Terms of Service

This Services Agreement (Agreement) is entered into between Winterface Software Inc, a Delaware corporation, and its Affiliates (as defined below) (Winterface) and the party (the Customer) that subcribes to the Services (defined below) delivered by Winterface. Between Winterface and each Customer the Agreement consists of these terms, the Sales Order (defined below), including any exhibits, and any updates or amendments to each of the foregoing. This agreement is effective as of the Customer's initial Sales Order (further defined as the Subscription Start Date below). By executing the Sales Order or accessing the Services, the Customer agrees to all the terms below.

In certain cases, Winterface may provide a trial version of the Services, in that case each Customer consents to this Agreement by clicking Agree or using the Services. If the Customer and Winterface execute a subsequent agreement regarding commercial use of the Services, its terms will supersede the terms here to the extent of any conflict.

Definitions

For this Agreement, the following initially capitalized words are ascribed the following meanings:

"Affiliate" means any person, partnership, joint venture, corporation, or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities, contract, voting trust or otherwise.

"Credits" means any discount to subscription fees which are provided by Winterface to the Customer for performance of activities outlined in the Sales Order.

"Customer Data" means any data provided by or on behalf of Customer or Users for processing by the Services.

"Customer Third Party Application" means a compatible third party software application or web-based service (for example, Snowflake data cloud platform) that the Customer uses to run, operate, or interoperate with the Services. Customer Third Party Applications are selected by Customer and provided by third parties, but not by Winterface.

"Sales Order" means any mutually agreed, written sales order, executed on behalf of Winterface and the Customer, including its exhibits and addenda, describing the Services, fees, and any special terms for using the Services that the Customer has ordered. If the Customer subscribes via Winterface’s online checkout, then the checkout form submitted by the Customer and accepted by Winterface constitutes the applicable Sales Order for purposes of this Agreement. Each Sales Order becomes effective when executed by both Winterface and the Customer (or, in the case of an online checkout form, on the date on which Winterface enters the completed online checkout form into its system), and is made part of this Agreement as described in Section 2.

"Services" means any customer-facing services, implementation services, professional services, support, Software (as defined below), and any other services provided by Winterface or its Affiliates to Customer.

"Software" means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.

"Subscription Start Date" means with respect to each Sales Order, (a) the later to occur of the "Subscription Start Date" specified in the Sales Order, or the date on which the last of Winterface and the Customer executes the Sales Order, or (b) in the case of an online checkout form, the date on which Winterface enters the completed online checkout form into its system.

"Subscription Term" has the meaning ascribed to it in Section 6.

"User" means an individual that Customer has provisioned to use the Services through its account.

1. Services

Winterface will use commercially reasonable efforts to provide to Customer the Services identified on each Sales Order, and the Customer may use and access such Services, each according to the terms of the Agreement. The Customer’s use case will be described on the Sales Order or separate schedule.

2. Sales Orders

The parties will enter into one or more Sales Orders that contain additional terms and conditions applicable to the provision of the Services. Upon execution by the parties, each Sales Order will be incorporated into this Agreement.

3. Responsibilities and Restrictions

The Customer will not and will not allow Users to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Winterface in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as specified on a Sales Order; remove any proprietary notices or labels; or use the Services in violation of any applicable laws and regulations.

The Customer will not, and will not permit its Users to:

• Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
• Attempt to access any other Winterface systems that are not part of these Services;
• Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
  • Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; or
  • Any information, software or content Customer does not have the legal right to process or transmit.

At its reasonable discretion Winterface may prohibit any use of the Services it believes may be in violation of the foregoing. Customer is responsible for its, its employees, consultants and Users use of the Services and for compliance by each User with this Agreement.

4. Confidentiality

All information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be "Confidential Information". Confidential Information of Winterface includes the Service Data (as defined below), any non-public information regarding documentation, features, functionality and performance of the Services and Software. Customer Data is considered the Customer’s Confidential Information with the exception to the terms in Section 13 below. The parties agree to maintain the confidentiality of any Confidential Information using at least the same degree of care it uses to protect its own confidential information, which shall not fall below a reasonable standard of care.

Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party's Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.

5. Proprietary Rights

The Customer owns all right, title and interest in and to the Customer Data, and all intellectual property rights related thereto. Customer grants Winterface all necessary rights to process Customer Data in accordance with the terms of this Agreement. "Service Data" refers to (a) data generated from the Customer's or Users' use and configuration of the Services (e.g., Customer's path through the Services, login frequency, query logs, suggestions, feedback, etc.), and (b) all other data not defined as Customer Data. Winterface owns and retains all right, title and interest in and to (a) the Service Data, (b) the Services and Software, all documentation to use Software, improvements, enhancements or modifications thereto, (c) any software, applications, inventions or other technology developed by or on behalf of Winterface in connection with the Services, and (d) all intellectual property rights related to any of the foregoing.

6. Term and Renewal

This Agreement will continue from the Subscription Start Date until the earlier of: (a) the expiration of all Services subscriptions, (b) for month-to-month customers, until such date as a monthly plan is cancelled, or (c) termination pursuant to Section 7 below (together, the “Subscription Term”). Each Services subscription will run for the subscription term specified in the applicable Sales Order and will renew automatically on Winterface's then-current terms and conditions for one-year periods, unless a party provides notice of nonrenewal to the other party at least 60 days prior to expiration of the then-applicable term. If Customer uses to the Services after the end of the subscription period listed on the Sales Order, Customer will be billed in arrears according to the Sales Order for any continued usage of the Services.

7. Termination

In addition to any other remedies it may have, (A) either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (i) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (ii) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets and (B) Winterface may additionally terminate this Agreement and the Services (or any portion of the Services) (i) immediately and without notice if it has reason to believe the Customer is violating Section 3 of this Agreement; or (ii) following notice, in the case the Customer or its Users have logged into the Services for a consecutive 90 day period (each, "Termination for Cause"). In the case of Termination for Cause under Section 7(B)(ii), the Customer may revive its account by recommencing data transfers (in which case, payment may be made in arrears according to the Sales Order). If Winterface terminates this Agreement for the Customer’s breach, the Customer remains obligated to pay the balance due on the Customer’s account for the remainder of the Subscription Term, computed in accordance with the applicable Sales Order(s), and will be billed for such unpaid fees. Where applicable, upon termination of this Agreement, the Customer shall immediately cease using any on-premise software. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

8. Warranty Disclaimer

Winterface provides, and the Customer accepts, the Services AS IS. WINTERFACE PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH THE CUSTOMER. WINTERFACE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

9. Indemnification

Winterface will defend at its own expense any action brought against the Customer to the extent it is based on a claim that the Services or Software used within the scope of the this Agreement granted hereunder infringe a United States patent, copyright or other proprietary right of a third party. Winterface will pay any costs, damages or attorney fees finally awarded against the Customer in such action which are attributable to such claim, provided Winterface is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that the Services or Software becomes, or in Winterface's opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, Winterface may at its option either secure the Customer's right to continue using the Services or Software, replace or modify the Services or Software to make them not infringing, or provide the Customer with a refund of the subscription fees less any Credits and less depreciation on a five (5) year, straight-line basis. Winterface shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of the Services or Software in any form other than the original, unmodified form provided to the Customer or the use of a combination of the Services or Software with hardware, software or data not supplied by Winterface where the used Services or Softare alone in their original, unmodified form would not constitute an infringement. The foregoing states the Customer's entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.

10. Limitation of Liability

WINTERFACE'S LIABILITY TO THE CUSTOMER UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER LESS ANY CREDITS BY THE CUSTOMER TO WINTERFACE. IN NO EVENT SHALL WINTERFACE BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.

11. Notices

Winterface will provide the Customer with notices that affect the Services in general (e.g., notices that relate to modifications or updates) via email. Winterface will provide the Customer with any legal notices by pre-paid first class mail, air courier, or email to the mailing or email address specified in the Sales Order or to a substitute mailing or email address that the Customer has provided to Winterface for these purposes. The Customer is responsible for keeping its mailing and email address current with Winterface. Except as otherwise specified in this Agreement, all notices to be given to Winterface under this Agreement must be in writing and sent to Winterface by prepaid first class mail, air courier, or by email to the mailing or email address specified in the Sales Order. Notices sent electronically will be deemed received within one (1) business day of dispatch. Notices sent by prepaid first class mail will be deemed received within five (5) business days of dispatch. Notices sent by air courier or personally delivered will be deemed received upon delivery.

12. Governing Law/Forum

This Agreement shall be governed and interpreted by the laws of the Commonwealth of Massachusetts. Suffolk County, Massachusetts shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.

13. Publicity and References

Unless otherwise specified in the applicable Sales Order, Winterface may refer to the Customer as one of Winterface's customers and use the Customer's logo as part of such reference, provided that Winterface complies with any trademark usage requirements notified to it by the Customer. With the Customer's prior written approval, including if so specified in the applicable Sales Order, (A) Winterface may either (i) issue a press release announcing the relationship between Winterface and the Customer, or (b) submit a joint press release to the Customer for the Customer's approval, such approval not to be unreasonably withheld or delayed; and (ii) the Customer will be a reference account for the Winterface, provided, however, that the Winterface will provide the Customer with reasonable notice and obtain the Customer's consent before scheduling any reference calls or site visits.

14. Customer Third Party Applications

Critical functionality within the Services requires the acquisition and setup of certain Customer Third Party Applications. The Customer acknowledges and agrees that, in order to use the Services effectively, the Customer may be required to obtain rights to access such Customer Third Party Applications from their providers, and may be required to grant the Services access to the Customer's accounts on the Customer Third Party Applications. It is the Customer’s sole responsibility to obtain such rights and access.

If Customer enables a Customer Third Party Application for use with the Services, then Customer hereby grants Winterface permission to allow the Customer Third Party Application provider to access Customer Data to enable interoperability between the Customer Third Party Application and the Services. Winterface is not responsible for any disclosure, modification or deletion of data that results from or arises out of access by any Customer Third Party Application or its provider to the Services, except to the extent that such disclosure, modification or deletion results from a non-conformance by the Services with applicable instruction provided by Winterface.

If a Customer Third Party Application provider modifies a Customer Third Party Application so that it no longer interoperates with the Services, or imposes requirements on interoperability that Winterface determines are unreasonable for Winterface then, upon such notice to the Customer as Winterface determines reasonable in the circumstances, Winterface may, without liability to the Customer, cease or suspend its provision of interoperability between the Services and the affected Customer Third Party Application.

Winterface has no responsibility for the acquisition, development, implementation, operation, support, maintenance, or security of any Customer Third Party Applications.