This End User License Agreement (“EULA”) governs the use of the Willow Services by the Customer and the Users. This EULA are a legally binding agreement governing access to and use of certain products and services provided by Willow Technologies, LLC (“Willow”) to the Customer (as defined in the applicable Order Form) and is effective as of the earlier of (a) the date on which the Customer first accesses or uses any Willow Services and (b) the date of the applicable Order Form (the “Effective Date”).
This EULA commences on the earlier of the date the first applicable Order Form between Willow and the Reseller commences and the Willow Services Commencement Date and continues until the last applicable Order Form is terminated or expires.
Termination or expiry of this EULA does not prejudice any right of action or remedy of any party which accrued prior to termination or expiry.
The provisions set forth in the following sections, and any other right or obligation of the parties in this EULA that, by its nature, should survive termination or expiration of this EULA, will survive any expiration or termination of this EULA: Sections 2, 13, 15.5, 16, 17, 19 and 20 of this EULA.
Willow grants to the Customer a non-exclusive right to access, use, and allow the Users to access and use, the SaaS Services for the Permitted Purpose in accordance with the rights and restrictions set out in the Resale Agreement, this EULA, and the relevant Order Form. The SaaS Services are offered to the Customer on a subscription basis. The Customer must not allow any Unauthorized User to access or use the SaaS Services. The Customer acknowledges that it has no right, title or interest in the SaaS Services, except as set out in this Section. Willow shall provide to the Customer the User Access Credentials within a reasonable time following the Effective Date.
Willow hereby grants to the Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 20.3) right to use the relevant operating and training manuals during the Term solely for the Customer’s internal business purposes in connection with its use of the Willow Services.
The Customer acknowledges that Willow requires access to the Customer Systems in order to provide the Willow Services. The Customer grants Willow and its Personnel access to the Customer Systems as and when required for the purposes of providing the Willow Services. The parties will agree to the method for granting Willow access to the Customer Systems. The Customer acknowledges that Willow may be unable to provide a Willow Service if it is not granted access to the Customer Systems.
Prior to the SaaS Services Commencement Date, Willow will provide the Customer with the relevant User Access Credentials and the details of the relevant Access Site required to access the SaaS Services. The Customer must keep the User Access Credentials confidential, and must not transfer or disclose the User Access Credentials to any person, except as permitted by this EULA. The Customer acknowledges that: (a) it is solely responsible for any use of the SaaS Services accessed using its User Access Credentials, whether such use is authorized by the Customer or not; and (b) it is liable for the acts and omissions of any person using the SaaS Services accessed using its User Access Credentials as if they were the acts and omissions of the Customer, as applicable, itself. The Customer must notify Willow immediately if it becomes aware that the confidentiality of its User Access Credentials has or may have been compromised in any way (including by disclosure to any third party or Unauthorized User). The Customer is responsible for allocating the User Access Credentials to each of their Users. The Customer must ensure the User Access Credentials are not disclosed to any Unauthorized User.
The SaaS Services may contain features designed to interoperate with Willow Marketplace Apps. The Customer may not use, or allow a User to use, third party applications with the SaaS Services unless they are Willow Marketplace Apps or otherwise approved in writing by Willow, such approval not to be unreasonably withheld. Any acquisition by the Customer and/or User of Willow Marketplace Apps, or any exchange of data between the Customer and/or User and any third party provider, is solely between the Customer and/or User, as applicable, and the third party provider and governed by the terms of the third party agreement and the Willow Marketplace terms and conditions. Willow agrees, however, that any terms and conditions governing access to or use of the Willow Marketplace shall not affect any of the parties’ respective rights and/or obligations under this EULA, and any provision in any such Willow Marketplace terms and conditions that would have such effect shall be deemed null and void as to the parties. In the event of a conflict between the Willow Marketplace terms and conditions and any provision of this EULA, this EULA shall control.
Willow does not warrant or support third party Willow Marketplace Apps, and Willow is not liable in any manner for any Loss arising in relation to the Customer’s and/or User’s use of Willow Marketplace Apps. The Customer and/or User shall have a reasonable opportunity to review and, if unacceptable to the Customer or User, to reject, any third-party terms and conditions applicable to any Willow Marketplace App prior to such Willow Marketplace App being delivered or otherwise made available to the Customer and/or User. Willow agrees that the terms and conditions applicable to any of Willow’s own Willow Marketplace Apps shall not affect any of the parties’ respective rights and/or obligations under this EULA, and any provision in such terms and conditions that would have such effect shall be deemed null and void as to the parties. In the event of a conflict between such terms and conditions and any provision of this EULA, this EULA shall control. If the SaaS Services contain features designed to interoperate with a Willow Marketplace App and the third party provider ceases to make the third party application available for interoperation with the corresponding SaaS Services features on reasonable terms, Willow may, with reasonable notice to the Customer, cease providing those SaaS Services features without refund, credit or any other compensation to the Reseller or to the Customer.
Subject to Section 6.2, Willow may limit or suspend access to the SaaS Services: (a) to carry out Maintenance Services; (b) where Willow’s access to the Customer Systems is delayed, blocked or interrupted in any way; and/or (c) if the Reseller does not pay the Fees.
Willow may terminate or suspend Customer access to the SaaS Services without refund, credit or compensation if it determines, in its sole discretion, that: (a) the Customer or any User misused the SaaS Services or breached the terms of this EULA; (b) Customer’s or any User’s use of the SaaS Services could adversely impact other Willow customer’s use; (c) such suspension would mitigate issues caused by any acts or omissions of third parties or issues with any internet infrastructure; or (d) such suspension is required to prevent a breach of Law or infringement of third party rights. Any such suspension will be limited to the minimum extent necessary in the circumstances, as reasonably determined by Willow.
Limitation or suspension of access to the SaaS Services will continue until the Maintenance Services, the problem or breach is rectified, or until otherwise agreed in writing between Willow and the Customer.
Willow shall not be liable to the Customer or their Personnel or any third party whatsoever for any suspension.
The Customer acknowledge that after the later of the termination of the Order Form and the end of the Data Retention Period, Willow has no obligation to store or maintain any Customer Material, other than as required by Law, and that Willow may delete all of the Customer Material.
Willow shall provide the Support Services in accordance with Willow’s service support schedule, a current copy of which is attached as Schedule 1 (the “Support Exhibit”). Willow may amend the Support Exhibit from time to time in its sole discretion.
Willow will perform the Maintenance Services during the Term. Willow will use commercially reasonable efforts to provide the Customer with at least seven (7) days’ notice before performance of any Maintenance Services that would likely result in a service disruption or downtime for the SaaS Services. The Customer acknowledge that they are solely responsible for the support and maintenance of any computer hardware and software that they operate, excluding the SaaS Services.
Willow will use commercially reasonable efforts to ensure the SaaS Services are accessible by the Customer and their Users in accordance with the Service Levels set out in Schedule 1.
| Backup Service | Frequency |
| Full backup by image copy to disk | every 24 hours |
| Incremental backups of the database | every 15 minutes |
Willow shall perform the Delivery Services in a professional and diligent manner, in accordance with the details set out in the Order Form and the terms of the Resale Agreement and this EULA.
The Customer shall provide the Customer Inputs in respect of the Delivery Services to Willow in a timely manner and hereby grant a royalty free, non-exclusive license for Willow and its Personnel to use, reproduce and adapt the Customer Inputs for the purposes of performing the Delivery Services under the applicable Order Form.
Unless otherwise agreed between the parties and set forth in the applicable Order Form, Willow will use commercially reasonable efforts to commence the Delivery Services no later than the Willow Services Commencement Date specified in the Order Form and complete the Delivery Services by the Subscription Fees Commencement Date specified in the Order Form; provided, however, that Willow shall not be liable to the extent of any delay caused by the Customer. If Willow fails to complete the Delivery Services by the Subscription Fees Commencement Date due to reasons not directly or indirectly attributable to the Customer, Willow shall provide the Customer with pro-rata credits equivalent to the value of any delayed SaaS Services.
If Reseller purchases 3D Modeling Services, Willow shall perform the 3D Modeling Services in a professional and diligent manner, in accordance with the details set out in the Order Form and the terms of the Resale Agreement and this EULA.
The Customer shall provide the Customer Inputs in respect of the 3D Modeling Services to Willow in a timely manner and hereby grant a royalty free, non-exclusive license for Willow and its Personnel to use, reproduce and adapt the Customer Inputs for the purposes of performing the 3D Modeling Services and the SaaS Services under the applicable Order Form(s).
All right, title, and interest in and to the Willow Materials, including all Intellectual Property Rights therein, are and will remain with Willow. The Customer has no right, license, or authorization with respect to any of the Willow Materials except as expressly set forth in Section 4, subject to Section 4.3. All other rights in and to the Willow Materials are expressly reserved by Willow.
Unless otherwise agreed in writing between the parties, the Developed Materials will be the sole and exclusive property of Willow and the Customer and the applicable User(s) hereby irrevocably assign to Willow all right, title, and interest in and to the Developed Materials, including any Intellectual Property Rights in the Developed Materials.
If and/or the Customer and/or a User provides comments or feedback to Willow in relation to the Willow Services, the Customer and/or User hereby grants to Willow a worldwide, non-exclusive, royalty-free, transferable, sublicensable, perpetual and irrevocable license to use and otherwise exploit the suggestion, enhancement request, recommendation, correction or other feedback for any purpose, and without the need to reference or attribute the Customer and/or User.
The SaaS Services may include Open Source Software components. The the Customer’s and User’s use of such Open Source Software is subject to the terms applicable to the Open Source Software and to the extent of any inconsistency between this Agreement and those terms, then the terms applicable to the Open Source Software will prevail.
In connection with this EULA Willow, the Customer or any of their Affiliates (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party or its Affiliates (as the “Receiving Party”).
Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this EULA; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this EULA; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. Willow may disclose to any third party, including in any advertising, marketing and promotional materials: (i) that the Customer is a customer of Willow; (ii) the name, location, size, stage of completion and typology of any asset on which Willow is engaged to perform Willow Services by the Reseller and/or the Customer, and Customer’s logo; and (iii) the nature and scope of any engagement in which Willow has been, or will be, engaged by the Reseller and/or the Customer.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law and reasonably practicable, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 13; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 13.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Each party acknowledges that the value of the Disclosing Party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this Section 13 is breached. Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this Section 13, a party or its Affiliate may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain the other party or its Affiliate or Personnel from any breach or threatened breach of this Section 13.
On termination or expiry of the Order Form, each party must promptly return then destroy, and must ensure that its Personnel promptly returns or destroys, any Confidential Information of the other party in its possession, custody or control, except to the extent that such Confidential Information: (a) continues to be licensed to the recipient under this Agreement; (b) needs to be retained for the purpose of actual or potential litigation or other record-keeping purposes; or (c) is on back-up or archival storage media, or shared storage systems such as email, and it is not practical to do so.
Each party must do the following in connection with Personal Information it collects, uses, discloses, holds or otherwise handles under or in connection with the Resale Agreement, the Order Form or this EULA: (i) comply with applicable Privacy Laws; (ii) implement and maintain no less than reasonable security procedures and practices, appropriate to the nature of the Personal Information, to protect the Personal Information it holds from misuse, interference and loss, as well as unauthorized access, modification or disclosure (“Security Incident”) and to preserve the security and confidentiality of the Personal Information; (iii) notify the other party without undue delay, and in accordance with applicable Privacy Laws, of becoming aware of a Security Incident; and (iv) to provide commercially reasonable assistance to the other party for the fulfillment of the other party’s obligations to respond to individuals regarding their Personal Information under applicable Privacy Laws.
Each party which handles Personal Information of another party under or in connection with the Resale Agreement, the Order Form or this EULA (including Personal Information regarding the other party’s, or its Affiliates’, customers, suppliers, employees, contractors or other persons with which they are doing business, and which that party only holds as result of the Resale Agreement, the Order Form or this EULA), must handle that Personal Information only for the purposes of fulfilling its obligations under the Resale Agreement, the Order Form or this EULA and in accordance with applicable Privacy Laws, except with the other party’s prior written consent or as required by applicable Law.
Each party represents and warrants that, as of the Effective Date and continuing throughout the term of this EULA:
Willow warrants that:
The Customer warrants that:
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 15.1 AND SECTION 15.2, ALL WILLOW SERVICES AND WILLOW MATERIALS ARE PROVIDED “AS IS.” WILLOW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WILLOW MAKES NO WARRANTY OF ANY KIND THAT THE WILLOW SERVICES OR WILLOW MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Each party shall promptly notify another party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to Section 16.1 or Section 16.2Error! Reference source not found., as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Claim without the Indemnitee’s prior written consent, which, in the case of the Customer, shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Claim, the Indemnitee shall have the right, but no obligation, to defend against such Claim, including settling such Claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 16.3 will not relieve the Indemnitor of its obligations under this Section 16, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. No action, regardless of form, arising out of any claimed breach of the Resale Agreement, the Order Form or this EULA or obligations under the Resale Agreement, the Order Form or this EULA may be brought by either party more than two (2) years after the cause of action has accrued.
THIS SECTION 16 SETS FORTH CUSTOMER’S SOLE REMEDIES AND WILLOW’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE WILLOW SERVICES AND WILLOW MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
EXCEPT FOR ANY EXCLUDED CLAIMS, IN NO EVENT WILL WILLOW OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE WILLOW SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. “Excluded Claims” means (a) a breach of Section 13 (Confidentiality) and (b) the indemnifying party’s obligations in Section 16 (Indemnification).
EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF WILLOW ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO WILLOW UNDER THIS EULA IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
If a party is wholly or partially unable to perform its obligations under this EULA because of a Force Majeure Event (such party, the “Affected Party”), then: (a) the Affected Party shall notify the other party reasonably promptly after becoming aware of the effect that the Force Majeure Event, including the extent to which the Affected Party is unable to perform its obligations; (b) the Affected Party shall use commercially reasonable efforts to mitigate the effect of the Force Majeure Event; and (c) so long as it complies with this Section 18.1, the Affected Party will not be liable to the other party for Losses the other party suffers or incurs as a result of that Force Majeure Event.
If a delay arising directly out of a Force Majeure Event continues or is likely to continue for more than 30 days, either party may terminate the Order Form and this EULA. Neither party will be liable for any Loss of the other party caused by the termination of an agreement under this Section 18.
A party claiming that a dispute or difference arising out of, or in connection with, this Agreement (“Dispute”) has arisen must give notice (a “Dispute Notice”) to the other party within six (6) months of the occurrence of the event or events giving rise to the Dispute or the party becoming aware of the occurrence of the event or events. Each Dispute Notice shall set out in reasonable detail the Dispute claimed, including: (a) a detailed background of the alleged events giving rise to the Dispute; (b) the basis on which the claim is made; and (c) the relief (if any) that is claimed.
If a Dispute Notice is issued by a party, each party will appoint a senior representative, who must meet as soon as reasonably practicable and endeavor to resolve the Dispute in good faith. In the event that the Dispute is not resolved as a result of the negotiations between the parties in this Section 19.2 within seven (7) Business Days of a Dispute Notice being received by the other party (or such other period as is agreed between the parties’ representatives), a senior executive of each party must meet as soon as reasonably practicable and endeavor to resolve the Dispute in good faith. In the event that the senior executives of each party are unable to resolve the Dispute within seven (7) Business Days of meeting, then either party may refer the Dispute to the American Arbitration Association for a binding determination. Nothing in this Section 19 prevents either party from seeking urgent injunctive, interlocutory or declaratory relief. The Customer agrees that the decree or award rendered by the arbitrator may be entered as a final and binding judgment in any court having jurisdiction thereof. The Customer agrees that the arbitrator shall administer and conduct any arbitration in accordance with New York law.
For purposes of this EULA: (a) headings are for convenience only and do not affect the interpretation of this EULA; (b) the singular includes the plural and vice versa; (c) words importing a gender include any gender; (d) other parts of speech and grammatical forms of a word or phrase defined in this EULA have a corresponding meaning; (e) an expression importing a natural person includes anybody corporate and any other legally recognized entity; (f) a reference to a Section, party, schedule or order form is a reference to Section, party, schedule or order form of this EULA unless otherwise specified; (g) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document; (h) a reference to a party to a document includes that party’s successors and permitted assigns; (i) no provision of this EULA will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this EULA or that provision; (j) the word “including” does not imply any limitations; (k) a reference to US$, $US, USD and $, means the lawful currency of the United States of America; (l) and where the day on or by which any thing is to be done is not a day, that thing must be done on or by the next day.
Except as otherwise expressly set forth in this EULA, any notice, request, consent, claim, demand, waiver, or other communications under this EULA have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 20.2):
| If to Willow: | 12 E 49th Street, New York, NY 10017 Email: contracts@willowinc.com Attention: Jon Tidd – Chief Financial Officer & Emma Mancini – Senior Legal Counsel |
| If to Customer: | As set out in the EULA Acceptance. |
Notices sent in accordance with this Section 20.2 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the second (2nd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
The Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this EULA, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Willow’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving the Customer (regardless of whether the Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this EULA for which Willow’s prior written consent is required. No assignment, delegation, or transfer will relieve the Customer of any of its obligations or performance under this EULA. Any purported assignment, delegation, or transfer in violation of this Section 20.3 is void. This EULA are binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
Willow may sub-contract or delegate the performance of all or some of its duties, obligations and powers under this EULA (including the provision of any SaaS Service and any agency from the Customer) without the prior approval of the Customer but Willow will remain liable for the acts or omissions of a sub-contractor or delegate in performance of any sub-contract or delegation as if they were the acts or omissions of Willow itself.
This EULA are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this EULA or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this EULA so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No amendment to or modification of this EULA is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this EULA will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
This EULA, together with the Resale Agreement and the schedules attached thereto and the applicable Order Form, constitute the sole and entire agreement of the parties with respect to the subject matter of this EULA and supersede all other prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
The relationship between the parties is that of independent contractors. Nothing contained in this EULA shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Executed as an Agreement
Schedule 1 – Service Levels and Service Credits
“Downtime” means any duration of time during which a User is not able to receive live asset data in a given calendar month, but excludes any such time that is attributable to Scheduled Downtime or to an Excluded Event.
“Excluded Events” means:
“Response Time Service Level” means the response time service levels set out in Section 2 of this Schedule 1.
“Scheduled Downtime” means periods of downtime related to network, hardware, or Service maintenance or upgrades, where Willow has given the Customer at least five (5) days’ notice prior to the commencement of such downtime.
“Service Level” means the Response Time Service Level or the Uptime Service Level.
“Service Level Failure” means a failure to meet the relevant Service Level.
“Uptime Commitment” has the meaning given in Section 4 of this Schedule 1.
“Uptime Percentage” has the meaning given in Section 4 of this Schedule 1.
“Uptime Service Level” means the uptime service level set out in Section 4 of this Schedule 1.
“User Minutes” means the total number of minutes in a month.
| Level of Severity | Description of Severity | Characteristics | Response Time |
| Level 1 – Critical | Critical Business Impact: Critical issue occurring on production system preventing business operations. A large number of users are prevented from working with no procedural workaround. | 1. SaaS Services hangs or crashes 2. Critical functionality not available 3. Data loss or data corruption 4. Large number of end users blocked from work 5. Impact is escalating quickly | 1 hour |
| Level 2 – Medium | Normal Business Impact: Issue causing a partial or non-critical loss of functionality on production system. A small number of users are affected. | 1. Some system functions not available 2. Minor performance degradation 3. Small number of users impacted 4. Impact is not escalating | 2 hours |
| Level 3 – Low | Minimal Business Impact: Customer’s business is functioning with minor impediments of services. | 1. Incorrect product behavior without impact | 4 hours |
Willow commits to make the SaaS Services available for access and use by the Customer at least 99.9% of the time during each calendar month of the Initial Term or the then current Extension Term (“Uptime Commitment”).
The uptime percentage for a given calendar month will be calculated as follows (“Uptime Percentage”):
User Minutes – Downtime x 100
User Minutes
If during any calendar month the Uptime Percentage is not equal to or higher than the Uptime Commitment and the Customer is negatively impacted, Willow shall provide, as the Customer’s sole and exclusive remedy for Willow’s failure to meet the Uptime Commitment, a Service Credit in the applicable amount shown in the table below, to be applied as a refund against the amounts that the Reseller has paid (or that are payable) for the relevant Service. The Service Credits are the Reseller’s and the Customer’s sole remedy for a failure to meet the Service Levels.
| Uptime Level | Service Credit |
| <99.9% | An amount equal to 7% of the Subscription Fees for that calendar month. |
| <99% | An amount equal to 15% of the Subscription Fees for that calendar month. |
The maximum Service Credits to which the Reseller is entitled in relation to any month will be 15% of the Subscription Fees for that month.