MASTER SOFTWARE AS SERVICE AGREEMENT

[Last updated: April 04,2023]

This Master Software as a Service Agreement (“MSA”) is the master agreement, which sets out the terms of service for: (1) the Wand platform services; (2) the training services; and (3) the support services. The MSA together with the terms of the Data Processing Agreement (“DPA”) and any applicable references and exhibits (collectively, the “Agreement”), govern the use of the Service, the Wand Platform and Account. 

The Agreement forms a legally binding and enforceable agreement between Wand, Inc. (“Wand”) and customer, which is a legal entity or an individual entering this Agreement on behalf of and under the authorization of the legal entity or individuals entering for their own personal use (“Customer”). The Customer represents that it has the authority to sign, accept and to bind such entity to the terms and conditions of this Agreement or otherwise that it is at least 18 years old. Wand may, in its sole discretion, refuse to offer access to or use of the Services from any person or entity, and change its eligibility criteria at any time. 

The “Effective Date” of this Agreement is the date of Customer’s initial access to any Services through any online provisioning, acceptance, registration or order process, or by the parties’ executions of a signed Order Form. This Agreement will govern Customer’s initial purchase as well as any future purchases made by Customer through the Order Form, as applicable. 

Wand developed the Wand AI Platform, which enables customers to design, build, and manage business solutions, and centralize their AI processes in a single environment. 

The Customer and Wand shall each be referred to as “party” and collectively as “parties”.

• DEFINITIONS

• “Affiliates” means any entity which is controlled by, controls or is in common control with one of the parties.

• “Authorized User” means Customer’s employees, Affiliates, consultants, contractors, and agents who were selected and authorized by the Customer or its Affiliates’ to access and use the Wand Platform and the Services. 

• “Acceptable use Policy” means Wand’s acceptable use policy, made available at: wand.ai/AUP.

• “Confidential Information” means all nonpublic information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party”) to the other party (“Receiving Party”), that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood to be confidential. Customer Data will be deemed Customer’s Confidential Information without any marking or further designation. The Wand Platform, the terms and conditions of this Agreement, or any related content or information, will be deemed Wand’s Confidential Information without any marking or further designation.  The Confidential Information shall not include information which (a) is at the time of disclosure or subsequently becomes generally available to the public, other than as a result of a breach of the Agreement by the Receiving Party; (b) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (c) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreement; (d) was lawfully received by the Receiving Party from a third party having rights to disclose, and under no confidentiality obligations with respect to, such Confidential Information. 

• “Customer Account” means the account, from which the Customer or the Authorized User can access to the Wand Platform and the Services, including any applicable features therein. If and to the extent applicable, the admin account further enables the Customer to purchase Wand Units, view the purchase history, view and edit the account settings, and manage the Authorized Users. The Customer is responsible for all activities that occur under the Customer Account. 

1. 1. “Customer Data” means the information and other content made available by the Customer or Authorized Users, for processing by the Wand Platform for the purpose of receiving the Service. 
   2. “Customer Input” means the input provided by Customer to inform the Wand Platform how to process the Customer Data, and information about the Customer Data, but not the Customer Data itself etc.). 
   3. “Customer Results” means any output predictions, signals and reports the Customer or its Authorized Users generate from their use of the Services and Wand Platform. 
   4. “Documentations” means a set of digital or printed technical user manuals, notes, instruction, summary and any other supporting documentation provided by Wand to the Customer from time to time.
   5. “Intellectual Property” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, etc.
   6. “Order Form” means any ordering document, statement of work (“SOW”), purchase order, online order (including click-through setup of any Wand Service), registration page, or similar, either executed by the parties or online accepted by the Customer, as applicable. Each Order Form incorporates the terms and provisions of this Agreement, whether or not such Order Form expressly references this Agreement. The Order Form determines and governs the various commercial terms that set out the specifications applicable to each Customer. 
   7. “SLA” or “Service Level Agreement” means support services available herein: https://wand.ai/SLA.
   8. “Service(s)” means the functionality and features provided by Wand Platform, which differs based on the type of packages the Customer purchased, including the Training Services and the Support Services, and including any specification detailed in the Order Form. 

• “Training” or “Training Services” means, online recorded sessions and instructions as well as live online sessions, as applicable and as agreed in the Order Form. If Wand has agreed to provide the Customer with Training Services, as set forth in an Order Form, we will provide qualified training personnel or suitable training materials. 

1. “Third-Party Materials” means open-source software code that is made available by third parties under their respective open-source licenses.
2. “Usage Data” means information regarding the Customer’s or Authorized Users’ usage of the Wand Platform, including the analytics, statistics, click stream, duration, and errors, that Wand collects automatically or by third party measurement and recording tools.   
3. “Wand Unit” means a normalized unit of processing on the Wand Platform used for measurement and pricing purposes. The number of Wand Units a task consumes is driven by processing metrics, which may include compute resources, the type of task, and additional parameters and metrics. The pricing for each Wand Unit differs based on the type of package purchased. Detailed pricing page available here: wand.ai/pricing.  
4. “Wand Platform” means the technology software provided by Wand to enable the Service, including any and all related and underlying technology and documentation in any of Wand’s offerings and Services, including any and all derivative works, modifications, or improvements of any of the foregoing, including any Suggestions that may be incorporated therein. 

• SCOPE OF SERVICES AND RESTRICTIONS 

• Subject to the terms herein, Wand hereby grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Wand Platform and the Services, during the Term solely for the purpose set forth herein.

• The Customer shall not, and shall not allow others, including the Authorized Users, directly or indirectly, to: (i) interfere, attempt to interfere with, compromise Wand Platform’s integrity or security or decipher any transmissions to or from the servers and codes running the Wand Platform; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Wand Platform in whole or in part; (iii) run, transfer or upload , viruses, worms, malicious code or other software agents through the use of the Wand Platform; (iv) bypass the measures Wand may use to prevent or restrict access to the Wand Platform; (v) use the Wand Platform not in compliance with the Acceptable Use Policy; and (vi) access the Services for competitive analysis, in addition, Customer may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. 

• Wand reserves the right to modify, change, update, enhance, improve, remove, replace, add or make any other changes to, or discontinue, or cease, temporarily or permanently any part or feature of the Wand Platform (such as infrastructure, security, technical configurations), provided however, that such modification will not result in a material reduction of the performance or availability of the Service, unless Wand provides the Customer with 14-day prior written notice. 

• The Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, as such Patches are generally released by Wand from time to time. It is hereby clarified that the service warranties are subject to Customer’s compliance with this Section 2.3 and the Acceptable Use Policy. 

• The Customer is responsible for the Authorized Users and their use of the Services and access to the Customer Account. The Customer and Authorized Users shall use sophisticated passwords and shall keep such passwords confidential and secure. Wand is not responsible for any damages caused by Customer, or the Authorized Users, including individuals who were not authorized to have access to the Wand Platform but who were able to gain access because the username or passwords were disclosed or hacked. 

• The Customer or Authorized User shall promptly notify Supplier of any actual or suspected violation of the terms of Section 2.5 and of any actual or suspected infringement or unauthorized use of the Customer Account, the Wand Platform or Service, that the Customer and any Authorized Users becomes aware of and shall assist Wand in its efforts to remedy or prevent such infringement or unauthorized use. 

• Failure to comply with the obligations set forth herein, may result, at Wand’s sole discretion, in the suspension of the Customer’s access to the Wand Platform, without derogating from any other remedy Wand may be entitled to under the Agreement or applicable law. 

• ADDITIONAL SERVICES 

• Training Services are made available through online videos or online sessions directed specifically to Customer’s needs. The Training Service will be provided by Wand’s qualified personnel that will assist in coordinating and implementing the Wand Platform and Services. Unless otherwise set forth in an Order Form. Wand retains all Intellectual Property rights and all other property rights related to the Training materials. 

• Wand shall provide the level of support services as specified in an Order Form and subject to the SLA, which can be upgraded as agreed by the parties. 

• EXPERIMENTAL SERVICES 

• Wand may make available certain features, services that are not yet generally available, labeled as “preview”, “experimental”, “pre-release”, “alpha” (“Experimental Services“). Customer may access and use the Experimental Services solely for its internal evaluation purposes and in accordance with this Section 4.1. Wand will be under no obligation to provide Customer any support services with respect to the Experimental Services, support services may or may not be included, subject to Wand’s sole discretion. Experimental Services are excluded from any service level commitments, any security, privacy commitments, the Customer shall not use the Experimental Services to process any Personal Data or sensitive data. Wand makes such Experimental Services available to Customer until the earlier of: (i) the end of the period of the Experimental services as communicated in writing by Wand; (ii) written notice of termination from Wand. Wand grants Customer, during the Experimental Services term, a non-exclusive, nontransferable right to access and use the Experimental Services for Customer’s internal evaluation purposes and may change or discontinue the Experimental Services at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, WAND PROVIDES THE EXPERIMENTAL SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, WAND DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ASSUMES ALL RISKS AND ALL COSTS ASSOCIATED WITH ITS USE OF THE EXPERIMENTAL SERVICES. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN CASE OF ANY DISSATISFACTION IS TERMINATION OF THE EXPERIMENTAL SERVICES. ANY OBLIGATIONS ON BEHALF OF WAND TO INDEMNIFY, DEFEND, OR HOLD HARMLESS UNDER THIS AGREEMENT ARE NOT APPLICABLE TO CUSTOMERS USING THE EXPERIMENTAL SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAND’S LIABILITY HEREUNDER IS LIMITED TO $50.00. 

• REPRESENTATIONS AND WARRANTIES

• Each party hereby represents and warrants that: (i) it has the full legal authority to perform its obligations under the Agreement; and (ii) nothing contained in the Agreement nor the performance thereof shall place such party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity.

• Customer hereby represents and warrants that: (i) it will ensure that all its Authorized Users comply with the terms of the Agreement and will immediately suspend an Authorized User’s access to the Wand Platform as soon as it becomes aware of such Authorized User’s violation of the Agreement and Documentation; (ii) it will comply with any instructions concerning the access to and use of the Wand Platform that Wand may provide from time to time in addition to the Documentation; (iii) the Customer shall secure the Customer Systems and the Customer Cloud Environment, including by backing up the Customer Data, taking into account the sensitivity (if applicable) of the Customer Data processed through the Wand Platform; and (iv) Customer shall configure the Services in an appropriate manner taking into account the aforesaid in section (iii) above. 

• Customer further represents and warrants that the Customer Data and the Customer Input will not cause the Results to include data which is: (i) not in compliance with the Acceptable Use Policy; (ii) will infringe third party rights; and (iii) and will include sensitive information, such as health information, payment information, which requires Wand to comply with PCI DSS or otherwise execute a BAA, unless otherwise agreed in writing by the parties. 

• Wand hereby represents and warrants that: (i) it shall implement reasonable administrative, physical, and technical safeguards to protect the security of the Wand Platform and Services and the Customer Data as set forth in the Security Addendum available in Annex II on the Data Processing Agreement. Wand will use industry standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the Services and the Wand Platform. While Customer is responsible to back up the Customer Data, Wand will, provide commercially reasonable assistance with a recovery effort; (ii) it owns or has the legal rights in and to the Wand Platform; and (iii) it will provide the Services in a timely and professional manner which will conform to and operate in accordance with the Documentation, the Order Form and industry standards. The foregoing warranties are void if a failure has resulted from negligence, error, or misuse of the Services or the Wand Platform (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than Wand staff. 

• EXCEPT AS OTHERWISE EXPRESSLY STATED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, THE WAND PLATFORM, THE RESULTS, FEATURES AND ANY RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WAND DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND MAKES NO REPRESENTATION NOR IT EXTENDS ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SERVICES AND THE WAND PLATFORM INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WAND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WAND PLATFORM OR SERVICES; (II) THE OPERATION OF THE SERVICES IN COMBINATION WITH THE CUSTOMER SYSTEM OR CLOUD SERVICE PROVIDERS, OR WITH ANY OTHER HARDWARE, SOFTWARE, OR DATA NOT PROVIDED BY WAND; (III) THE PERFORMANCE OF THE SERVICES IN A MANNER CONSISTENT WITH THE CUSTOMER’S EXPECTATIONS;  (IV) ANY LOSS OF DATA OR CONTENT INCLUDING THIRD PARTY CONTENT; AND (V) THE RESULTS OF ANY USE OF THE WAND PLATFORM OR SERVICES. 

• FOR ANY BREACH OF THE WARRANTIES RELATED TO THE SERVICES AND THE WAND PLATFORM PROVIDED BY WAND IN SECTION 5, THE CUSTOMER’S EXCLUSIVE REMEDY AND WAND’S ENTIRE LIABILITY WILL BE THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF THE ERROR CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, WAND WILL END THE DEFICIENT SERVICES AND REFUND THE CUSTOMER THE WAND UNITS PURCHASED BUT NOT USED.  

• PAYMENTS, FEES AND TAXES 

• Unless otherwise agreed in writing or in an Order Form, payment for Wand Units is pre-paid and not refundable; the Wand Units can be used until the Agreement is terminated or the Customer deletes the Customer Account. The price for the Wand Units differs depending on the type of package as detailed in the pricing page: wand.ai/Pricing. Once the Customer has completed the use of the Wand Units purchased, it will need to purchase additional Wand Units to continue to use the Services. Packages can be upgraded at any time, the upgrade will start immediately upon payment.  

1. 1. Other customized payment terms, fees and obligations, are determined through the Order Form or Account. 

• All payments and other amounts payable by Customer under the Agreement are exclusive of all taxes, including without limitation, sales, use, value-added, withholding or other taxes, customs, levies, or duties imposed by taxing authorities on transactions, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Wand’s net income.

• Late payments will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month. 

• TERM, TERMINATION AND SUSPENSION     

1. The Agreement shall commence on the Effective Date and will continue in full force and effect until terminated by either party pursuant to this Section 7 (“Term”). The Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice, or upon deletion of the Account and cease use of the Service, unless the Order Form term was not completed or there are unused Wand Units, in which the Agreement will terminate immediately upon completion of the Order Form term or consumption of the Wand Units; or (ii) the other party is in material breach of the Agreement and the breaching party fails to cure that breach within 30-days following the receipt of a written notice. 
2. Wand reserves the right to temporarily suspend any or all of the Services at any time: (i) immediately if Wand reasonably suspects that the Customer is in breach of this Agreement in a manner that may cause material harm to the Wand Platform; (ii) or if Customer fails to pay undisputed fees after receiving notice of late payments. 
3. Upon termination for any reason of the Agreement: (i) Customer shall cease access to or use the Wand Platform and the Services and delete the Customer Account, before deleting the Customer Account the Customer shall extract any data or Results available therein; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; and (iii) termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve the Customer from its obligation to pay the applicable consideration that remains unpaid or limit either party from pursuing other available remedies. 
4. The Customer acknowledges that it is responsible for retrieving any Customer Data, including the Results, to which the Customer desires continued access after termination or expiration, and Wand shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data beyond 60 days following termination or expiration of the Term or the Agreement, as applicable. Any Customer Data contained on the Wand Platform will be deleted within 60 days of termination or expiration of the Subscription Term or the Agreement, as applicable. 
5. All sections detailed herein which by their nature are intended to survive termination shall survive termination or expiration for any reason.

• INTELLECTUAL PROPERTY

• The Intellectual Property and all other rights, title and interest of any nature in and to the Wand Platform and the Services or any related documentation made available by or on behalf of Wand hereunder (including all Suggestions, modifications, enhancements, upgrades, customizations and derivative works thereof, but excluding the Customer Data and the Deliverables) (“Wand’s Intellectual Property”) are and shall remain the exclusive property of Wand or its licensors. Except as expressly permitted in the Agreement, the Customer has no right in and to the Wand’s Intellectual Property and shall not use, adopt, modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, exploit any of the Wand’s Intellectual Property or register any trade names or symbols that are identical, or confusingly similar, to any such trademarks or trade names used by Wand. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason. Nothing in this Agreement shall be construed as transferring any right, title, or interest to the Customer or any third party unless explicitly stated hereunder. Wand and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.

1. Wand Platform may include Third-Party Materials, use of the Third-Party Materials is subject to their respective licenses. Wand warrants that the inclusion of such Third-Party Materials will not prevent Customer from exercising the license rights provided to Customer herein or limit Customer’s ability to use the Services in accordance with the Documentation.
2. As between Wand and the Customer, the Customer shall retain all ownership or license rights in Customer Data. For the purpose of providing the Service, the Customer grants Wand the right to use the Customer Data, solely during the Terms and for the purpose of providing the Services. Notwithstanding the above, the Customer acknowledges that Wand may use the Customer Input for the purpose of improving the Wand Platform Services. 
3. If the Customer chooses to provide Wand with suggested improvement, feedback, commentary, ideas, concept or other statements concerning the Wand Service or  Experimental Service (“Suggestions“) the Customer hereby grants Wand a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into Wand Services or otherwise use any Suggestions Wand receives from Customer to improve Wand Services, provided that such Suggestions are used in a manner that is not attributable to the Customer. The Customer irrevocably waives any moral rights in such Suggestions pursuant to applicable copyright law. Wand acknowledges that any Suggestion is provided on an “as-is” basis with no warranties of any kind.

• CONFIDENTIALITY 

• Except as set for the herein, and to the extent required under applicable law, the Receiving Party agrees to keep confidential and not disclose, use, copy, or distribute any Confidential Information to anyone, other than to those of its employees and contractors, if and to the extent that such employees and contractors have a need to know such Confidential Information for the purpose of the Receiving Party’s performance of the Agreement, and provided that such employees and contractors are bound to abide by all the obligations concerning such Confidential Information contained in the Agreement. The obligations outlined in this Section 8 shall survive the termination or expiration of the Agreement for a period of 3 years following the termination. All Confidential Information shall be and remain the property of the Disclosing Party. The disclosure of the Confidential Information shall not be construed as granting the Receiving Party any right, title, or license, whether expressly disclosed or implied, with respect to the Confidential Information or to its related Intellectual Property.

• A Receiving Party and its representatives may disclose Confidential Information if required by law, solely upon providing the other party written notice detailing the law requirement and the Confidential Information disclosed. 

• Each party acknowledges that its breach of this Section 9 may cause the other party extensive and irreparable harm and damage, and agrees that the other party shall be entitled to seek injunctive relief, without posting a bond, to prevent use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other party under applicable law.

• DATA PROTECTION 

• Customer acknowledges that the Customer Data may be stored either in the EU or the USA subject to the Customer’s discretion. The Customer Data will be processed subject to and in accordance with applicable laws and the Data Processing Agreement. Wand has no ability to monitor the Customer Data and the Customer shall be liable to inform Wand if additional safeguards, technically or contractually, are required due to the sensitivity of the Customer Data, including if a BAA or other data protection agreement is required. 

• Wand does not provide an archiving or hosting service, Wand expressly disclaims all other obligations with respect to storage of Customer Data. Customer shall be responsible to back up the Customer Data at all times. 

• Wand may, directly or through third party measurement and recording tools, collect and use Usage Data solely for the purpose of improving, review trends and performance, operating, and supporting the Services. Wand will share the Usage Data with the applicable third party tools and shall process it solely in accordance with the privacy policy available at: https://wand.ai/privacy-policy/ 

• INDEMNIFICATION

• Wand shall defend and indemnify Customer or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the Wand Platform or Services in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees). The above obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (i) use of the Service or the Wand Platform not in accordance with the Documentation and this Agreement; (ii) Customer’s use of the Service or the Wand Platform in violation of applicable laws; (iii) any combination or use of the Service or the Wand Platform with any computer, hardware, software, data or service not required by the Documentation; or (iv) Customer’s gross negligence or willful misconduct.

• Customer shall defend and indemnify Wand or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s Intellectual Property right, or any other third party right; (ii) the use of the Customer Data violating applicable law or the DPA; (iii) gross negligence, willful misconduct or fraud; or (iv) misuse of the Services or as a result of Customer’s breach of the Agreement and the Documentation. 

• The obligations under this Section will only apply if the indemnified party: (i) promptly notifies the other party (“Indemnifying Party”), in writing, regarding the claim; (ii) permits the Indemnifying Party to control the defense and settlement of the claim; and (iii) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. Notwithstanding the above, in no event will the Indemnifying Party agree to any settlement of any claim that involves any negative commitment of the Indemnified Party, without its consent.

• LIMITATION OF LIABILITY

• This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a party’s negligence; or (b) gross negligence, willful misconduct, or fraud.

• NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL HAVE ANY LIABILITY FOR: (A) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES; (B) LOST PROFITS OR REVENUE; (C) LOSS OF GOODWILL; (D) LOSS OF DATA; OR (E) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.

• EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF: (I) WAND’S INDEMNIFICATION OBLIGATIONS FOR AN INTELLECTUAL INFRINGEMENT CLAIM; (II) CONFIDENTIALITY OBLIGATIONS; OR (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE WAND SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“GENERAL CAP”). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE PAYMENT SECTION.

• NOTWITHSTANDING THE ABOVE, IN SECTION 12.3, WAND’S AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH WAND’S BREACH OF THE DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT AND THE DPA, WHERE SUCH BREACH RESULTS IN UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, SHALL BE LIMITED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR WAND SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“SUPERCAP”).

• NOTWITHSTANDING ANYTHING CONTAINED ABOVE, WAND SHALL HAVE NO LIABILITY RELATING TO EXPERIMENTAL SERVICES OR ANY SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY FREE WAND UNITS PROVIDED.

• MISCELLANEOUS

• Wand reserves the right to modify, correct, or amend the terms of the Agreement at any time in its sole discretion, Wand will provide the Customer with prior notice before such changes. The most current version of this MSA will be reflected under the “Last Updated” date that appears in the header of this Agreement.

1. 1. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.

• In the event the Customer is based in the EEA or UK, the Agreement shall be governed by the laws of England and Wales and the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.   

• Any other Customer based jurisdiction, the Agreement shall be governed and construed by the laws of the State of New York, United States, without giving rise to any conflict of law provisions therein. The parties hereby agree to the exclusive jurisdiction of the courts of the State of New York, USA.

• Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.

• The Agreement and the rights and obligations therein may not be assigned or transferred by either party without the prior written consent of the other party. However, Wand may assign the Agreement at any time by providing the Customer a written notice in connection with a merger, acquisition or sale of all or substantially all of its business or assets or to any affiliate or as part of a corporate reorganization.  

• All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given (i) immediately if provided by electronic mail to [email protected] or to the Customer e-mail address as record in the Account or Order Form; or (ii) one day after delivery by receipted mail delivery. All correspondence, notices and technical documentation exchanged between the parties shall be provided in the English language only.

• Wand shall not be liable for any delay or failure to perform its obligations according to the Agreement if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond Wand’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God or inclement weather, which Wand is unable to prevent.

• Should any or all of the provisions of the Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.

• A delay or omission by Wand to exercise any right under the Agreement shall not be construed to be a waiver of such right. All waivers by Wand must be in writing to be effective.

• This Agreement constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. 

• In case of any conflict between the provisions of this Agreement and the provisions of an Order Form, the provisions of the Order Form shall prevail as to the subject matter of such conflict, unless specifically stated otherwise in the Agreement.