Master Services Agreement
Last Updated October 31, 2023
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) sets forth the terms and conditions between Customer (as defined below) and Whimsical, Inc., a Delaware corporation with a place of business at 1630 Welton Street, 7th Floor, Denver, Colorado 80202 USA (“Whimsical”), which govern Customer’s and its Affiliates’ access to and use of Whimsical’s Services. Whimsical and Customer may individually be referred to as a “party” and collectively “the parties”. The Agreement is effective as of the date that you sign up for the Services online or submit an Order Form that references this Agreement (the “Effective Date”). This Agreement includes and incorporates the Order Form, if applicable, and any exhibits thereto, the Policies, and (as applicable) any DPA or other agreement related to the Services and executed by the parties. In the event of a conflict between the Order Form and this Agreement, the Order Form shall control. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
By accepting this Agreement, either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organization, business, or other legal entity for which you act (“Customer,” “you,” or “your”); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
Many organizations, such as businesses, use Whimsical’s Services. If you are accessing or using the Services on behalf of an organization, business, or other legal entity (an “Organization”) then your Organization is legally and financially responsible for your access to and use of the Services as well as for the use of your Whimsical account by others affiliated with the Organization, including any employees, agents, or contractors. For the avoidance of doubt, the Organization for which you act will be considered the “Customer” under this Agreement. Further, if a Workspace is created by an Administrator that uses an Organization email and such Workspace maintains an Administrator whose account uses an Organization email, that Organization, subject to such Organization having the necessary subscription plan and prior notice to relevant Users, may gain access to account information associated with such Workspace or may claim control and ownership of such Workspace. If you are accessing the Services for personal use only (i.e., not in connection with an Organization), your use of the Services is governed by the Whimsical Terms of Service available at https://whimsical.com/terms.
“Acceptable Use Policy” means Whimsical’s Acceptable Use Policy available at https://whimsical.com/terms/acceptable-use.
“Administrator” means each User with the right to access, modify, and/or delete Users and Workspaces and to otherwise exercise the rights of Customer granted pursuant to this Agreement.
“Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information of Customer includes Customer Data. Confidential Information of Whimsical includes all non-public information concerning or derived from the Services, including the terms of this Agreement.
“Customer Data” means data processed by Whimsical on behalf of Customer through Customer’s and its Users’ use of the Services.
“Documentation” means any user manuals, handbooks, and online materials provided by Whimsical to Customer that describe the features, functionality or operation of the Services.
“DPA” means the Whimsical Data Processing Addendum available at https://whimsical.com/terms/dpa.
“Editor” means a paid User of the Services.
“Order Form” means the Order Form to which these Terms and Conditions are attached, which is issued by Whimsical and has been agreed to by Customer by means of signature, or the terms of the subscription for the Services submitted by Customer online.
“Policies” means Whimsical’s Privacy Notice, Security Policy, and Acceptable Use Policy.
“Privacy Notice” means Whimsical’s Privacy Notice available at https://whimsical.com/privacy.
“Security Policy” means Whimsical’s Security Policy available at https://whimsical.com/company/security.
“Services” means Whimsical’s software-as-a-service offerings, which deliver a unified suite of collaboration tools. The Services are provided based on limitations identified in the applicable Order Form, which may include, but are not limited to: (i) the Subscription Term, and (ii) the Services Capacity.
“Services Capacity” means the number of Editors for which Customer subscribed in the applicable Order Form or upon signing up online.
“Subscription Term” means the specified period of time during which Customer is entitled to access and use the Services.
“Users” means the persons granted access to the Services by or on behalf of Customer, including its employees, independent contractors, and consultants. Users may include both Editors and Viewers.
“Viewer” means an unpaid User of the Services.
“Whimsical AI Supplementary Terms” means the Whimsical AI Supplementary Terms available at https://whimsical.com/terms/ai-terms.
“Workspace” means each collaboration space within the Services where Users submit, post, create, or modify.
2. SERVICES ACCESS AND USE
2.1 Access. Subject to the terms of this Agreement and Whimsical’s receipt of the applicable Fees, Whimsical will make the Services available to Customer as set forth in this Agreement and the Order Form during the Subscription Term. Customer is responsible for each User’s compliance with this Agreement, for each User’s actions while using the Services, and for maintaining the security of each User’s username and password.
2.2 Administrators. Customer may designate Administrators for its account. Administrators have the ability to access, modify, or delete a Workspace and/or a User, as well as to modify or re-assign User roles. Each account may have multiple Administrators.
2.3 Domain Management. At certain subscription levels, the Services may include functionality whereby Administrators may manage Workspaces that are associated with email addresses provisioned by Customer, including to claim control and ownership of Workspaces where the Workspace is both (i) created by a User that is registered for Whimsical with an email address provisioned by Customer; and (ii) where a User that is registered for Whimsical with an email address provisioned by Customer is listed as an Administrator. When Customer’s Administrator claims such Workspace, Customer acknowledges that it assumes all rights and obligations associated with that Workspace, including the obligation to pay Fees for any additional Users resulting from such claimed Workspace. If Customer uses the Services’ domain management functionality, Customer agrees that it is responsible for ensuring that Customer’s use complies with all applicable laws and any internal policies, including those involving employee privacy. If Whimsical reasonably suspects that Customer or Customer Data are in violation of the foregoing, Whimsical may investigate that violation and suspend or terminate Customer’s access to the Services.
2.4 Whimsical AI. The Services may include features or functionality made available by Whimsical that utilize data models trained by machine learning (“Whimsical AI”). Use of Whimsical AI is governed by our Whimsical AI Supplementary Terms. By using Whimsical AI features or functionality, Customer agrees on behalf of itself and its Users to be bound by the Whimsical AI Supplementary Terms.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, directly or indirectly (including through its Users, employees, consultants, and/or contractors): (a) sell, rent, assign, sublicense, or distribute the Services, or provide the Services as a commercial hosted service, to any third party; (b) provide access to, or otherwise make available, the Services to any third party (except as expressly permitted in Section 2); (c) modify, copy, translate, or create derivative works of the Services; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain or derive the source code or non-public APIs or algorithms of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Whimsical); (e) use the Services to store or transmit malicious or disruptive code; (f) attempt to interfere with or disrupt the integrity or performance of the Services, or to gain unauthorized access to the Services; (g) exceed the scope of the licenses granted in any Order Form; (h) remove or obscure any copyright labels or proprietary notices contained in the Services; (i) use the Services in violation of applicable law or any third party intellectual property right; and/or (j) use the Services to benchmark the Services or to build similar or competitive products or services.
3.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Whimsical’s Policies, this Agreement, the Documentation, and all applicable laws and regulations. Customer further represents, covenants, and warrants that to the extent Customer’s subscription to the Services provides access to, and Whimsical provides, domain matching as described in Section 2.3, Customer (a) has the right, power, and authority to request and obtain the email addresses of Customer’s Users, (b) Customer is the owner of the domain associated with such Customer Users’ email addresses, and (c) Customer’s use of such domain matching functionality will not violate, and will not cause Whimsical to violate, any applicable laws or privacy policies or data privacy rights of Customer Users or any third party.
3.4 Customer will not, and will not permit Users to, share User account credentials, or use them in multiple locations at the same time. Each User must use a unique identity to access and use the Services and may access the Services only to the extent purchased by Customer and in accordance with the applicable Order Form. Although Whimsical has no obligation to monitor Customer’s use of the Services, Whimsical may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
3.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and each User’s passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.6 Whimsical will protect Customer Data using reasonable and appropriate technical solutions and in accordance with Whimsical’s Security Policy. Whimsical may update its Security Policy to reflect current practices, but in no event will Whimsical decrease the level of security described in the Security Policy as of the date of this Agreement. Furthermore, Whimsical will protect Customer Data in accordance with its Privacy Notice.
4. CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) shall protect the Confidential Information of the other party (the “Disclosing Party”) using the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care). The Receiving Party shall (a) not use or disclose any Confidential Information of the Disclosing Party for any purpose except as necessary in performance of its obligations under this Agreement or as otherwise authorized by the Disclosing Party in writing, and (b) limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who have a need to know such Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Confidential Information does not include information that: (i) is made generally available to the public without breach of this Agreement or of any existing confidentiality obligations governing such information; (ii) is developed by the Receiving Party independently from and without reference to the Confidential Information; (iii) is disclosed to the Receiving Party by a third party without restriction; or (iv) was in the Receiving Party’s lawful possession prior to disclosure and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. The Receiving Party’s obligations under this Section 4.1 shall survive termination and continue for five (5) years from the date of termination of this Agreement. All Confidential Information shall remain the property of the Disclosing Party. Upon termination, the Receiving Party shall cease any use of the Disclosing Party’s Confidential Information. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all documents and tangible materials containing Disclosing Party’s Confidential Information and provide a signed document attesting to such return or destruction. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
4.2 Whimsical and its licensors retain all right, title, and interest in all intellectual property rights, including patent, trademark, trade name and copyright, whether registered or not registered, in and to the Services, the Documentation, and the underlying technology thereof, and any derivative works, modifications, or improvements of any of the foregoing. Whimsical also owns all aggregated and anonymized statistical and performance information related to the provision and operation of the Services, and Customer understands that such information is inherent to, and necessary for, Whimsical’s provision of the Services. Whimsical reserves all rights in the Services not expressly granted herein, and no other license or implied rights of any kind are granted or conveyed. “Whimsical” and associated logos are the registered trademarks or trademarks of Whimsical. This Agreement does not permit Customer to use any Whimsical trademarks.
4.3 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Subject to the terms of this Agreement, Customer hereby grants to Whimsical a non-exclusive, non-transferable, and royalty-free license, during the Subscription Term, to use Customer Data for the purpose of providing the Services to Customer.
4.4 Whimsical may freely use and incorporate into Whimsical’s products and services any suggestions, corrections, enhancement requests, or other feedback provided to Whimsical by Customer or Users of the Services (“Feedback”), provided that Whimsical’s use of such Feedback is anonymized and does not identify Customer or any User in any manner.
5. PAYMENT OF FEES
5.1 Customer will pay Whimsical the then-applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Services Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Whimsical reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Subscription Term or then-current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Whimsical has billed Customer incorrectly, Customer must contact Whimsical no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Whimsical’s customer support department. Whimsical does not accept payment via physical check.
5.2 Whimsical may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Whimsical 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services (without any offset or deduction to the fees paid to Whimsical), other than U.S. taxes based on Whimsical’s net income, and Customer may not reduce the fees payable to Whimsical as a result of taxes.
6. SUBSCRIPTION TERM; TERMINATION
6.1 Subscription Term. The Subscription Term Start Date shall be identified in the Order Form. For any renewal, the start date of the Subscription Term shall be the date immediately following the end date of the previous Subscription Term. The Subscription Term shall only renew with the mutual written agreement of the parties.
6.2 Termination. This Agreement, and Customer’s rights to use the Services, shall terminate immediately if: (a) there is no active Subscription Term; (b) a party materially breaches any provision of this Agreement and fails to cure such breach within 30 days from the date of such party’s written notice to the other party, (c) a party seeks protection under any bankruptcy or similar proceeding and such proceeding is not dismissed within 60 days; or (d) Customer fails to pay Fees due hereunder. Except as otherwise set forth herein, the Services may not be cancelled or terminated by Customer during the Subscription Term and Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3 Effect of Termination. Upon expiration or termination of any Subscription Term: (a) Whimsical will make all Customer Data available to Customer for electronic retrieval for a period of 30 days; (b) Whimsical will delete stored Customer Data within 90 days; and (c) Customer shall promptly: (i) discontinue all use of the Services, and (ii) pay all Fees due during the Subscription Term, provided, however, that if Customer terminates the Services for Whimsical’s uncured breach, then (1) Customer shall pay all Fees due for the Services up to the effective date of termination, and/or (2) Customer will receive a prorated refund of amounts pre-paid to Whimsical for Customer’s use of the Services for the remainder of the Subscription Term. Notwithstanding the foregoing, any amounts pre-paid through the effective date of termination are final and non-refundable. Sections 1, 3, 4, 6.3, 8, 9, and 12 will survive any termination of this Agreement.
6.4 Suspension. In addition to Whimsical’s rights and remedies hereunder, Whimsical may suspend Customer’s access to or use of the Services immediately: (a) if Whimsical reasonably believes Customer’s use of the Services may pose a security risk to or may adversely impact the Services; (b) if Customer materially breaches any provision of this Agreement and fails to cure such breach within 30 days from the date of Whimsical’s written notice; (c) if Customer fails to make timely payments for the Services to Whimsical; or (d) if Customer becomes insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
6.5 Downgrades. Unless explicitly set forth in the applicable Order Form, Customer may not decrease its Services Capacity set forth in the applicable Order Form or for which Customer subscribed online or otherwise downgrade its Services Capacity during any Subscription Term. If Customer desires to decrease its Services Capacity for a subsequent Subscription Term, Customer must provide Whimsical with 30 days’ written notice prior to the end of its then-current Subscription Term. Decreasing Services Capacity may cause loss of content, features, or capacity of the Services and Whimsical is not responsible for such loss.
7. WARRANTY AND DISCLAIMER
7.1 Services Warranty. During the Subscription Term, Whimsical warrants that the Services, when used in accordance with this Agreement and the Documentation, will perform in all material respects in accordance with the Documentation. Whimsical shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Whimsical shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2 Exclusive Remedies. Customer shall report to Whimsical, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in Section 7.1 and Customer’s sole and exclusive remedy, and Whimsical’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.
7.3 Disclaimer of Warranty. Whimsical does not represent or warrant that the operation of the Services (or any portion thereof) will be uninterrupted or error free. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Whimsical or by third-party providers, or because of other causes beyond Whimsical’s reasonable control. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, WHIMSICAL MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES. WHIMSICAL IS FURNISHING THE WARRANTY SET FORTH IN SECTION 7.1 IN LIEU OF, AND WHIMSICAL HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS”.
8.1 Indemnification by Whimsical. If any action is instituted by a third party against Customer based upon a claim that the Services, as delivered, infringe any United States patent or copyright or misappropriates any trade secret, Whimsical shall indemnify and hold Customer harmless with respect to such action. Whimsical shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. If the Services are enjoined or, in Whimsical’s determination are likely to be enjoined, Whimsical may, at its option and expense (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Services and refund any prepaid and unearned amounts paid for the Services attributable to the remainder of the Subscription Term. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Whimsical, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Customer without the approval of Whimsical, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Services is not in accordance with this Agreement. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF WHIMSICAL AND THE EXCLUSIVE REMEDY OF CUSTOMER AGAINST WHIMSICAL FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.2 Indemnification by Customer. Customer shall indemnify, defend, and hold Whimsical harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any claim brought by a third party arising out of or related to (a) Customer’s or its Users, employees, consultants, and/or contractors breach of this Agreement or failure to comply with its obligations hereunder; or (b) a claim with respect to Customer Data and/or alleged infringement or misappropriation of third-party’s intellectual property rights arising from Customer Data.
8.3 Procedure. The obligations under this Section 8 are subject to the party seeking indemnity or reimbursement hereunder (the “Indemnified Party”) notifying the other party (the “Indemnifying Party”) promptly in writing of such claim, giving the Indemnifying Party sole control of the defense thereof and any related settlement negotiations, and cooperating and assisting in such defense at the Indemnifying Party’s reasonable request and expense (including reasonable attorneys’ fees). Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the Indemnified Party’s prior written consent if the settlement would require the Indemnified Party to (a) pay any amounts, or (b) require the Indemnified Party to make an admission of wrongdoing or fault. Nothing in this Section 8 prohibits the Indemnified Party from participating in the defense of any claim at its own expense.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR THE “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS, OR THE COST TO PROCURE SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) SUBJECT TO SECTIONS 9.2 AND 9.3 BELOW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THE “GENERAL LIABILITY CAP”). “EXCLUDED CLAIMS” MEANS (i) A PARTY’S BREACH OF ITS OBLIGATIONS IN SECTION 4.1; (ii) EITHER PARTY’S OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION); OR (iii) INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9.2 FOR THE AVOIDANCE OF DOUBT, THE GENERAL LIABILITY CAP WILL NOT BE DEEMED TO LIMIT CUSTOMER’S OBLIGATION TO PAY FEES TO WHIMSICAL.
9.3 NOTWITHSTANDING SECTION 9.1 OR ANY OTHER PROVISION OF THIS AGREEMENT, IN THE CASE OF ANY EXCLUDED CLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHIMSICAL’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF: (A) ONE MILLION DOLLARS US ($1,000,000 US); OR (B) TWO TIMES (2X) THE GENERAL LIABILITY CAP.
10. FORCE MAJEURE.
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of Whimsical’s suppliers, or outages or issues with upstream providers or network carriers (any such event, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the Force Majeure Event and to resume performance as soon as commercially feasible.
11. BETA SERVICES AND FREE TRIALS
11.1 Beta Services. This Section describes the additional terms and conditions under which Customer may access and use certain features, technologies, and services made available to Customer by Whimsical that are not yet generally available, including, but not limited to, any products, services, or features designated or labeled as “alpha,” “beta,” “early access,” “preview,” “pilot,” or similar designation (each, a “Beta Service”). Customer must comply with all terms related to any Beta Service that Whimsical posts on its website or provides to Customer. Whimsical may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Service at any time. Service Level Agreements do not apply to Beta Services. Customer may provide Whimsical with feedback relating to the Beta Services. Whimsical will own and may use and evaluate all feedback for its own purposes. Whimsical may suspend or terminate Customer’s access to or use of any Beta Service at any time. Customer’s access to and use of any Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by Whimsical. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT, BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, WHIMSICAL PROVIDES BETA SERVICES “AS IS.” WHIMSICAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WHIMSICAL DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
11.2 Free Trials. At Customer’s request, Whimsical may make the Services available to Customer on a trial basis free of charge (a “Free Trial”) until the earlier of (a) the end of the Free Trial period; (b) the Effective Date of any subscription term; or (c) termination of the trial by Whimsical. Free Trials are for evaluation purposes only. Whimsical may terminate Customer’s Free Trial at any time in its sole discretion. Notwithstanding Section 9 (Limitation of Liability) or any other provision of this Agreement, Whimsical’s maximum aggregate liability under any Free Trial shall be capped at US one thousand dollars ($1,000 US).
12.1 Insurance. During the Subscription Term of this Agreement, Whimsical will maintain in force, with a reputable insurance company, (a) worker's compensation insurance in the amount required by statute; (b) comprehensive general liability, with coverage of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage; and (c) cyber liability, with a limit of $2,000,000 in the aggregate. Upon Customer's request, Whimsical shall provide Customer with certificates or other acceptable evidence of insurance evidencing the above coverage.
12.2 Compliance with Laws. The parties agree to comply with all laws applicable to the use of the Services and performance of its obligations under this Agreement.
12.3 Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, registered mail (return receipt requested), or email and shall be deemed given upon receipt. Notwithstanding the foregoing, notices related to termination of this Agreement must be given via email and one additional notice method to ensure receipt. Email notices to Whimsical shall be sent to email@example.com and to Customer at the email address(es) set forth on the Order Form and which Customer uses to login to the Services.
12.4 Publicity. Customer hereby grants Whimsical the right to identify Customer as a Whimsical Customer and use Customer’s name, mark, and logo on Whimsical’s website and in Whimsical’s marketing materials in connection with the Customer’s use of the Services.
12.5 Assignment. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, except in connection with a corporate reorganization or merger, acquisition, or sale of all or substantially all of its business and/or assets.
12.6 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Customer hereby expressly consents to the exclusive personal jurisdiction and venue in the state and federal courts for the county in which Whimsical’s principal place of business is located for any action arising from or related to this Agreement.
12.7 Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Whimsical in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.