Last Revised: July 2023
THIS MASTER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) BETWEEN THE WALKME LEGAL ENTITY SIGNING AN ORDERING DOCUMENT AND ITS AFFILIATES (COLLECTIVELY, “WALKME”, “COMPANY”, “WE” OR “US”) AND THE LEGAL ENTITY ORDERING THE SERVICES UNDER AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT (“CUSTOMER” OR “YOU” AND TOGETHER WITH WALKME, THE “PARTIES”) GOVERNS CUSTOMER’S ACCESS AND USE OF WALKME SERVICES.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT CONNECT, ACCESS OR USE THE SERVICES IN ANY MANNER.
BY ACCEPTING THIS TERMS OF THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.
This Agreement is effective between Customer and WalkMe as of the date Customer accepts this Agreement by executing an Ordering Document that incorporates this Agreement (the “Effective Date”).
WalkMe has developed, and owns, Digital Adoption Platforms that provide guidance and engagement tools, analytics, and automation for third-party and customer developed web, mobile, and desktop applications, thereby simplifying and improving customer and employee experiences and increasing user engagement; such solutions are provided to customers on a software as a service basis (the “Subscription Services”); and
This Agreement governs the Parties’ relationship in connection with the WalkMe’s Services (as defined below) provided to Customer and its End Users’ (as defined below) access to, and usage of, the Services.
Affiliate means an entity owned by, controlling, controlled by, or under common control with, directly or indirectly with a Party. For the purposes of this Agreement, “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interest of such entity or party.
Content means content created by or for Customer using WalkMe Content Creation Tools, including but not limited to Smart Walk-Thrus, ShoutOuts, SmartTips and any HTML content.
End User means, in the case of “WalkMe For Employees”, any employee or contractor of Customer and any permitted Affiliates. In the case of “WalkMe for Customers” End User means any user of websites, systems, and/or software
applications distributed or made available by Customer, and any permitted Affiliates, to their customers.
Ordering Document means an order form, statement of work, amendment or exhibit to this Agreement, or other document executed by the Parties whereby Customer orders WalkMe Services.
Permitted Number refers to the number of End Users for which Customer has purchased licenses to make the WalkMe Experience Technology available for use. The Permitted Number shall be set forth in an Ordering Document.
Permitted Target Applications
In the case of “WalkMe for Employees” Permitted Target Applications means any internal, third-party or Customer developed, software application that may be named in an Ordering Document and/or identified by a URL.
In the case of “WalkMe for Customers” Permitted Target Applications means any external facing website or software application distributed or made available to Customer’s customers.
Service/s means, collectively, the Subscription Services, WalkMe Customer Service, and/or WalkMe Professional Services as specified and defined in an applicable Ordering Document.
Session – means, in the case of WalkMe for Employees, making available a deployment of the WalkMe Experience Technology for use by an employee or contractor of Customer when there is not a UUID assigned to such employee or
contractor, in which case WalkMe will track such Session by generating a random identifier that will be stored on the local device (through the extension or local storage). Customer acknowledges and agrees that use of random identifier and tracking per Session is less precise than WalkMe’s recommended approach of tracking via UUID and may result in both higher license reporting (resulting in higher required Fees) and may degrade the quality of the data generated by WalkMe’s analytics tools.
UUID means a unique user identification assigned to a particular employee or contractor of Customer, by an administrator of Customer via the WalkMe Console and in accordance with the WalkMe System Requirements.
WalkMe Content Creation Tools – means that portion of the WalkMe technology (such as the Editor and Console) which enables the creation of Content as well as the publishing of such Content for display to End Users via the WalkMe Experience Technology.
WalkMe Experience Technology – refers to any Customer deployment of that WalkMe technology (including but not limited to the WalkMe Snippet, the WalkMe Browser Extension, WalkMe Workstation, the WalkMe Experience Module, and/or WalkMe Mobile) which, when made available for use to End Users, enables End Users to view, consume, be presented with, or otherwise access and engage with Content.
1. General; Affiliates
1.1 Customer will subscribe to the WalkMe Service/s by executing an Ordering Document which shall specify: (i) the period in which Customer may deploy, access, or otherwise use the Services (“Subscription Term”); (ii) the applicable WalkMe solution to which Customer subscribes (such as “WalkMe for Employees” and/or “WalkMe for Customers”) including the version of each solution (such as for web, mobile or desktop); (iii) the Permitted Target Applications upon which the Subscription Services may be deployed and made available to End Users; (iv) the fees to be paid by Customer; (v) where applicable – certain usage limits (such as the Permitted Number of End Users to whom the Service can be made available on a monthly basis); (vi) where applicable – the provision of Professional Services (as defined below); (vii) where applicable –
Customer’s participation in WalkMe’s Digital Adoption Institute and Training Programs; and (viii) any other subscription terms that may be agreed upon by the Parties. Upon expiration of an applicable subscription period, the applicable
Ordering Document shall automatically be renewed or replaced by a new Ordering Document subject to the terms defined therein.
Each Ordering Document executed by the Parties is governed by this Agreement and is subject thereto.
1.2.1 Pursuant to the rights granted to Customer under this Agreement, Customer may permit its Affiliates (as defined below), to access and use the Subscription Services in accordance with this Agreement provided, however, that Customer
shall be responsible for, and liable to, WalkMe for the acts and omissions of any such Affiliate and its End Users to the extent any such acts and omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to
liability to Customer under the Agreement. For the sake of simplicity, the term Customer when used herein shall include Affiliates as permitted by this Section.
1.2.2. If a Customer Affiliate directly subscribes to the Subscription Services, that Affiliate may enter into an Ordering Document directly with WalkMe. Such Ordering Document shall be subject to the terms and conditions of this Agreement. In such instances, each Customer Affiliate shall be liable to WalkMe for its use of the Subscription Services in compliance with this Agreement. Where a Customer’s Affiliate and WalkMe’s Affiliate enter into an Ordering Document, then references to “WalkMe” in this Agreement shall mean and be read as references to that specific WalkMe’s Affiliate that is party to that relevant Ordering Document, and the references to “Customer” in this Agreement shall mean and be read as references to that specific Customer’s Affiliate which is party to that relevant Ordering Document.
2. License Grant and Restrictions.
2.1. General. Except as otherwise specified below, in an Ordering Document, or Product Description referenced therein, and subject to the terms and conditions of this Agreement and an applicable Ordering Document, WalkMe grants to Customer a revocable, non-exclusive, non-transferable, non-sub-licensable, limited right to access, use, and deploy on Permitted Target Applications and to all End Users the Subscription Services including the WalkMe Core Platform during the applicable Subscription Term.
2.2.1. WalkMe Experience Technology – Customer may only make the WalkMe Experience Technology available for use up to the Permitted Number of End Users and only on Permitted Target Applications as set forth in an Ordering Document.
2.2.2. WalkMe Advanced Modules – Customer must obtain, a separate license for an additional Fee, in order to access, use, and where applicable, make available for use by End Users, the WalkMe Advanced Modules (which include but are not limited to Enterprise Analytics, Customization & Collaboration, Connected Workplace, and Enterprise Security). Customer may only utilize Advanced Modules, including any data derived therefrom, on Permitted Target Applications and up to the Permitted Number of End Users unless otherwise specified on an Ordering Document.
2.2.3. WalkMe Essentials – If Customer orders WalkMe Essentials, then Customer is permitted to make available for use the WalkMe Experience Technology only with respect to the following Permitted Target Applications: Workday, Salesforce, Microsoft Dynamics, and SAP Success Factors and up to the Permitted Number of End Users. Customer may only make available the pre-built workflow templates provided by WalkMe up to the Permitted Number of End Users. Additionally, Customer may access and use the WalkMe Content Creation Tools only to configure the pre-built workflow templates included with Essentials and/or for testing purposes. Customer may not use the WalkMe Content Creation Tools for any other purpose. Any non-permitted use by Customer will result in an automatic upgrade from Essentials to Core Platform, and Customer agrees to pay additional amounts due for such upgrade based on WalkMe’s then standard pricing.
2.2.4. WalkMe For Customers – If Customer orders WalkMe for Customers, then, additional rights and restrictions shall be set forth in and Ordering Document.
2.3. Additional Usage Restrictions. Other than the rights expressly specified in this Agreement and in an applicable Ordering Document, WalkMe reserves all rights in its Services and no other right or interest whatsoever is granted to Customer in connection with the Service or to the solutions to which it provides access. Without limiting the foregoing, Customer may not: (i) use the Service for purposes other than the purposes for which it is intended as defined in this Agreement and/or the applicable Ordering Document; (ii) rent, lease, lend, sell, sublicense, assign, distribute, or transfer in whole or in part the right to use the Service or any part thereof; (iii) bypass or breach any security device or protection used by the Service; (iv) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or
injurious, or that contain, transmit, or activate any harmful code; (v) use the Service in any illegal manner or in any way that infringes the right of any third party; or (vi) allow any third-party, including any vendor of Customer, to access the Subscriptions Services. In addition, in the event the Ordering Document limits the usage to a certain number of End Users, Customer shall ensure that the quantity of End Users who may access and use (“Active Use”) the Service in any given calendar month, will not exceed the quantity set forth in the Ordering Document.
2.4. Use Verification. Customer is solely responsible for its compliance with the access and use rights and limitations identified in this Agreement and on the applicable Ordering Document. From time to time, WalkMe may remotely review
the scope of Customer’s use of the Subscription Services, and on WalkMe’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement with respect to access to and use of the Subscription Services. If WalkMe reasonably determines that Customer has exceeded its Permitted Number of End Users, Target Applications, and/or any other access and use rights outside the scope of the ordered Subscription Services
(“Overage”), WalkMe will notify Customer and Customer will, within thirty (30) days, purchase additional subscriptions commensurate with Customers actual usage as identified on the applicable Ordering Document.
3. The Provision of the Service
The Service shall be provided in accordance with the terms of the Service Level Agreement, as attached to the applicable Ordering Document (“SLA”), and WalkMe shall comply with the performance, uptime and service levels defined therein. The SLA also sets forth the customer support services corresponding to the applicable support level purchased by Customer.
4. Professional Services
If an applicable Ordering Document includes the provision of certain professional services (which typically include implementation, training with respect of the use of the Service, or assistance in creating Outputs (as defined below)) (“Professional Services”), the Professional Services shall be provided remotely (and not at Customer’s site), unless otherwise agreed in writing between the Parties. Professional Services provided to Customer hereunder shall not constitute works for hire.
5. Consideration; Taxes
5.1 Consideration. Customer agrees to timely pay all Fees due for the Service/s, as specified in an applicable Ordering Document. Such fees constitute Customer’s consideration under this Agreement. To the extent Customer is entering into a
multi-year term, Customer acknowledges and agrees that, its multi-year commitment is of the essence to WalkMe as a SaaS provider, and WalkMe has extended pricing based on this commitment.
5.2 Obligation to Timely Pay Fees. Except as otherwise specified herein or in an Ordering Document: (i) the Fees for the Subscription Services are based on the Permitted Number of End User licenses purchased by Customer as well as the
Permitted Target Applications purchased by Customer; (ii) Fees paid are non-refundable; (iii) Services ordered under an applicable Ordering Document and their respective payment obligations are non-cancelable; and (iv) Customer’s obligation to pay Fees are not contingent upon WalkMe’s acceptance or adherence to a third party payment services terms and conditions and such terms and conditions shall have no force or effect on this Agreement. Customer’s obligation to pay the Fees set forth in an Ordering Document is not conditioned upon whether Customer actually deploys or makes the Subscription Services available to End Users nor upon whether the Permitted Number of End Users actually use the Subscription Services. Actual usage of the Subscription Services is relevant only for purposes of determining whether Customer has exceeded the Permitted Number and for calculating any additional Fees that may be due. For any Fees that are not reasonably disputed by Customer and remain unpaid for at least thirty (30) days past the applicable payment date, WalkMe reserves the right to impose late fees equal to the lesser of (a) 1.5% of the unpaid balance per month, or (b) the highest rate permitted by applicable law, determined and compounded daily from the date due until the date paid (“Late Fees”). Customer will reimburse all reasonable and necessary costs or expenses (including without limitation collections and attorneys’ fees) incurred by WalkMe to collect any amount that is not paid when due. Fees due from Customer under this Agreement may not be withheld or offset by Customer against other amounts due to Customer for any reason. If Customer fails to timely pay any Fees due under this Agreement, WalkMe may, without limiting any of its other rights or remedies, refer Customer’s account to a third-party collections agency, report delinquent Fees to credit reporting agencies, suspend performance of any or all Services, and/or terminate the applicable Ordering Document and/or this Agreement.
5.3 Notwithstanding Section 5.2 (ii), in an event of termination for cause according to Section 12.2. below, due to a material uncured breach by WalkMe, the foregoing shall not apply to amounts paid for the Service in advance, but which are unused on the date of termination (calculated on a pro-rata basis of the balance period between the termination date and the original term of the applicable Ordering Document), which shall be refundable.
5.4 Calculating the Permitted Number of End Users.
5.4.1 WalkMe for Employees – Compliance with this Agreement shall be determined based on the actual number of Target Applications and unique users (counted by the UUID required by Section 10.2 below) for whom the WalkMe Experience Technology was deployed and made available for use, as monitored by WalkMe on a daily basis. If at any point that number is found to be greater than the Permitted Number, then Customer is out of compliance with the terms of this Agreement and will owe additional fees. If that number is found to be lower than the Permitted Number, then Customer remains obligated to pay all fees due because Customer’s obligation is not dependent upon actual usage. In the case where Customer has not complied with the System Requirements and has not implemented UUIDs, then the Permitted Number will be calculated on a per Session basis.
5.4.2 WalkMe For Customers. If Customer orders WalkMe for Customers, then the calculation for Permitted Number of End Users shall be detailed in an Ordering Document.
5.5 Invoicing. Customer is responsible for providing complete and accurate billing and contact information to WalkMe.
5.6 Taxes. WalkMe’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If WalkMe has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5, WalkMe will invoice Customer and Customer will pay that amount unless Customer provides WalkMe with a valid tax exemption certificate authorized by the appropriate taxing authority. To the extent Customer is required by law to withhold income-based taxes based upon the fees hereunder, Customer will deduct such tax from the fees payable to WalkMe and remit them to the appropriate government authorities; provided that Customer sends WalkMe a receipt showing the payment of such Tax, and provides WalkMe with reasonable support and with sufficient evidence to enable WalkMe to obtain any credits available to it. For clarity, WalkMe is solely responsible for Taxes assessable against it based on its income, property and employees.
6. Privacy and Data Protection; Security
6.1. Purpose and subject matter of WalkMe’s Data Processing. Solely to the extent necessary for the provision of the Service to the Customer (as described in detail in the DPA referred below), WalkMe (in its capacity as Data Processor) may from time to time be provided with, or have access to, information of Customer (in its capacity as Data Controller), which may qualify as Personal Data (as these terms are defined in the DPA).
For the purpose of this Agreement and any applicable Ordering Document, Parties’ rights and obligations with respect to the data processing activities shall be subject to the Data Processing Agreement (“DPA”) available at:
6.2. Customer Undertakings. Customer shall be solely responsible for obtaining all consents and authorizations as may be required by any applicable law, for the collection, storage and processing of information and/or sensitive information by WalkMe according to Customer’s instructions.
6.3. Security. WalkMe complies with security standards, such as encryption of data in motion over public networks and auditing standards (such as SOC 2 and ISO 27001:2013). Furthermore, Customer’s information is stored with logical separation from information of other customers. In addition, WalkMe shall have in place and shall comply with documented written policies and procedures, periodically reviewed, covering the administrative, physical and technical safeguards in place and relevant to the access, use, loss, alteration, disclosure, storage, destruction and control of information. Such policies and procedures will include encryption of data, virus detection and firewall utilization.
7. Proprietary Rights
7.1. WalkMe’s Rights. WalkMe owns and shall retain all right, title, and interest, including Intellectual Property Rights (as defined below), in and to the Service and the solutions provided thereby, and all the underlying software and technology, all as may be updated, improved, modified or enhanced from time to time; and further – in and to the brand names, logos and trademarks related to the foregoing. In addition, subject to Customer’s ownership rights pursuant to Section 7.2 below, WalkMe owns and shall retain all rights, including Intellectual Property Rights in and to the Outputs of the Service, generated by WalkMe, including the content created by WalkMe and the default designs and “look and feel” thereof.
For the purpose of this Agreement, “Intellectual Property Rights” means any and all intellectual property rights, whether registered or not, worldwide including, without limitation, all the following: (i) copyrights, including moral rights, registrations and applications for registration thereof; (ii) computer software programs, data and documentation; (iii) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; and (iv) trademarks, trademark applications, domain names, trade secrets and
Confidential Information (as defined below).
“Outputs” mean the interactive on-line guidance indicators deployed by the Service, to provide guidance and assistance to End Users in acting and reacting (including by progressing through a process) within an applicable digital platform or application.
7.2. Customer Ownership. Customer owns and shall retain all right title and interest in and to the Content (as defined above) which is (i) provided by Customer to WalkMe for the purpose of the provision of the Service and/or the Professional Services; (ii) created by Customer using the Service; and/or (iii) to the extent applicable, created by WalkMe specifically for Customer under the provision of Professional Services, and which incorporates or is based on Customer’s copyrighted work and/or Customer’s Confidential Information or other Customer Content according to sub-sections (i) and (ii) above. Customer Content specifically excludes Content provided by WalkMe which does not use Customer Content, the Outputs’ “look and feel”, and WalkMe’s Confidential Information and Intellectual Property.
7.3. Customer hereby grants to WalkMe and its affiliates a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use the Customer Content solely for the purpose of providing the Service to Customer pursuant to this Agreement and the applicable Ordering Document during the applicable Subscription Term.
7.4. Feedback. WalkMe may, at its discretion and for any purpose, freely use, modify, and incorporate into its Service any feedback, comments, or suggestions provided by Customer or End Users (other than Customer Content), if any, without any additional obligation of WalkMe to Customer or the applicable End Users.
8.1. Representations. WalkMe represents and warrants to Customer that (i) during the term of each applicable Ordering Document, the Subscription Services will substantially conform to the specifications as set forth in such Ordering Document, and shall be provided in accordance with the applicable SLA; and (ii) the Professional Services performed by or on behalf of WalkMe under this Agreement will be performed in a professional and workmanlike manner and by personnel that has the necessary skills, training and background to perform such Services.
8.2. Exclusive Warranty. THE WARRANTIES CONTAINED IN THIS SECTION 8 ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING BY A COURSE OF DEALING OR USAGE OF TRADE. WALKME EXPRESSLY DISCLAIMS ANY WARRANTIES REGARDING THE ACCURACY OF INFORMATIONAL CONTENT AND ANALYTICAL DATA, SYSTEMS INTEGRATION, NON-INTERFERENCE WITH ENJOYMENT OR OTHERWISE, NOR THAT THE OPERATION OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. WALKME MAKES NO WARRANTY REGARDING ANY NON-WALKME SERVICE OR SOFTWARE WITH WHICH THE WALKME SUBSCRIPTION SERVICES MAY INTEROPERATE. THIS SECTION DOES NOT LIMIT, AND IS WITHOUT PREJUDICE TO, THE PROVISIONS OF SECTION 11 BELOW.
9. Indemnification by WalkMe
9.1. Indemnification obligation. WalkMe will defend Customer from and against any claim by a third party against Customer to the extent the claim is based on an allegation that the Service or the solution provided by it, infringes upon, or misappropriates, any Intellectual Property Rights of a third party (“Infringement Claim”), and shall indemnify Customer against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) awarded by a competent court, arbitrator/s, or in a settlement, as a result of such claim by a third party; provided that (i) Customer has notified WalkMe promptly in writing of such claim; (ii) Customer has provided WalkMe with the authority to control and handle the claim including the defense and settlement of such claim; and (iii) Customer provides to WalkMe all information and assistance (at WalkMe’s expense) as may be required for that purpose.
9.2. Exclusions. In no event will WalkMe have any obligation or liability under this Section 9 arising from: (i) use of any Service in a modified form or in combination with materials not furnished by WalkMe; (ii) any Customer Content (iii) any failure by Customer to comply with Customer’s responsibilities under this Agreement; and (iv) use by WalkMe of any equipment provided by Customer and per Customer’s instructions, for the provision of the Professional Services.
9.3. Remedial Actions. In the event that the Service or any part thereof is likely to, in WalkMe’s sole opinion, or does become the subject of an Infringement Claim, WalkMe may, at its option and expense: (i) procure for Customer the right to continue using the Service (including the allegedly infringing portion/item); (ii) substitute a functionally equivalent non- infringing replacement for such allegedly infringing portion of the Service or otherwise modify it to make it non-infringing and functionally equivalent; or (iii) terminate the Agreement and any outstanding Ordering Document and refund to Customer fees paid to WalkMe for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Service due to such Infringement Claim and the remaining days in the current subscription term.
9.4. Sole Remedy. Without derogating from the provisions of Section 11 below, this Section 9 sets forth the exclusive and entire remedy of Customer with respect to any Infringement Claims.
10. Customer’s Responsibilities
10.1 General. In addition to any other undertaking or responsibility of Customer as set forth in this Agreement, any applicable Ordering Document, SLA or an exhibit hereto or thereto, Customer shall be solely responsible and liable for, and in connection with: (i) the manner in which Customer and the End Users use the Service (ii) Customer Content, including without limitation Customer’s rights to use such Content in connection with the Service; (iii) information, data or other
Content provided by End Users; and/or (iv) compliance by Customer with any and all applicable laws and with third parties’ rights in connection with the foregoing.
10.2 System Requirements. As a condition of this Agreement, Customer agrees to comply with any System or other Technical Requirements provided by WalkMe, as may be updated from time to time, including with regard to Customer’s implementation of a UUID as further explained here: Implementing UUIDs. Customer agrees to set a UUID for each Permitted Target Application and acknowledges that this step is necessary in order to receive the full benefits the Subscription Services, such as accurate analytics, and in order for WalkMe to accurately count the number of End Users for compliance purposes.
10.3 Segmentation. Customer agrees to take all necessary steps to segment its End Users to ensure that the WalkMe Experience Technology is made available only up to the Permitted Number of End Users as set forth in an Ordering Document. This requirement includes deactivating End Users no longer employed by Customer.
10.4 Assistance. Customer shall promptly provide all reasonably requested information and assistance to WalkMe to enable WalkMe to implement and provide access to the Subscription Service. Customer acknowledges that WalkMe’ ability to implement and provide the Subscription Service in the manner and timing provided in this Agreement and any Ordering Document is dependent upon the accuracy and timeliness of Customer’s information and assistance. If any Ordering Document or Statement of Work contains implementation or delivery dates, such dates are contingent upon Customer’s assistance as required in this section. Accordingly, if WalkMe’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, third party vendors (other than WalkMe), or employees, (“Customer Delay”) WalkMe shall not be deemed in breach of its obligations under this Agreement or otherwise be liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from Customer Delay. A Customer Delay does not terminate, suspend, or delay Customer’s obligation to pay any Fees otherwise due under this Agreement.
11. Limitation of Liability
11.1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR (i) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (ii) FOR LOSS OF USE, BUSINESS, REVENUES, OR PROFITS; IN EACH CASE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, WALKME’S LIABILITY IN CONNECTION WITH ITS IP INDEMNITY OBLIGATIONS UNDER SECTION 9, CUSTOMER’S (A) BREACH OF SECTION 7 (PROPRIETARY RIGHTS) AND (B) INDEMNITY OBLIGATIONS UNDER SECTION 15.4 (EXPORT RESTRICTIONS) OR AS SET FORTH BELOW IN THIS SECTION 11.2, A PARTY’S AGGREGATE LIABILITY UNDER EACH ORDERING DOCUMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE ORDERING DOCUMENT, AND A PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
NOTWITHSTANDING THE ABOVE, WALKME’S LIABILITY FOR BREACH OF ITS PRIVACY AND DATA PROTECTION OBLIGATIONS UNDER SECTION 6 – SHALL BE LIMITED TO THREE TIMES (3X) THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, PROVIDED HOWEVER, THAT A FINE OR CHARGE SET BY A REGULATORY AUTHORITY ACCORDING TO LAW FOR, OR DUE SOLELY TO, BREACH BY WALKME OF DATA PROTECTION AND SECURITY OBLIGATIONS SHALL BE BORNE BY WALKME REGARDLESS OF THE CAP ON LIABILITY.
12. Term, Termination and Suspension of Service
12.1. Term. This Agreement commences on the Effective Date and will remain in effect for so long as Customer has an applicable Ordering Document in effect, unless otherwise terminated in accordance with the provisions herein.
12.2. Termination. Either WalkMe or Customer may terminate this Agreement and any Ordering Document thereunder, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within sixty (60) days after receipt of formal written notice reasonably describing in sufficient detail the nature of the breach; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
12.3. Effects of Termination. In any event of termination of this Agreement by either Party:
12.3.1. All rights granted hereunder shall immediately expire and any and all use and/or exploitation by Customer and/or on its behalf of the Services, and any part thereof, shall immediately cease and expire.
12.3.2. WalkMe shall have no obligation to continue provide the applicable Service(s) after the effective date of the termination; except WalkMe shall provide Customer access to its account, at no additional fees, for a period of thirty (30) days following termination or expiration of the Agreement, for the sole purpose of exporting any stored Content.
12.3.3. Provisions contained in this Agreement that are expressed or by their sense and context are intended to survive the termination of this Agreement shall so survive the termination, including without limitation Section 5 (Consideration due for the period prior to termination), Section 6 (Privacy, with respect to the period prior to termination) and Sections 7 through 15 (inclusive).
12.3.4. If a Service, Ordering Document, or Statement of Work, is terminated by WalkMe due to Customer’s uncured material breach (including untimely payment of Fees) the total remaining Fees for Subscription Services for the remainder of the then current Term shall immediately become due and payable to WalkMe upon the effective date of termination.
12.4. Suspension of Service. WalkMe reserves the right to monitor the use of the Service for security purposes. WalkMe may suspend or otherwise deny Customer’s or any other person’s access to or use of all or any part of the Services for security reasons if WalkMe believes, in its reasonable discretion, that any third party has gained unauthorized access to any portion of the Subscription Services using any credential issued by WalkMe to Customer or its End Users.
13.1. For the purpose of this Agreement, “Confidential Information” means any non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), that is designated in writing as confidential or if disclosed orally – is reduced to writing and titled as “confidential” within 15 days following the disclosure and sharing with the Receiving Party, or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Confidential Information shall include, but is not limited to, technological information such as know-how, software, data, programs, inventions, ideas, processes, formulas, developments, designs, materials, business information such as marketing and selling, budgets, prices and costs, information about the Disclosing Party’s employees, affiliates, suppliers and customers, and trade secrets. Confidential Information does not include information that is: (i) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of breach or negligence by the Receiving Party; (ii) already known by the Receiving Party prior to its receipt from the Disclosing Party; (iii) independently developed at any time by the Receiving Party without use of or reference to Confidential Information; (iv) rightfully obtained by the Receiving Party from other unrestricted sources.
13.2. Protection of Confidential Information. All Confidential Information delivered, made available or otherwise acquired pursuant to this Agreement shall (i) not be copied, distributed, disseminated or made available in any way or form by Receiving Party without the prior written consent of the Disclosing Party; (ii) be maintained in confidence using the same degree of care that the Receiving Party takes to protect its own confidential information, but in no event less than reasonable care; (iii) may only be disclosed to those employees, contractors and/or service providers of Receiving Party who have a need to know in connection with purposes consistent with this Agreement, and who are bound by a written obligation of confidentiality no less restrictive as those set forth herein; and (iv) shall not be used by Receiving Party for any purpose, except for the purposes of this Agreement, without the prior written consent of the Disclosing Party. For the avoidance of doubt, Confidential Information including personal information collected through the use of the Services shall be used, collected, retained, processed and deleted in accordance with the provisions of Section 6 above.
13.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
13.4. Expiration. The provisions of this Section 13 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years or for seven (7) years following their disclosure, whichever is earlier.
14.1. Company Name/Logo. WalkMe may use Customer’s name and/logo to identify Customer as a WalkMe customer of the Service, including without limitation, on WalkMe’s public website and marketing materials. Any such use shall be subject to WalkMe’s compliance with any written guidelines that Customer may deliver to WalkMe regarding the use thereof. Customer hereby grants WalkMe a non-exclusive, worldwide, royalty free and fully paid upright and license to utilize its name, logo, trade-marks and trade names for the purposes set forth above.
14.2. Reference. Customer agrees to serve as reference customer for prospective customers, investors, media or analysts of WalkMe and make appropriate representatives available via telephone for such purposes.
14.3. Case Study. Customer agrees to assign an appropriate representative to create a mutually agreed upon written customer case study and/or video testimonial that may be published and used as WalkMe marketing collateral.
14.4. Press Release. Upon request, Customer agrees to participate in a joint and mutually agreed upon press release.
15.1. Entire Agreement. This Agreement, including all exhibits hereto and all applicable Ordering Documents, constitute the entire agreement between Customer and WalkMe with respect to the subject matter of this Agreement and supersede and replace any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement, including previous non-disclosure agreements between the Parties.
15.2. Assignment; Change of Control.
15.2.1. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent, not to be unreasonably withheld; such consent shall not, however, be required, in connection with an assignment to an affiliate or to a successor in interest in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this Agreement agrees in writing to be bound by this Agreement and by the terms of any outstanding Ordering Document.
15.2.2. In any event of an assignment by a Party to this Agreement, or of any other form of Change of Control, the assigning Party or the Party undergoing a Change of control, as applicable, will notify the other Party in writing immediately upon the consummation of such event (“Assignment Notice”). For the purpose hereof a “Change of Control” means that a Party that has undergone a change of control transaction, such that the holders of such Party owning more than 50% of the voting power immediately prior to such transaction, will, immediately after such transaction, own less than 50% of the voting power of the surviving or acquiring entity.
15.3. Governing Law and Jurisdiction. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, including its exhibits, the Order Forms and SOWs, and the courts that have jurisdiction over any such dispute or lawsuit, depend on the WalkMe entity entering into this Agreement as detailed below.
|WalkMe Entity||Governing Law is:||Courts with exclusive jurisdiction are:|
|WalkMe, Inc.||California||San Francisco, California|
|WalkMe LTD.||Israel||Tel Aviv, Israel|
|WalkMe Australia PTY Ltd||New South Wales||Sydney, Australia|
|WalkMe UK Limited||England and Wales||London, England|
|WalkMe Canada Ltd.||Ontario||Toronto, Canada|
|WalkMe Singapore PTE LTD.||Singapore||Singapore, Singapore|
|WalkMe, K.K.||Japan||Tokyo District Court, Japan.|
15.4. Export Restrictions. Customer acknowledges and agrees that its use of the Services, and the use of the Services by End Users, is subject to compliance with United States and other applicable country export control and trade sanctions laws and regulations, including, without limitations the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury (“Export Control and Sanctions Laws”). Customer shall be solely responsible for complying with the Export Control and Sanctions Laws and monitoring any modifications to them. Customer represents and warrants that (i) Customer is not located in, operating from, established under the laws of, or otherwise ordinarily resident in Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine (the “Sanctioned Countries”); (ii) Customer is not identified on any list of prohibited or restricted parties (including, without limitation, the U.S. Treasury Department’s List of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List, Entity List, and Unverified List, and the U.S. Department of State’s proliferation-related lists) (a “Prohibited Person”); (iii) Customer is not otherwise the target of U.S. sanctions or U.S. trade restrictions; and (iv) Customer will not export, reexport, transfer, or allow access to the Services to any parties, including End Users, in Sanctioned Countries or Prohibited Persons or otherwise in violation of Export Control and Sanctions Laws.
Notwithstanding anything in this Agreement to the contrary, if Customer fails to comply with any provision of this section of the Agreement or violates any Export Control and Sanctions Laws in connection with the Services, WalkMe shall have the right unilaterally to terminate this Agreement immediately or to take other appropriate action in accordance with the terms of this Agreement and as required by U.S. law. Further, Customer will fully indemnify and hold harmless WalkMe and its representatives against any claim, action, damages, fines, liabilities, expenses (including attorney’s fees and expenses), and costs relating in any way to Customer’ s noncompliance with this section, including Customer’ s violation or alleged violation of any Export Control and Sanctions Laws.
15.5. Other Provisions. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be delivered by courier, sent by registered letter, and shall be effective upon receipt or, if sent by email, upon proof of being sent. Any notice to either Party shall be sent to the contact information listed in the applicable Ordering Document, except all notices of a material breach sent by Customer shall be sent to the WalkMe Office of the General Counsel at 71 Stevenson Street, 20th Floor, San Francisco, CA 94105 with a copy sent via email to [email protected].
No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (i) constitute waiver of such term, condition or obligation; (ii) preclude such Party from requiring performance by the other Party at any later time; or (iii) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
In any event of a conflict or inconsistency between the terms herein and the terms of the Ordering Document, the terms of the Ordering Document shall prevail. Any additional or conflicting terms contained in purchase orders issued by Customer with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Ordering Document.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.
Except for payment obligations, neither WalkMe nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). Except to the extent required by applicable law, there are no third-party beneficiaries under this Agreement.