscriber’s compliance with the terms and conditions of this Agreement, Wizpresso grants to Subscriber a non-exclusive, non-transferable license to use the Software, Service, and related user documentation solely in Subscriber’s internal business operations during the term of this license ("License"). Subscriber is provided a right to: (i) use the Software within the Wizpresso Cloud Services Environment in accordance with the scope and term of this Agreement as specified in the Wizpresso Sales Quote, and does not acquire any rights of ownership in such materials; and (ii) to use the output generated for Subscriber’s internal purposes, including after the end of the term of the License. For the purpose of clarity, no third-party may rely in any manner on the reports, results, recommendation work product provided by or generated through the Service, all work is provided for informational purposes solely for the benefit of the Subscriber. Subscriber rights to use the Service shall be limited to those expressly granted in this Agreement. All rights not expressly granted to Subscriber are retained by Wizpresso. The Service is protected by copyright laws, trade secrets, as well as laws and any applicable regulations and/or treaties related to other forms of intellectual property. Wizpresso owns, or has the necessary rights in, all intellectual property rights in the Service.
The Subscriber gives permission to Wizpresso to use, process, collect, copy, store, transmit, modify and create derivative works of Subscriber Data, in each case solely to the extent necessary to provide the applicable Service to Subscriber in accordance with this Agreement and for no other purpose whatsoever, for the duration of the Services period plus any additional post-termination period not exceeding 60 days, during which Wizpresso shall provide the Subscriber with access to retrieve an export file of Subscriber’s content. The license granted by Wizpresso in pursuant to this Agreement shall apply only for the number of users id’s, or usage capacity provided for pursuant to the associated Wizpresso Sales Quote, and shall only be valid for such time as the License term stated in the Wizpresso Sales Quote remains in full force and effect under this Agreement; in the event Subscriber terminates or otherwise discontinues their use of the hosted Wizpresso Cloud Service Environment with Wizpresso, this license and Subscriber’s right to use the Service shall terminate without further notice. Wizpresso shall make only such copies of the Subscriber Data as may be necessary to perform its obligations under this Agreement or otherwise as part of its regular internal backup and/or disaster recovery practices. Subscriber shall take reasonable steps, including limiting access to user IDs and passwords, to limit access to the Software to those of its employees who are authorized to use the Software. Except in the case of Wizpresso’s negligence or willful misconduct or breach of any of its obligations under this Agreement, Subscriber remains responsible for any and all actions taken using Subscriber accounts and passwords, and Subscriber agrees to immediately notify Wizpresso of any unauthorized use of which Subscriber becomes aware, or reasonably suspects.
The Subscriber agrees not to knowingly use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including the Subscriber Data, Service generated work product or report, or third-party content, for any purpose that may:
- (i) menace or harass any person or cause damage or injury to any person or property;
- (ii) involve the publication of any material that it knows to be false, defamatory, harassing or obscene;
- (iii) violate privacy rights or promote bigotry, racism, hatred or harm;
- (iv) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters;
- (v) constitute an infringement of intellectual property or other proprietary rights
- (vi) frame, scrape, link or mirror any content forming a part of the Service, other than Subscriber’s own intranets or otherwise for its own internal use;
- (vii) knowingly upload to the Service or use the Service to send or store viruses, worms, time-bombs, Trojan horses or other harmful or malicious code; or
- (viii) otherwise violate applicable laws, ordinances or regulations.
In addition to any other rights afforded to Wizpresso under this Agreement, Wizpresso reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Wizpresso shall have no liability to the Subscriber in the event that Wizpresso takes such action. The Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Subscriber Data.
1.4 Restrictions on Transfer, Use, Alteration and Copying. Subscriber may not, without Wizpresso’s prior written consent, conduct, cause or permit the:
- (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Software except as expressly provided in this Agreement, provided that the Subscriber may make a reasonable number of copies of user documentation for internal purposes;
- (ii) creation of any derivative works based on the Software or its accompanying documentation including but not limited to translations;
- (iii) alteration of any files or libraries in any portion of the Service, or reproduction of the database portion or creation of any tables or reports relating to the database portion except when the creation of tables or reports is an intended output of the Software;
- (iv) reverse engineering, disassembly, or decompiling of the Software;
- (v) use of the Software directly by any party other than Subscriber and its subcontractors and agents acting on Subscriber’s behalf and subject to the terms of this Agreement; or
- (vi) falsely imply any sponsorship of/by or association with Wizpresso.
Wizpresso shall have the right to terminate this Agreement with immediate effect by giving written notice to Subscriber in the event of any violation of this section if Subscriber fails to remedy that violation within ninety (90) days of written notice from Wizpresso. Termination under this section 1.4 shall not be exclusive of other remedies available.
Except for the purposes of training, translation, Subscriber’s internal backup, operational support or internal distribution, Subscriber may not copy or allow others to copy any part of the user documentation or other printed material provided with the Service. Users must only access Wizpresso Cloud Services through authorized channels and are prohibited from accessing the Software or recording any data from the Software with automated programs, software, or any other method of web or screen scraping.
1.5 Security. Wizpresso implements security procedures to help protect Subscriber Data from security attacks. However, subject to Wizpresso’s taking appropriate security measures, in accordance with practices that are generally accepted as best practices in the software industry reasonably expected from a leading service provider from time to time ("best industry practice"), to secure Subscriber data for transport, Subscriber understands that use of the Services necessarily involves the transmission of Subscriber Data over networks that are not owned, operated or controlled by Wizpresso, and we are not responsible for any of Subscriber Data lost, altered, intercepted or stored across such networks, except to the extent caused by Wizpresso’s negligence or willful misconduct or failure to implement such security measures. Notwithstanding the foregoing, Wizpresso acknowledges and confirms that it has in place and will maintain throughout the term of this Agreement appropriate technical and organizational measures in accordance with best industry practice to secure against the accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure of Subscriber Data and the output of the Services, and to ensure that unauthorized persons or parties do not have access to any equipment used to process such information or data. Wizpresso also agrees that it shall (i) scan the Services for any code or device which is designed or intended to impair the operation of any computer or database or prevent or hinder access to, or the operation of, any program or data, using detection software generally accepted in the industry, (ii) secure its computing environments according to generally accepted industry standards to ensure that the Software cannot be accessed by any unauthorized person or malicious software, and (iii) promptly remedy and notify Subscriber of any security breach of which it becomes aware or may reasonably suspect.
1.6 Indemnity by Subscriber. Subscriber shall bear sole responsibility for any information uploaded or supplied by Subscriber in connection with its use of the Service, including but not limited to ensuring that the use of the Service to store, process and transmit Subscriber Data is compliant with all applicable laws and regulations. IN NO EVENT SHALL WIZPRESSO BEAR ANY LIABILITY FOR THE USE OR LOSS OF ANY INFORMATION UPLOADED OR SUPPLIED BY SUBSCRIBER IN CONNECTION WITH USE OF THE SERVICE, UNLESS SUCH LOSS IS CAUSED BY WIZPRESSO’S NEGLIGENCE OR WILLFUL MISCONDUCT. Subscriber will defend, indemnify and hold harmless Wizpresso from and against any loss, cost, liability or damage, including attorneys’ fees, for which Wizpresso becomes liable arising from a claim brought by a third-party alleging that the use of Subscriber Data, or Subscriber’s use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third-party or violates applicable law. Wizpresso shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data unless, and only to the extent that, such deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data is directly or indirectly caused by Wizpresso’s action or inaction in breach of this Agreement.
1.7 Legal Compliance. Subscriber must ensure that Subscriber’s use of Services and all Subscriber Data is at all times compliant with applicable laws and regulations ("Laws") provided, however, that Subscriber’s failure to do so shall not be deemed a breach of the foregoing to the extent caused by the Services or Wizpresso. Subscriber represents and warrants that: (i) Subscriber has obtained all necessary rights, releases and permissions to provide all Subscriber Data to Wizpresso and to grant the rights granted to Wizpresso in this Agreement and (ii) Subscriber Data and its transfer to and use by Wizpresso as authorized by Subscriber under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third-party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its express obligations set forth in this Agreement or in the Wizpresso’s data policy, or which results or arises from its negligence or willful misconduct, Wizpresso assumes no responsibility or liability for Subscriber Data, and Subscriber shall be solely responsible for Subscriber Data and the consequences of using, disclosing, storing, or transmitting it. Wizpresso represents and warrants that Wizpresso has obtained all necessary rights to provide the Services. Wizpresso shall ensure that its provision of the Services is compliant at all times with all applicable laws and regulations.
1.8 Term of Service Period. The Services provided under this Agreement shall be provided for the Services period defined in the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote, unless earlier suspended or terminated in accordance with this Agreement.
1.9 Limited Warranty. Wizpresso represents and warrants to Subscriber, and shall ensure, that the Software and Service will operate in substantial compliance with the Wizpresso Software Service Description attached hereto as Attachment B. In the event of a breach, Subscriber will promptly notify Wizpresso of the non-conformity in writing and Wizpresso will use reasonable commercial efforts to repair the Service to operate in compliance with its Wizpresso Software Service Description and in compliance with the Service Level Agreement set forth in Attachment A. Subscriber’s exclusive remedy for breach of this warranty is for Wizpresso to correct or work around the reported malfunction upon request. If the malfunction persists in causing a material failure in Subscriber’s production instances of the Service, causing a failure to conform to the Wizpresso Software Service Description without correction or workaround thirty (30) days after written notice to Wizpresso of a warranty claim under this Section 1.9, then Subscriber may terminate without liability for the balance of the terminated Services and receive a refund for all pre-paid Services, not yet delivered, as their exclusive remedy. This refund is to be pro-rated in accordance with the remaining number of days of the then-current Services period under Section 1.8, applying the Fee for that Service period equally across each day of the relevant Service period. All limited warranties on the Service are granted only to Subscriber and are non-transferable. This remedy represents Wizpresso’s exclusive duty and Subscriber’s sole remedy even in the event that the remedy should fail in its essential purpose.
Wizpresso makes no warranty that the Software will meet Subscriber’s requirements or operate under Subscriber’s specific conditions of use. Except as otherwise expressly provided herein, Wizpresso makes no warranty that the operation of the Service will be secure error-free, or free from interruption. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT OR OTHERWISE AGREED TO IN WRITING BY WIZPRESSO, WIZPRESSO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT. SUBSCRIBER MUST DETERMINE WHETHER THE SERVICE SUFFICIENTLY MEETS SUBSCRIBER’S REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. EXCEPT TO THE EXTENT ATTRIBUTABLE TO A BREACH OF WIZPRESSO’S SECURITY OR SERVICE LEVEL OBLIGATIONS HEREUNDER, SUBSCRIBER BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SERVICE TO MEET SUBSCRIBER’S REQUIREMENTS. EXCEPT TO THE EXTENT ATTRIBUTABLE TO EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OR SERVICE LEVEL OBLIGATIONS HEREUNDER, WIZPRESSO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY SUBSCRIBER COMPUTER OR INFORMATION STORAGE DEVICE. IN ADDITION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT (A) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (B) THE SERVICE DOES NOT ENSURE SUBSCRIBER’S COMPLIANCE WITH ALL APPLICABLE INDUSTRY REGULATIONS AND LAWS; AND (C) SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH APPLICABLE LAWS RULES AND REGULATIONS.
1.10 Indemnity by Wizpresso. Wizpresso, excluding actions based upon Subscriber Data or Third-Party Data, shall defend Subscriber, at Wizpresso’s expense, against any claims, demands, suits or proceedings ("Claims") made or brought against Subscriber by a third-party alleging that the use of the Service as contemplated hereunder, infringe a patent, copyright, trademark, or other intellectual property right of a third-party or misappropriates such third-party’s trade secrets. Further, Wizpresso shall indemnify and hold Subscriber harmless against all costs (including reasonable attorneys' fees) to the extent arising out of or in connection with such Claims. Upon receiving notice of a Claim, Subscriber shall (a) give Wizpresso prompt written notice of the Claim; (b) give Wizpresso sole control of the defense and settlement of the Claim (provided that Wizpresso may not settle or defend any claim unless it unconditionally releases Subscriber of all liability and does not attribute any blame or contributory fault to Subscriber); and (c) provide to Wizpresso, at Wizpresso’s cost, all reasonable assistance in the defense or settlement of such Claim. In addition to Wizpresso’s obligations above, Wizpresso may, at its expense: (a) secure the right for Subscriber to continue to use the Software, (b) modify the Software so as to make it non-infringing, or (c) provide Subscriber with a functional non-infringing replacement. If none of these alternatives is commercially practicable, Subscriber will have the option to return the Software to Wizpresso, and Wizpresso will refund for all pre-paid Services, not yet delivered, as their exclusive remedy. This refund is to be pro-rated in accordance with the remaining number of days of the then-current Services period under Section 1.8. This Section 1.9 states Wizpresso's entire liability and Subscriber's exclusive remedy for any claim of intellectual property infringement under this Agreement.
II. GENERAL TERMS AND CONDITIONS
2.1 Fees, Invoices and Payment. Subject to performance of the Services in accordance with the Agreement, Subscriber shall pay Wizpresso or the Wizpresso Reseller the fees for the Services set forth in the Wizpresso Sales Quote or, as applicable, the Wizpresso Reseller Sales Quote (the "Fees"). The Fees include all charges associated with the Services including all incidental costs except for taxes and expenses. Wizpresso shall submit invoices for Services delivered in accordance with the payment schedule set forth in the Wizpresso Sales Quote or the Wizpresso Reseller Sales Quote. Subscriber shall pay all invoices within 15 days of receipt of the invoice; thereafter unpaid balances which are not the basis of a good faith dispute shall accrue interest at a rate of 1.5% per month. Any Subscriber prepayment or any credits earned must be used within 15 months of the time that they are purchased, earned or awarded or they will expire without notice. If Subscriber fails to pay all invoices or charges for referencing this Agreement within thirty (30) business days of Wizpresso’s notice or the Wizpresso Reseller’s notice to Subscriber that payment is past due or delinquent in addition to Wizpresso’s other remedies, Wizpresso may suspend or terminate access to and use of the Service by Subscribers.
2.2 Upgrades. If Subscriber chooses to upgrade a Service or increase the number of authorized Subscribers during the subscription term (a "Subscription Upgrade"), any incremental subscription charges associated with such Subscription Upgrade will be prorated over the remaining period of Subscriber’s then-current subscription term and will be due and payable upon implementation of such Subscription Upgrade. In any future subscription term, no refunds or credits for subscription charges or other fees or payments will be provided to Subscriber if Subscriber elects to downgrade their Service Plan.
2.3 Equitable Relief. Subscriber acknowledges that any use or disclosure of the Software in a manner inconsistent with the terms of this Agreement, or breach of confidentiality may cause Wizpresso or the Wizpresso Reseller irreparable damage for which other remedies may be inadequate, and Subscriber agrees not to oppose any request to a court of competent jurisdiction by Wizpresso or the Wizpresso Reseller for injunctive or other equitable relief seeking to restrain such use or disclosure. Subscriber waives any right it may have to require Wizpresso or the Wizpresso Reseller to post a bond or other form of security as a precondition to any such injunctive relief.
2.4 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
2.5 Confidential Information. "Confidential Information" means any information in whatever form one party discloses to the other in connection with this Agreement which is identified as confidential or proprietary, or which by its nature ought to be regarded as confidential, including all Subscriber Data. Confidential Information does not include information which: (i) is lawfully obtained by the recipient without breaching any confidentiality obligations; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information; or (iv) is required to be disclosed by applicable law in response to a valid court or governmental order, provided that the recipient notifies the disclosing party as soon as practicable and reasonably in advance of the disclosure and cooperates with the disclosing party in seeking to avoid or limit the disclosure. The recipient may use Confidential Information only for the purposes for which it was provided under this Agreement and shall treat it with the same degree of care as it does its own similar information, but with no less than reasonable care. This section shall not affect any other confidential disclosure agreement between the parties. The parties agree that upon the termination or expiration of this Agreement, they will promptly return or destroy any Confidential Information received upon request.
2.6 Limitation of Liability. Except for breach of Subscriber's payment obligations or situations arising as a result of either party’s gross negligence or willful misconduct, or a breach of confidentiality or indemnity provisions granted hereunder, each party's aggregate liability to the other for claims arising out of or relating to this Agreement, whether for breach or in tort, is limited to the price charged to Subscriber for the Services. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY, OR IN TORT, INCLUDING NEGLIGENCE, AND EVEN IF THAT PARTY HAS PREVIOUSLY BEEN ADVISED OF, OR COULD REASONABLY HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
2.7 Background Checks. Wizpresso’s employees and subcontractors with access to Subscriber Data must pass a background check, which can be performed by Wizpresso or by a contractor that is authorized by Wizpresso to perform background checks. Wizpresso will provide verification to the Subscriber upon request that it performed such background screenings for all existing employees and subcontractors of Wizpresso involved with access to Subscriber Data at the time such employees were hired by Wizpresso or at some subsequent time that is prior to their involvement in the provision of Services to Subscriber. Background screenings pursuant to this section must be updated at least every seven (7) years.
Background screenings under this section 2.7 will be conducted in accordance with applicable local and international laws and at a minimum shall include the following:
- (i) verification of identification and citizenship;
- (ii) or a criminal history search conducted in the employee's current place of residence and prior place(s) of residence (if applicable) to identify any conviction(s) in the last seven years, such as crimes of violence, dishonesty, theft and/or drugs; or miuse of financial, commercial or industrial information.
A failure to pass the background screening detailed above must be reported to Subscriber prior to the relevant employee’s involvement in the provisions of Services. Furthermore, any confirmed conviction or any alleged offense involving violence, dishonesty, or a breach of fiduciary duty, theft and/or drugs, or misuse of financial, commercial or industrial information arising after the date of the background screening was conducted must be reported to Subscriber before the relevant employee can continue any involvement in the provisions of Services.
2.8 Hiring of Personnel. Subscriber will not recruit any personnel Wizpresso assigns to perform Services until one year after completion of the applicable Services, including initiating personal contact for the purpose of hiring, but excluding any general advertisement or other general public and undirected communication with respect to a job position.
(i) EVENTS CONSTITUTING TERMINATION. This agreement may be terminated with immediate effect by written notice:
- a. by either party if the other party commits a material breach of any obligation under this Agreement, and, if the breach is capable of remedy, fails to remedy it within thirty (30) days of written notice from the non-breaching party specifying such breach;
- b. by Subscriber by giving no less than forty-five (45) days’ prior written notice to Wizpresso. For the avoidance of doubt, if a termination happens in pursuant to this clause, no refund will be provided;
- c. by Wizpresso by giving no less than ninety (90) days’ prior written notice to Subscriber. In pursuant to this clause, Wizpresso will refund for all pre-paid Services, not yet delivered, as their exclusive remedy. This refund is to be pro-rated in accordance with the remaining number of days of the then-current Services period under Section 1.8.
(ii) OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement, Subscriber shall discontinue use of the Service and shall extract all Subscriber Data from the Services within thirty (30) days of the date of termination unless otherwise agreed. Wizpresso shall delete or destroy all Subscriber Data obtained under or in connection with this Agreement upon the expiry or termination of this Agreement
(iii) SURVIVAL UPON TERMINATION. The other rights and obligations of the parties pursuant to the following sections shall survive and continue after any termination of this Agreement: 1.6 Indemnity by Subscriber, 1.9 Limited Warranty, 1.10 Indemnity by Wizpresso, 2.5 Confidential Information, 2.6 Limitation of Liability, 2.12 Waiver and 2.20 Governing Law.
2.10 Market Assistance. Subscriber consents to participate in and will cooperate with Wizpresso in developing a customer success story that would be subject to Subscriber’s review and approval and that Wizpresso could then use as a customer reference in its future marketing efforts.
2.11 Headings. Headings of sections in this Agreement are inserted for convenience only and are in no way intended to limit or define the scope and/or interpretation of this Agreement.
2.12 Waiver. Failure on the part of either party to give notice of default, or delay in exercising any right or remedy hereunder, shall not operate as a waiver of any such right or remedy except as otherwise expressly stated in this Agreement. A waiver of any right under this Agreement is only effective if it is in writing. The single or partial exercise of any right under this Agreement or provided by applicable law shall not preclude any further exercise of it.
2.13 Variations. No variation of this Agreement shall be effective unless it is in writing and signed by a duly authorized representative from each party.
2.14 Whole Agreement. This Agreement, together with its Attachments constitutes the entire agreement between the parties relating to the Services, and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and prevails over any conflicting or additional terms contained in any quote, purchase order, order document, acknowledgment, or other communication between the parties relating to the Services, including the Wizpresso Sales Quote and the Wizpresso Reseller Sales Quote, even if Wizpresso uses such order documents for invoicing purposes.
2.15 Notices. Any notice to be given by one party to the other party in connection with this Agreement shall be in writing in English and signed by or on behalf of the party giving it. It shall be delivered by email, registered post or courier. A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by registered post or courier, or (ii) at the time of transmission if delivered by email. The addresses and email addresses of the parties are:
- Wizpresso Address: email@example.com
For the attention of: Room 11, 4/F, Cyberport 3 Core C, 100 Cyberport Road, Hong Kong
The Subscriber Address: [Your Wizpresso account email registration address]
2.16 Force Majeure. Neither party will be liable for any delay in performance hereunder if such delay is due to causes beyond the reasonable control of such party in the event Wizpresso is the party unable to perform, Wizpresso shall provide Subscriber with a pro-rata refund of fees paid upon any such termination as their exclusive liability and Subscriber’s exclusive remedy for such event.
2.17 Assignment. Except in the case of merger or sale of all or substantially all of a party’s assets, neither party may assign or otherwise transfer any of its rights, duties, or obligations under this Agreement without the prior written consent of the other party. Such consent may not be unreasonably withheld.
2.18 Counterparts. This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument.
2.19 Third Party Rights. A person who is not a party to this Agreement shall have no right to enforce any of its terms.
2.20 Governing Law. This Agreement and any non-contractual obligations arising out of or in connection with it, shall be governed by and interpreted in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong SAR”).
2.21 Dispute Resolution. The courts of the Hong Kong SAR shall have exclusive jurisdiction in relation to any disputes or claims arising out of or in connection with this Agreement and each party irrevocably submits to the jurisdiction of the Hong Kong SAR courts and waives any objection to the exercise of that jurisdiction.
Service Level Agreement
This Attachment A sets forth certain levels of service that Wizpresso is required to meet in performing the Services during the Term ("Services Levels").
1. GENERAL PROVISIONS
1.1 Measurement and Reporting.
- Except as otherwise agreed upon by the Parties, Wizpresso will monitor its actual performance of the Services against the Service Levels. Wizpresso will provide automated tools, collect and provide to Subscriber the data reasonably made available to it by such tools, and be responsible for measuring performance against the Service Levels. Wizpresso’s failure to properly measure performance with respect to any particular Service Level for any month will be a Service Level Default with respect to such Service Level for such month.
- Wizpresso will provide Subscriber access to soft-copy reports to verify Wizpresso’s performance and compliance with the Service Levels upon request. Detailed supporting information for all reports will be provided to Subscriber in spreadsheet form.
All capitalized terms used but not defined in this Attachment A have the meanings assigned to them in the Agreement. For purposes of this Attachment A, the following terms have the following meanings:
2.1 "Actual Uptime" means the aggregate amount of time within Scheduled Uptime when Services are available for normal business use by Subscriber or users, as applicable (i.e., Actual Uptime = Scheduled Uptime – Outage). Services are available for normal business if they can be used in accordance with their intended functionality.
2.2 "Availability" means the Actual Uptime expressed as a percentage of the Scheduled Uptime (i.e., Availability % = Actual Uptime/Scheduled Uptime x 100%).
2.3 "Average Resource Usage" means the average utilization rate of CPU, Disk I/O, and Network I/O over a rolling six (6) hour period.
2.4 "Monthly Charge" means the amount Wizpresso invoices Subscriber for the Services for a given month; where Wizpresso has quotes fees based upon a longer-term the Monthly Charge will be calculated as the monthly pro-rata amount of the longer-term quoted.
2.5 "Outage" means any interruption of five (5) minutes or more during which ten percent (10%) or more of Subscriber or users are unable to access the System or their access to the System is substantially impaired (including through significant logon delay).
2.6 "Service Level Default" means an occurrence of Wizpresso’s failure to meet any Service Level.
2.7 "Scheduled Uptime" means the period of time (days of the week and hours per day) the Services are expected to be available to Subscriber for normal business use. Scheduled Uptime excludes maintenance windows for the Services.
3. SERVICE LEVEL PROCESS
3.1 Reevaluation of Service Levels. Section 5.1 of this Attachment A identifies the Service Levels that apply during the Term, subject to the following:
- The numerical values associated with such Service Levels (e.g., Availability of 99.8%) will be subject to Subscriber’s and Wizpresso’s mutual reevaluation three (3) months after the Effective Date. The purpose of such reevaluation is to confirm or change the numerical value based upon the average performance of Wizpresso with respect to the applicable Service Level during such three (3) month period. Subscriber and Wizpresso may agree to adjust the Service Levels at this time.
- The Parties agree that the Service Levels confirmed or changed in accordance with Section 3.1A above will not be less than those levels reasonably and consistently achievable with the systems and environments used to provide the Services if used in accordance with the practices and standards used in well-managed operations performing services similar to the Services
3.2 Additions/Modifications to Service Levels. The Parties will cooperate to identify additional Service Levels in furtherance of the objective of having a comprehensive set of Service Levels that provide a fair, accurate, and consistent measurement of Wizpresso’s performance of the Services. In response to changes in Subscriber’s business needs or to reflect changes in or evolution of the Services, Subscriber and Wizpresso will, at least once per year, review and assess any changes and agree to add or substitute new Service Levels to meet such objective(s) as may be redefined from time to time during the Term.
3.3 Service Levels. Wizpresso must meet or exceed the Service Levels described in this Attachment A, including Section 5.1.
4. SYSTEM PERFORMANCE
4.1 System Availability and Performance. Wizpresso must maintain the availability and performance of the System to meet or exceed the Service Levels set forth in Section 5.1.
4.2 System Capacity. Wizpresso must provide sufficient hosting capacity to target the Service Levels, availability and performance objectives in Section 5.1. Subscriber will work with Wizpresso to forecast and anticipate unexpected increases in Software usage due to any unusual events that could change the rate of System usage typically observed in normal site operation.
4.3 Response Time. Wizpresso must manage equipment, bandwidth, and network response times to target Service Levels and performance objectives stated in Section 5.1.
5. Service Level Default Credits. For Subscribers with recurring monthly or annual charges, the SLA credits are calculated as a % of the Monthly Charge owed by Subscriber for the month during which the Service Level Default occurs. For on-demand subscribers, the SLA credits are calculated as a % of the total permissible term in days of the Subscription. Where Wizpresso fails to attain the 99.8% service level, rather than the Service Credit set forth above Subscriber may elect to demand a pro-rata refund based upon the number of days that Wizpresso failed to attain the 99.8% service level and the refund will be determined on a pro-rata basis using the annual Service Subscription fee stated in the Wizpresso Sales Quote. The refund will be paid at the end of the calendar quarter; this represents Wizpresso’s sole liability for that Service level breach and Subscriber’s sole remedy.
5.1 SERVICE LEVELS
I. SERVICE LEVEL: SYSTEM AVAILABILITY AND PERFORMANCE.
Wizpresso will provide the Software 24 hours per day, 365 days per year with an Availability of 99.8%, excluding scheduled maintenance, which will not be performed during Subscriber’s normal business hours of operation. Wizpresso will provide Subscriber with its maintenance schedule and will notify Subscriber in advance of any non-scheduled maintenance. Wizpresso will ensure Average Resource Usage, a measure of system performance, will not reach 80% or higher for an extended period of time. Wizpresso will use its best reasonable efforts to schedule the abovementioned events at times when the Software is least likely to be in use.
II. SERVICE LEVEL: MONITORING AND RESPONSE TIME.
Wizpresso will respond to and resolve Software faults based on the severity levels detailed below. The time clock will restart any time a severity level is changed. "Response" means the time Wizpresso takes from its receipt of a problem report until it begins work to resolve the problem. “Target Response” means an estimated amount of time to provide a workaround or other resolution.
|Severity Level||Description||Target Response|
|Software is not available for use or a significant proportion of the contracted functionalities is not available.||1-8 hours|
|One or more elements of the Software critical to the functioning of the customer’s business has/have ceased to function||Within 24 hours|
|Potential for performance impact if not addressed||Within 5 business days|
|Minor issues that do not prohibit users from utilizing the Software||Within 10 business days|
III. SERVICE LEVEL: SECURITY.
A. Physical and Technical Security. Wizpresso will provide appropriate and adequate physical and technical security for the Software, including, but without limitation, the following:
- Wizpresso will have Representatives capable of identifying, categorizing, and responding to a security incident.
- Wizpresso will implement a security fix across the infrastructure in accordance with Wizpresso’s regular update process.
- Wizpresso will promptly shut down ALL applicable access to the Software, or any component of it associated with the Application Services, responding to a request by the Subscriber’s security manager.
- Wizpresso will require all permitted subcontractors and/or third-party service providers utilized either directly or indirectly by Wizpresso in the performance of Services ("Third-Party Service Provider") to adhere to, and with all requirements of the Agreement, including, but not limited to, the Subscriber security requirements set forth in the Agreement.
- Wizpresso will not store or transmit Subscriber Data as clear text. Wizpresso will store and transmit Subscriber Data only in a secure and encrypted mode.
- Wizpresso will institute and maintain a separation of duties between application development, quality assurance, testing, and production environments.
B. Security Event Notification. If either Wizpresso or Subscriber discovers or is notified of a breach or potential breach of security relating to the Subscriber Data ("Event"), (i) such party shall notify the other party of such breach or potential breach, and (ii) if the applicable Subscriber Data was in the possession of Wizpresso or its subcontractors at the time of such breach or potential breach, Wizpresso shall promptly (A) investigate and remediate the effects of the breach or potential breach, (B) provide Subscriber with information related to the breach or potential breach and coordinate with Subscriber while conducting the investigation; (ii) Wizpresso agrees to reasonably cooperate with Subscriber to the extent Subscriber determines it is necessary to conduct its own investigation; and (iii) provide Subscriber with assurance reasonably satisfactory to Subscriber that such breach or potential breach has been remediated. Wizpresso will cooperate fully with Subscriber regarding any notification for impacted individuals.
C. Wizpresso will implement a comprehensive backup and recovery process. More specifically, snapshots of the data ("Snapshots") will be performed every 24 hours, those Snapshots will be stored for 14 days.
D. Data Retention and Destruction. Wizpresso shall destroy or delete all Subscriber Data obtained under the Service Agreement within thirty (30) days at the request of the Subscriber or when it is no longer needed for the purpose for which it was obtained.
E. Data Segregation. Wizpresso shall logically segregate Subscriber Data and deploy reasonable application controls so that Subscriber Data shall not be commingled or corrupted by data from other sources.
F. Secure Audit Repository. Wizpresso will log the following information to a secure audit repository:
- Configuration changes relating to the server, firewall, OS, and application;
- Account creation, deletions, and modifications;
- Irregular usage activity;
- Failed login;
- Audit trail logs for user actions
Wizpresso Platform Software Service Description
The Wizpresso Platform is a selection of Cloud Software as a Service (SaaS) offerings that augment capital markets workflows and automate many of the tasks associated with investment research, reporting, knowledge management, and due diligence processes. The Wizpresso Platform can be segmented into software applications as follow:
- Discovery is a market intelligence software that enables professionals to Identify thematic investment opportunities and monitor trends by leveraging natural language processing (NLP) technology. Designed and built by data experts, Discovery’s resilient infrastructure can collect data from 100,000+ sources 24/7 in real-time without missing a beat.
- Valuelytics is an ESG intelligence platform that enables issuers and institutional investors to accelerate their ESG journey through data. Valuelytics uses machine learning to extract actionable ESG insights from company disclosures and websites at scale. Using proprietary technology, we can accurately comprehend information hidden in unstructured text, charts, and tabular formats that traditional data providers may miss.
- Filingseer is an NLP-powered search engine that enables professionals to surface hidden and relevant information from millions of company disclosures in seconds. Filingseer covers 12 capital markets and 30,000+ listed companies and has a database of 50+ million annual and interim reports, ESG disclosures, transactional documents, announcements, and disclosures.
- Factify is a verification software for regulated disclosures, including prospectuses and annual reports. Legal and investment banking professionals can save >75% of the time from the due diligence process by streamlining document review, material statement identification, fact-checking, and other verification workflows.
- Diligence is a regulatory compliance tool that automates company disclosure screening and assessment. Using machine learning and generative AI, Diligence empowers issuers to check and benchmark disclosure quality before and after publication. Diligence can also generate automated responses to queries from investors, analysts, and rating agencies.
- Adnoto is a knowledge management platform that empowers enterprises to maximize the intelligence value of internal documents and external data. The platform comprises powerful technological modules, including search, generative AI, document classification, workspace management, access control, and more.
Last Updated: 5 November 2023