Terms and Conditions

TERMS AND CONDITIONS

Scope of Services.
1. Services and Deliverables. Client may, from time to time, engage WLCR to provide certain services and deliverables to Client as more fully described in an applicable Statement of Work (“SOW”) (each such engagement referred to as a “Project”). Statements of Work will be substantially in the form of Exhibit A and will include: (a) a description of services (“Services”) and tangible and intangible information and materials to be provided or licensed by WLCR hereunder (“Deliverables”); (b) the forecasted timetable for performance of Services; (c) fees to be paid for the Services and Deliverables which may be on a fixed fee, time and expenses, retainer or other basis; and (d) invoicing and payment terms if different from those set forth in this Agreement.
2. Change Requests. Either Party may initiate a Project Change Request (“PCR”) for any reason, including without limitation, a modification, addition or deletion in the Project scope, schedule, or plan. All proposed PCRs shall be submitted in writing (including, without limitation, by email). Each proposed PCR will specify the nature of the proposed change requested, the reason for the proposed change, and any subsequent impact to schedules, Deliverables, and cost. A PCR will not be implemented until all terms regarding such PCR are agreed upon in writing by Client and WLCR.
3. Initial Statement of Work. Concurrently with the execution of this Agreement, the Parties have agreed upon an initial SOW, Exhibit A, a copy of which is attached hereto.
Compensation and Payment.
1. Compensation. Client shall pay WLCR the fees specified in the payment schedule set forth in the applicable SOW. Fees will be invoiced as set forth below unless otherwise specified in the SOW.
  1. Time and Materials Fees. If the SOW provides that fees are to be paid on a “time and expense” (“T&M”) basis (a “Time and Materials SOW”), Client will pay WLCR (i) for the hours worked by its Resources (defined below) at the rates for each Resource’s job classification as listed in the SOW, and (ii) reimburse WLCR for all reasonable and documented expenses incurred by WLCR in connection with the Project. WLCR will issue invoices on a monthly basis. Invoices will be issued monthly. WLCR may provide Client with an “Estimated Maximum Price” in the applicable Time and Materials SOW. The Estimated Maximum Price represents the maximum fees that WLCR estimates, as of the execution date of the SOW, may be incurred by Client for the Project billed on a T&M basis. In the event that during the performance of the SOW, WLCR has reason to believe that the Estimated Maximum Price will be exceeded, it will promptly advise Client. WLCR will not invoice Client for an amount greater than the Estimated Maximum Price unless Client’s project manager approves the additional time and expenses in writing; however, WLCR will not be required to perform additional work unless and until Client’s project manager approves the additional amount.
  2. Fixed Fees. If the SOW provides that fees are to be paid on a fixed fee (“Fixed Fee”) basis (a “Fixed Fee SOW”), Client will pay WLCR (i) the Fixed Fee amount set forth in the SOW according to the payment milestones set forth in the SOW; and (ii) WLCR will bear all of its own costs and expenses, including, labor, overhead, and supplies, unless otherwise specifically agreed in the SOW. WLCR will issue invoices upon completion of the relevant milestone.
  3. Retained Services Fees. If the SOW provides that retainer fees are to be paid in order to reserve WLCR Resources for the period covered (“Retained Services SOW”), Client will pay WLCR the monthly (unless a different retainer period is set forth in the SOW) retainer fees by the first business day of each month during the term of the applicable Retained Services SOW. WLCR will issue invoices for retainer fees monthly in advance. The retainer fees are non-refundable. If a retainer is quantified as a monthly pool of hours, any unused hours will not be carried over to the subsequent month.
  4. Travel Expenses. If any SOW provides for travel by WLCR Resources or the Parties otherwise agree for WLCR Resources to travel during the course of a Project, Client shall reimburse WLCR for all reasonable and documented travel expenses incurred by WLCR in connection with the SOW. If requested by Client, WLCR will comply with Client’s reasonable travel expense reimbursement guidelines provided to WLCR in writing sufficiently in advance of travel dates.
2. Payment. Client will pay WLCR the amounts properly invoiced within fifteen (15) days after receipt of each undisputed invoice. If Client in good faith disputes any amount, Client will pay the undisputed portion and will work to resolve any dispute as soon as reasonably practicable. If Client is late in making payment, WLCR may charge the lesser of 3% per month or the maximum rate allowed by applicable law for any amounts not paid when due, until paid in full. WLCR may suspend performance of any SOW for which payment is overdue until the undisputed overdue amount is paid in full. Client will reimburse WLCR for reasonable attorneys’ fees and other costs associated with collecting delinquent payments.
3. Invoices and Taxes. Each invoice will (i) list the Deliverables provided and the Services performed and (ii) the fees owing based on the fee structure set forth in the applicable SOW (T&M, Fixed Fee, retainer). If the SOW is a Time and Expense SOW, the invoice will include a calculation of the fees (i.e. hours multiplied by applicable rate) and applicable reimbursable expenses. Fees do not include taxes, including without limitation sales, use or withholding taxes assessable by applicable governmental authorities. If WLCR is required to pay or collect taxes for which Client is responsible, the appropriate amount will be invoiced to and paid by Client, unless Client provides WLCR with a valid tax exemption certificate authorized by the appropriate taxing authority in advance of invoicing. WLCR is solely responsible for taxes assessable against WLCR based on its income, property and employees.
Term and Termination.
1. Term. This Agreement will commence on the Effective Date and will continue until terminated by either Party (the “Term”).
2. Termination. This Agreement may be terminated:
  1. By either Party upon thirty (30) days’ prior written notice if the other Party materially breaches any provision of this Agreement, such notice reasonably details the nature of the breach, and the breaching Party fails to cure such breach within the thirty (30) day period;
  2. By either Party effective immediately if (i) the other Party ceases to do business, or otherwise terminates its business operations without a successor; or (ii) the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, creditors arrangement, or similar proceeding, or if any such proceeding is filed against it;
  3. By either Party for convenience upon thirty (30) days’ prior written notice, provided that, in the event that notice of termination for convenience during the pendency of any SOWs, the Agreement shall survive with respect to performance of all rights and obligations with respect to the pending SOW(s) until its or their completion or expiry of the applicable term of the SOW.
3. Termination of Project. Client may terminate a SOW in writing at any time, with or without cause, upon thirty (30) days’ written notice. In such event, Client shall have no further payment liability other than for the agreed compensation (as set forth in the SOW) for all Services and Deliverables completed prior to the effective date of the termination, as follows: (a) if the applicable SOW is a Time and Materials SOW, Client shall pay WLCR based upon time worked by Resources, and any expenses incurred by WLCR in order to perform the Services as of the effective date of termination (provided that if the notice of termination instructs WLCR to immediately discontinue the performance of Services, WLCR shall do so as of the date that notice is received); (b) if the applicable SOW is a Fixed Price SOW, Client shall pay WLCR fees for all completed milestones, and a pro-rated amount of the fees for any milestones that are in progress based upon the percentage of the Services completed and/or Deliverables provided as of the effective date of termination; and (c) if the applicable SOW is a Retained Services SOW, Client shall pay WLCR the retainer fees through the end of the retainer period (e.g., monthly) during which the termination date (30 days following written notice) occurs. For example, if the retainer period is monthly and notice of termination is provided on June 15th, the effective date of termination is July 15th and retainer fees shall be paid through the end of July.
4. Effects of Termination. Except where an exclusive remedy is specified, the exercise by either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Upon expiration or termination of the Agreement: (i) upon request of the other Party, each Party shall return or certify the destruction of all Confidential Information of the other Party; (ii) except as expressly provided otherwise in this Agreement or in the event of a termination of a Project as provided under Section 3.3, any expiration or termination of this Agreement will not affect any rights or obligations of the Parties under any SOW agreed upon before the termination of this Agreement became effective. The provisions contained in this Agreement will continue to apply to such agreed upon SOWs until their completion or expiry of their term (unless terminated pursuant to Section 3.3).
5. Survival. The provisions of this Agreement concerning Indemnity (Section 7), Confidentiality (Section 8), Limitation of Liability (Section 9), and any other terms which, by their nature, are intended to survive termination or expiration of this Agreement or any SOW will survive any termination or expiration of this Agreement or any SOW.
Intellectual Property.
1. Client IP. Client reserves all rights, title and interest, including without limitation, all Intellectual Property Rights, in and to any and all information, materials, data and other content that Client furnishes or makes available to WLCR in connection with this Agreement that Client: (i) owned prior to the Effective Date; or (ii) develops, creates, or otherwise acquires independently of this Agreement (“Client IP”). Client hereby grants to WLCR a non-exclusive, non-transferable, royalty-free, worldwide license to make, have made, use, import, distribute, copy, modify, prepare derivative works, perform and display, disclose and otherwise utilize the Client IP during the term of the applicable SOW, in order for WLCR to provide the Services and Deliverables under such SOW and in accordance with any Client usage guidelines provided in advance to WLCR. “Intellectual Property Rights” means any and all tangible and intangible rights, title and interest in and to all works of authorship and copyrights therein, software (in source code and object code form), documentation, reports, drawings, charts, graphics and other written documentation, including algorithms, computer programs, and data bases, tools, designs, patents and patent applications and other rights in patent, inventions (whether or not patentable), discoveries, processes, methodologies, data bases, procedures, trade secrets, know-how, moral rights, and any other proprietary and intellectual property rights and tangible embodiments thereof of whatever nature.
2. WLCR IP. WLCR reserves all rights, title, and interest, including without limitation, all Intellectual Property Rights, in and to any and all information, materials, data and other content that WLCR: (i) owned prior to providing Services and Deliverables under this Agreement; (ii) develops, creates, or otherwise acquires independently of this Agreement, (iii) develops, creates, or otherwise acquires while performing Services or providing Deliverables under this Agreement (excluding Client IP); and (iv) all adaptations, modifications, and derivative works of any of the above (“WLCR IP”). WLCR IP includes, without limitation, WLCR’s proprietary software, tools, development methodologies, and workflows.
3. License Grant. WLCR grants Client a nonexclusive, non-sublicensable (except as provided in Section 4.5), non-transferable, perpetual, world-wide license to use WLCR IP that is incorporated into any of the Deliverables for which applicable fees have been paid, to the extent necessary to use the Deliverables for Client’s internal business purposes and for their intended purposes as set forth in the applicable SOW (e.g. marketing purposes, for use as a website).
4. Limitations. Client will not reverse engineer the Services, Deliverables, or WLCR IP in any manner except as permitted under applicable laws, rules, or regulations. Except as otherwise expressly permitted in this Agreement or the applicable SOW, Client will not and will not allow any third party to: (i) copy or use the Services, Deliverables, WLCR IP, or any portion of any of the foregoing beyond the restrictions or limitations of this Agreement or the applicable SOW; (ii) modify or create derivative works based upon the Services, Deliverables, or WLCR IP, or create or attempt to create, by reverse engineering or otherwise, the source code or internal structure of the Services, Deliverables, WLCR IP, or any part thereof, or otherwise reduce any software Deliverable to human-readable form; (iii) use or deploy the Services, Deliverables, WLCR IP, or any portion of any of the foregoing in any way that is unlawful or in violation of applicable laws; (iv) sublicense, sell, rent, lease, license, transfer, assign or redistribute, or sell access to the Services, Deliverables, WLCR IP, or any portion of any of the foregoing to any third party; (v) install software that is included in Deliverables on computers or systems which are not owned or controlled by Client or its affiliates or in cloud instances controlled by Client or its affiliates and hosted by third parties; or (vi) alter, remove, or obscure any proprietary notices or legends contained on or in the Services, Deliverables, or WLCR IP, including without limitation, WLCR’s website attribution notices.
5. Use of Contractors and Service Providers; Right to Make Modifications. In accordance with the license grant set forth in Section 4.3, Client may provide access to the Deliverables to its contractors and service providers acting on Client’s behalf provided that such contractors and service providers are obligated to abide by the license terms and limitations and other relevant terms of this Agreement and applicable SOW(s) to the same extent as Client and that Client is responsible for compliance by its contractors and service providers with the terms of this Agreement and applicable SOW(s) to the same extent as its own compliance. Notwithstanding the restrictions set forth in Section 4.4 (ii), a SOW may authorize Client to make or have made, on Client’s behalf, modifications to Deliverables and to create derivative works of the Deliverables. In such circumstances, the modifications and derivative works are solely for Client’s internal business purposes and for their intended purpose as set forth in the applicable SOW and otherwise in accordance with Sections 4.3 and 4.4 of this Agreement and not for further commercialization or distribution. Client acknowledges that WLCR is not responsible for such modifications and that they are not supported, unless otherwise agreed in a SOW.
6. Client Responsibilities. In cases where WLCR is providing a website as a Deliverable under the relevant SOW, Client is responsible for the accuracy, quality, and legality of its content included on the website, for its operation and use of the website in accordance with applicable legal requirements, for information or data contained or stored on the website, and for any third-party products or services interfacing with the website. WLCR will have no liability or obligation with respect to the foregoing. Client acknowledges that certain legal requirements may apply to operation and use of websites throughout the world (e.g. PCI compliance, accessibility, data privacy, security, etc.). Client is solely responsible for such compliance and to the extent it wishes to engage WLCR to address any such requirements, those requirements will be agreed upon by the Parties and specified in the applicable SOW.
Representations, Warranties and Covenants.
1. Mutual Warranties. Each Party represents and warrants to the other that (i) it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid, and binding obligation on the Party, enforceable against it, and (ii) this Agreement does not contravene, violate or conflict with any other agreement of the Party with any third party.

5.2 Services Warranty. WLCR represents and warrants to Client that it will perform the Services in a professional and workmanlike manner, in accordance with prevailing industry standards. In the event that the Services are not in conformance with this warranty and WLCR receives Client’s detailed written request to cure a non-conformance within thirty (30) days from delivery of the relevant Services, WLCR will, at its own expense, re-perform the non-conforming Services.

Fixed Price Deliverable Warranty. For a period of thirty (30) days after completion of any Fixed Price SOW, any Deliverable that is delivered pursuant to such SOW will conform to and perform in all material respects to the specifications contained in the applicable SOW and this Agreement. In the event that the Deliverables are not in conformance with this warranty and WLCR receives Client’s detailed request to cure a non-conformance within the warranty period, WLCR will, at its own expense and within a reasonable time after notice, repair or replace the non-conforming Deliverables. If WLCR fails to repair, replace or otherwise correct the non-conformance within a commercially reasonable period of time, Client may, at its option, return the defective Deliverables to WLCR, and WLCR will refund fees paid to WLCR under the applicable SOW.
Warranty Limitations. Notwithstanding the preceding warranties, WLCR shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (i) a Deliverable that has been altered, modified, revised, or changed, except by WLCR or its authorized representatives or contractors; (ii) errors or non-conformities resulting from misuse, abuse, negligence, or improper or unlawful use of all or any part of the Deliverable, or problems caused by products or services not provided by WLCR (including where WLCR has provided integrations to such products or services under the applicable SOW); and (iii) electrical failure, Internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems. Additionally, the warranties set forth in this Agreement do not apply to any bug, defect, error, or non-conformance caused by or attributable to software, products or services of any third party.
DISCLAIMERS. THE WARRANTY REMEDIES SET FORTH IN THIS SECTION 5 WILL BE WLCR’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE FOREGOING WARRANTIES. EXCEPT FOR THE WARRANTIES EXPRESSLY SET OUT IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES PROVIDED BY WLCR UNDER OR RELATED TO THIS AGREEMENT ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL EXPRESS, STATUTORY OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, OR ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED, TO THE EXTENT ALLOWED BY APPLICABLE LAW.

6. Resources.

6.1 Resources. WLCR will: (a) use only adequately trained resources on the Project; and (b) ensure that any resources who work at any location owned or controlled by Client comply with Client’s safety and security guidelines provided to WLCR in advance.

6.2 Non-Solicitation. During the term of this Agreement and for two years thereafter, Client will not recruit, solicit, contract, hire, compensate, or otherwise engage WLCR’s employees or contractors without the signed authorization of WLCR’s Chief Executive Officer.

7. Indemnification.

7.1 Indemnification by WLCR. WLCR will defend Client and its officers and employees (“Client Indemnitees”) and will indemnify the Client Indemnitees from and against any damages and costs (including reasonable attorneys’ fees and court costs) awarded against the Client Indemnitees or agreed to by WLCR in a monetary settlement (collectively “Losses”) to the extent arising from any claim, suit, action, or proceeding brought by an unaffiliated third party (“Third Party Claim”) based upon infringement or misappropriation of the third party’s intellectual property rights by the Deliverables when used in accordance with this Agreement and the applicable SOW.

7.2 Indemnification by Client. Client will defend WLCR and its officers, employees, contractors and agents (“WLCR Indemnitees”) and will indemnify the WLCR Indemnitees from and against any Losses to the extent arising from a Third Party Claim based upon infringement or misappropriation of the third party’s intellectual property rights by Client IP used by WLCR in accordance with this Agreement and the applicable SOW, or content (data, documents, information and other content) provided, displayed, posted published submitted or uploaded to a Deliverable by Client, its contractors, or service providers (other than content provided by WLCR) (provided that Client shall have no obligation to defend and indemnify WLCR Indemnitees to the extent WLCR is obligated to defend and indemnify under Section 7.1).

7.3 Exclusions. Notwithstanding Section 7.1, WLCR will have no obligation to indemnify the Client Indemnitees to the extent the Third-Party claim is attributable to: (a) any modification of the Deliverables not made by WLCR or its agents or contractors; (b) any combination or use of the Deliverables with products or services not provided by WLCR; and/or (c) use of the Deliverables outside the scope of the licenses granted under this Agreement; and/or (d) open source software.

7.4 Indemnification Procedures. In the event of a potential indemnity obligation under this Section 7, the Client Indemnitees or WLCR Indemnitees, as applicable, will: (i) promptly notify the indemnifying Party in writing of the Third-Party Claim, (ii) provide sole control of the defense of the Third Party Claim to the indemnifying Party; (iii) upon request of the indemnifying Party, provide all necessary cooperation at the indemnifying Party’s expense. Failure by the Indemnitees to notify the indemnifying Party of a Third Party Claim under this Section 7 will not relieve the indemnifying Party of its obligations under this Section 7; however, the indemnifying Party will not be liable for any litigation expenses that the Indemnitees incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying Party in accordance with this Section. The Indemnitees may participate in the defense of the Third-Party Claim with its own counsel at its own expense. The indemnifying Party may not settle any Third-Party Claim in any matter that would require obligation on the part of the Indemnitees (other than payment to be covered by the indemnifying Party under this Section or ceasing to use infringing materials), or any admission of fault by the Indemnitees, without the Indemnitees’ prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Further the indemnification obligations under this Section 7 will not apply if the Indemnitees settle or make any admission with respect to the Third-Party Claim without the indemnifying Party’s prior written consent.

7.5 Remedial Measures. If a Third Party Claim under Section 7.1 occurs, or in WLCR’s opinion is reasonably likely to occur, then WLCR may at its sole expense and in addition to its indemnification obligations set forth in this Section 7: (i) procure the right for Client to continue to use the Deliverables, or (ii) modify or replace the Deliverables or infringing portions thereof to become non-infringing, or (iii) if neither (i) or (ii) is commercially feasible, terminate Client’s right to use the Deliverable or infringing portions thereof and refund the amounts paid for by Client for the Deliverable.

Exclusive Remedies. THE DEFENSE AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE REMEDIES AND ARE THE INDEMNIFYING PARTY’S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

8. Confidentiality.

8.1 Confidential Information. “Confidential Information” means confidential, non-public data, information and other materials regarding the products, software, services or business of a Party (and/or, if either Party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one Party (the “Disclosing Party”), either directly or through third parties, to the other Party (the “Receiving Party”) where the information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where the information should, by its nature, be reasonably considered to be confidential and/or proprietary. Confidential Information does not include information which: (a) is rightfully known to the Receiving Party without any obligation of confidentiality prior to disclosure by the Disclosing Party; (b) is or becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (d) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information.

8.2 Duties. Except as expressly authorized in this Agreement, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform under this Agreement or exercise its rights granted to it under this Agreement; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case less than reasonable care; (iii) disclose the Disclosing Party’s Confidential Information only to its affiliates, and those employees, agents and contractors of the Receiving Party and those of its affiliates with a need to know the information for purposes of this Agreement, provided that any such employee, agent or contractor must be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party will remain liable for any non-compliance of such affiliates and its or their employees, agents and contractors with the terms of this Agreement.

8.3 Disclosures in Compliance with Law. Nothing in this Section 8 shall prevent the Receiving Party from disclosing Confidential Information where it is required to be disclosed by judicial, administrative, governmental, or regulatory process in connection with any action, suit, proceeding or claim, or otherwise by applicable law; provided, however, that if the Receiving Party believes that any such disclosure is required as set forth in the preceding clause, it will, to the extent consistent with the Receiving Party’s obligation to comply with such disclosure requirements, prior to making such disclosure, provide reasonable advanced notice to the Disclosing Party and cooperate with the Disclosing Party to obtain confidential protection for any such disclosed Confidential Information, including pursuant to a protective order or similar mechanisms to the extent possible, and in any event will disclose no more than the minimum amount of Confidential Information necessary to comply with the relevant disclosure requirements.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW):

Excluded Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF BUSINESS, LOSS OF CONTRACTS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OR DAMAGE TO DATA, OR ANY BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING FROM DELIVERABLES OR SERVICES PROVIDED UNDER OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH; AND

Aggregate Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE THE DELIVERABLES AND SERVICES OR OTHERWISE, EXCEED (A) IN THE CASE OF WLCR, THE FEES RECEIVED BY WLCR UNDER THE RELEVANT SOW, AND (B) IN THE CASE OF CLIENT, EXCEED THE FEES PAID OR DUE TO WLCR UNDER THE RELEVANT SOW.

Application. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE AND SHALL APPLY WHETHER OR NOT ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.

Excluded Claims. The limitations set out above in this Section 9 do not apply to the following (“Excluded Claims”):

A Party’s breach of its obligations in Section 8 (Confidentiality);
Liability arising out of any violation of a Party’s proprietary rights, including for breach of license terms and restrictions;
Liability which, by law, cannot be limited, such as for fraud or willful misconduct.
Dispute Resolution.

Dispute Resolution. The Parties agree that any conflict, dispute, controversy, or claim arising out of this Agreement, including questions of arbitrability (together a “Dispute”), shall be finally resolved in accordance with the processes set forth in this Section 10.

Escalation of Disputes. Subject to Section 10.5 below, the Parties shall attempt to resolve each Dispute by first escalating the Dispute to their respective business managers. Within fourteen (14) calendar days of written notice of the Dispute, or such other period as the Parties may agree in writing, the business managers will meet in person or by phone and work in good faith to resolve the Dispute.

Mandatory, Non-Binding Mediation. Subject to Section 10.5 below, if the Parties are unable to resolve the Dispute in accordance with Section 10.2 above, either Party may initiate a mandatory, non-binding mediation. Such mediation will be in accordance with the JAMS mediation procedures then in effect. The JAMS mediation procedures are hereby incorporated by reference into this clause. The Parties shall share all fees and costs of the mediation proceedings and of the mediator. All communications made during the course of the mediation by either of the Parties or the mediator are intended to be confidential and privileged to the extent permitted by law.

Binding Arbitration. Subject to Section 10.5 below, if the Parties are unable to resolve the Dispute through the mediation process within sixty (60) calendar days of the appointment of the mediator, or such other period as the Parties shall agree to in writing, the Dispute shall be referred to and finally resolved by binding arbitration. Such arbitration shall be in accordance with the JAMS arbitration rules then in effect, which are hereby incorporated by reference into this clause. The arbitration tribunal shall consist of a sole arbitrator, selected in accordance with the JAMS arbitration rules. The arbitrator shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the Parties an adequate opportunity to discover relevant information regarding the subject matter of the Dispute. The Parties shall share all fees and costs of the arbitration proceedings and the arbitrator. However, the prevailing Party may apply to the arbitrator for recovery of all reasonable costs and expenses associated with the arbitration including, but not limited to, the fees of the arbitrator, administrative fees, and reasonable attorneys’ fees. Such costs and expenses will be awarded at the arbitrator’s discretion. Notwithstanding the foregoing, the arbitrator shall exceed his or her powers if the arbitrator awards damages inconsistent with the Limitation of Liability. The Parties irrevocably waive the award of any such damages. The language to be used in the arbitration is English.

Preliminary Relief. At any point after a Dispute has arisen, in the event interim or provisional relief is necessary to protect the rights or property of a Party, either Party may, without waiving any process or remedy under this Agreement, seek such relief from a court of competent jurisdiction.

Governing Law; Venue. Except as otherwise provided, the venue for the dispute resolution processes set forth in Section 10, and the validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without reference to or application of its conflicts of law rules or principles. The seat of mediation and arbitration shall be in Portland, Oregon, unless otherwise agreed by the Parties.

General.

Compliance with Laws. Each Party shall comply with all applicable federal, state and local laws and regulations applicable to its performance under this Agreement. Each Party agrees that in carrying out its obligations under this Agreement, it will comply with and will not commit, authorize, or permit any action by its affiliates or its or their employees, agents or contractors which would violate any anti-bribery or anti-corruption laws or any import or export laws or regulations.

Independent Contractor. The Parties are independent contractors for all purposes under this Agreement, and neither Party will be deemed an employee, partner, or agent of the other. Each Party will be solely responsible for any and all obligations and payments due with respect to their personnel, including wages, salaries and amounts due or payable to its personnel in connection with this Agreement. Nothing in this Agreement will create a joint venture or partnership, establish a relationship of principal and agent, employer and employee, or any other similar relationship between the Parties. Neither Party will represent the other Party in any capacity, bind the other to any contract, or create or assume any obligation on behalf of the other.

Required Notification. During the Term of this Agreement and for a period of one (1) year thereafter if Client enters into discussions with an entity that provides the same or similar services as those provided by WLCR, Client agrees to promptly notify WLCR of such discussions and to give WLCR the opportunity to bid on the project that is the subject of such discussions.

Marketing. WLCR shall have the right to use Client’s name and logo on WLCR’s website and in marketing material in order to identify Client as a customer of WLCR. Such usage shall be in accordance with Client’s logo usage and branding guidelines.

Force Majeure. Neither Party will be liable for a delay in performing its obligations to the extent that delay is caused by act of God, nature, or public enemy, insurrection, war, riot, explosion, nuclear incident, fire, flood, earthquake, or other catastrophic event beyond the reasonable control of the affected Party and without its fault or negligence, provided that Party uses its best commercial efforts to notify the other and takes reasonable and expedient action to resume operations.

Assignment. This Agreement may not be assigned or transferred without the other Party’s prior written consent, provided that each Party expressly reserves the right to assign this Agreement without consent to a successor in interest of all or substantially all of its business or assets to which this Agreement relates. Any action or conduct in violation of the foregoing will be void and without effect. All validly assigned rights and obligations of the Parties under this Agreement will be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

Equitable Relief. The Parties acknowledge that a material breach of this Agreement adversely affecting the Parties’ or their licensors’ rights in intellectual property or Confidential Information may cause irreparable harm for which monetary damages would not be an adequate remedy and the non-breaching Party will be entitled to seek equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.

Waiver. A Party’s delay or failure to enforce any provision of this Agreement will not constitute a waiver. A Party’s waiver of any right granted under this Agreement on one occasion will not (a) waive any other right, (b) constitute a continuing waiver, or (c) waive that right on any other occasion.

12.8 Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration will have no effect on the remaining terms of this Agreement, which will remain in full force and effect.

12.9 Counterparts and Delivery. This Agreement may be executed and delivered in one or more counterparts (including PDF or other electronic counterparts), with the same effect as if the Parties had signed the same document. Each counterpart so executed will be deemed to be an original, and all counterparts will be construed together and will constitute one agreement.

Entire Agreement; Conflicts; Amendment. This Agreement constitutes the entire agreement between the Parties concerning its subject matter and replaces and supersedes all prior or contemporaneous agreements, understandings, or representations, whether written, electronic or oral between the Parties related to the subject matter contained in this Agreement. To the extent any invoice, purchase order or other document issued by either Party conflicts with this Agreement, this Agreement will control. This Agreement, including SOWs entered hereunder, may not be amended or modified except by a written instrument signed by duly authorized officers or representatives of the Parties.