END-USER LICENSE AGREEMENT
This agreement governs Customer’s access to and use of the service offered by Writer, Inc. (“Writer”) and described at writer.com (the “Service”). THIS AGREEMENT COMPRISES THE TERMS AND CONDITIONS AND ADDENDUMS ATTACHED HERETO (the “Terms and Conditions”).
TERMS AND CONDITIONS
- The Service.
- Subscriptions. Writer (or a Writer-authorized reseller) and Customer may enter into one or more Order Forms referencing this Agreement (each an “Order Form”), pursuant to which Customer may purchase a subscription to access and use the Service, subject to this Agreement (a “Subscription”).
- Authorized Users. An “Authorized User” is a person who a Customer, or a person with admin access on a Customer’s account, has invited to join Customer’s account on the Service.
- Access to the Service. During the term of a Subscription, Writer shall provide Customer and Customer’s Authorized Users with non-exclusive access to the Service. Customer and the Authorized Users may use the Service solely for Customer’s own internal business purposes and not for re-sale or distribution.
- Billing. Writer (or a Writer-authorized reseller) will bill Customer in advance for use of the Service in the amount and on the frequency indicated in the applicable Order Form. All prepaid amounts are non-refundable. Customer agrees to maintain valid and up-to-date billing information on file with Writer. All payments due are in U.S. dollars. Customer will pay all reasonable expenses incurred by Writer in collecting late payments, including attorneys’ fees. Writer may suspend or downgrade Customer’s account if fees are not paid when due.
- Intellectual Property Rights & Restrictions. Writer shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer agrees that it shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Writer ‘s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Writer.
- Customer Content
- Ownership. All data, information, files or other materials and content that Customer makes available to Writer for the purpose of utilizing the Service (“Customer Content”) shall remain the sole property of Customer. Customer shall retain all intellectual property rights in the Customer Content. Writer does not screen Customer Content and is not responsible for the content of or any use by Customer of the Customer Content.
- Warranties and Covenants. By providing or otherwise making Customer Content available to Writer, Customer hereby warrants and represents that: (i) the copying, uploading and use of the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights; (ii) Customer has fully complied with any third-party licenses, permits and authorizations required in connection with such Customer Content; (iii) the Customer Content does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; and (iv) the Customer Content is not obscene or libelous, does not violate the right of privacy or publicity of any third party or is not otherwise illegal. Customer shall provide its end users with any notice and obtain any consent from end users as required by applicable laws and regulations in connection with the collection, use and disclosure of any Customer Content to Writer via the Service.
- License to Writer. Customer hereby grants Writer a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, solely to the extent required to perform the Service. Writer will not use or store Customer Content for any purpose other than for the sole benefit of Customer. The above license granted by Customer shall terminate upon removal or deletion of the Customer Content from the Service or the termination of this Agreement.
- Platform Data. In the course of providing the Service, Writer may collect statistical data and performance information, analytics, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict Writer’s right to collect Platform Data or to use it for any internal business purpose, provided however, that (i) Platform Data will not include any Customer Content, and (ii) Writer will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer, other than Writer’s employees, agents or service providers who are subject to obligations of confidentiality with respect to such Platform Data.
- EU Privacy Laws. Customer agrees that it will not transfer to Writer any Customer Data that contains personal data of a person subject to the European Union General Data Protection Regulation without first entering into a mutually agreeable data processing agreement with Writer.
- Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the pricing and any special terms offered to Customer by Writer, and any Customer Content.
- Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
- Representations and Warranties.
- Mutual Warranties. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
- Customer Warranties. Customer additionally represents and warrants that the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights.
- Writer Warranties. Writer additionally represents and warrants that:
- Writer shall provide the Service in material compliance with all documentation and specifications provided by Writer;
- Writer shall provide the Service in a professional and workmanlike manner, by personnel who have received adequate training and have appropriate skills and experience.
- The Service shall not include any virus, worm, Trojan horse, time bomb or other malicious code intended to harm or negatively affect the operation, integrity, control or security of any Customer computer programs, systems, environments or data.
- Disclaimer of Warranties. WRITER PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, WRITER DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
- Customer Indemnities. Customer shall defend, indemnify and hold harmless Writer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) resulting from any third-party claim, demand or action (collectively, a “Claim”) arising from or relating to an allegation that the Customer Content infringes any intellectual property right of a third party.
- Writer Indemnities. Writer shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party. Writer’s obligations set forth in this Section 7.1.2 do not apply to the extent that a Claim arises out of: (a) Customer’s breach of this Agreement; (b) use of the Service in a manner not permitted by the documentation or specifications provided by Writer; (c) use of the Service in combination with other software or services not provided by Writer.
- Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent, not to be unreasonably withheld or delayed.
- Limitation of Liability.
- Exclusion of Damages. In no event will either party be liable for any indirect, incidental, consequential, special, punitive or exemplary damages, including lost profits, loss of use, loss of data, cost of procurement of substitute goods or services, however caused, and on any theory of liability, whether for breach of contract, tort (including negligence and strict liability), or otherwise, whether or not the party has been advised of the possibility of such damages.
- Maximum Aggregate Liability. Each party’s maximum aggregate liability under, arising out of or relating to this Agreement or the Service shall not exceed the total amount of fees paid by Customer to Writer during the twelve months preceding the date the liability first arises.
- Acknowledgement. The liabilities limited by this Section 8 apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if Writer is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if your remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Section 8, Writer’s liability will be limited to the maximum extent permissible by such law.
- Exceptions to Limit of Liability. The limitations of this Section 8 shall not apply to a party’s obligations under Confidentiality (Section 5); Indemnity (Section 7); or to liability arising from bad faith or intentional misconduct.
- Taxes; Costs. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Writer such that the net amount payable to Writer after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in rendering performance of this Agreement.
- Term; Termination. This Agreement shall commence on the Effective Date and shall remain in effect until such time as no Order Forms are in effect, or until otherwise terminated as provided herein. Each Order Form shall have the term specified therein. Either party may terminate this Agreement and any Order Form by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Customer may terminate any Order Form effective upon the end or renewal date of a Subscription, but in no event will receive a refund of pre-paid fees or be relieved of any obligation to pay fees for a Subscription. Customer may terminate this Agreement upon written notice if it determines, in its discretion, that the performance of this Agreement would violate any laws, or professional and independence rules and regulations. Upon termination or expiration of this Agreement for any reason whatsoever, Customer will immediately cease use of the Service and either party shall return to the other party all of the other party’s Confidential Information then in its possession. Sections 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive any expiration or termination of this Agreement.
- Amendments. This Agreement may be amended only by written agreement signed by Customer and Writer.
- Governing law. This Agreement is governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in New York, NY, and each party irrevocably submits to the jurisdiction of such courts.
- Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
- Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
- Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
- Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
- Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
- Customer Mention. Writer shall not use Customer’s name or logo to identify Customer as a Writer customer of the service, including on Company’s public website, with prior consent of Customer. Writer agrees that any such use (if granted) shall be subject to Writer complying with any written guidelines that Customer may deliver to Writer regarding the use of its name.
ADDENDUM A: SERVICE LEVEL TERMS
Customer success is a core value at Writer and we pride ourselves on providing an outstanding customer experience. This starts with the way we’ve designed our product and extends to the way we partner with our customers during and after deployment.
In the event that a Service-affecting issue is detected by Writer or reported by Customer, Writer shall, in its reasonable discretion, categorize the Priority Level pursuant to the criteria below.
|1 – Blocker||A Service failure or severe degradation. Customer is unable to access any business resources.||Service is down and not accessible by Users; Service is slowed to such a degree that multiple Users cannot log in, resulting in consistent “page not found errors” or similar.|
|2 – Critical||A partial Service failure or moderate degradation. Customer is able to access some but not all business resources.||Customer lacks access to the download and upload features of the Service (excluding regularly scheduled Service upgrades); Users can access the Service, but access is slow, sometimes resulting in “page not found” messages or similar, with access functioning as expected upon page refresh.|
|3 – Major||A limited Service failure or mild degradation. Customer is able to access the majority of business resources.||Important individual features of the Service are not accessible by all Users; for example, a User is not able to access a project; Customer is unable to successfully integrate a new business application with the Service.|
|4 – Minor / Feature request / Question||Minor Service impact. Customer is able to access almost all business resources.||Minor individual features of the Service are not accessible by all Users; for example, a term cannot be added to terminology through an issue card. Customer has a Service feature enhancement request. Customer has a question on how to use the platform.|
Support Service is available to Customer Monday through Friday from 8:00 a.m. to 5:30 p.m. Pacific Time, excluding US public holidays (“Business Hours”). Writer will use reasonable efforts to adhere to the following response times, indicated below in Business Hours, pursuant to the Support Service package indicated on the Order Form (Enterprise, Team, and Professional):
Initial Response Goals:
|1 – Blocker||1 hour||2 hours||4 hours|
|2 – Critical||2 hours||4 hours||4 hours|
|3 – Major||2 hours||8 hours||8 hours|
|4 – Minor /feature request/questions||8 hours||24 hours||48 hours|
Support Service Exclusions:
Writer has no obligation to provide any Support Service to Customer: (i) for any software, hardware or other element of the Customer environment not provided by Writer, (ii) if Customer or a third party has altered or modified any portion of the Software, (iii) if Customer has not used the Services in accordance with documentation or instructions provided by Writer, including failure to follow implementation procedures, and (iv) for any problem that is not reproducible by Writer.
Service Level Commitment:
The Service will, subject to the exceptions listed below, be available at least 99.99% of the time during any full calendar month in Customer’s production environment (“Availability Commitment”). The Availability Commitments do not apply to sandbox, beta and other test environments.
The Availability Commitment of the Service for a given month will be calculated as follows (rounded to the nearest one tenth of one percent):
Availability % = 100% x (Total Minutes in the Month – Total Minutes Unavailable in the Month)/Total Minutes in the Month
The Service will be deemed to be unavailable only if the Service does not respond to HTTP requests, (“Unavailable”).
The Service will not be deemed Unavailable for any downtime or outages relating to: (i) a Customer Outage Event, (ii) equipment, applications, interfaces, integrations, or systems not owned by Writer, or service not offered by Writer, (iii) product features which are designated Alpha or Beta, or (iv) a Force Majeure Event.
“Customer Outage Event” means a period of time in which Service is not available due to acts, omissions or requests of Customer, including without limitation (a) configuration changes in, or failures of, the Customer end of the network connection, (b) work performed by Writer at Customer’s request, (c) Customer’s unavailability or untimely response to incidents that require its participation for source identification and/or resolution or (d) Customer’s failure to provide Writer with any requested physical or remote access to any Customer facilities, equipment or personnel.
Writer may perform emergency maintenance for which Writer will use commercially reasonable efforts to notify Customer at least twenty-four (24) hours in advance. For the avoidance of doubt, if the Service is Unavailable due to emergency maintenance, such Unavailability will be included in the Availability calculation.
Service Level Credits:
For each full calendar month in which Writer fails to meet the Availability Commitment of at least 99.99% (a “Service Level Failure”), Customer shall receive a service level credit equal to an amount determined in accordance with this following schedule (“Service Level Credit”). The Service Level Credit shall be calculated as the applicable percentage outlined below multiplied by the annual subscription fee paid by Customer for the then current annual period divided by twelve (12):
Service Level Availability % and Level Credits:
|Service Level Availability:||Level Credits:|
|98.5% – 99.89%||5%|
|97% – 98.49%||10%|
Service Level Credits will be issued to the entity that Writer invoices for the applicable Service, as a separate credit memo that can be applied towards fees payable for any subsequent annual term for that Service. If Customer elects not to renew Service Term prior to the application of a Service Level Credit pursuant to the preceding sentence, Customer will have the option to receive up to one (1) month of Service following the termination of such Service Term at no charge in lieu of such Service Level Credit. Customer will not be eligible to receive a Service Level Credit if Customer’s account is delinquent. The Service Level Credits stated herein are Customer’s sole and exclusive remedy (and Writer ‘s sole liability) for any claims in connection with this Service Level Agreement.
Reporting and Confirmation:
Customer must contact Writer to report any issues by (i) emailing email@example.com or (ii) submitting a request on support.writer.com.
Customer must log an incident with Writer within three (3) business days following any time in which the Service is Unavailable, along with the following information, in order for the applicable minutes to be applied towards the Availability % calculation:
1. The manner in which the Service is not available; and
2. The date and time in which the Service first became unavailable.
Failure to provide such notice will forfeit the right to receive Service Level Credits. Provided such notice is timely given, Unavailable minutes will be calculated from the starting time of the incident until the time the incident is resolved by Writer. Upon receipt of Customer’s notification, Writer will verify Customer’s report through any available system logs and records.