This WenPlan End User License Agreement (hereinafter “Agreement”) is in electronic form and constitutes an agreement between you (“Customer”) and WenPlan, Inc., a Delaware corporation with its principal place of business at 7305 Marietta Ave. St. Louis, MO 63143 (“WenPlan”) with respect to your access and/or use of the services and software of WenPlan (the “Services”). Your access and/or use of the Services shall legally bind you to this Agreement.
1. Consent to Electronic Records and Signature
- From time to time, WenPlan may ask Customer to review important disclosures or agreements about the WenPlan Services. By clicking “I agree”, Customer will be providing its electronic signature that affirms:
- Customer understands and intends that the License Agreement is a legally binding agreement and the equivalent of a signed written contract
- Customer will use the Service in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions of the EULA as they may be amended by WenPlan from time to time; and
- Customer understands, accepts, and has received the EULA and its terms and conditions, and acknowledges and demonstrates that Customer can access the EULA.
- Assignment and Delegation. Neither Party to this Agreement may assign any of their rights or delegate any of their obligations under this Agreement, nor may they assign this Agreement in gross, except to parent, subsidiary, or successor by merger or consolidation, or to a purchaser of all or substantially all such Party’s assets.
- Cumulative Remedies. All rights and remedies of the Parties, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
- Enforceability/Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision hereof shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein, provided, however, that if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intention.
- Rights of Third Parties. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever unless said right or remedy is specifically granted herein to such third party.
- Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
- No provision of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, it being understood that waiver may only occur by an instrument in writing signed by an authorized officer of the Party against whom such waiver is sought to be enforced. In the event of a waiver, whether in writing or by operation of law, such waiver shall not constitute a waiver of any other provision or of the same provision on another occasion.
- Your use of the Application and any other software furnished in conjunction with the Services shall, at all times, be in full compliance with this Agreement and any license that may be separately presented to you. If no license is presented to you, then you may use such software only as provided in this Agreement and only for the number of User Accounts covered by your Subscription Fee. Whenever “Services” are referred to in this Agreement, it shall include the Application and any other software furnished by WenPlan.
- Wenplan has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the WenPlan Service or Documentation to Licensee. However, WenPlan agrees to use its reasonable efforts to correct errors in the WenPlan Service and Documentation within a reasonable time, and shall provide Licensee with any corrections it makes generally available.
4. WenPlan Limited License
- As a user of the Websites and Services you are granted a nonexclusive, nontransferable, revocable, limited license to access and use the Websites and Services in accordance with these Terms of Service. Such access and use shall be limited to the number of User Accounts covered by your Subscription Fee.
5. Relationship of WenPlan and You
- “You” or “your” shall refer to (i) the individual registered, and (ii) any person, authorized by you to use the Services under the Account. You are an independent third party to the Websites and Services, and, nothing in this Agreement will create or represent that there is any partnership, joint venture, agency, franchise, sales relationship, or employment relationship between you and WenPlan.
6. Modification and Updates
- We shall have the right to adjust or increase the Subscription Fees or add fees for additional Services (“Fee Adjustment”) and/or modify this Agreement from time to time by changing, eliminating or adding any term or condition (“Modifications”) as follows:
- Modifications that we make together with any Updates, or that do not materially affect your use of the Services, or that are required by law shall take effect immediately upon being posted on our website at http://www.WenPlan.com.
- Provided that you use the Services without interruption, any other Modifications and any Subscription Fee Adjustment shall take effect no earlier than (i) ten (10) days from the date on which such Modification or Fee Adjustment is posted on our website as aforesaid, or (ii) expiration of the period for which you have pre-paid for the Services.
- We may require you to download Updates to your devices in order for you to continue using the Services. After an Update, some functionality or features may change or no longer be available. Because of the nature of the Services, Updates are applied universally. Consequently, you hereby accept all Updates as a condition to your access and use of the Services. Notices for Updates shall be posted on our website at https://www.WenPlan.com as early as practicable.
- Your use or continued use of the Services after a Modification, Fee Adjustment and/or Update takes effect shall constitute your agreement to and acceptance of same. In the event you do not accept any of the foregoing, your sole remedy shall be to cease accessing and/or using the Services.
7. Your Obligation
- You shall:
- maintain and protect the secrecy of your username and password;
- if you have a Subscriber Account, be fully responsible at all times for any activity that takes place under your Subscriber Account and any associated User Account;
- if you have a User Account only, be fully responsible at all times for any activity that takes place under your User Account;
- as between you and WenPlan, bear sole responsibility for your Internet connection during your use of the Services;
- use the Services only for your internal business purposes of processing, managing, storing, maintaining and using Data;
- use the Services only for that number of users (with one user per User Account) authorized under your subscription to WenPlan;
- as between you and WenPlan, be solely responsible for the quality, performance and all other aspects of Data;
- ensure that WenPlan has current information necessary for billing and continuation of the Services; and
- pay the Subscription Fee and other sums required to be paid under this Agreement on a timely basis.
- You shall not:
- gain or attempt to gain unauthorized access to or use of the Services or any part thereof;
- use any means not authorized in writing by WenPlan to modify, reroute, or attempt to modify or reroute the Services;
- resell or redistribute the Services or any part thereof;
- copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, modify, alter, transfer or sell any information provided by the Services, including without limitation the Application and any other software, except to the extent that such activities are required for your access to and use of the Services and Data as authorized in this Agreement; or
- attempt to copy, archive, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Application or other software, or permit any person to do any of the foregoing.
- You warrant and represent that your use of the Services shall at all times comply with all applicable laws and regulations.
- WenPlan will implement and maintain reasonable physical, administrative and technical measures in its facilities and on its systems and networks to protect Customer Content from unauthorized access by any third party. WenPlan will not be responsible for any unauthorized access to any Customer Content that (a) occurs through your systems or networks; (b) results from any vulnerabilities or weaknesses in your devices, equipment, facilities, networks or systems; (c) results from the use or misuse of the any User Accounts; or (d) results from any breach of your privacy or data protection policies or procedures by You or any third party.
- You will immediately notify WenPlan in writing if any unauthorized use of User Account or any other breach of security related to the Account or the Hosted Services comes to your attention. In the event any unauthorized third party obtains access to the Hosted Services directly or indirectly through You, You will take all steps necessary to terminate such unauthorized use and will provide WenPlan with such cooperation and assistance related to such unauthorized access as WenPlan may reasonably request.
10. Fees and Payment
- You will pay all Fees to WenPlan for the Hosted Services. All Fees are payable in United States dollars. You may manage or upgrade your Subscription Plan (including the number of seats available). You agree to pay all Fees associated with additional seat purchases made by You. Unless otherwise agreed by the parties in writing, (a) all Fees are based on your Subscription Plan and the number of seats You purchase and not on actual usage; (b) your payment obligations and Subscription Plan are non-cancelable; (c) all Fees paid are non-refundable; and (d) you may not downgrade your Subscription Plan or decrease the number of seats purchased during the term of your Subscription Plan
- Changes to Fees. WenPlan may change the Fees with not less than 10 days’ prior notice; provided, that (a) any increase in the annual Fees for your Subscription Plan will not be effective until the first anniversary of the Effective Date. Any change in the Fees will take effect after the 10 day notice period has expired.
- The Fees and other amounts payable to WenPlan under this Agreement do not include any WenPlan, customs, duties, fees or other amounts assessed or imposed by any governmental authority, including VAT and applicable sales tax. You are responsible for paying all WenPlan applicable to the Hosted Services (other than WenPlan imposed on WenPlan’s net income). You will pay or reimburse WenPlan for all such amounts on demand or provide certificates or other evidence of exemption.
- Payment Disputes. If You dispute any Fees due, You must provide written notice to WenPlan within 30 days from the payment due date with an explanation of the nature of the dispute. Unless WenPlan receives a written notice of the dispute within such time period, the Fees due for such Billing Period will be deemed correct and payable in full by You.
11. Term and Terminations
- Except as provided in paragraph 11(2) below, the term of this Agreement (“Term”) shall consist of an “Initial Period” commencing immediately. The term may be monthly or annual as described in the course of the transaction. The subscription renews monthly (30 days) or annual (365 days) as applicable upon the payment of automatically recurring subscription fees. Month or annual renewal fees are charges at subscription renewal day,
- Trial Period. The Trial Period shall commence immediately and (i) if you do not initiate a paid subscription with WenPlan, the Term shall terminate automatically at the end of the Trial Period; or (ii) if you initiate a paid subscription, then, the Term shall continue as set forth in paragraph 11.1 above.
- You shall have the right to terminate the Term at any time, provided, however, that WenPlan shall have no obligation to provide you with a refund for any pre-paid period or unused Services.
- Notwithstanding any other provision of this Agreement, WenPlan shall have the right to terminate the Term immediately upon notice to you in the event that (i) you have breached any of your obligations under this Agreement and failed to cure such breach within fifteen (15) days after you receive written notice from WenPlan specifying the nature of the alleged breach; (ii) you engage in any of the acts prohibited under paragraph 7-2 below; or (iii) WenPlan ceases to furnish the Services to other firms and enterprises of similar size and requirements as yours. In the event of termination by WenPlan pursuant to paragraph 11-4 (iii), your sole remedy shall be to receive a refund of those Subscription Fees paid by you in advance for any full monthly period that follows the date of termination.
- No termination, however caused, shall relieve you of your obligations which arose under this Agreement prior to the date of such termination.
- For security purposes, WenPlan may cancel or suspend any username which has not accessed the Services for an extended period of time as determined by WenPlan in its sole discretion. If WenPlan cancels a username, the user will need to establish a new Subscriber Account or User Account (as applicable).
12. WenPlan’s Intellectual Property Rights
- WenPlan retains all right, title and interest in and to the Services (including but not limited to all copyrights, patents, trade secrets, trademarks, information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by WenPlan, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
- This Agreement shall not be deemed to grant or imply any right of any kind or nature to any of WenPlan’s trademarks, trade names, logos, software, system, intellectual property or personal property unless otherwise expressly stated.
- WenPlan and other marks that may be indicated on our website and/or in our software and documentary materials, together with any logo forms thereof, are trademarks and/or service marks of WenPlan. WenPlan’s trademarks and service marks may not be used in connection with any product or service that is not provided by WenPlan. Any trademark or service mark not owned by WenPlan that appears on our website and/or in our software and documentary materials is the property of its owner.
13. Warranties and Disclaimers
- Each of You and WenPlan represents and warrants that (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) each has all necessary rights and authority to perform its obligations under this Agreement; and (c) the performance of this Agreement does not and will not violate the terms or conditions of any other agreement to which such party is a party or by which it is otherwise bound.
- WenPlan website and services are provided on an “as is, as available” basis to users.
- To the fullest extent permissible pursuant to applicable law, WenPlan disclaims all warranties, express or implied, in connection with the sites, hosted services, documentation and site materials and any other matters under this agreement, including without limitation, any implied warranties of use or fitness for a particular purpose, merchantability and non-infringement, any warranty that the use of the sites and hosted services will be uninterrupted or error-free, and any warranties arising by course of performance or trade usage.
- WenPlan makes no warranties, express or implied, with respect to the customer content or any facilities, equipment or hosted services used by you in connection with the sites and hosted services.
- To the extent that WenPlan may not as a matter of applicable laws disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted pursuant to such law.
- WenPlan makes no warranties regarding the accuracy, completeness or timeliness of any information or data provided in connection with or results obtained through use of the sites, hosted services, documentation or site materials.
- WenPlan does not warrant that the sites or hosted services are free from bugs, errors, defects or deficiencies.
14. Limitations on Liability
- In no event shall WenPlan or its shareholders, directors, officers, employees, contractors, agents and representatives (“related persons”) be liable to you or any third party for: any cost of procurement of substitute or replacement services or goods; loss or corruption of data; loss of anticipated savings, business, business information, contracts, goodwill, production, profits or revenues; wasted opportunity or wasted management and/or staff time; business interruption; failure to meet any duty, including that of good faith or reasonable care; negligence; losses arising out of personal injury or death; any indirect, special, remote or speculative damage; or any other damage arising out of or related to the installation, use, inability to use or non-use of services even if WenPlan and its related persons have been advised of the possibility of such damage.
- To the extent that the liability of WenPlan and regardless of the legal basis for any claims, the liability of WenPlan and its related persons shall be limited to direct calculable monetary damages that shall not exceed the lesser of one hundred dollars ($100.00) or the subscription fee(s) paid by you for the monthly or annual period(s) in which such damage occurred or the min.
- To the maximum extent permitted by Applicable Laws, You agree to defend, indemnify and hold harmless WenPlan, its independent contractors, service providers and consultants, and each of their respective directors, employees and agents (collectively, “Representatives”), from and against any third-party claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) any Customer Content; (b) the use of any facilities, equipment or services by You in connection with the Hosted Services; (c) Feedback; (d) any breach of any Applicable Laws, this Agreement or any rights of any third party by You; (e) the combination by You of the Hosted Services and other products, equipment, software or services not supplied, authorized or recommended in writing by WenPlan; or (f) the gross negligence or willful misconduct of You.
- Any notice which you are required or desire to give to WenPlan shall be in writing and may be sent pre-paid via by certified U.S. mail, a recognized express delivery service or via e-mail; provided, however, that notice via e-mail shall be effective only if you receive a response from WenPlan indicating that such notice was received. Notice sent via a recognized delivery express service or U.S. mail shall be deemed effective two days after sending. Notices sent to WenPlan shall be sent to: support@WenPlan.com.
- Governing Law; Jurisdiction and Venue. This Agreement and any dispute or controversy arising out of or related hereto and/or the relationship between the Parties established herein (“Claims”) shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of Missouri, U.S.A., without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in Louis County, State of Missouri, U.S.A., and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
- You agree that WenPlan may identify You as a customer of WenPlan and may display your company name and company logo on WenPlan’s website and in other promotional materials where WenPlan identifies its other customers.
18. DEFINITIONS. As used in this Agreement
- “WenPlan,” “we,” “us” or “our” shall refer to WenPlan, Inc.
- “Party” shall refer to you or WenPlan individually and “the Parties” shall refer to you and WenPlan jointly.
- “Sites” means, collectively, the WenPlan websites and mobile applications.
- “User Account” means an account for each person who uses the Services. User Accounts may not be shared between users, it being understood that WenPlan grants use of the Services under this Agreement on a “per seat” basis.
- “Applicable Laws” means applicable federal, state, regional, local or foreign laws, regulations, rules, codes, judgments and orders.
- “Hosted Services” or “Application” means the project planning applications, services, tools, features and functionality made available through the Sites, including associated hosting, cloud storage and data processing services.
- Subscription Plan” or “Subscriber Account” means the subscription plan You select and subscribe to pursuant to this Agreement, together with all additional seats You purchase.
- “Subscription Fee” shall mean the monthly or other periodic fee(s) which you are assessed by WenPlan and obligated to pay for implementation of the Services under your Client Account. The Subscription Fee shall be determined by the number of users. The Subscription Fee does not include any fees or charges related to initialization and set-up or establishing and maintaining your Internet connection.
- “Billing Period” means the recurring billing period during which You will be charged the Fees throughout the term of this Agreement.
- “Administrative Address” means the email address that you provide us with in order to receive notices regarding billing, modifications to this Agreement or our Services and/or Updates.
- “Data” shall mean any and all information entered by you utilizing the Application, including but not limited to information regarding accidents, delays, site safety and quality control observations, project photos, weather, task lists, equipment rental, subcontractors and jobsite visitors.
- “Order Form” means the online form via which you provided certain Personally Identifying Information, chose a payment option and designated the number of users who will use the Services under your Subscriber Account.
- “Updates” shall mean updates, modifications, alterations and amendments which change, eliminate or add any functionality, feature or appearance, corrects any bug, or addresses any security, technical, legal or regulatory issue.
19. Entire Agreement
- This Agreement, together with all terms incorporated by reference, sets forth the entire agreement between You and WenPlan with respect to your and their access to and use of the Hosted Services and supersedes all prior or contemporaneous oral or written communications, understandings, agreements, proposals and representations with respect to said subject matter. The paragraph headings in this Agreement are solely for the convenience of the parties and have no legal or contractual significance.