Terms and Conditions
Version 1.0 – Effective May 1, 2019
The terms and conditions set forth by this agreement (collectively with terms provided on any Order Form as that term is defined herein, these “Terms and Conditions”) govern Your use of Wami, Inc. (“Wami”) services and products arranged with Wami through an Order Form (collectively, the “Services”).
You ( “You”, “Your”) agree to be bound and are hereby bound by these Terms and Conditions through Your agreement to use or Your use of any service, purchase of any product, or acceptance of any written agreement, electronic or otherwise, which references these Terms and Conditions. By agreeing to these Terms and Conditions on behalf of an entity, You hereby represent that you are of competent legal age and have requisite authority to legally bind such entity and all entity affiliates. These Terms and Conditions are immediately effective as of the effective date agreed to between You and Wami (collectively, the “Effective Date”).
1. Wami Services
Wami agrees to provide to You the Services as explicitly agreed to by You through either a written order form arranged directly with You through a Wami representative or through an online order placed by You electronically (such as without limitation using the Internet or mobile services) (collectively, an “Order Form”). Such Services may include, but need not be limited to, the provision of standard or customized stationery, test proofs, robotically handwritten notes, robotically handwritten envelopes, compilation of notes and envelopes, digitizing custom handwriting, mail or other courier delivery, and related services as expressly agreed to in writing from time to time between Wami and You. Wami will provide such Services using commercially reasonable efforts.
2. Your Responsibilities and Use of the Services
2.1. Pricing and Payments. You agree to pay the pricing and in the manner set forth on the governing Order Form.
2.2. Late Payments. All late payments will be subject to a one and one-half percent (1.5%) late fee of any unpaid balance, compounding monthly, or the greatest amount allowed by applicable law, whichever is lower. Any balances remaining unpaid for more than ninety (90) days may be referred to an attorney or collections agency, or both, and You will be obligated to pay all reasonable attorney’s fees and collections agency fees in addition to the entire unpaid balance and late fees accrued thereon. Wami hereby reserves the right to suspend or terminate any or all Services at its discretion in the event of late payments by You.
2.3. Your Content.
2.3.1. Accuracy. You agree to timely provide all information requested by Wami, which will include all data, creative elements, content and other information transmitted by you and to be included in or used with the provision of Services hereunder (“Client-Provided Data”), whether in an Order Form or otherwise, and you understand that such information is required for Wami to provide the Services. You are solely responsible for reviewing the accuracy of all Client-Provided Data, included any renderings or other reproductions of Client-Provided Data by Wami. Wami will not be responsible for the accuracy of Client-Provided Data provided by or on behalf of You. Wami will employ industry standard security measures to safe-guard all Client-Provided Data in its possession at any time.
2.3.2. Rights and Content. You agree, represent and warrant that You own or have the entire legal right to use all Client-Provided Data provided in connection with your use of the Services in the manner contemplated by the Services. Wami will not be obligated to confirm your rights in any Client-Provided Data. You further agree that any Client-Provided Data, whether by its use by You or Wami, will not violate any laws, regulations, including without limitation intellectual property rights of third parties, laws governing deceptive advertising, individual rights of privacy and publicity, laws governing speech, defamation, libel, slander, obscenity, and discrimination. Wami hereby reserves the right to reject Client-Provided Data for its reasonable interpretation that its use is or is likely to violate any law or regulation or infringe on the rights of a third party.
3. Term and Termination
3.1. The Term of this Agreement is that set forth on the Order Form; provided that the Term will extend for as long as any Order Form remains open or any party has remaining obligations under an Order Form.
3.2. Either party may immediately terminate these Terms and Conditions (including all related Order Forms) in the event of breach by the other party which remains uncured, if curable, for thirty (30) days after written notice of such breach is given to the breaching party.
3.3. Either party may immediately terminate these Terms and Conditions (including all related Order Forms) by giving written notice to the other party if: (a) the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; (b) the other party makes an assignment for the benefit of creditors; or (c) a receiver, trustee or similar agent is appointed with respect to any property or business of either party.
3.4. In the event that these Terms and Conditions are terminated prior to the end of a billing period (e.g., month), if permitted herein, You will not be entitled to a pro rata refund of any advance payments made for such month or through the remaining term as obligated herein, except in the case that You terminate these Terms and Conditions pursuant to Sections 3.2 or 3.3.
3.5. Survival. Upon termination, the provisions having the following captions will survive termination: “Intellectual Property”, “Confidentiality”, “Representations and Warranties”, “Disclaimers; No Warranties; Limitation of Liability and Damages”, “Indemnification”, and “General”.
4. Intellectual Property
4.1. Wami Intellectual Property. Wami owns and retains all right, title, and interest in and to the Services, or has a valid license thereto. Wami retains title to any patents, designs, copyrights, trademarks, service marks, logos, trade dress, trade secrets, and any and all other intellectual property rights and associated rights embodied in or applicable to the Services (excluding Client-Provided Data and Client Art), and any other derivative products or other improvements of the Services, and the documentation relating thereto, now known or hereinafter developed, (the “Wami Intellectual Property”). Other than as expressly set forth herein, Wami does not grant to You any license, express or implied, to the Wami Intellectual Property, its Services, or the intellectual property of any of its licensors. You will not assert any ownership rights of Wami Intellectual Property.
4.3. Your Logos and Designs. You retain all right, title and interest in and to all of Your trademarks, logos, promotional graphics and related marketing designs (collectively, the “Client Art”); provided, however, that You hereby grant to Wami a worldwide, royalty-free, non-exclusive, revocable license to use the Client Art provided by You solely for the sole purposes of providing the Services and fulfilling its obligations hereunder as specifically requested by You.
5. Confidential Information
5.1. “Confidential Information” means any information that is not generally known outside a disclosing party (the “Discloser”) which is provided or made available to the receiving party (the “Recipient”) by the Discloser. Confidential Information includes, but is not limited to: (a) contents and existence of any agreement between You and Wami, (b) Client-Provided Data, (c) any business or technical information of either party, including without limitation any information relating to the Services; product designs, drawings, sketches and processes; new or existing product development; production characteristics; testing procedures and results thereof; manufacturing capabilities, methods, processes, techniques and test results; plant layouts, tooling, engineering evaluations and reports; business plans, financial statements and projections; operating forms (including contracts) and procedures; payroll and personnel records; non-public marketing materials, plans and proposals; customer lists and information, and target lists for new clients and information relating to potential clients; software codes and computer programs; training manuals; policy and procedure manuals; standard operating procedures; raw materials sources, price and cost information; administrative techniques and documents; and business strategy, (d) any information that is designated by either party as “confidential” or “proprietary” or is reasonably understood as being of a “confidential” or “proprietary” nature; and (e) any information received by the Discloser under an obligation of confidentiality to a third party.
5.2. Each Recipient agrees to protect the Confidential Information by using the same degree of care as the Recipient uses to protect its own confidential and proprietary information of a like nature, but not less than a reasonable degree of care. The Recipient will not disclose or provide Confidential Information or any summary or derivative thereof to any third party without the express prior written consent of the Discloser in each instance, provided that Confidential Information may be shared with a third-party acting on behalf of the Recipient limited for satisfying its obligations hereunder if such third-party is subject to obligations of confidentiality that protect Confidential Information at least to the same extent required hereunder. Each Recipient will take all necessary steps to ensure that the Confidential Information is not used or disclosed by its employees, authorized representatives or affiliates in violation hereof.
5.3. No obligations of confidence exist for any information that: (a) is or becomes publicly known or publicly available or otherwise in the public domain through no act of the Recipient or its affiliated parties; (b) is already known to, or in the possession of, the Recipient or its affiliated parties at the time of the disclosure; (c) is independently developed by the Recipient or its affiliated parties, without the use of the Discloser’s Confidential Information; (d) is received by the Recipient or its affiliated parties from a third party under no obligation of confidentiality to the Discloser; (e) is disclosed by the Discloser to a third party without a duty of confidentiality to the Discloser; (f) is disclosed publicly under operation of law; (g) is disclosed by the Recipient with Discloser’s prior written approval; or (h) is required to be disclosed by order of a court or governmental agency; provided, however, that in such a case, the Recipient will make all reasonable efforts to notify the Discloser of such order in sufficient time for the Discloser to seek a protective order or other appropriate relief.
5.4. Each Recipient’s duty to protect the Confidential Information, and to refrain from using such information except for the purposes of satisfying its obligations under this Agreement, expires, as to each piece of Confidential Information, five (5) years from the date of disclosure of such piece of Confidential Information; provided, however, that information that is a “trade secret” will be kept confidential by the Recipient until such information is no longer a “trade secret” under applicable laws.
5.5. Each party acknowledges that the other party may suffer irreparable damage in the event of any breach of obligation of confidentiality, and accordingly, in such event, either party will be entitled to temporary, preliminary and final injunctive relief, as well as any other applicable remedies at law or in equity against the party who has breached or threatened to breach the obligations of confidentiality hereunder.
5.6. In the event of Termination, or as otherwise requested by the Discloser, the Recipient will return Confidential Information upon the reasonable written request of the Discloser; provided that any such request by You to return Confidential Information during the Term hereof which interrupts or is likely to interrupt the provision of Wami’s provision of Services hereunder will not serve as grounds as a claim for breach against Wami.
6. Representations and Warranties
Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into these Terms and Conditions; (b) these Terms and Conditions are a valid and binding obligation of such party; and (c) it will comply with all applicable laws, rules and regulations. Wami further represents and warrants that, to its knowledge, the Services do not violate or in any way infringe upon any rights of third parties. You further represent and warrant that, to Your knowledge, the Client-Provided Data does not violate or in any way infringe upon any rights of third parties and that You own or have sufficient rights to use and to authorize Wami to use any Client-Provided Data.
7. Disclaimers; No Warranties; Limitation of Liability and Damages
7.1. EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF SERVICES, PRODUCTS, OR APPLICATIONS FURNISHED HEREUNDER OR IN CONNECTION HEREWITH, AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WAMI EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; WAMI DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES; AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
7.2. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT ARISE UNDER OR RELATE TO THESE TERMS AND CONDITIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE TOTAL FEES PAID BY YOU TO WAMI HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INSTANCE GIVING RISE TO SUCH DAMAGES, LOSSES OR CAUSE OF ACTION. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, PARTIES NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS BUT EXPLICITLY EXCLUDES ANY LIABILITY ARISING OUT OF AN OBLIGATION TO INDEMNIFY HEREUNDER.
8.1. Indemnification by Wami. Upon prompt notice and demand from You, Wami will indemnify and save harmless You from any and all costs, expenses, losses, royalties, profits, and damages (including court costs and reasonable attorneys’ fees) (collectively, “Damages”), and will assume full responsibility for the defense of, at Wami’s expense, any claim, demand, proceeding or action that may be brought against You in connection with Wami’s gross negligence, willful misconduct, and/or breach of any representation or warranty of these Terms and Conditions, or alleging violation or infringement of any patent, trademark or copyright or of any contractual, intellectual property or other rights of any third parties arising out of Your use of the Services hereunder (collectively, “Wami Covered Claims”), or from any suit or proceeding involving Wami Covered Claims, including any settlement thereof. Wami will have no obligations to indemnify You under this section to the extent any claim of infringement results from: (a) the use of Services provided by Wami in combination with any other products or materials not provided by Wami, except where such combination is reasonably necessary to provide the Services; or (b) any alteration or modification of the Services or related software not provided or authorized by Wami, if the infringement would not have occurred but for such alteration or modification. You may be represented by and actively participate through Your own counsel in any such suit or proceeding in the defense of Wami Covered Claims at Your own cost. You agree to reasonably cooperate, at Wami’s expense, with Wami in the defense of any Wami Covered Claims.
8.2. Indemnification by You. Upon prompt notice and demand from Wami, You will indemnify, defend and save harmless Wami from any and all costs, expenses, losses, royalties, profits, and damages (including court costs and reasonable attorneys’ fees) (collectively, “Damages”) resulting from any claim, demand, proceeding or action that may be brought against Wami in connection with Your gross negligence, willful misconduct, and/or breach of any representation or warranty of these Terms and Conditions, or alleging violation or infringement of any patent, trademark or copyright or of any contractual, intellectual property or other rights of any third parties, or any violations of any law, rule or regulation, arising out of or related to Client-Provided Data (collectively, “Your Covered Claims”), or from any suit or proceeding involving Your Covered Claims, including any settlement thereof. Wami agrees to reasonably cooperate, at Your expense, with You in the defense of any of Your Covered Claims.
9.1. Amendment. No amendment, waiver, or modification to these Terms and Conditions will be valid unless set forth in writing and signed by authorized representatives of both parties.
9.2. Entire Agreement. These Terms and Conditions, and any related Order Forms, set forth the entire agreement and understanding of the parties relating to the subject matter contained herein, and merges all prior discussions and agreements, both oral and written, between the parties.
9.3. Severability. If any provision of these Terms and Conditions (or any portion thereof), or the application of any such provision (or any portion thereof) to any person/entity or circumstance, is held invalid, illegal or unenforceable in any respect by a tribunal of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision of these Terms and Conditions (or the remaining portion thereof) or the application of such provision to any other persons/entities or circumstances.
9.4. Waiver. Except as otherwise provided in these Terms and Conditions, any failure of any party to comply with any obligation, covenant, agreement or condition in these Terms and Conditions may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
9.5. Assignment. Neither party will assign any of its rights or obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign these Terms and Conditions to a successor of such party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning party so long as such successor agrees to be bound by all of the terms and provisions hereof, and further provided that Wami may assign these Terms and Conditions to an affiliate that is either controlling Wami, under common control as Wami, or controlled by Wami, without Your consent.
9.6. Relationship of the Parties. The parties are each independent contractors and neither party is an employee, agent, representative, partner, or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.
9.7. Interpretation. The headings and section references contained herein are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms and Conditions. Whenever the words “include,” “includes,” “including” or similar expressions are used herein, they will be understood to be followed by the words “without limitation”, whether included or not.
9.8. Notices. Any notice to Wami required or permitted hereunder must be in writing, in English and delivered by overnight commercial courier (such as FedEx) providing proof of delivery, to:
49 Bogart Street
Brooklyn, NY 11206
9.9. Governing Law; Forum. The validity, interpretation, construction and performance of these Terms and Conditions are governed by the laws of the State of New York, without giving effect to the principles of conflict of laws. You and Wami agree that any legal action or proceeding with respect to this Agreement may be brought in the court of competent jurisdiction in the federal court or state court in New York, New York, as the case may be, and by acceptance of these Terms and Conditions, You and Wami irrevocably submit to the exclusive jurisdiction of the aforesaid courts in any legal action or proceeding arising out of these Terms and Conditions. You and Wami waive any objection which You or Wami may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with these Terms and Conditions brought in the courts referred to in the preceding sentence. Nothing in this paragraph will affect or eliminate any right to serve process in any other manner permitted by law.