Terms of Conditions

WIZARRD TERMS AND CONDITIONS

HELLO AND WELCOME TO WIZARRD!

PLEASE READ THE FOLLOWING WIZARRD TERMS AND CONDITIONS (THESE “TERMS & CONDITIONS”) CAREFULLY.  BY PROCEEDING, YOU, THE “USER” (WHETHER AN INDIVIDUAL, COMPANY, OR ANY OTHER ENTITY) AGREE TO ACCEPT THESE TERMS & CONDITIONS; IF YOU DO NOT ACCEPT THESE TERMS & CONDITIONS, YOU SHOULD NOT PROCEED.

TO THE EXTENT YOU (THE USER) HAS AGREED TO AND ACCEPTED PREVIOUS TERMS AND CONDITIONS RELATING TO WIZARRD OR WITH RESPECT TO THE SUBJECT MATTER ADDRESSED HEREIN, THESE TERMS & CONDITIONS SHALL SUPERCEDE ANY PREVIOUSLY AGREED TO AND ACCEPTED TERMS AND CONDITIONS.

1. SERVICES 

1.1 License.  Subject to these Terms & Conditions, AD.Visory Solutions LLC (“AD.Visory”): (a) shall use commercially reasonable efforts to host, operate, and maintain the Wizarrd platform (the “Platform”), any Wizarrd application programming interfaces (“API”), and any and all additional Platform-related services currently offered by AD.Visory (collectively, the “Services”); (b) grants to User a non-exclusive, non-transferable, non-sublicensable right and license to access the Platform and use the Services; and (c) grants User a non-exclusive, non-sublicensable, and non-transferable license to use any content created by or through use of the Services.  For clarity, unless otherwise specified by AD.Visory in writing, any and all rights or licenses granted by AD.Visory to User shall only apply to User and not User’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with User.

1.2 Access and Account Setup.  AD.Visory will provide User with a unique login and password to access the Services via web pages which are hosted and maintained by AD.Visory (or by a service provider on AD.Visory’s behalf).  User shall be responsible for all acts or omissions of any person who accesses the Services using logins provided to or created by User.  From time to time, AD.Visory personnel may log in to the Service under User’s account in order to maintain or improve the Service, including providing User assistance with technical or billing issues (where applicable).  User hereby acknowledges and consents to such access.

1.3   Service Availability.  AD.Visory will use commercially reasonable efforts to maintain the Services availability to send and receive data, subject to downtimes resulting from maintenance, repairs, and upgrades.  AD.Visory will attempt to notify User electronically via the Platform in advance of any planned downtime.  Notwithstanding the foregoing, AD.Visory will not be liable for any failures in the Services or any other problems which are related to: (a) User Content (as defined below); or (b) outages to any telecommunications or public Internet backbones, networks, or servers, or other equipment or service outside of AD.Visory’s facilities or control.

1.4   Service Support.  AD.Visory will provide User with email support for User’s use of the Services during AD.Visory’s regular business hours.  User agrees that AD.Visory is not responsible to provide support for any issues resulting from problems, errors, or inquiries related to User’s own systems or hardware (unless such issues are governed by a separate services agreement between AD.Visory and User).

1.5   User Content.  As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all User Content (as defined below).  All Content created through or submitted to the Services by User (collectively “User Content”) is the sole responsibility of User.  User acknowledges and agrees that AD.Visory will not assume any, and hereby disclaims all, responsibility and liability for User Content and any modifications thereto.  User hereby grants AD.Visory a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the User Content in connection with providing the Services to User.  

1.6   Restrictions on Use.  Except as expressly permitted under these Terms & Conditions, User shall not directly or indirectly: (a) use any of AD.Visory’s Confidential Information (as defined below in Section 3) to create any service, software, documentation, or data that is similar or competitive to any aspect of the Services; (b) disassemble, decompile, reverse-engineer, or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms, or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share, or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port, or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export, or other transfer of any product, technology, or information User obtains or learns pursuant to these Terms & Conditions (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Platform; (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services; or (h) permit any third party to engage in any of the foregoing proscribed acts.

1.7   Limitations.  AD.Visory will not be responsible or liable for any failure in the Services resulting from or attributable to: (a) User’s use of the Services not in accordance with these Terms & Conditions or any other relevant documentation provided by AD.Visory; (b) failures in any telecommunications, network, or other service or equipment outside of AD.Visory’s or its service providers’ facilities; (c) User’s or any third party’s products, services, negligence, acts, or omissions; (d) any force majeure or other cause beyond AD.Visory’s reasonable control; or (e) unauthorized access, breach of firewalls, or other hacking by third parties.

  1. PROPRIETARY RIGHTS

Subject to the rights and licenses expressly granted under these Terms & Conditions, User shall retain all rights, title, and interest (including all intellectual property and proprietary rights) in and to the User Content.  Subject to the limited rights and licenses expressly granted under these Terms & Conditions, AD.Visory (and any of its licensors) shall retain all rights, title, and interest (including all intellectual property and proprietary rights) in and to the Services (including the Platform and API), all Content (excluding User Content), all AD.Visory trademarks, names, logos, all copies, modifications, and derivative works thereof, and all rights to patent, copyright, trade secret, and other proprietary or intellectual property rights therein.  Additionally, any User (a) suggestions for correction, change, or modification to the Services, (b) evaluations, and (c) other feedback, information, and reports provided to AD.Visory (collectively, “Feedback”), will be the property of AD.Visory, and User shall and hereby does assign any rights in such Feedback to AD.Visory.  User agrees to assist AD.Visory, at AD.Visory’s expense, in obtaining intellectual property protection for such Feedback, as AD.Visory may reasonably request.

  1. CONFIDENTIALITY
  1. Definition.  Each party agrees that the business, technical, and financial information, including without limitation, the Services (including the Platform and API), all software, source code, inventions, algorithms, know-how and ideas, and these Terms & Conditions, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and any of its licensors (“Confidential Information”).  For the avoidance of doubt, any and all data provided to User through the Services (other than User Content) shall be considered AD.Visory’s Confidential Information.  Confidential Information does not include information that: (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes known to the general public, through no act or omission on the part of the receiving party; (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the receiving party.
  1. Confidentiality.  Except for the specific rights granted under these Terms & Conditions, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know such Confidential Information and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as these Terms & Conditions.  Each party shall be responsible for any breach of confidentiality by its employees and contractors.  User may disclose only the general nature, but not the specific terms, of these Terms & Conditions without the prior consent of AD.Visory; provided that User may provide a copy of these Terms & Conditions or otherwise disclose the Terms & Conditions in connection with any legal or regulatory requirement, financing transaction, or due diligence inquiry.
  1. Required Disclosure.  Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule, or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
  2. LIMITED WARRANTY 

User represents and warrants that it has all rights to grant the licenses to AD.Visory set forth herein, including without limitation to User Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

  1. DISCLAIMERS

TO THE FULLEST EXTENT PERMITTED BY LAW, AD.VISORY HEREBY DISCLAIMS (FOR ITSELF AND ITS SERVICE PROVIDERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

  1. INDEMNIFICATION
    1. User.  User agrees to defend against and hold AD.Visory harmless from any claim by a third party that arises from or is related to: (a) any User Content; or (b) User’s use of the Services in violation of these Terms & Conditions.  User further agrees to indemnify AD.Visory for settlement amounts or damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
    2. AD.Visory.  AD.Visory agrees to: (a) defend against and hold User harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party; and (b) indemnify User for settlement amounts or third party damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim.  If any part of the Services become or, in AD.Visory’s opinion, is likely to become the subject of any injunction preventing its use as contemplated under these Terms & Conditions, AD.Visory may, at its option: (1) obtain for User the right to continue using the Services; or (2) replace or modify the Services so that such services become non-infringing.  If neither (1) or (2) are reasonably available to AD.Visory, AD.Visory may terminate User’s license upon written notice to User and refund to User a pro-rated amount of any pre-paid fees (where applicable).  AD.Visory shall have no liability or obligation hereunder with respect to any claim to the extent based upon: (i) any use of the Services not strictly in accordance with these Terms & Conditions or in an application or environment or on a platform or with devices for which it was not designed or contemplated; (ii) modifications, alterations, combinations, or enhancements of the Services not created or offered by or for AD.Visory; (iii) any User Content; or (iv) User’s continuing allegedly infringing activity after being notified thereof.  The foregoing states the entire liability of AD.Visory, and User’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
    3. Procedures.  Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle, or compromise such claim.  The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).  The indemnifying party shall not be liable for any settlement made without its prior written consent.
  2. LIMITATION OF LIABILITY
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    EXCEPT FOR ANY BREACH OF SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 6 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS & CONDITIONS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY: (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE, TECHNOLOGY, GOODS, OR SERVICES; OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, AND GOODWILL. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS & CONDITIONS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
  3. JURISDICTION AND GOVERNING LAW

These Terms & Conditions shall be governed by and construed under the laws of the State of New York without regard to conflict of laws provisions thereof.  Exclusive jurisdiction and venue for actions related to these Terms & Conditions will be the state and federal courts located in New York County, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions.

[FOR CALIFORNIA BASED CUSTOMERS ONLY]

CCPA ADDENDUM


The following addendum is incorporated into and forms a part of the Terms & Conditions under which User may access the Services.

The parties acknowledge and agree that AD.Visory is a “Service Provider” for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from User pursuant to the Terms & Conditions for a business purpose.  Service Provider shall not sell any such personal information.  Service Provider shall not retain, use, or disclose any personal information provided by User except as necessary for the specific purpose of performing the Services for User, or otherwise as set forth in these Terms & Conditions, or as permitted by the CCPA.  The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA.  Service Provider certifies that it understands the restrictions of this paragraph.