MyWIRE SUBSCRIPTION AGREEMENT
PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.
The MyWIRE Subscription Agreement ("Agreement") is entered into on the date ("Effective Date") where you, the Client, enter into the MyWIRE Subscription Order Form with MYWIRE, LLC., located at 999 Oakmont Plaza Dr., Suite 600, Westmont, IL 60559 ("MyWIRE"). This Agreement includes all terms set forth herein and any terms in a fully-executed Subscription Order Form that incorporates this Agreement. "Client" means the individual, company, or organization identified within the Subscription Order Form, referred to herein as "you" or "Client".
By clicking "I agree", agreeing to the Subscription Order Form or purchasing any MyWIRE Software, or otherwise accessing the MyWIRE Software, you agree to be bound by this Agreement.
1. Definitions
1.1 "MyWIRE Software" means collectively the cloud based MyWIRE software accessed at mywire.net (or an associated website) along with any other software/modules, associated documentation, data, code, and services or other materials made available to Client by MyWIRE as generally described on the mywire.net website. The MyWIRE Software does not include the Third Party Software (defined below) or any additional services except as stated within this Agreement.
1.2 "Change Order" means a change order form to request an Enhancement to the MyWIRE Software.
1.3 "Client Data" means any and all Client data, code, video, transcripts, audio recordings, software, content, notes, information, or other materials inputted, interfacing with, or used within the MyWIRE Software which is subject to the MyWIRE Privacy Policy.
1.4 "Documentation" means the content and materials describing the MyWIRE Software and any associated features that are made available to Client via MyWIRE's website, which may be updated from time to time.
1.5 "Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefore, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
1.6 "Third Party Software" means the Third Party Software that may need to be purchased in order for Client to access all features offered by MyWIRE.
1.7 "Party" and/or "Parties" mean MyWIRE or Client in the singular, and MyWIRE and Client in the plural.
1.8 "Subscription Order Form" means the subscription account login page where you create an account or a subscription order form which sets forth Client's subscription details to the My Wire Software which may be generated as a separately emailed or web accessible online quote or may be attached to this Agreement.
1.9 "Support" means any support services offered to Client for MyWIRE Software, subject to this Agreement.
2. MyWIRE Software Subscription
2.1 MyWIRE Software Subscription. MyWIRE provides the MyWIRE Software as a recurring or a one-time subscription (each a "Subscription") as stated within the Subscription Order Form. Subject to the terms and conditions of this Agreement and the Subscription Order Form and upon timely payment of any Subscription Fees (defined below), MyWIRE shall make available the MyWIRE Software. Upon compliance with the obligations set forth within this Agreement, MyWIRE grants Client a worldwide, non-exclusive, non-transferable, non-sub-licensable, terminable, limited license to use the MyWIRE Software for the duration of the Subscription for any downloadable portions of the MyWIRE Software. Where any MyWIRE Software is accessed electronically whether web based or otherwise, MyWIRE shall allow Client to access the MyWIRE Software for its own internal business purposes and limited to any of Client's authorized users in accordance with this Agreement. During Client's Subscription, MyWIRE may make updates, modifications, alterations or removals to the MyWIRE Software and may update the functionality, user interface, usability, Documentation associated, other documentation, training and educational information of, and relating to the MyWIRE Software from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates MyWIRE to offer any previously offered functionality within any updated version of the MyWIRE Software.
2.2 Client shall order the Subscription by executing a Subscription Order Form. Each Subscription Order Form executed is subject to this Agreement. Any executed Subscription Order Form is non-cancellable and all Subscription Fees are non-refundable.
2.3 MyWIRE Software Enhancements. During the Subscription period, where Client requires the creation of MyWIRE Software enhancements ("Enhancement"), such Enhancement shall be set forth in a Change Order. All Intellectual Property Rights for any Enhancement shall be retained by MyWIRE and any Enhancement may be offered to all other clients of MyWIRE. Client shall have no ownership rights or any Intellectual Property Rights in any Enhancement created on its behalf and MyWIRE shall own all right, title, and interest in any Enhancement. MyWIRE shall have no obligation to offer or perform any Enhancement requested by Client until a Change Order has been executed by the Parties. Each Enhancement Change Order shall be subject to this Agreement.
2.4 Third Party Software. The MyWIRE Software does not include, and MyWIRE does not warrant, software obtained from any source other than MyWIRE including any Third Party Software or any software, code, data, or other materials provided by Client. Client understands and agrees that the MyWIRE Software will transmit, process, and store all Client Data in a secure manner; however, any issues with the transmission, processing, or storage of any Client Data by any Third Party Software are solely to be resolved by and between Client and the party that controls such Third Party Software. Please be aware that such Third Party Software may have different privacy practices and any data collection is subject to such Third Party Software's policies and MyWIRE will not be responsible for such policies or resolving any issues related to such policies.
2.5 Additional Software Purchase Required. In order to properly use portions of the MyWIRE Software, Client may be required to purchase a subscription to the Third Party Software. The use of the Third Party Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Client and such other party. MyWIRE is not a party to any agreements entered into between Client and any other party.
2.6 Client Requirements. Client shall be exclusively responsible for supervision, management and control of its use of the MyWIRE Software, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering, reentering, transmitting, or sharing any Client Data; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, the MyWIRE Terms of Service, any Subscription Order Form terms, or other guidelines or instructions issued by MyWIRE; (e) complying with all reasonable instructions from MyWIRE regarding the MyWIRE Software; and (f) restricting access to any third parties that are not authorized to access the MyWIRE Software under this Agreement. Client and all authorized users shall be required to accept and adhere to the MyWIRE Terms and Conditions (https://mywire.net/terms).
2.7 Subscription Change. Where Client wishes to increase the scope of its Subscription, the Parties may execute a new Subscription Order Form as required by MyWIRE or Client may be able to upgrade its Subscription through the MyWIRE Software where permitted. Where a Subscription is offered via a Subscription Order Form, a new Subscription Order Form must be executed and agreed upon by both Parties to become effective. Where a new Subscription Order Form is executed, MyWIRE shall have no obligation to offer any Subscription to the MyWIRE Software at any pricing previously offered to Client.
2.8 Free Trials. MyWIRE may offer free trials. The free trial period shall be stated in writing by MyWIRE and upon expiration of the free trial period, MyWIRE may charge any payment method Client has provided for Client's ongoing subscription. Free trials are offered at MyWIRE's discretion and nothing obligates MyWIRE to offer or continue offering any free trials to any Client or prospective client.
2.9 AI Transcription Tools. MyWIRE is not responsible for any information generated via the MyWIRE Software. Information generated may not always be accurate and may contain errors or other issues. Client understands and agrees that all information generated by the Platform is dependent on the information contained in any Client Data submitted. Client agrees that the MyWIRE Software may utilize artificial intelligence technology, Client understands that such information may be inaccurate, contain errors, be untrue, or out of date. Client agrees that it is solely responsible for verifying the fidelity, accuracy, and appropriateness of any information generated using the MyWIRE Software.
2.10 Video Recording. The MyWIRE Software may offer audio visual recording technology. Client is solely responsible for compliance with all United States federal and state laws and the laws of Client's own jurisdiction governing the monitoring or recording of conversations whether by Client or Client's end users. Client is responsible for collecting consent from any end users being recorded and at MyWIRE's written request shall provide confirmation of such consent. Some video recordings may not be accessible after sixty (60) days and Client bears all responsibility for creating backups or other copies of such recordings and releases MyWIRE from any liability related to the storage of video recordings.
3. Payment and Pricing
3.1. Fees. Client will pay to MyWIRE all fees and expenses (the "Fees") as specified in any Subscription Order Form. Any Fees shall be invoiced to Client from time to time, where the due date is not otherwise specified in the Subscription Order Form, all Fees are due within five (5) days from the date of invoice issuance. All Fees are non-refundable. Unless otherwise specified, all Fees are in U.S. dollars and must be pre-paid prior to Client's usage of the MyWIRE Software. Client shall pay the Fees to MyWIRE in a method agreed upon between the Parties or as set forth within the Subscription Order Form. Failure by Client to pay any Fees may result in the immediate termination or suspension of its access to the MyWIRE Software.
3.2 Taxes. Client is responsible for any duties, customs fees, or taxes (other than MyWIRE's income tax) associated with the purchase of the MyWIRE Software provided by MyWIRE, (including any related penalties or interest) ("Taxes"), and shall pay the listed Fees without deduction for Taxes.
3.3 Prior to any Subscription term renewal as set forth within a Subscription Order Form, MyWIRE may provide Client written notice that the Fees paid for the MyWIRE Software may increase prior to the commencement of the new term. Where MyWIRE provides such a notice of a fee increase, Client may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Client does not provide written notice of termination such Fee increase shall be deemed accepted by Client at the commencement of the new term.
3.4 Delinquencies. Any late payments by Client will accrue late charges at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower (such charges, "Interest Charges"). Client shall pay to MyWIRE any Interest Charges as invoiced by MyWIRE. Where Client fails to timely pay any invoices, MyWIRE may at its discretion suspend its provision of MyWIRE Software to Client until such invoice is paid. In addition, Client will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys' fees and court costs.
4. Restrictions and Suspension
4.1 Where applicable, all rights in the MyWIRE Software not expressly granted under this Agreement are reserved to MyWIRE or its licensors. Without limiting the foregoing, Client shall not, and shall not permit others under its control to (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the MyWIRE Software or any component thereof; (b) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the MyWIRE Software to any third party except any permitted authorized users; (c) use the MyWIRE Software for High Risk Activities or otherwise contrary to the instructions of MyWIRE; or (d) use the MyWIRE Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the MyWIRE Software could lead to death, personal injury, or environmental damage.
4.2 MyWIRE may suspend Client's access to, or use of, the MyWIRE Software, if in MyWIRE's discretion it believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the MyWIRE Software or any related content, code, or data; (b) Client is accessing or using the MyWIRE Software to commit an illegal act; or (c) there is a violation of this Agreement or other agreements between the Parties . When reasonably practicable and lawfully permitted, MyWIRE will provide Client with advance notice of any such suspension. MyWIRE will use reasonable efforts to re-establish the MyWIRE Software promptly after MyWIRE determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Client from Client's obligation to make payments for any Fees or other sums due under this Agreement.
5. Proprietary Rights and Client Data
5.1. MyWIRE's Proprietary Rights. MyWIRE retains all right, title and interest in and to all the MyWIRE Software along with all general techniques, methods, processes, routines, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the Subscription term. Further, Client acknowledges that the structure, organization, and code of the MyWIRE Software and all related Enhancements and software components thereof are proprietary to MyWIRE and/or MyWIRE's licensors and that MyWIRE and/or its licensors retains exclusive ownership of the MyWIRE Software, Enhancements, trademarks, and any and all other Intellectual Property Rights relating to the MyWIRE Software, including all modifications, derivatives, and other software and materials developed hereunder by MyWIRE, and all copies thereof. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the MyWIRE Software, including any modifications, enhancements, derivatives, and other software and materials developed by MyWIRE. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own intellectual property.
5.2. Trademarks. "MyWIRE" and any other trademarks and service marks adopted by MyWIRE to identify the MyWIRE Software and other MyWIRE products and services belong solely to MyWIRE. Client has no rights in such marks except as specified in writing between the Parties. Client may not publicly display the MyWIRE logo or its marks without express written consent from MyWIRE.
5.3. Feedback. If Client provides MyWIRE any suggestions or feedback regarding the MyWIRE Software ("Client Feedback"), then MyWIRE may use the Client Feedback without obligation to Client, and Client hereby irrevocably assigns to MyWIRE all right, title, and interest in that Client Feedback.
5.4 Client Data. Client owns all Client Data provided to MyWIRE. Title to Client Data and any copy thereof remains with Client. Notwithstanding Client's ownership of its Client Data, Client grants to MyWIRE a limited, royalty free, fully revocable license to the Client Data for the purposes of providing the MyWIRE Software contemplated under this Agreement. MyWIRE will not share any Client Data with any third parties except for Client's authorized users or MyWIRE's contractors that have entered into appropriate agreements with MyWIRE. However, Client may share or make available its Client Data through the MyWIRE Software and Client is solely responsible for such distribution or sharing of its Client Data. Client represents and warrants: (1) it owns all title, right, and interest in the Client Data; (2) the Client Data is not currently involved in any litigation with any third Parties, (3) the Client Data does not infringe on the intellectual property rights of any other Party; and (4) that all Client Data is compliant with all laws and regulations of Client and MyWIRE's jurisdictions, including all laws requiring Client to obtain consent of a third party to use, license or generate Customer Data and to provide appropriate notices of third party rights . During Client's use of the MyWIRE Software, Client shall not upload any Client Data that is in violation of any US state or federal laws. In addition, Client grants MyWIRE the right to use such Client Data to help diagnose problems with MyWIRE's Software, for benchmarking and analytical purposes, and to improve the MyWIRE Software. MyWIRE is not responsible for lost or destroyed Client Data, which loss or destruction shall be at Client's sole risk. MyWIRE may delete any Customer Data, at any time without notice to you if MyWIRE becomes aware that it violates any provision of this Agreement or any applicable laws.
6. Term & Termination
6.1. Agreement Term. This Agreement will begin on the Effective Date and continue as set forth within the Subscription Order Form and renew as stated. Where no term is specified within the Subscription Order Form, the initial term for the Subscription shall be a one (1) year term (the "Initial Term") after the expiration of such Initial Term, this Agreement shall automatically renew for one (1) year terms until terminated by either Party.
6.2. Termination for Breach. Either Party may terminate the Agreement if the other Party breaches any material term of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of such breach by the non-breaching Party.
6.3. Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; and (2) all Fees pre-paid to MyWIRE shall not be refunded and all Subscription Fees for the Subscription period shall be immediately due upon receipt of a final invoice from MyWIRE. Client may request that MyWIRE assist Client with migrating any Client Data and MyWIRE may assist at its discretion and subject to any data migration fees.
7. Warranties
7.1 MyWIRE Software Warranty. MyWIRE represents and warrants that the MyWIRE Software will generally conform in accordance with any Documentation provided.
7.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
7.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not violate a third party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
7.4 Client acknowledges that any Client Data or reports generated, obtained or acquired through the use of the MyWIRE Software is used at Client's sole risk and discretion. As Client inputs all Client Data, MyWIRE is not liable or responsible for any results generated through the use of the MyWIRE Software.
8. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER MYWIRE NOR ITS AFFILIATES PROVIDES ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE MYWIRE SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MYWIRE OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MYWIRE OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF MYWIRE TO CLIENT UNDER THIS AGREEMENT EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO MYWIRE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR TEN THOUSAND US DOLLARS ($10,000). THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED.
10. Indemnity
10.1. Indemnity. Indemnity by MyWIRE. MyWIRE shall defend or settle at its sole expense any claim brought against Client, its directors, officers, or employees by a third party alleging that the MyWIRE Software infringes or misappropriates any patent, copyright, or trade secret of a third party, and MyWIRE shall pay all damages finally awarded or costs of settlement of the claim provided that Client: (1) provides MyWIRE prompt written notice of any claim; (2) gives MyWIRE sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim. If Client's rights to use the MyWIRE Software are, or in MyWIRE's opinion could be, enjoined due to an indemnified claim, then MyWIRE may, at its sole discretion and expense: (a) procure for Client the right to continue using the MyWIRE Software according to the terms of this Agreement, (b) modify the MyWIRE Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the Subscription and refund any Fees paid for the Subscription prior to any indemnification claim in this Section.
10.2 Exclusions. The indemnity provided by MyWIRE under this Agreement does not extend to claims arising from or relating to (1) use of the Third Party Software or any software provided by Client; (2) modifications to the MyWIRE Software not provided by or approved in writing by MyWIRE; (3) use of the MyWIRE Software in combination with any data, software, or hardware not provided by MyWIRE to the extent the alleged infringement would not have occurred without the combination; (4) use of the MyWIRE Software that is outside the scope of permissible use as defined by MyWIRE; or (5) allegedly infringing activities that continue after MyWIRE has informed Client in writing of and made available to Client at no additional charge a version of the MyWIRE Software that would have avoided the alleged infringement.
10.3. Remedy. This section states Client's sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled "Limitation of Liability."
10.4. Additional Indemnity. Client will indemnify and hold MyWIRE, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and court costs) relating to or arising from: (1) the unpermitted use of the MyWIRE Software by Client or its authorized users; (2) any information or results obtained through use of the MyWIRE Software; and (3) any breach of this Agreement by Client and/or its authorized users.
11. Availability and Support
11.1 Availability. The MyWIRE Software shall be generally available and accessible; however, as the availability of the MyWIRE Software is contingent on the availability of the Third Party Software, MyWIRE cannot make any guarantees regarding any up-time or availability. From time to time the MyWIRE Software may be unavailable due to regular maintenance, repair, or system updates generally where practicable MyWIRE shall notify Client of such unavailability.
11.2 Support Levels. During the term of this Agreement MyWIRE shall maintain generally available support for the MyWIRE Software during normal business hours within the United States' central time zone. Support requests shall be resolved by priority level at MyWIRE's discretion.
12. Miscellaneous
12.1. Publicity. Client may state publicly that it is a user of the MyWIRE Software, and MyWIRE may identify Client as a user of the MyWIRE Software, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other.
12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety along with any other agreements, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conflicting Terms. If there is a direct conflict among the documents that make up the agreement between the Parties, the documents will control in the following order (first to last): (1) the Subscription Order Form, (2) this Agreement, (3) Change Order, and (4) the MyWIRE Terms of Service.
12.4. Entire Agreement. The Agreement along with any Subscription Order Forms, Transcription Order Agreement, or other agreements for specific services ("Additional Agreements") along with the Terms and Conditions and Privacy Policy, sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. The order of precedence for agreements shall be as follows (ascending order of importance 1-3): (1) Additional Agreement, (2) this Agreement, and (3) Privacy Policy. Where any Additional Agreements directly conflict, such precedence shall be decided within such Additional Agreements, this Subscription Agreement shall control and have precedence over any other Additional Agreement. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
12.5. Export Controls. Client agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Client's use of the MyWIRE Software. In particular, but without limitation, the MyWIRE Software may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Client represents and warrants that Client are not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. MyWIRE will not be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law. The Agreement is to be construed in accordance with and governed by the internal laws of the state of Illinois and the federal laws of the United States without regard to its conflict of laws principles. The Agreement is to be construed in accordance with and governed by the internal laws of the state of Illinois and the federal laws of the United States without regard to its conflict of laws principles. Any and all disputes arising out of or relating to this Agreement, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable rules of the JAMs (jamsadr.com). Any dispute shall be brought on an individual basis and not be consolidated with a class or group, or otherwise combined. Any arbitration shall take place in Chicago, IL. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Each party shall bear its own costs in arbitration. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets. Such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within Cook County, IL. Opt-Out You may opt-out of this dispute resolution provision by notifying MyWIRE within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to MyWIRE 999 Oakmont Plaza Dr., Suite 600, Westmont, IL 60559, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with MyWIRE through arbitration. Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Cook County, IL. Client and MyWIRE agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. Client agrees that it will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. Notices. All notices must be in writing and addressed to the other Party's legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemnification, Disclaimer, Limitation of Liability, relevant Subscription Order Form provisions, and Miscellaneous.
12.13. Modifications. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each Party.
12.14 E-Sign. This Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart of this Agreement. Each counterpart shall be deemed an original to this Agreement, all of which shall constitute one agreement to be valid as of the Effective Date. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. This Agreement, any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on each party as if it were physically executed.
MyWIRE SUBSCRIPTION AGREEMENT
Last Modified: November 14, 2024PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.
The MyWIRE Subscription Agreement ("Agreement") is entered into on the date ("Effective Date") where you, the Client, enter into the MyWIRE Subscription Order Form with MYWIRE, LLC., located at 999 Oakmont Plaza Dr., Suite 600, Westmont, IL 60559 ("MyWIRE"). This Agreement includes all terms set forth herein and any terms in a fully-executed Subscription Order Form that incorporates this Agreement. "Client" means the individual, company, or organization identified within the Subscription Order Form, referred to herein as "you" or "Client".
By clicking "I agree", agreeing to the Subscription Order Form or purchasing any MyWIRE Software, or otherwise accessing the MyWIRE Software, you agree to be bound by this Agreement.
1. Definitions
1.1 "MyWIRE Software" means collectively the cloud based MyWIRE software accessed at mywire.net (or an associated website) along with any other software/modules, associated documentation, data, code, and services or other materials made available to Client by MyWIRE as generally described on the mywire.net website. The MyWIRE Software does not include the Third Party Software (defined below) or any additional services except as stated within this Agreement.1.2 "Change Order" means a change order form to request an Enhancement to the MyWIRE Software.
1.3 "Client Data" means any and all Client data, code, video, transcripts, audio recordings, software, content, notes, information, or other materials inputted, interfacing with, or used within the MyWIRE Software which is subject to the MyWIRE Privacy Policy.
1.4 "Documentation" means the content and materials describing the MyWIRE Software and any associated features that are made available to Client via MyWIRE's website, which may be updated from time to time.
1.5 "Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefore, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
1.6 "Third Party Software" means the Third Party Software that may need to be purchased in order for Client to access all features offered by MyWIRE.
1.7 "Party" and/or "Parties" mean MyWIRE or Client in the singular, and MyWIRE and Client in the plural.
1.8 "Subscription Order Form" means the subscription account login page where you create an account or a subscription order form which sets forth Client's subscription details to the My Wire Software which may be generated as a separately emailed or web accessible online quote or may be attached to this Agreement.
1.9 "Support" means any support services offered to Client for MyWIRE Software, subject to this Agreement.
2. MyWIRE Software Subscription
2.1 MyWIRE Software Subscription. MyWIRE provides the MyWIRE Software as a recurring or a one-time subscription (each a "Subscription") as stated within the Subscription Order Form. Subject to the terms and conditions of this Agreement and the Subscription Order Form and upon timely payment of any Subscription Fees (defined below), MyWIRE shall make available the MyWIRE Software. Upon compliance with the obligations set forth within this Agreement, MyWIRE grants Client a worldwide, non-exclusive, non-transferable, non-sub-licensable, terminable, limited license to use the MyWIRE Software for the duration of the Subscription for any downloadable portions of the MyWIRE Software. Where any MyWIRE Software is accessed electronically whether web based or otherwise, MyWIRE shall allow Client to access the MyWIRE Software for its own internal business purposes and limited to any of Client's authorized users in accordance with this Agreement. During Client's Subscription, MyWIRE may make updates, modifications, alterations or removals to the MyWIRE Software and may update the functionality, user interface, usability, Documentation associated, other documentation, training and educational information of, and relating to the MyWIRE Software from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates MyWIRE to offer any previously offered functionality within any updated version of the MyWIRE Software.2.2 Client shall order the Subscription by executing a Subscription Order Form. Each Subscription Order Form executed is subject to this Agreement. Any executed Subscription Order Form is non-cancellable and all Subscription Fees are non-refundable.
2.3 MyWIRE Software Enhancements. During the Subscription period, where Client requires the creation of MyWIRE Software enhancements ("Enhancement"), such Enhancement shall be set forth in a Change Order. All Intellectual Property Rights for any Enhancement shall be retained by MyWIRE and any Enhancement may be offered to all other clients of MyWIRE. Client shall have no ownership rights or any Intellectual Property Rights in any Enhancement created on its behalf and MyWIRE shall own all right, title, and interest in any Enhancement. MyWIRE shall have no obligation to offer or perform any Enhancement requested by Client until a Change Order has been executed by the Parties. Each Enhancement Change Order shall be subject to this Agreement.
2.4 Third Party Software. The MyWIRE Software does not include, and MyWIRE does not warrant, software obtained from any source other than MyWIRE including any Third Party Software or any software, code, data, or other materials provided by Client. Client understands and agrees that the MyWIRE Software will transmit, process, and store all Client Data in a secure manner; however, any issues with the transmission, processing, or storage of any Client Data by any Third Party Software are solely to be resolved by and between Client and the party that controls such Third Party Software. Please be aware that such Third Party Software may have different privacy practices and any data collection is subject to such Third Party Software's policies and MyWIRE will not be responsible for such policies or resolving any issues related to such policies.
2.5 Additional Software Purchase Required. In order to properly use portions of the MyWIRE Software, Client may be required to purchase a subscription to the Third Party Software. The use of the Third Party Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Client and such other party. MyWIRE is not a party to any agreements entered into between Client and any other party.
2.6 Client Requirements. Client shall be exclusively responsible for supervision, management and control of its use of the MyWIRE Software, including without limitation; (a) assuring proper machine configurations, audit controls and operating methods; (b) creating, modifying, entering, reentering, transmitting, or sharing any Client Data; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, the MyWIRE Terms of Service, any Subscription Order Form terms, or other guidelines or instructions issued by MyWIRE; (e) complying with all reasonable instructions from MyWIRE regarding the MyWIRE Software; and (f) restricting access to any third parties that are not authorized to access the MyWIRE Software under this Agreement. Client and all authorized users shall be required to accept and adhere to the MyWIRE Terms and Conditions (https://mywire.net/terms).
2.7 Subscription Change. Where Client wishes to increase the scope of its Subscription, the Parties may execute a new Subscription Order Form as required by MyWIRE or Client may be able to upgrade its Subscription through the MyWIRE Software where permitted. Where a Subscription is offered via a Subscription Order Form, a new Subscription Order Form must be executed and agreed upon by both Parties to become effective. Where a new Subscription Order Form is executed, MyWIRE shall have no obligation to offer any Subscription to the MyWIRE Software at any pricing previously offered to Client.
2.8 Free Trials. MyWIRE may offer free trials. The free trial period shall be stated in writing by MyWIRE and upon expiration of the free trial period, MyWIRE may charge any payment method Client has provided for Client's ongoing subscription. Free trials are offered at MyWIRE's discretion and nothing obligates MyWIRE to offer or continue offering any free trials to any Client or prospective client.
2.9 AI Transcription Tools. MyWIRE is not responsible for any information generated via the MyWIRE Software. Information generated may not always be accurate and may contain errors or other issues. Client understands and agrees that all information generated by the Platform is dependent on the information contained in any Client Data submitted. Client agrees that the MyWIRE Software may utilize artificial intelligence technology, Client understands that such information may be inaccurate, contain errors, be untrue, or out of date. Client agrees that it is solely responsible for verifying the fidelity, accuracy, and appropriateness of any information generated using the MyWIRE Software.
2.10 Video Recording. The MyWIRE Software may offer audio visual recording technology. Client is solely responsible for compliance with all United States federal and state laws and the laws of Client's own jurisdiction governing the monitoring or recording of conversations whether by Client or Client's end users. Client is responsible for collecting consent from any end users being recorded and at MyWIRE's written request shall provide confirmation of such consent. Some video recordings may not be accessible after sixty (60) days and Client bears all responsibility for creating backups or other copies of such recordings and releases MyWIRE from any liability related to the storage of video recordings.
3. Payment and Pricing
3.1. Fees. Client will pay to MyWIRE all fees and expenses (the "Fees") as specified in any Subscription Order Form. Any Fees shall be invoiced to Client from time to time, where the due date is not otherwise specified in the Subscription Order Form, all Fees are due within five (5) days from the date of invoice issuance. All Fees are non-refundable. Unless otherwise specified, all Fees are in U.S. dollars and must be pre-paid prior to Client's usage of the MyWIRE Software. Client shall pay the Fees to MyWIRE in a method agreed upon between the Parties or as set forth within the Subscription Order Form. Failure by Client to pay any Fees may result in the immediate termination or suspension of its access to the MyWIRE Software.3.2 Taxes. Client is responsible for any duties, customs fees, or taxes (other than MyWIRE's income tax) associated with the purchase of the MyWIRE Software provided by MyWIRE, (including any related penalties or interest) ("Taxes"), and shall pay the listed Fees without deduction for Taxes.
3.3 Prior to any Subscription term renewal as set forth within a Subscription Order Form, MyWIRE may provide Client written notice that the Fees paid for the MyWIRE Software may increase prior to the commencement of the new term. Where MyWIRE provides such a notice of a fee increase, Client may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Client does not provide written notice of termination such Fee increase shall be deemed accepted by Client at the commencement of the new term.
3.4 Delinquencies. Any late payments by Client will accrue late charges at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower (such charges, "Interest Charges"). Client shall pay to MyWIRE any Interest Charges as invoiced by MyWIRE. Where Client fails to timely pay any invoices, MyWIRE may at its discretion suspend its provision of MyWIRE Software to Client until such invoice is paid. In addition, Client will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys' fees and court costs.
4. Restrictions and Suspension
4.1 Where applicable, all rights in the MyWIRE Software not expressly granted under this Agreement are reserved to MyWIRE or its licensors. Without limiting the foregoing, Client shall not, and shall not permit others under its control to (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the MyWIRE Software or any component thereof; (b) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the MyWIRE Software to any third party except any permitted authorized users; (c) use the MyWIRE Software for High Risk Activities or otherwise contrary to the instructions of MyWIRE; or (d) use the MyWIRE Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the MyWIRE Software could lead to death, personal injury, or environmental damage. 4.2 MyWIRE may suspend Client's access to, or use of, the MyWIRE Software, if in MyWIRE's discretion it believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the MyWIRE Software or any related content, code, or data; (b) Client is accessing or using the MyWIRE Software to commit an illegal act; or (c) there is a violation of this Agreement or other agreements between the Parties . When reasonably practicable and lawfully permitted, MyWIRE will provide Client with advance notice of any such suspension. MyWIRE will use reasonable efforts to re-establish the MyWIRE Software promptly after MyWIRE determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Client from Client's obligation to make payments for any Fees or other sums due under this Agreement.
5. Proprietary Rights and Client Data
5.1. MyWIRE's Proprietary Rights. MyWIRE retains all right, title and interest in and to all the MyWIRE Software along with all general techniques, methods, processes, routines, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the Subscription term. Further, Client acknowledges that the structure, organization, and code of the MyWIRE Software and all related Enhancements and software components thereof are proprietary to MyWIRE and/or MyWIRE's licensors and that MyWIRE and/or its licensors retains exclusive ownership of the MyWIRE Software, Enhancements, trademarks, and any and all other Intellectual Property Rights relating to the MyWIRE Software, including all modifications, derivatives, and other software and materials developed hereunder by MyWIRE, and all copies thereof. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the MyWIRE Software, including any modifications, enhancements, derivatives, and other software and materials developed by MyWIRE. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own intellectual property.5.2. Trademarks. "MyWIRE" and any other trademarks and service marks adopted by MyWIRE to identify the MyWIRE Software and other MyWIRE products and services belong solely to MyWIRE. Client has no rights in such marks except as specified in writing between the Parties. Client may not publicly display the MyWIRE logo or its marks without express written consent from MyWIRE.
5.3. Feedback. If Client provides MyWIRE any suggestions or feedback regarding the MyWIRE Software ("Client Feedback"), then MyWIRE may use the Client Feedback without obligation to Client, and Client hereby irrevocably assigns to MyWIRE all right, title, and interest in that Client Feedback.
5.4 Client Data. Client owns all Client Data provided to MyWIRE. Title to Client Data and any copy thereof remains with Client. Notwithstanding Client's ownership of its Client Data, Client grants to MyWIRE a limited, royalty free, fully revocable license to the Client Data for the purposes of providing the MyWIRE Software contemplated under this Agreement. MyWIRE will not share any Client Data with any third parties except for Client's authorized users or MyWIRE's contractors that have entered into appropriate agreements with MyWIRE. However, Client may share or make available its Client Data through the MyWIRE Software and Client is solely responsible for such distribution or sharing of its Client Data. Client represents and warrants: (1) it owns all title, right, and interest in the Client Data; (2) the Client Data is not currently involved in any litigation with any third Parties, (3) the Client Data does not infringe on the intellectual property rights of any other Party; and (4) that all Client Data is compliant with all laws and regulations of Client and MyWIRE's jurisdictions, including all laws requiring Client to obtain consent of a third party to use, license or generate Customer Data and to provide appropriate notices of third party rights . During Client's use of the MyWIRE Software, Client shall not upload any Client Data that is in violation of any US state or federal laws. In addition, Client grants MyWIRE the right to use such Client Data to help diagnose problems with MyWIRE's Software, for benchmarking and analytical purposes, and to improve the MyWIRE Software. MyWIRE is not responsible for lost or destroyed Client Data, which loss or destruction shall be at Client's sole risk. MyWIRE may delete any Customer Data, at any time without notice to you if MyWIRE becomes aware that it violates any provision of this Agreement or any applicable laws.
6. Term & Termination
6.1. Agreement Term. This Agreement will begin on the Effective Date and continue as set forth within the Subscription Order Form and renew as stated. Where no term is specified within the Subscription Order Form, the initial term for the Subscription shall be a one (1) year term (the "Initial Term") after the expiration of such Initial Term, this Agreement shall automatically renew for one (1) year terms until terminated by either Party.6.2. Termination for Breach. Either Party may terminate the Agreement if the other Party breaches any material term of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of such breach by the non-breaching Party.
6.3. Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; and (2) all Fees pre-paid to MyWIRE shall not be refunded and all Subscription Fees for the Subscription period shall be immediately due upon receipt of a final invoice from MyWIRE. Client may request that MyWIRE assist Client with migrating any Client Data and MyWIRE may assist at its discretion and subject to any data migration fees.
7. Warranties
7.1 MyWIRE Software Warranty. MyWIRE represents and warrants that the MyWIRE Software will generally conform in accordance with any Documentation provided.7.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
7.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not violate a third party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
7.4 Client acknowledges that any Client Data or reports generated, obtained or acquired through the use of the MyWIRE Software is used at Client's sole risk and discretion. As Client inputs all Client Data, MyWIRE is not liable or responsible for any results generated through the use of the MyWIRE Software.
8. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER MYWIRE NOR ITS AFFILIATES PROVIDES ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE MYWIRE SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MYWIRE OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT. 9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MYWIRE OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF MYWIRE TO CLIENT UNDER THIS AGREEMENT EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO MYWIRE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR TEN THOUSAND US DOLLARS ($10,000). THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED.10. Indemnity
10.1. Indemnity. Indemnity by MyWIRE. MyWIRE shall defend or settle at its sole expense any claim brought against Client, its directors, officers, or employees by a third party alleging that the MyWIRE Software infringes or misappropriates any patent, copyright, or trade secret of a third party, and MyWIRE shall pay all damages finally awarded or costs of settlement of the claim provided that Client: (1) provides MyWIRE prompt written notice of any claim; (2) gives MyWIRE sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim. If Client's rights to use the MyWIRE Software are, or in MyWIRE's opinion could be, enjoined due to an indemnified claim, then MyWIRE may, at its sole discretion and expense: (a) procure for Client the right to continue using the MyWIRE Software according to the terms of this Agreement, (b) modify the MyWIRE Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the Subscription and refund any Fees paid for the Subscription prior to any indemnification claim in this Section.10.2 Exclusions. The indemnity provided by MyWIRE under this Agreement does not extend to claims arising from or relating to (1) use of the Third Party Software or any software provided by Client; (2) modifications to the MyWIRE Software not provided by or approved in writing by MyWIRE; (3) use of the MyWIRE Software in combination with any data, software, or hardware not provided by MyWIRE to the extent the alleged infringement would not have occurred without the combination; (4) use of the MyWIRE Software that is outside the scope of permissible use as defined by MyWIRE; or (5) allegedly infringing activities that continue after MyWIRE has informed Client in writing of and made available to Client at no additional charge a version of the MyWIRE Software that would have avoided the alleged infringement.
10.3. Remedy. This section states Client's sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled "Limitation of Liability."
10.4. Additional Indemnity. Client will indemnify and hold MyWIRE, its directors, managers, officers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and court costs) relating to or arising from: (1) the unpermitted use of the MyWIRE Software by Client or its authorized users; (2) any information or results obtained through use of the MyWIRE Software; and (3) any breach of this Agreement by Client and/or its authorized users.
11. Availability and Support
11.1 Availability. The MyWIRE Software shall be generally available and accessible; however, as the availability of the MyWIRE Software is contingent on the availability of the Third Party Software, MyWIRE cannot make any guarantees regarding any up-time or availability. From time to time the MyWIRE Software may be unavailable due to regular maintenance, repair, or system updates generally where practicable MyWIRE shall notify Client of such unavailability.11.2 Support Levels. During the term of this Agreement MyWIRE shall maintain generally available support for the MyWIRE Software during normal business hours within the United States' central time zone. Support requests shall be resolved by priority level at MyWIRE's discretion.
12. Miscellaneous
12.1. Publicity. Client may state publicly that it is a user of the MyWIRE Software, and MyWIRE may identify Client as a user of the MyWIRE Software, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other. 12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety along with any other agreements, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conflicting Terms. If there is a direct conflict among the documents that make up the agreement between the Parties, the documents will control in the following order (first to last): (1) the Subscription Order Form, (2) this Agreement, (3) Change Order, and (4) the MyWIRE Terms of Service.
12.4. Entire Agreement. The Agreement along with any Subscription Order Forms, Transcription Order Agreement, or other agreements for specific services ("Additional Agreements") along with the Terms and Conditions and Privacy Policy, sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. The order of precedence for agreements shall be as follows (ascending order of importance 1-3): (1) Additional Agreement, (2) this Agreement, and (3) Privacy Policy. Where any Additional Agreements directly conflict, such precedence shall be decided within such Additional Agreements, this Subscription Agreement shall control and have precedence over any other Additional Agreement. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
12.5. Export Controls. Client agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Client's use of the MyWIRE Software. In particular, but without limitation, the MyWIRE Software may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Client represents and warrants that Client are not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. MyWIRE will not be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law. The Agreement is to be construed in accordance with and governed by the internal laws of the state of Illinois and the federal laws of the United States without regard to its conflict of laws principles. The Agreement is to be construed in accordance with and governed by the internal laws of the state of Illinois and the federal laws of the United States without regard to its conflict of laws principles. Any and all disputes arising out of or relating to this Agreement, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable rules of the JAMs (jamsadr.com). Any dispute shall be brought on an individual basis and not be consolidated with a class or group, or otherwise combined. Any arbitration shall take place in Chicago, IL. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Each party shall bear its own costs in arbitration. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets. Such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within Cook County, IL. Opt-Out You may opt-out of this dispute resolution provision by notifying MyWIRE within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to MyWIRE 999 Oakmont Plaza Dr., Suite 600, Westmont, IL 60559, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with MyWIRE through arbitration. Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Cook County, IL. Client and MyWIRE agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. Client agrees that it will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. Notices. All notices must be in writing and addressed to the other Party's legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemnification, Disclaimer, Limitation of Liability, relevant Subscription Order Form provisions, and Miscellaneous.
12.13. Modifications. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each Party.
12.14 E-Sign. This Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart of this Agreement. Each counterpart shall be deemed an original to this Agreement, all of which shall constitute one agreement to be valid as of the Effective Date. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. This Agreement, any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on each party as if it were physically executed.