Last modified: July 1st, 2023
(a) “Customer Data” means any and all data and other information of any kind collected, uploaded, transmitted, submitted, posted or otherwise received from Customer and hosted on the Service.
(b) "Service" means the WunderGraph Cloud service, which is a suite of web applications that are delivered to Customer as a subscription at different free and paid levels of service, as further described in the WunderGraph Cloud subscription level plans and features overview available at: https://wundergraph.com/pricing ; provided, that the Service shall not include Customer Data.
(c) "Updates" means any bug fixes, patches, or other error corrections to the Service that, in the sole discretion of WunderGraph, WunderGraph generally makes available free of charge to all licensees of the Service unless such Update requires a paid Service subscription or upgrade in Service subscription level; provided, that Updates shall not include any new features to the Service, which may be paid or unpaid features as determined in the sole discretion of WunderGraph.
2. Eligibility; License.
(a) Eligibility. To sign up for the Service, Customer must have a functioning Github account and valid e-mail address for receiving billing information and Service alerts.
(b) License Grant. Subject to and conditioned on Customer's compliance with all the terms and conditions of this Agreement (for all free and paid Service subscription levels) and payment of Fees (as defined below) (for all paid Service subscription levels), WunderGraph hereby grants Customer a limited, worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license during the Service subscription term to use the Service solely for the purposes authorized under Customer’s Service subscription plan and level.
(c) Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Service, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (iv) remove any proprietary notices from the Service; or (v) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. WunderGraph reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service.
(e) Customer Data. Customer is and shall remain the sole and exclusive owner of all Customer Data. Customer hereby grants to WunderGraph a non-exclusive, non-transferable, non-sublicensable license to access and/or use the Customer Data solely as necessary to provide the Service for Customer’s benefit as provided in this Agreement. Except for the limited license provided in this Section, nothing contained in this Agreement shall be construed as granting WunderGraph or any third party any right, title or interest in or to any Customer Data, whether by implication, estoppel or otherwise.
(f) Customer Responsibilities. Customer is responsible and liable for all uses of the Service under Customer’s subscription, regardless of whether such access or use is permitted by or in violation of this Agreement.
3. Discontinuance or Modification of Service.
WunderGraph may at its sole discretion discontinue or modify the Service or any features thereof in whole or in part, modify the Service specifications in whole or in part, or replace the Service with similar WunderGraph or third party products at any time upon providing advance written notice to Customer with a description of such discontinuation, modification or replacement.
4. No Support; Suspension of Services; Usage Limits; Extensions
(a) WunderGraph provides no support for the Service except and unless Customer purchases a separate support contract available only upon Customer request. Wundergraph will provide Updates to the Service as they become available.
(b) WunderGraph may suspend the Service in any one of the following cases: (i) when it is unavoidable due to maintenance; (ii) when it is unavoidable to remedy errors in telecommunication facilities at WunderGraph’s premises; (iii) when the Service cannot be provided because of suspension, outage or unavailability of service providers WunderGraph relies upon to provide the Service, including hosting providers, telecommunications circuit facility providers or internet access providers to whom WunderGraph is connected; (iv) when an illegal connection from Customer or third party is detected and there is no other means to prevent it; (v) when WunderGraph in its sole discretion is required to do so for the public interest, to protect against or prevent harm to WunderGraph and/or its users, or as required by law; (vi) when and for so long as Customer fails to pay any amounts due hereunder in a timely manner; or (vii) when Customer exceeds its allowed usage limits for its Service subscription plan level. Customer will be notified of the date and duration of such suspension in advance except in emergency situations or when Customer fails to make timely payment or exceeds its usage limits for its Service subscription plan level.
(c) Customer acknowledges and agrees that each Service subscription plan level contains feature and/or usage limits. Usage limits for the Service apply on a monthly basis, even in an annual Service subscription plan. Customer may purchase usage limit extensions (“Extensions”) at a fixed size according to the price list currently in effect and as amended from time to time. All Extensions are non-refundable, and are applicable only to the then-current month. At the end of the month any remaining usage credit under the Extensions will become void and Customer’s usage limit will revert to its regular level under its Service subscription plan. In the event Customer exceeds the usage limits applicable to its Service subscription plan, WunderGraph reserves the right to suspend Customer’s usage of Services without prior notice until the beginning of the next month of the Customer’s Service subscription plan or Customer’s purchase of an Extension, whichever occurs first.
5. Fees and Payment; Service Upgrades.
(a) Fees. As a condition of using the Service, Customer consents to WunderGraph’s use of third-party merchants of record ("Merchant of Record") to facilitate any payments hereunder. For paid Service subscription levels, Customer shall pay the applicable Merchant of Record designated by WunderGraph the subscription fee amount ("Fees") for the applicable Service level plan according to the official WunderGraph Service price list at the time of sign-up and as amended from time to time, without offset or deduction. WunderGraph reserves the right to increase Fees at the time of each Service renewal to reflect the price levels in effect on the official WunderGraph Service price list at the time of renewal. Customer shall make all payments hereunder in U.S. dollars or other applicable currency offered by the applicable Merchant of Record. Fees for monthly, annual or individual Service plans are due and paid in full at the start of the subscription term. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) WunderGraph may suspend Customer’s access to the Service until payment is made; and (ii) WunderGraph may charge Customer a reactivation fee for restoring use of the Service.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
(c) Service Upgrades. Customer may upgrade (but not downgrade) its Service subscription plan level at any time upon written notice to WunderGraph. Upon upgrading, the Fees for the new Service subscription plan level are due immediately. In the event Customer has paid for an annual Service subscription plan level, upon upgrading, the amount paid by Customer for its previous annual Service subscription plan level will be refunded to Customer in a separate transaction on a pro rata basis to the extent any unused months are left in such Service subscription plan.
6. Intellectual Property Ownership.
Customer acknowledges that, as between Customer and WunderGraph, WunderGraph and/or its licensors exclusively own all right, title, and interest, including all intellectual property rights, in and to the Service. No rights to the Service are granted to Customer except as expressly provided in this Agreement.
7. Warranty Disclaimer; Beta Disclaimer.(a) THE SERVICE IS PROVIDED "AS IS" AND “AS AVAILABLE” AND WUNDERGRAPH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WUNDERGRAPH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WUNDERGRAPH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PRODUCTS, SYSTEMS OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.(b) BETA DISCLAIMER. FEATURES OF THE SERVICE THAT ARE IDENTIFED BY WUNDERGRAPH AS “BETA” FORM MAY CONTAIN DEFECTS. A PRIMARY PURPOSE OF SUCH BETA PROGRAMS IS TO OBTAIN FEEDBACK ON SERVICE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SERVICE FEATURE. THE BETA SERVICE FEATURES ARE PROVIDED BY WUNDERGRAPH ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Customer shall indemnify, hold harmless, and, at WunderGraph's option, defend WunderGraph from and against any and all claims, losses, damages, liabilities, penalties, and costs (including attorneys' fees) (collectively, “Claims”) incurred by WunderGraph arising out of or relating to Customer's: (i) negligence or willful misconduct; (ii) use of the Service in a manner not authorized or contemplated by this Agreement; (iii) use of the Service in combination with data, software, hardware, equipment or technology not provided by WunderGraph or authorized by WunderGraph in writing; (iv) modifications to the Service not made by WunderGraph; (v) misuse of the Service causing damage to WunderGraph’s or a third party’s network, servers or reputation; (vi) infringement or misappropriation of the intellectual property rights of a third party; (vii) violation of applicable law or regulation; or (viii) use of any version other than the most current version of the Service provided to Customer, provided that Customer may not settle any such Claim against WunderGraph unless WunderGraph consents to such settlement, and further provided that WunderGraph will have the right, at its option, to defend itself against any such such Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability.IN NO EVENT SHALL WUNDERGRAPH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT PRODUCTS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WUNDERGRAPH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL WUNDERGRAPH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT OF ONE (1) MONTH’S FEES FOR THE SERVICE PROVIDED BY WUNDERGRAPH.
The limitation of liability set out above does not apply to liability resulting from WunderGraph’s gross negligence or willful misconduct.
WunderGraph will not be liable if Customer or any third party suffers damage resulting from the following causes: (i) damages caused by the Service being unable to operate normally because of a third party intrusion; (ii) damage caused by an error or fault of hardware, software, or the network for which WunderGraph is not responsible or at fault; (iii) damage caused by Customer’s mistake in use of the Service; (iv) damage caused by errors in services or networks of Customer connecting to the Service; (v) damage caused by software viruses and illegal access to Customer’s computer systems, including, without limitation, hacking; or (vi) damage caused by any fault, access failure, and performance degradation for which Customer’s internet access provider is responsible.THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. Term and Termination.
(a) Term. For all paid Service subscription levels, Customer may select either monthly or annual Service subscription terms. This Agreement will automatically renew for additional successive terms equivalent to the duration of the most recent subscription term. For free Service subscription levels and monthly Service subscription terms, Customer may terminate this Agreement at any time; provided, that Customer is solely responsible for terminating this Agreement before auto-renewal occurs and no refunds of Fees will be given. WunderGraph may terminate any free Service subscription levels or monthly Service subscription terms at any time, with such termination becoming effective at the end of the then-current term. For Service subscription levels with terms greater than one (1) month, either party may terminate this Agreement by providing written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term, at which time this Agreement shall terminate at the end of such term.
(b) Termination. In addition to any other express termination right set forth in this Agreement: (i) WunderGraph may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after WunderGraph’s written notice thereof; or (B) breaches any of its obligations under Section 2(c); (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination. Upon termination of this Agreement, Customer’s access to the Service and the license granted hereunder will also terminate. Subject to Section 5(c), no termination will affect Customer's obligation to pay all Fees that may have become due before such termination, or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1 (Definitions), 5 (Fees and Payment; Service Upgrades), 6 (Intellectual Property Ownership), 7 (Warranty Disclaimer; Beta Disclaimer), 8 (Indemnification), 9 (Limitations of Liability), and 11 (Miscellaneous) shall survive the termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all attachments, exhibits or appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. Except for Service upgrade requests under Section 5(c) which may be made by electronic mail, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") to WunderGraph must be in writing and addressed to WunderGraph at the following address: Wundergraph, Inc., 66 W Flagler St., Miami, FL 33130 U.S.A. All Notices to WunderGraph must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Customer consents to Notice by nationally recognized overnight courier, certified or registered mail, or by electronic mail.
(c) Force Majeure. In no event shall WunderGraph be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond WunderGraph’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) power or telecommunications outage or shortage of adequate power, communications or transportation facilities.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by WunderGraph of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by an authorized representative of WunderGraph.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(f) Governing Law; Jurisdiction. (i) This Agreement and any matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida, United States of America, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. (ii) Any suit, action or proceeding arising out of or relating to this Agreement, the purchase and sale of the Service, and the relationship of the Parties shall be instituted in a state or federal court located in the County of Miami-Dade, State of Florida, and Customer irrevocably consents and waives all objections to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. In the event WunderGraph brings any proceeding to enforce its rights hereunder including for any breach of any of the provisions of this Agreement, WunderGraph will be entitled in such proceeding to recover its reasonable attorneys' fees together with the costs and expenses of such proceeding. CUSTOMER AND WUNDERGRAPH HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE CONCERNING THIS AGREEMENT AND/OR THE SERVICE. (iii) Any dispute or other action arising out of or relating to this Agreement must be brought by Customer within one (1) year of the date the event giving rise to the cause of action occurred or it shall be forever barred.
(g) Assignment. WunderGraph may assign its rights or obligations hereunder without restriction. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of WunderGraph. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
(h) Export Regulation. The Service may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Subject to the terms of this Agreement, Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service available outside the U.S.
(i) Equitable Relief. Notwithstanding Section 11(f)(ii) herein, Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2(c) would cause WunderGraph irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, WunderGraph will be entitled to equitable relief from any court with jurisdiction, without any requirement to post a bond or other security, or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(j) Customer consents to and hereby grants WunderGraph the right to use Customer’s name, trademarks, logos and associated intellectual property rights thereto for display on WunderGraph’s website, marketing communications and other promotional materials during the Term of this Agreement.