WALKME BUSINESS AGREEMENT

Posted: May 9, 2016

This WalkMe Business Agreement (the “Agreement”) is between WalkMe, Inc., a Delaware corporation, with its principal place of business at 22 4th Street, San Francisco, CA 94103 (“WalkMe” “We” or “Us”) and the organization agreeing to these terms (“Customer” or “You”). This Agreement governs access to and use of the platform for creating, deploying, and using interactive on-screen engagement and guidance, described at walkme.com (the “Services”). BY SIGNING THIS AGREEMENT, EXECUTING ANY WALKME REGISTRATION AND ORDER FORM (“ORDER FORM”) THAT REFERENCES THIS AGREEMENT, OR USING THE SERVICES, YOU AGREE TO THIS AGREEMENT AS A CUSTOMER.

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 MAY NOT USE THE SERVICES.

  1. Services.
    1. Provision of Services. Customer and users of Customer’s Platform (“End Users”) may access and use the Services in accordance with this Agreement and any applicable Order Forms.
    2. Facilities and Data Processing. WalkMe will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that WalkMe may transfer, store, and access Customer Data in the United States and locations other than Customer’s country. “Customer Data” means Account Data, Configuration Data and Usage Data. “Account Data” means the account and contact information submitted to WalkMe by Customer. “Configuration Data” means the customer-specific guidance and engagement information and data created using the Services, in particular the WalkMe Editor. “Usage Data” means information regarding use of the Services by End Users.
    3. Modification to the Services. WalkMe may update the Services from time to time. If WalkMe changes the services in a manner that materially alters their functionality, WalkMe will inform Customer via the email address associated with the account.
    4. Software. Some Services allow Customer to download WalkMe software which may update automatically. Customer may use the software only to access the Services. If any component of the software is offered under an open source license, Company will make the license available to the Customer and the provisions of that license may expressly override some of the terms of this Agreement.
  2. Customer Obligations.
    1. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the applicable Order Forms. Unless otherwise specified a quantity in an Order Form refers to End Users and the Services may not be accessed by more than that number of End Users. If Customer exceeds a contractual usage limit, WalkMe may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding WalkMe’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon request from WalkMe.
    2. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify Company of any unauthorized use of or access to the Services.
    3. Restricted Uses. Customer will not: (i) use the Services for purposes other than the purposes explicitly set forth in this Agreement or the applicable Order Forms; (ii) copy or duplicate the Services; (iii) reverse engineer or de-compile, modify or revise, attempt to access the source code of the Services or any part thereof, or create derivative works thereof; (iv) transfer in whole or in part the right to use the Services or any part thereof; or (v) use the Services in any illegal manner or in any way that infringes any right of any third party including the rights in connection with privacy and intellectual property rights.
  3. Intellectual Property Rights.
    1. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) WalkMe any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services or WalkMe trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
    2. Suggestions. WalkMe may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send to WalkMe without any obligation to Customer.
    3. Customer Created Content. To remove any doubt, any content developed by Customer using the Services will be Customer’s property and not the property of WalkMe.
  4. Confidentiality.
    1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes, 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 part. Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
    2. Treatment and Use of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section.
    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
  5. Fees & Payment.
    1. Fees. Customer will pay all fees specified in any applicable Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and (iii) fees paid are non-refundable. Customer is responsible for providing complete and accurate billing and contact information to WalkMe.
    2. Taxes. WalkMe’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, 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, 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. For clarity, WalkMe is solely responsible for taxes assessable against it based on its income, property and employees.
  6. Term & Termination.
    1. This Agreement commences on the date Customer first accepts it and will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
    2. Termination for Breach. Either WalkMe or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
    3. Effects of Termination. If this Agreement terminates: (i) the rights granted by WalkMe to Customer will cease immediately (except as set forth in this section); (ii) WalkMe may provide Customer access to its account at then-current fees so that Customer may export its Configuration Data; and (iii) after a commercially reasonable period of time, WalkMe may delete any Customer Data. The following sections will survive expiration or termination of this Agreement: Section 3 (Intellectual Property Rights), Section 5 (Fees & Payment), Section 6(c) (Effects of Termination), Section 7 (Indemnification), Section 8(b) (Disclaimers), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous).
  7. Indemnification.
    1. By Customer. Customer will indemnify, defend, and hold harmless WalkMe from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against WalkMe and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
    2. By WalkMe. WalkMe will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent the claim is based on an allegation that WalkMe’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will WalkMe have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by WalkMe and (ii) any content, information, or data provided by Customer, End Users or other third parties.
    3. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE WALKME AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
  8. Representations, Warranties, Exclusive Remedies and Disclaimers.
    1. Representations. Each party represents that it has validly entered into this Agreement and has the legal authority to do so.
    2. Disclaimers. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR WALKME AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY CUSTOMER DATA.
  9. Limitation of Liability.
    1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR WALKME’S OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR WALKME AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (i) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (ii) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, WALKME’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
  10. Miscellaneous.
    1. Entire Agreement. This Agreement, including any applicable Order Form, constitutes the entire agreement between Customer and WalkMe with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: (1) the applicable Order Form, (2) the Agreement.
    2. Modifications. WalkMe may revise this Agreement from time to time and the most current version will always be posted on the WalkMe website. If a revision, in WalkMe’s sole discretion, is material, WalkMe will notify Customer (by, for example, sending an email to the email address associated with the applicable account). By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
    3. Governing Law and Jurisdiction. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES AND EACH PARTY AGREES TO THE EXCLUSIVE JURISDICTION OF THE COURTS IN SAN FRANCISCO, SAN FRANCISCO COUNTY, CALIFORNIA.
    4. Severability. 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.
    5. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to WalkMe must be sent to WalkMe, 22 4th Street, San Francisco, CA 94103, with a copy to the Legal Department.
    6. Waiver. 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.
    7. Assignment. 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); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
    8. Relationship of Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    9. Force Majeure. 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).
    10. No-Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.
    11. Export Restrictions. The Services and other technology WalkMe makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.