Terms of Service

Last Updated: November 19th, 2024

Widewail, Inc. (“Widewail”) will provide services (“Services”) to the customer (“Customer”) subject to these Terms of Service (the “Terms”). Customer and Widewail may be referred to in these Terms individually as a “Party” or collectively as the “Parties.”

By signing an Order (defined below) for the Services, Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order(s), constitutes the entire agreement between Widewail and Customer (the “Agreement”). Widewail reserves the right to revise these Terms from time to time, which will be updated at https://www.widewail.com/tos. Any changes will be effective upon posting the revised version of these Terms.

IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT USE THE SERVICES.

1. Access to Widewail Services.  Subject to these Terms, Widewail will provide (and grants to Customer a nonexclusive, nontransferable, limited right and license to use) the applicable Services described in any order executed by and between Widewail and Customer referencing these Terms (an “Order”) solely for the benefit of Customer.

1.1   Restrictions.  Any and all rights not expressly granted to Customer herein are reserved by Widewail.  Customer shall not (a) use the Services or other Widewail materials for any purpose not expressly permitted herein; or (b) copy, modify, customize, rent, lease, loan, or sublicense any of the Services or other Widewail materials except as otherwise provided for herein.

1.2 Widewail Invite Video. If Customer has purchased a subscription to Widewail Invite Video, the following terms also apply: (a) Widewail grants Customer a license to view, display, and download any photos, video or other content ("Media") submitted by Customer's consumers through Widewail Invite Video during the term in the applicable Order; (b) Customer shall only use and access Widewail Invite Video in compliance with all applicable laws and regulations and Widewail's Community Guidelines posted in Widewail Invite Video. Widewail grants to Customer a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, sublicensable and transferable right and license to use, reproduce, modify, display, perform, prepare derivative works of, and distribute all Media that has been downloaded from the Widewail library during the term of the applicable Order. Widewail reserves the right, at any time and without prior notice, to remove Media from Widewail Invite Video at its discretion for any reason or no reason. Customer shall indemnify and hold Widewail harmless against any claims or costs, including attorneys' fees, arising from the use or distribution of any Media obtained by Customer through Widewail Invite Video.

2. Customer License to Widewail

2.1   Approved Access.  During the Term (defined below), Customer will provide Widewail with suitable access, credentials, and information to provide the Services generally.  If Customer is purchasing Widewail Engage or Engage Plus, such access includes, but is not limited to, the ability to access and provide Replies, which access may be provided through use of an API, approved login credentials, or some other method agreed to by the parties (“Approved Access”).  Customer grants to Widewail the right and license to use each Approved Access to monitor the Reputation Data and provide Replies (as defined in the applicable Order).  If Customer is purchasing Widewail Invite and/or Widewail Invite Video, Customer shall provide to Widewail Customer’s consumers' personal information solely as necessary to provide Widewail Invite and/or Widewail Invite Video.

2.2   Trademarks.  Customer hereby grants to Widewail the right to use any intellectual property (such as trade names, trademarks, images, and logos) of the Customer necessary to provide the Services.

2.3   Customer Responsibilities. Customer is solely responsible for (and Widewail has no responsibility to Customer or any third party for): (a) any third-party accounts associated with Reputation Data and the Approved Access, including, but not limited to, compliance with any terms and conditions and any payment or fees required for such account; (b) regularly reviewing Replies, if applicable, and other content deployed through the Services to ensure all information posted (i) is accurate, up to date, and acceptable, and (ii) complies with all laws, rules and regulations, including, but not limited to, all federal, state and industry-specific online advertising (or similar) laws, regulations and guidelines; and (c) compliance with applicable law, including the Telephone Consumer Protection Act, as such relates to Customer’s use of the Services.  Customer shall be solely liable for any fines or other penalties imposed relating to any non-compliance with the Agreement or applicable laws.

2.4   Statistical Data. Notwithstanding anything to the contrary in the Agreement, Widewail may (and Customer hereby grants to Widewail the right to) de-identify and aggregate any data collected by or through the Services and utilize in perpetuity such aggregated anonymized statistical data for any reasonable business purpose. 

3. Payments.  Widewail shall invoice, and Customer shall pay, the fees set forth in an Order for the Services.  All regularly scheduled payments due to Widewail are to be made via ACH or credit card and shall be affected by automatic debit to the ACH Account(s) or credit card provided by Customer to Widewail upon execution of an Order. Automatic debits and credit card payments will coincide with issuance of applicable invoices.   Fees shall be deemed overdue if they remain unpaid thirty (30) days after the date of an invoice by delivery of payment to the remittance address appearing on such invoice. Any overdue amounts shall be subject to a late charge of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, on such invoice until fully paid.  Any amounts due hereunder are exclusive of, and Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Widewail, unless Customer provides to Widewail a valid tax-exempt certificate. 
4. Term and Termination

4.1   Term.  The Agreement shall commence on the Effective Date set forth in the Order and continue for the Initial Term identified in the initial Order.  The Agreement will automatically renew for successive Renewal Terms, unless either Party provides written notice of termination at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as applicable.

4.2   Termination. Either Party may terminate the Agreement (and in the case of Widewail cease providing the Services) if the other Party is in breach of any material provision of the Agreement (including Customer’s failure to pay any invoiced fees) and fails to cure such breach within thirty (30) days of written notice by the non-breaching Party.  Either Party may immediately terminate the Agreement (and in the case of Widewail immediately cease providing the Services) upon the occurrence of the following: (i) use by Customer of the Services in a manner that is illegal or fraudulent or in violation of the Agreement; or (ii) the other Party becomes insolvent, files a bankruptcy petition, becomes the subject of an involuntary bankruptcy petition, makes a general assignment for the benefit of creditors, a receiver is appointed for its business, property or assets by a court of competent jurisdiction and such appointment is not dismissed within thirty (30) days, or such Party ceases to conduct business.

4.3   Effect of Termination.  Upon the termination or expiration of the Agreement, all rights and licenses granted to Customer herein shall terminate, and Widewail shall cease providing the Services.  In addition, each Party shall promptly return and deliver to the other or destroy (and, upon the request of the other, certify the destruction of) all Confidential Information (as defined in Section 5) of the other Party in its possession or control, except that Widewail may retain copies of such materials on its systems for archival purposes, including through automated backups in the ordinary course of business; provided that such retained Confidential Information shall continue to be bound by its obligations of confidentiality. 

4.4   Survival.  Upon expiration or termination of the Agreement, Sections 4.3 (“Effect of Termination”), 5 (“Confidential Information”), 6 (“Intellectual Property”), 8 (“Disclaimer of Warranty”), 9 (“Limitations of Liability”), and 10 (“Miscellaneous”) will survive in accordance with their terms.

5. Confidential Information.  Each Party will be exposed to, have access to, and be engaged in the development of proprietary and confidential information (including all tangible and intangible manifestations), that is either designated by the disclosing Party as confidential, and/or that is known or could reasonably be known by the receiving Party to be confidential in nature, regarding the technology and other business of the other (collectively, “Confidential Information”).  For example, Confidential Information includes, but is not limited to, business plans, methods and strategies, copyrightable material, product ideas, trade secrets, inventions (whether patentable or not), improvements, sales and marketing plans and customer lists.  Notwithstanding the foregoing, Confidential Information does not include any information that (i) is in or enters the public domain, other than as a result of a breach of the Agreement (such as Reputation Data), (ii) is previously rightfully known to the receiving Party, other than as a result of a breach of the Agreement, (iii) is disclosed to the receiving Party by a third party who had the right to furnish such Confidential Information and  who was not known by the receiving Party to be bound by obligations of confidentiality, or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.  The parties agree at all times to keep and hold all Confidential Information in strict confidence and trust.  Furthermore, each Party agrees not to use or disclose any Confidential Information of the other to any third party without the prior written consent of the disclosing Party, (i) except as may be necessary to perform each Party’s duties under the Agreement for the benefit of the parties , (ii) pursuant to the order or requirement of a court, administrative agency, or other governmental body, or as may be required by any law or regulation (a “Disclosure Requirement”), provided that the Party required to make such a disclosure, to the extent able under a Disclosure Requirement, gives reasonable written notice to the other Party to enable it to contest such order, or (iii) on a confidential basis to its and its affiliates’ employees, officers, agents, consultants, legal or professional financial advisors who have a need to know the Confidential Information and accept corresponding obligations of confidentiality to those contained in the Agreement. 
6. Intellectual Property.  Each Party shall own its respective Intellectual Property.  “Intellectual Property” means, all concepts, inventions (whether or not protected under patent laws), works of authorship, moral rights, mask works, software, trademarks, trade names, trade dress, trade secrets, publicity rights, copyrights, know-how, ideas (whether or not fixed in a tangible medium of expression or protected under trade secret laws).  Widewail Intellectual Property includes all Services and any portions thereof (including the design, look and feel of any Widewail templates, format, graphics associated with any Services), all data Widewail determines, in its sole discretion, to maintain relating to the use of the Services (including statistics available to Widewail relating to the Services), any works developed by Widewail related to the Services in any manner, any integration code and any interfaces or other software or technology developed by Widewail, and all Media.
7. Representations and Warranties

7.1   Each Party hereby represents and warrants to the other as follows: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party.

7.2   Widewail hereby represents and warrants to Customer that the Services performed by Widewail for Customer will be of professional quality conforming to generally accepted industry standards.  As Widewail’s sole responsibility, and Customer’s exclusive remedy, in the event of any material failure to meet such standard, Widewail shall cause the service to be re-performed at no cost to Customer or, if unable to do so, shall refund any fees paid by Customer for the particular services.

7.3   The Parties agree that in the course of providing the Services to Customer pursuant to the Agreement, Widewail may process Personal Information on behalf of Customer. Widewail represents and warrants that its access, collection, storage and disposal of Personal Information shall comply with applicable federal and state laws and regulations.  Widewail represents and warrants it does not and will not in the future sell or share Personal Information in violation of applicable laws. Widewail shall implement administrative, physical and technical safeguards for protection of Personal Information that are no less rigorous than acceptable industry practices and shall ensure that all such safeguards comply with applicable data protection and privacy laws and regulations.  “Personal Information” refers to “personal information”, “personal data” “personally identifiable information,” as defined under applicable data protection laws that is accessed or otherwise processed by Widewail during its performance of the Services hereunder.

7.4 Customer hereby represents and warrants that (a) it has full and adequate rights to grant to Widewail all rights and licenses provided to Widewail under the Agreement, including, but not limited to, those outlined in Section 2 ; (b) Customer has obtained all required prior consents of consumers prior to using Widewail Invite and/or Widewail Invite Video; and (c) Customer has obtained all necessary consent and/or authorization from end users and/or consumers for Widewail to process the personal information of such individuals for purposes of receiving Services hereunder in accordance with applicable laws, including those regarding transfer of personal information to the United States.

8. Disclaimer of Warranty.  EXCEPT AS SET FORTH IN SECTION 7, NEITHER WIDEWAIL NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE SERVICES AND WIDEWAIL AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, FREEDOM FROM BUGS, CORRECTNESS, ACCURACY (INCLUDING ANY REPLIES), RELIABILITY, RESULTS ACHIEVED AND THAT THE SERVICE’S FUNCTIONING WILL BE UNINTERRUPTED AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE TRADE. WITHOUT LIMITING THE FOREGOING, WIDEWAIL DOES NOT WARRANT THE QUALITY, ACCURACY, OR SUITABILITY OF ANY REPLY OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES FOR ANY PURPOSE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT WIDEWAIL DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH MEDIA. UNDER NO CIRCUMSTANCE WILL WIDEWAIL BE LIABLE FOR THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH ANY MEDIA.
9. Limitation of Liability.  NEITHER PARTY NOR ANY OF ITS AFFILIATES, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS, AND EMPLOYEES, SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING DAMAGES DERIVED FROM THE LOSS OF EARNINGS, PROFITS OR GOODWILL OR FROM INCREASED EXPENSES OR COSTS, FORESEEABLE OR UNFORSEEABLE), THAT MAY BE INCURRED OR SUFFERED BY A PARTY OR ANY OTHER PERSON WHETHER UNDER THE LAWS OF CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE AGGREGATE LIABILITY OF WIDEWAIL, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, IMPLIED TERM OR CONDITION, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY CUSTOMER TO WIDEWAIL DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE.  THE FOREGOING LIMITATIONS OF LIABILITIES SHALL APPLY REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. 
10. Miscellaneous

10.1   Independent Contractor.  The Parties agree that they are independent contractors pursuant to the Agreement.  Nothing in the Agreement creates a partnership, employer-employee relationship or a joint venture between the Parties.

10.2   No Assignment.  The Agreement shall be binding upon the parties’ respective successors and permitted assigns.  Neither Party may assign the Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party; provided that Widewail may assign the Agreement in connection with the sale, merger, consolidation or other similar transaction involving the transfer of substantially all of the assets or ownership interests to a third party.

10.3   Notices.  Except as otherwise provided herein, all notices shall be in writing and shall be deemed to be delivered when received if sent by certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight courier.  All notices shall be directed to the Parties at the respective addresses set forth on the first page of the Agreement or to such other address as either Party may, from time to time, designate by notice to the other Party (which particular notice may be by email).

10.4   Entire Agreement.  The Order, together with these Terms, constitutes the entire agreement between Customer and Widewail relating to the Services. The Agreement supersedes all prior or contemporaneous agreements between the Parties concerning the subject matter of the Agreement.

10.5   Press Releases.  Except as expressly set forth in Section 2.2 (“Trademarks”), neither Party shall issue any press release or announcement, use any of the other Party’s name or trademarks in promotional activity, or otherwise publicly announce or comment on the Agreement without other Party’s prior written consent.

10.6   Modifications.  No modification, amendment, supplement to, or waiver of the Agreement hereunder shall be binding upon the parties unless made in writing and duly signed by both Parties.  

10.7   Non-Waiver of Breach.  No breach of any provision of the Agreement can be waived unless such waiver is in writing and signed by the waiving Party.  Waiver by a Party or performance of any provision of the Agreement shall not invalidate the Agreement, nor shall it be deemed to be a waiver by such Party of any other provision.

10.8   Severability.  If any portion of the Agreement is held to be invalid, illegal or unenforceable, that portion shall be severed from the Agreement, and the remaining provisions of the Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.

10.9   Governing Law.  The Agreement is governed by and shall be construed and governed according to the laws of the State of Vermont without regard to conflicts of laws provisions or principles.  The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Vermont with respect to any matter arising hereunder or related hereto.

10.10       Force Majeure.  Neither Party shall be liable to the other for any delay or failure to take any action required hereunder (except for payment of funds) if and to the extent such delay or failure is due to any cause beyond the reasonable control of such Party, as the case may be, including, but not limited to, terrorism, war, natural disaster, unavailability or shortages of labor, or equipment, failure or delays in the delivery of vendors and suppliers, power failure or internet disruption.

10.11       Headings. The headings contained in the Agreement are included for convenience only and shall be given no effect in the construction or interpretation of the Agreement.