SAAS AGREEMENT – COMMERCIAL USE
This Software as a Service Agreement (the “Agreement“) is made between ________ (both the individual using the Service (defined below) described under this Agreement and/or otherwise using the Company’s platform in a SAAS model for creating interactive on-screen ‘Walk-Thrus’, known by the name WalkMe Platform, as described at www.walkme.com (the “Walkme Platform”), and any legal entity on whose behalf such individual is acting) (hereinafter: “You” or “Your” or “Customer“) and WalkMe Ltd., a company organized under the laws of Israel, with its principal place of business at 10 HaUmanin Street, Tel Aviv, Israel (“Company”). The aforementioned parties shall also be known collectively as “Parties” and individually as a “Party”.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING THE SERVICE, OR ANY PART THEREOF. THE WALKME PLATFORM IS COPYRIGHTED AND PROVIDED AS A SERVICE (NOT SOLD). TAKING ANY STEP TO USE AND/OR LOG-IN TO THE WALKME PLATFORM CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. YOUR USE OF THE WALKME PLATFORM IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SERVICE.
ALL USE OF THE WALKME PLATFORM SHALL BE SUBJECT TO THE FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER THE CORRESPONDING COMPANY ORDER FORM & AGREEMENT (“COMMERCIAL AGREEMENT”), ATTACHED AND INCORPORATED BY REFERENCE TO THIS AGREEMENT AS “EXHIBIT A”, WHICH YOU HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE THE SERVICE. THE TERMS AND CONDITIONS OF THE COMMERCIAL AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO THE COMMERCIAL AGREEMENT.
In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth opposite each one of them:
“Confidential Information” – means any proprietary information of either Party (“Disclosing Party”) disclosed to the other Party hereto (“Receiving Party”) including without limitation, information relating to either party’s products, technology, know-how, specifications, and concepts; as well as information of business and commercial nature, of either party, all in any form or medium whatsoever including in written, physical, digitalized, oral or visual form. “Confidential Information” does not include information that is: (a) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of negligence by the Receiving Party; (b) already known to the other Receiving Party prior to its receipt from the Disclosing Party, as evident by written records; (c) demonstrably independently developed at any time by the Receiving Party without use of the Confidential Information received hereunder; (d) rightfully obtained by the Receiving Party from other unrestricted sources, as evident by its written records; or (e) disclosed with the prior written permission of the Disclosing Party.
“Updates and New Version/s” – shall mean a modification to the Walkme Platform, which incorporates corrections of errors and/or which provides functional or performance improvements or enhancements. Updates and New Version are usually designated as a change in the version number to the right of the decimal point (from x.1 to x.2).
2. The Service
2.1. Under the terms of the Commercial Agreement the Company provides and sells subscriptions for customers right to access and use the Walkme Platform via Walkme.com or any other website specified by the Company (the “Service”)
2.2. Subject to the timely payment of applicable fees specified under the Commercial Agreement, and subject to the terms and conditions of this Agreement, Company hereby grants to Customer, a non-exclusive, non-transferable license for the term specified under the Commercial Agreement right to access and use the Service in connection with Customer’s own domains in the scope and manner specified under the Commercial Agreement.
2.3. Restrictions: Other than the rights expressly specified hereunder , no other rights or interest whatsoever in the Walkme Platform or the Service and/or any component thereof, are transferred or granted to Customer. Without limiting the foregoing, Customer may not: (i) use the Walkme Platform or the Service for purposes other than the purposes explicitly set forth hereunder; (ii) copy or duplicate the Walkme Platform (iii) reverse engineer or de-compile, modify or revise, attempt to access the source of the Walkme Platform or any part thereof, or create derivative works thereof; (iv) transfer in whole or in part the right to use the Service or any part thereof.
2.4. Third Party Software: Certain portions of software available with the WalkMe Platform (by way of example only – JQuery) may be subject to “open source” or “free software” licenses (“Third Party Software“). Such Third Party Software is not subject to the terms and conditions of this Agreement, but is made available under the terms and conditions of the terms that accompany such Third Party Software.
3.1. Scope: During the term of this Agreement, provided that the Customer pays the applicable annual support fees specified under the Commercial Agreement, if any, the Company shall provide support for the Walkme Platform as in the scope and manner specified under the Commercial Agreement (and to the extent referenced by the Commercial Agreement, the WalkMe Saas Service Level Agreement) (“Support Services”).
4. Services Fees
In consideration for the rights and services granted and/or to be provided under this Agreement, Customer shall pay to Company the fees specified under the Commercial Agreement in accordance with the payment and other terms specified thereunder.
5. Proprietary Rights.
Except with respect to Third Party Software (as defined above), Company owns and shall retain all rights, including all intellectual property rights, in and to the Walkme Platform and the Service, and any and all adaptations, modifications, enhancements, or improvements thereto, and in and to Company’s Confidential Information. To remove any doubt, any content developed by Customer using the Service will be the property of the Customer.
6. Indemnification Disclaimer of Warranty; Limitation of Liability.
6.1. Indemnification. Company shall defend, indemnify and hold harmless Customer, from and against any and all damage, cost and expenses (including reasonable attorneys’ fees) finally awarded by a competent court, which incurred as a result of any claim, suit or proceeding brought against any of them based on a claim that the Walkme Platform and/or the Service infringes upon intellectual property rights; provided that Customer has notified Company promptly in writing of such claim, and gave the Company the authority, information, and assistance (at Company’s expense) to control and handle the claim or the defense of any such suit, proceeding or settlement. The above indemnification shall be the sole remedy to which Customer shall be entitled in connection with the foregoing.
The foregoing in Section 6.1 shall not apply to the extent that the infringement arises: (i) from the use of the Service (or any component thereof) in a manner for which it was not intended or not authorized under this Agreement; or (ii) not in compliance with the documentation and specifications thereof.
6.2. Limitation of Liability. Except for claims of willful misconduct, gross negligence, or any breaches of section 7 (Confidentiality), in no event shall either party be liable to the other for any indirect, incidental, special, consequential, or punitive damages of any nature or kind whatsoever, including but not limited to lost profits, lost revenues, or loss of goodwill in connection with or arising out of this agreement, even if the other party has been advised of the possibility of such damages. In no event shall either party’s aggregate liability under this agreement exceed the aggregate fees actaually paid to Company hereunder during the 12 months period preceeding the respective applicable claim.
6.3. Disclaimer of Warranty. Customer acknowledges that to the extent at all permitted by the applicable law, the Company disclaims any and all warranties relating to the Walkme Platform and/or the Service and any related materials, whether express or implied, of merchantability and fitness for a particulary purpose.
7.1. Internal Disclosure: Each Receiving Party shall maintain the confidentiality and sensitive nature of the Disclosing Party’s Confidential Information and shall not disclose to any third party any Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its own personnel, agents and officers having a legitimate need-to-know regarding such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as the Confidential Information terms of this Agreement, and the Receiving Party shall use Confidential Information only if and as required for the purpose of this Agreement.
7.2. Safeguarding: The Receiving Party shall take all reasonable precautions necessary and appropriate to guard the confidentiality of the Confidential Information.
7.3. Expiration: The provisions of this Section7 shall survive the natural expiration or termination of this Agreement for any reason for a period of 3 (three) years thereafter.
8. Term and Termination
8.1. Effective Date: This Agreement shall come into force upon the most recent execution date on either Party’s signature block in the Commercial Agreement (“Effective Date”) and remain in force for the period specified under the Commercial Agreement, unless sooner terminated pursuant to the terms of this Agreement.
8.2. Material Breach: In case of a material breach of this Agreement by either Party not remedied within fifteen (15) days from the other Party’s notice thereof, or in case either Party should become bankrupt or insolvent and such event has not been challenged within sixty (60) days of filing, the other Party shall have the right to terminate this Agreement upon written notice with immediate effect. A “material breach” shall include: (a) any failures by Customer to pay any amounts due; (b) any failure by Company to provide technical support, response and maintenance as required by this Agreement and the WalkMe Saas Service Level Agreement attached to this Agreement as “Exhibit B”, breaches of Third Party Software, and any failures or decreases in performance in Customer’s software due to the Walkme Platform; and (c) breaches by either Party of Sections 2.3, and 7.
8.3. Effects of Termination: In any event of termination of this Agreement by either Party:
(a) All rights granted hereunder shall immediately expire and any and all use and/or exploitation by Customer and/or on its behalf of the Service, and any part thereof, shall immediately cease and expire.
(b) 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 Sections 5, 6.2, 6.3 and 7.
9.1. Notice: Any notice required or permitted to be given by either Party under this Agreement shall be in writing and may be delivered by courier, sent by registered letter, telefacsimile or electronic mail and shall be effective upon receipt or, if sent by email, upon proof of being sent. When the notice is sent by telefacsimile or electronic mail, the sender shall confirm the notice by also sending the notice by courier or registered letter.
9.2. Assignment: Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Notwithstanding the above, such consent shall not be required, 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.
9.3. Dispute Resolution: This Agreement and any disputes arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its conflict of law principles. Any such dispute shall be resolved exclusively in the courts of the State of Delaware. Both Parties agree to submit to the personal jurisdiction and venue of the courts of the State of Delaware for any legal proceding involving the Walkme Platform and this Agreement, regardless of who initiated the proceeding.
9.4. Survivability: If any clause or provision set forth in this Agreement is determined to be illegal, invalid, or unenforceable under present or future law, the clause or provision shall be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions.
9.5. Entirety of Agreement: This Agreement and any attachments hereto, constitute the entire agreement between the Parties as to the subject matter hereof, and supercedes all prior and/or contemporaneous agreements, representations, and understandings between them, whether oral or in writing. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent.
WALKME LTD. Customer
Signature: __________________ Signature: _______________
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