Effective Date: May 22, 2018
Non-legalese, Simple English Summary
- You subscribe to our services for a specific term (annual, half-yearly, quarterly, or monthly), and your subscription gets renewed automatically at the end of each term.
- You can upgrade or downgrade the level of our services at any time of your usage; however, Wingify does not refund any fees in that case.
- If you wish to cancel your account, notify us at least 15 days before the end of your term (via an email to firstname.lastname@example.org or through the product dashboard). Upon cancellation, your data is deleted from the servers hosted by Wingify.
- You can request to suspend your account and payments for future for a period of maximum one year. In such a case, at our discretion, we can suspend your account and retain your data for a maximum period of one year.
- If you use our services, we can use your business logo on our websites for promotional purposes.
Terms of Service
This agreement is entered between Wingify Software Private Limited, a company registered under Companies Act 1956 in India, having its registered office at Top Floor (14th), KLJ Tower North B-5, Netaji Subhash Place, Pitampura, Delhi – 110034, India, (hereinafter referred to as “Wingify”, which expression, unless repugnant to the context hereof, shall mean and include its successors, subsidiaries and assigns) and the payer or/and the recipient of services hereunder identified as part of the subscription process for Wingify Services, hereinafter referred to as “You” or “Customer”.
Please understand that by accepting these terms and conditions, Customer represents and warrants that Customer is major and thus legally capable to enter into a contract and in case Customer is acting on behalf of some business entity, Customer is duly authorized to enter into agreement on behalf of the entity Customer is representing. Customer also represents and warrants that Customer is not a competitor of Wingify.
Therefore, by clicking “I agree”, ordering, and/or using Wingify’s services, Customer agrees to be bound by all of the terms and conditions of this agreement (hereinafter referred to as the agreement).
Now whereas Customer and Wingify both hereby agree to the terms & conditions hereinafter mentioned:
1. Scope of Service
Wingify offers Visual Website Optimizer/VWO services (the Service) which includes the following:
Product’s application interface (the “Dashboard”). The service is hosted at the domain managed by the Wingify. Wingify will offer Technical Support for the Service. For any issue relating to the Service, Customer may contact Wingify’s technical support by sending an email to email@example.com.
Only Customer or Customer’s authorized user(s) may contact Wingify’s technical support.
2. Free Trial
If a Customer registers for a free trial of the Services, Wingify will make the Services available on a trial basis and free of charge to the Customer until the earlier of
- the end of the free trial period or the start date of Customer’s subscription.
- If Wingify includes additional terms and conditions on the trial registration Web page, those will apply as well. During the free trial period,
- the Services are provided “as is” and without a warranty of any kind,
- Wingify may suspend, limit, or terminate the Services for any reason at any time without notice, and
- Wingify will not be liable toward Customer for damages of any kind related to Customer’s use of the Services. Unless Customer subscribes to the Services before the end of the free trial, all of Customer’s data on the Service may be permanently deleted at the end of the trial and Wingify may not be able to recover it.
3. Beta Testing Program Terms & Conditions
Wingify may from time to time make available to its Customers, several VWO Beta Products or Services which are in the Beta phase. Wingify will clearly highlight Beta features/products in its Product or Service to clearly differentiate them from rest of the features. If Customer wishes to use such VWO Beta Product or Service which is in the Beta phase, this clause will govern the use of such VWO Product or Services.
Subject to terms and conditions of this clause, Wingify grants Customer a non-exclusive, non-transferable license to use the VWO Beta Product or Service for a period designated by Wingify for the purpose of testing and evaluation of such VWO Beta Product or Service by providing Wingify with early feedback on the performance of Product or Beta VWO Service, identification of any defects, reporting of any bugs, usability of Product or Service, and ideas for improvement of VWO Beta Product or Service.
By accepting these Beta Testing Program Terms & Conditions, Customer hereby assigns to Wingify all rights, titles, and interests in any feedback, ideas for improvement, and all intellectual property rights therein, including without limitation all patent, copyright, trade secrets, and trademark. Customer hereby acknowledges and understands that the VWO Product or Services licensed hereunder is still in the testing phase and is provided on an “as is” and “as available” basis without a warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, accuracy, completeness, performance, and fitness for a particular purpose. Notwithstanding anything to the contrary contained herein or elsewhere, in no event shall Wingify be liable for any damage whatsoever arising out of Customer’s use or inability to use VWO Beta Product or Service, even if Wingify has been advised of the possibility of such damages. Customer hereby understands and accepts that any risk or damages arising out of the use or performance of the VWO Beta Product or Service will be Customer’s responsibility.
It is hereby clarified that the VWO Beta Product or Service may contain bugs, errors, omissions, and other problems; and Wingify will not provide any support and maintenance for its beta VWO Products or Services. The VWO Beta Product or Service may not operate correctly and may be substantially modified prior to first commercial availability, or may be withdrawn at any time. Although Wingify will make best possible efforts to intimate users of VWO Beta Product or Service about any modification or termination of the VWO Beta Product or Service ahead of time, Wingify reserves the right to modify or terminate the VWO Beta Product or Service and Customer’s access to the VWO Beta Product or Service for any reason, without notice, at any time, and without any liability to Customer. Once the VWO Beta Product or Service is terminated, Wingify will not be obliged to provide continued access to data collected during the testing period. However, Wingify shall delete the data collected during the Beta phase upon receipt of a written request for deletion of such data by Customer.
4. Lawful use of the services
Customer hereby agrees to use the Services of Wingify only in an authorized manner as per the terms of this Agreement. In case it is found that Customer’s use of Services violates the terms of this Agreement or any other law, rule or regulation enacted by the concerned authorities from time to time, Wingify reserves the right to terminate the Agreement with immediate effect.
5. Wingify’s Responsibilities, Representations, and Warranties
- In the performance of Services, Wingify agrees to:
- perform the Services to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances;
- liaise with Customer through Customer’s coordinator on matters related to the use of, and the identification and resolution of errors in the Service; however, this shall not include the provision of training services;
- invoice Customer according to the terms of this Agreement for the Services performed; and
- proceed according to Customer’s reasonable instructions for the disposition of Customer’s data and supplies on the termination of the Agreement.
- Reasonable attempts to correct errors on notice: Wingify warrants that it will, at its expense, make commercially reasonable attempts to correct any errors for which Wingify is directly and solely responsible, provided that the data necessary to correct such errors is available to Wingify; or at Wingify’s discretion, provide Service credit to Customer equivalent to the charge that would have been applicable for correcting the portion of the Service that is an error; such Service credit will be only for errors solely due to malfunctioning of a system or software provided by Wingify or any error made by Wingify’s personnel during the performance of the Service. For Wingify to correct the errors or obtain the Service credit, Customer must notify Wingify in writing of such errors within 30 days of receipt of the Services believed to contain the errors.
6. Customer’s Responsibilities, Representations, and Warranties
- Customer agrees to:
- provide all necessary data and any special forms or other required materials or information to Wingify on schedule or in a timely manner to enable Wingify to provide the Services;
- ensure accuracy, legibility and completeness of all data supplied to Wingify and be solely responsible for the results obtained from Customer’s use of any of the Services;
- liaise with Wingify through a coordinator Customer will identify, on matters related to the Services, and authorize that coordinator to make decisions on behalf of Customer in relation to the implementation of this Agreement and the Services and any changes thereto; and
- control, and be responsible for the use of, account information, user ids, and passwords related to the Services, where required
- Customer Representations: Customer represents and warrants to Wingify that:
- the information Customer has provided for the purpose of establishing an account with Wingify is accurate.
- Customer has complied with and will continue to comply with all applicable laws, including privacy laws, and has obtained and will continue to obtain the requisite privacy consents in the collection and use of all information that may be collected on any website or maintained on any server hosted by Wingify.
- Using the Services, Customer shall not collect and/or store any information which can be recognized by Wingify as personally identifiable information other than as Agreed in the data protection Agreement if any signed between Customer and Wingify. If Customer wants to store any personal information, it needs to be encrypted and hashed at Customer’s end.
7. Term, Termination, and Suspension of Service
- Initial Term:
The initial subscription term shall begin on the effective date of Customer subscription and expire at the end of the period selected during the subscription process.
- Renewal of Term:
Unless one of us gives the other a written notice that it does not intend to renew the subscription, the paid subscription and this Agreement will automatically renew for the period selected by the customer in its latest term (“Renewal Subscription Term”). The written notice of non-renewal must be sent at least 15 days before the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided in our standard pricing available at https://vwo.com/pricing. Should you decide not to renew, you may send the notice of non-renewal by email to firstname.lastname@example.org or use the cancellation option within the product interface.
- Termination by Customer:
Customer may terminate this Agreement before the end of the Term without liability (except for amounts due for Services provided up to the effective date of termination) if Wingify:
- Fails to provide the Services in accordance with the terms of this Agreement, such failure causes material harm to Customer and Wingify does not cure the failure within 10 days of receipt of the notice in writing from Customer, describing the failure in reasonable detail.
- Materially violates any other provision of this Agreement and fails to cure the violation within 30 days of receipt of the notice in writing from Customer, describing the violation in reasonable detail.
In the event that this Agreement is terminated pursuant to this Section, Wingify will return the fees paid to it for Services not yet performed on a pro rata basis.
- Termination/Suspension by Wingify:
Wingify may terminate this Agreement or suspend the Services before the end of the Term without liability:
- On 30 days’ notice to Customer, if Customer is overdue on the payment of any amount due under this Agreement.
- If Customer materially violates any other provision of this Agreement and fails to cure the violation within 10 days’ notice in writing from Wingify, describing the violation in reasonable detail; or
- Immediately on written notice upon Customer becoming insolvent or bankrupt within the meaning of the Bankruptcy and Insolvency Laws.
During suspension, Customer will not be able to access the Services. Wingify will use commercially reasonable efforts to give Customer an advance notice in writing of suspension of Service unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect Wingify or its other customers.
- Following the suspension:Wingify shall keep the account of Customer suspended for the reasons stated above for a maximum period of 1 year; thereafter, the account stands deleted and Customer’s data/information shall be deleted from the database of Wingify. But on a special request and on being assured in time by Customer about resumption of Service, Wingify may extend the period of suspension and retain the data/information for further specified period of time as agreed.
- Following termination:It is agreed that in case of termination, the fees owed to Wingify as per this Agreement will not be cancelled or waived. Customer’s data and account settings shall be irrevocably deleted within 30 days from the date of termination. It shall be Customer’s exclusive responsibility to secure all necessary data from Customer’s account prior to termination.
8. Fees, Billing, Taxes, Charges
The fees set forth in the order form created at the outset of Customer’s account shall be effective for the Initial Term and each renewal Term of this Agreement, provided that Wingify shall have the right to revise these fees at any time upon thirty (30) days’ written notice to Customer. In the event that Customer does not agree with such fee revision, Customer shall have the right to terminate this Agreement upon fifteen (15) days’ written notice, provided that such notice of termination must be received within thirty (30) days from the date of notice of fee increase.
- Billing and Payment Arrangements:
Wingify will bill Customer on an annual/monthly/quarterly/half-yearly or any other mutually agreed period basis for all recurring fees (refer to the link for payment/subscription plans). For recurring fees, no refund or adjustment for plan downgrades, upgrades, or elimination of plan features within the current billing term shall be issued. Invoices/payments are irrevocably deemed final and accepted by Customer unless disputed or sought clarification before subscribing to the Service. Customer shall at all times provide and keep current and up‐to‐date Customer’s contact, credit card, if applicable, and billing information on the administrative control panel.
- Payment by Payment by Credit Card/Wire Transfer/Cheque:
If Customer is paying by credit card, Customer shall at all times provide and keep current and updated Customer’s contact, credit card, if applicable, and billing information on the administrative control panel. Customer authorizes Wingify to charge the Customer credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades. Customer further authorizes Wingify to use a third party to process payments and invoicing and to consent to the disclosure of Customer payment information to such third party.
Customer acknowledges that all applicable taxes, duties, or government levies whatsoever are not included in the fees and expenses charged under this Agreement. Customer will make timely payment of all such taxes, duties, or government levies related to this Agreement.
9. Modification of Terms and Conditions
Wingify may update, amend, modify, or supplement the terms and conditions of this Agreement from time to time and will use reasonable efforts to notify Customer regarding the same. Customer is responsible for regularly reviewing the most current version of this Agreement at any time at https://vwo.com/terms-conditions. If at any time Customer does not agree with any amendment, modification or supplement to the terms and conditions of this Agreement, Customer may terminate this Agreement for convenience, as per Clause 7 mentioned aforesaid. Customer’s continued use of Customer’s account and/or the services after the notice period will be conclusively deemed as acceptance by Customer of any such modifications or amendment.
10. Limited Warranty: Limitation of Damages
- Wingify provides the Service “as is”. Customer expressly agrees that use of the Service is at Customer’s sole risk. Wingify and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Customer hereby agrees that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement.
- Wingify and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like, that result from the use or inability to use the Service or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether Wingify has been advised of such damages or their possibility.
- Customer is fully responsible for the content of the information and data passing through Wingify’s network or using the Services and for all activities that Customer conducts with the assistance of such Services.
- Notwithstanding anything to the contrary contained in this Agreement, Wingify’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence, or otherwise, shall in any event not exceed the amount paid by Customer under the Agreement in the preceding 12 months.
11. Software and Intellectual Property Rights
- Ownership of Intellectual Property Rights:
All Intellectual Property Rights, including any Software, owned by a party, its licensors or subcontractors as on the effective date of this Agreement shall continue to be owned by such party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title or interest in or to such Intellectual Property Rights. Wingify shall own all rights, titles, and interests in and to any materials created or developed by Wingify or its subcontractors for its internal use or for assisting Customer in the provision of the Services; and Customer shall own all rights, titles, and interests in and to any Intellectual Property Rights resulting or based on any work product created or developed exclusively for Customer under this Agreement, if fully paid for by Customer.
- Right to use logo:
Customer agrees to let Wingify use its organization’s logo in Wingify’s customer list and at other places on its website (including but not limited to VWO.com) and promotional materials, including press releases. This clause will survive expiry or termination of this Agreement.
- License of Customer Software and Intellectual Property:
Customer agrees to grant to Wingify, solely for Wingify’s provision of the Services, access to any tool or application used by Customer and required by Wingify in order to troubleshoot and perform its Services, license during the Term to use any Intellectual Property Rights, including any Software, owned by or licensed to Customer by third parties and that is necessary for providing the Services to Customer and otherwise, performing its obligations under this Agreement. With respect to any Intellectual Property Rights and Software used by Wingify to provide the Services, Customer represents and warrants that: (a) Customer is either the owner of such Intellectual Property Rights or Software or is authorized by its owner to include it under this Agreement; and (b) Wingify has the right during the Term to use such Intellectual Property Rights and Software for the purpose of providing the Services to Customer as contemplated by this Agreement.
- No Assurance of Compatibility:
Customer acknowledges that Wingify makes no representation, warranty, or assurance that Customer’s equipment and software will be compatible with Wingify’s equipment, software and systems, or the Services.
- Wingify will not use any of Customer’s Confidential Information except in connection with the performance of the Services or the exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of Customer’s Confidential Information and to prevent unauthorized disclosure to others of the Confidential Information. Wingify shall implement industry-standard security procedures, such as appropriate firewall, encryption and access security measures to safeguard Confidential Information.
- Wingify shall only disclose Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be reasonably necessary in exercising Wingify’s rights and performance of the Services under this Agreement. Notwithstanding anything contrary to this Agreement, Wingify will not be required to keep confidential, and may use or license without restriction, any ideas, concepts, know-how or techniques related to information processing which are developed by Wingify in the performance of Services.
- Notwithstanding the foregoing, Wingify shall be permitted to:
- monitor Customer’s use of the Services;
- report to the appropriate authorities any conduct by Customer (or Customer’s customers or end users) that Wingify reasonably believes violates any applicable law;
- provide any information, including Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from a law enforcement or government agency; and
- Disclose Customer’s name with its other customers as reference or as part of case studies and testimonials that Wingify is providing the Services to Customer at such places as Wingify may deem fit.
Parties shall indemnify, defend, and hold harmless each other (and their subsidiaries, affiliates, officers, employees, agents, partners, mandatories, vendors, and licensors) of any and all Claims (including third-party Claims) arising as a result of or in relation to any breach of this Agreement or fault by the other party. Customer shall indemnify Wingify in relation to any activities conducted by Customer through the Services, or otherwise in relation to “Customer’s” products or services.
14. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of India. Customer agrees, in the event any claim or suit is brought in connection with this Agreement, it shall be brought to the exclusive jurisdiction and venue of the courts of Delhi, India. In any action to enforce this Agreement, including, without limitation, any action by Wingify for the recovery of fees due hereunder, Customer shall pay reasonable attorney’s fees and costs in connection with such action.
In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement; and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
No waiver by Wingify of any breach by Customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto and then only to the extent expressly set forth in such writing.
Neither party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, except with the prior written consent of the other party, which shall not be withheld unreasonably; provided that Wingify may assign or transfer this Agreement, or any rights or obligations hereunder, in whole or in part:
- to an affiliate of Wingify; or
- in connection with a merger, amalgamation, or sale of all or a substantial part of the business of Wingify, which assignments and/or transfers shall operate novation and discharge Wingify hereunder. A change of control of Customer shall be deemed to be an assignment and transfer hereunder and shall be governed by the requirements of this provision.
The terms and conditions along with privacy policies with all references, constitute the sole and entire Agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior terms and conditions which were agreed by Customer.