dealWIP Services Terms & Conditions
Last Updated and Effective as of: March 14, 2019
These dealWIP Services Terms and Conditions (this “Agreement”) are entered into on the date (the “Effective Date”) of registration for and/or first use of the products and services provided by dealWIP (the “dealWIP Services”) by and between dealWIP Inc., a Delaware corporation (“dealWIP”), and the user who has registered for and/or used the dealWIP Services (the “User”). By registering for and/or using the dealWIP Services, User acknowledges that it is agreeing to the terms of this Agreement. If User disagrees with the terms of this Agreement, dealWIP does not grant and/or dealWIP may immediately terminate User’s right to access or use the dealWIP Services.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. OTHER AGREEMENTS
(A) Master Agreement. This Agreement sets forth terms and conditions that govern User’s access to and use of the dealWIP Services. In the event that User is receiving access to the dealWIP Services through its employer or any other person or entity, User acknowledges that said employer, person or entity may have entered into an agreement with dealWIP (the “Master Agreement”) and that User is bound by the terms and conditions set forth in the Master Agreement in addition to those set forth in this Agreement.
2. DEALWIP SERVICES; GRANT OF RIGHTS
(A) dealWIP Services. The dealWIP Services may include tools and other resources with which deal professionals may conduct corporate transactions (“Transactions”) on dealWIP’s cloud-based platform. dealWIP Services can be accessed through https://www.app.dealwip.io.
(B) Grant of Rights. Subject to User’s full compliance with this Agreement, dealWIP hereby grants User a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except to Permitted Parties) right and license during the Term to access and use the dealWIP Services solely in connection with Transactions. User may not resell or provide the dealWIP Services to any third parties except for their counterparties in any Transaction (“Permitted Parties”).
3. INTELLECTUAL PROPERTY; LICENSE RESTRICTIONS
(A) Ownership. Except for the limited license rights set forth in Section 2(B), User does not acquire any rights
in the dealWIP Services. dealWIP and its licensors own, and shall continue to own, all right, title and interest in and to the dealWIP Services and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (collectively, “dealWIP Materials”).
(B) Feedback. User is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the dealWIP Services (“Feedback”). If, notwithstanding this policy, User submits Feedback, User understands and acknowledges that such Feedback is not submitted in confidence and dealWIP assumes no obligation, expressed or implied, by considering it. All right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, dealWIP upon its creation.
(C) License Restrictions. User may not (i) create any service, software, documentation or data that is competitive with, substantially similar or confusingly similar to any aspect of the dealWIP Services; (ii) use, modify, display, perform, copy, disclose or create derivative works of the dealWIP Services except as permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the dealWIP Services, or use any other means to attempt to discover their source code; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the dealWIP Services to any third party except as permitted herein; (v) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the dealWIP Services or related systems, including via robots, spiders and other electronic methods; (vi) use the dealWIP Services in violation of applicable law, rule or regulation, including without limitation laws, rules and regulations concerning legal privileges or the protection of confidential information, privacy and data security; (vii) use the dealWIP Services in any manner that intentionally damages, disables, overburdens, or impairs any of the dealWIP platform or websites or interferes with any other party's use of the dealWIP Services, including without limitation by using or launching any automated system that sends more request messages to dealWIP servers in a given period of time than a human can reasonably produce in the same period by using conventional devices; (viii) attempt to gain unauthorized access to the dealWIP Services, including without limitation by breaching, disabling, tampering with any security measures or developing or using (or attempting to do the same) any workaround for the dealWIP Services; (ix) set, read, write, modify or delete any cookie on a dealWIP-owned or operated web domain or platform; and/or (x) obscure, remove or alter any proprietary rights or other notices on the dealWIP Services. Notwithstanding anything to the contrary herein, dealWIP may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 2(B) if User breaches the restrictions in this Section or creates other security or legal concerns. User hereby agrees that dealWIP will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of User’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
(D) Open Source Software. dealWIP Services may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge (“Open Source Software”). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between User and the applicable licensor of the Open Source Software and User shall comply with the applicable Open Source Software license.
(E) Third Party Materials. The dealWIP Services may link to, integrate with, make available or provide third party products, content, services, websites, data, software or source code, including without limitation third party websites or social media platforms and Open Source Software (collectively, “Third Party Materials”). dealWIP has no control over Third Party Materials. Accordingly, dealWIP is not responsible or liable for any Third Party Materials and makes no representation as to the accuracy, usefulness, safety, or intellectual property rights in or relating to such Third Party Materials. While dealWIP has no obligation to monitor Third Party Materials, dealWIP may remove or modify such Third Party Materials in its discretion, including without limitation to comply with applicable law. User agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.
(F) Technical Restrictions. User shall not exceed the access to or use of the dealWIP Services in the relevant documentation or as otherwise provided by dealWIP. If dealWIP believes that User has attempted to exceed or circumvent these limitations, dealWIP may suspend or block User’s access to the dealWIP Services. dealWIP may monitor User’s use of the dealWIP Services, including to ensure User’s compliance with this Agreement.
5. CUSTOMER OBLIGATIONS; CUSTOMER MATERIALS; TRANSACTIONS
(A) Registration. As part of the registration and account creation process User will provide dealWIP with certain registration information, all of which must be accurate, truthful, and updated. dealWIP reserves the right to deny creation of User accounts based on dealWIP’s inability to verify the authenticity of User registration information. The use of User’s account by any individual under the age of eighteen (18) is strictly prohibited.
(B) Implementation and Access. User shall be responsible, at its sole cost, for procuring all connectivity, equipment and software needed to access the dealWIP Services. dealWIP shall provide User with non-transferable access credentials for the dealWIP Services. User shall not (i) misrepresent or mask identities when using the dealWIP Services or seeking access credentials; or (ii) select or use as a username a name that is already in use or that utilizes the rights of a person or entity other than User without appropriate authorization. User shall safeguard all access credentials provided by dealWIP and shall ensure the confidentiality and security thereof. User shall immediately notify dealWIP of any known or suspected unauthorized use(s) of any User account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of any User login information.
(C) User Materials. As between the parties, User shall retain all rights in and to all content and materials that User uploads, transmits or provides in connection with the dealWIP Services, including without limitation any due diligence documents, any communication between User and any other party, and any other documentation or communication User uploads or submits to the dealWIP Services (collectively, “User Materials”). For the avoidance of doubt, User Materials shall not include any dealWIP Materials. User hereby grants dealWIP an irrevocable, non-exclusive, worldwide, transferable, royalty-free, fully paid up right and license during the Term to use the User Materials solely to provide the dealWIP Services to User or as otherwise contemplated by this Agreement. Except for compliance with the foregoing license terms, dealWIP is not responsible or liable for any User Materials. Further, User understands that dealWIP is a vendor of User and/or its clients and that any assertion of legal privilege or other confidentiality is dependent on the actions of User and/or its client and not dependent on the actions of dealWIP. dealWIP shall not be responsible for the waiver of any legal privileges or other breaches of confidentiality caused by the acts and omissions of User and/or its clients.
(D) User Materials Warranties. User represents and warrants that (i) User or User’s client owns, or has acquired the express authorization, license and written authority to use, all of the User Materials as contemplated herein; (ii) the User Materials and the receipt, collection, use and provision thereof shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (iii) the User Materials were received, collected, used and provided to dealWIP in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on legal privileges or the protection of confidential information, privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions; (iv) User or its client has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with its receipt, use and/or provision of the User Materials hereunder; and (v) that none of the User Materials contains any personally identifiable information or persistent identifiers from individuals under the age of 13.
(E) Prohibited Content. In addition to the representations and warranties in Section 5(D), User further represents and warrants that it shall not transmit Prohibited Content through the dealWIP Services. “Prohibited Content” shall mean anything that is (i) defamatory, abusive, obscene, profane or offensive; (ii) infringes or violates another party's intellectual property rights or violates any party’s right of publicity or right of privacy; (iii) is threatening, harassing or that promotes racism, bigotry or hatred of any kind against any group or individual; (iv) promotes or encourages violence against a person or damage or destruction of property; (v) is inaccurate, deceptive, false or misleading in any way; (vi) violates applicable law, is illegal or promotes any illegal activities; (vi) contains “masked” profanity (i.e., F*@&#); (vii) contains harmful, disabling or malicious code or devices; (viii) contains any advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; or (ix) is otherwise found, in dealWIP’s sole discretion, inappropriate or unacceptable.
(F) Transactions. dealWIP shall have no liability for any Transactions facilitated by the access to or use of the dealWIP Services. User shall not suggest or imply that dealWIP is a party to any Transaction. Neither User nor the Transaction shall disparage dealWIP or the dealWIP Services. The dealWIP Services shall not be used in connection with any Transactions that are illegal or where the use or failure of the dealWIP Services could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on dealWIP in any manner.
6. CONFIDENTIALITY; DATA
(A) Confidentiality. User agrees that dealWIP’s business, technical and financial information that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of dealWIP (“Confidential Information”). dealWIP’s Confidential Information includes the dealWIP Materials. User shall use a reasonable degree of care to safeguard dealWIP’s Confidential Information in its possession or control. Confidential Information does not include information that (i) was previously rightfully known to User without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of User; (iii) is disclosed to User by a third party without breach of any separate nondisclosure obligation; (iv) was independently developed by User; or (v) is required to be disclosed pursuant to a judicial order or third party subpoena provided the User provides written notice to dealWIP in order for dealWIP to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena. User shall not disclose the terms of this Agreement, except as required by law, or to its Permitted Parties, attorneys, professional advisors, investors and potential investors bound to obligations of confidentiality substantially similar to those contained herein. The parties hereby agree that dealWIP will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
7. WARRANTIES; LIMITATIONS
(A) Mutual Warranties. Each party represents and warrants that it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder.
(B) User Warranties. User represents and warrants that (i) it will utilize industry-standard security measures to help protect the security and integrity of, and prevent unauthorized access to, the dealWIP Services and User Materials; (ii) it will not do anything that will make the dealWIP Services subject to any open source or similar license which creates an obligation to grant any rights in the dealWIP Services; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the dealWIP Services; (iv) in the event of any security breach or unauthorized access to any dealWIP Services or User Materials, User will immediately notify dealWIP and take all corrective action necessary to remedy such breach (with all consumer notifications to be undertaken by dealWIP); and (v) User, the User Materials and Transactions will comply with all applicable laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.
(C) dealWIP Product Limitations. User’s use of the dealWIP Services is at User’s sole risk. dealWIP does not warrant that the dealWIP Services are compatible with User’s equipment or technology systems. The dealWIP Services are provided on an “as is” basis. dealWIP expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement and title or that the dealWIP Services will meet User requirements or result in any outcome, or that their operation will be uninterrupted or error-free. User acknowledges that dealWIP has no control over Third Party Materials including without limitation any privacy disclosures on third party sites or third party disclosures generally. Additionally, dealWIP shall not be responsible for any delays or outages caused by any third party systems, platforms or applications, and shall not be responsible for any cloud-based data host providers. Further, dealWIP shall assume no liability amounts or indemnity obligations with respect to ensuring that User’s use of the dealWIP Services complies with any laws or regulations outside the United States and User shall be solely liable for such compliance.
(D) No Legal, Accounting, Tax, or Investment Services or Advice. dealWIP does not make any representations regarding the benefits or results that User or any third parties shall receive from the dealWIP Services or any Transactions facilitated thereby. While dealWIP may facilitate certain legal, accounting, tax or investment services aspects of corporate transactions, the dealWIP Services are not intended to be used for, and dealWIP shall bear no responsibility for, the use of the dealWIP Services as a legal, accounting, tax, or investment services tool. At no time does dealWIP review User’s Transactions or the User Materials for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about User’s legal rights, remedies, defenses, options, selection or negotiation of documents, or strategies, or apply the law to the facts. dealWIP is not an attorney or law, tax, accounting or investment firm, and thus cannot and will not provide legal, accounting, tax or investment advice. User agrees no attorney-client relationship is formed with dealWIP or any employee or agent thereof. User agrees that if it needs legal, accounting, tax or investment advice with respect to a specific Transaction, it will consult an appropriately licensed professional.
8. INDEMNITY; LIMITATION OF LIABILITY
(A) User Indemnity. User will defend, indemnify, and hold harmless dealWIP and its subsidiaries, affiliates, and parent companies, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns (collectively, “Related Parties”), from and against any losses (including outside attorneys’ fees) arising out of a third party claim related to (i) the User Materials, Transactions or User’s acts or omissions hereunder; (ii) User’s negligence or willful misconduct, breach of this Agreement or violation of applicable law; and/or (iii) any allegation of intellectual property, privacy or publicity infringement arising out of User Materials or User’s use of the dealWIP Services except as contemplated herein.
(B) Indemnification Process. dealWIP shall promptly notify User of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact User’s indemnification obligations, unless the User is materially impacted thereby. User shall have sole control over the defense of a claim, provided that dealWIP may participate in the defense, at its cost. All settlements of indemnification claims require the consent of dealWIP.
9. TERM; TERMINATION
(A) Term. The term of this Agreement begins on the Effective Date and shall terminate upon the earliest of (i) User’s last use of the dealWIP Services, (ii) the termination of the Master Agreement, if applicable or (iii) as earlier terminated pursuant to Section 9(B) herein (the “Term”).
(B) Termination. dealWIP may terminate or suspend this Agreement immediately upon written notice, which may be by email, to User. Upon termination or expiration of this Agreement, all applicable licenses and access granted to User shall automatically terminate and User shall cease any further use of dealWIP Services or Confidential Information. Notwithstanding the foregoing, terms that by their nature should survive expiration or termination of this Agreement shall so survive.
(A) Export. dealWIP does not represent that materials in the dealWIP Services are appropriate or available for use in any particular location. The dealWIP Services are subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List.
(B) Independent Contractor. Each party is an independent contractor with respect to the other party hereunder. This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.
(C) Assignment. User may not assign or otherwise transfer this Agreement, in whole or in part, and any attempted assignment by User shall be null and void. dealWIP may freely assign or otherwise transfer this Agreement and any and all rights hereunder for any reason including any acquisition of all or substantially all of dealWIP’s assets or by way of merger or other change of control.
(D) Governing Law; Dispute Resolution; Arbitration. The laws of the State of New York shall govern this Agreement. While dealWIP will make reasonable efforts to resolve any disagreements User may have with dealWIP, if these efforts fail, User agrees that all claims, disputes or controversies against dealWIP arising out of this Agreement, or the purchase or use of any products or services ("Claims") shall be exclusively submitted to binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that User attends will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to User’s then current residential address, or at some other place to which User and dealWIP agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. USER SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. You may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association at using the contact information noted below.
American Arbitration Association
A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to the parties. The arbitrator will take reasonable steps to protect User’s customer account information and other confidential information if requested to do so by the parties. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties.
ANY CLAIM BY A USER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM ARISES. AS NOTED ABOVE, USER HEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL.
dealWIP will not choose to arbitrate any Claim User brings in small claims court. However, if such a Claim is determined by the court to be outside its jurisdiction, the parties agree that the dispute shall then be submitted to arbitration.
(E) Severability; Waiver. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties. Failure of either party to act in the event of a breach this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
(F) Entire Agreement. This Agreement, together with the Master Agreement, if applicable, represents the entire understanding of the parties with respect to the subject matter hereof.