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This Master Subscription Agreement (the “MSA”) shall govern the provision of Services by Wingspan networks, inc., a Delaware corporation (“Wingspan” or “Licensor”) to the Client identified on the Order Form executed between Wingspan and the Client. All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Order Form. The Order Form and this MSA are collectively referred to as the “Agreement.”
In exchange for the mutual promises set forth below, the Parties mutually agree as follows:
1.1 License. The Order Form provides a binding agreement by Client to purchase a non-transferable, non-sublicensable, nonexclusive license to access and use Wingspan’s API-enabled technology solutions (the “Wingspan Platform”) services set forth in the Order Form (collectively the “Services”), on behalf of Client and Client’s 1099 contractors (“End Users”), strictly in accordance with this Agreement. For the avoidance of doubt, Wingspan will serve solely as a provider of technology and data processing services, and all financial products and related services will be provided by one or more of Licensor’s partners. Client’s use of the Services listed on this Order Form will at all times be subject to this MSA.
1.2 User Names and Passwords. Client is responsible for maintaining the confidentiality of its account and password information. In the event of a breach of security, Client agrees to immediately change its passwords and to promptly notify Licensor of such breach in writing. Client is responsible for all activity occurring under the Client’s accounts and shall abide by all applicable local, state, national, and foreign laws, treaties and regulations.
1.3 Ownership and Opposition. The Services, and all intellectual property rights therein, are licensed to the Client, not sold. All rights in the Services not provided to the Client under this Agreement are expressly retained by Licensor. The Client may not contest, oppose or challenge Licensor’s rights in and to the Services, nor register or attempt to register copyrights, trademarks, domain names or other intellectual property rights in the Services in any jurisdiction. Licensor owns all right, title and interest, including all intellectual property rights, in and to any and all, modifications, enhancements and customizations to the Services developed by Licensor, Client, a third party on any of such party’s behalf or any combination of such parties (“Modifications”). Client hereby does and will assign to Licensor all right, title and interest worldwide in the intellectual property rights embodied in all Modifications. Modifications are licensed back to the Client as “Services” pursuant to this Agreement, during the Subscription Term.
1.4 Services. The Services are made available to the Client pursuant to this Agreement and an applicable Order Form and the service level agreement set forth in Exhibit A (“Service Level Agreement” or “SLA”). Each Order Form will incorporate the terms and conditions of this Agreement by reference. The Services shall be hosted by Licensor through the Wingspan Platform, and provided as a service. Client will only access the Services through the Internet. Clients may only access or use the Services, in accordance with applicable export laws. Client and the End User’s use of the Services will at all times be subject to the Terms of Use governing the Wingspan Platform, which can be found here: https://www.wingspan.app/terms.
1.5 Security. Each Party will maintain its own data security program to, among other things, ensure compliance with data security requirements under applicable law and regulation, as well as any of Licensor’s partner-specific requirements and best practices. Each Party will employ industry standard network security techniques, including, firewalls, virus and intrusion detection and authentication protocols. Client understands that the Services may include sending email and publishing web-pages over the Internet using SMTP or HTTP protocols and that these standard protocols do not support many enhanced data security protections. In no case will the use of the Internet in this manner be deemed to violate Licensor’s obligations under this Agreement. Licensor reserves the right, in its sole discretion, to modify or change its data security program at any time, but at all times maintain commercially reasonable database security.
2.1 General. Client may not: (a) modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Wingspan Platform and/or the Services (b) copy, or reproduce the Wingspan Platform and/or the Services in any way, in whole or in part, (c) create any derivative work based on the Wingspan Platform and/or the Services, (d) re-distribute or sublicense the Services, or any part thereof, to any third party, (e) create Internet “links” to the Wingspan Platform and/or the Services or “frame” or “mirror” any content available on the Wingspan Platform and/or the Services on any other server or wireless Internet-based device, other than to End Users in accordance with this Agreement, (f) operate the Services on a Services bureau basis or sell the Services to a third party, (g) use the Wingspan Platform and/or the Services to create a competing product, or (h) allow, assist or permit any third party to do any of the foregoing. If Client is located in a jurisdiction that permits limited reverse engineering as a matter of law, and despite accepting contract terms to the contrary, Client may perform limited reverse engineering, provided Client first notifies Licensor of Client’s intent to reverse engineer the Wingspan Platform and/or the Services, and provided the reverse engineering is limited to the extent permitted by the applicable law.
2.2 Probing. Without prior written authorization, Client shall not and shall not allow anyone working on Client’s behalf to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan in connection with the Services.
3.1 Notice of Unauthorized Use. Client must report to Licensor immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Services in violation of this Agreement that Client is aware of or suspects.
3.2 Client Responsibilities. Client shall: (a) be responsible for its users’ and affiliates compliance with this Agreement and shall use the Services only in accordance with this Agreement, (b) be responsible for the accuracy, integrity, and legality of the data, material and other information provided by Client to the Services and any data, material or other information provided by a user that is using the Services (“Data”) and the means by which it acquires and uses such Data, and (c) be solely responsible for determining the suitability of the Services for Client's business and End Users and complying with any regulations and laws, (including, without limitation, export, data protection and privacy laws) applicable to the Data and Client’s use of the Services.
Client hereby grants Licensor with a worldwide, perpetual, royalty-free, nonexclusive right to use the Data as needed to perform Licensor's obligations under this Agreement, including sharing such Data with third-party vendors as needed to provide the Services, in accordance with applicable law. Licensor shall not use the Data or transfer the Data to third parties, except as needed to perform under this Agreement, for any other purpose without prior written consent of Client. Licensor has the right, but not the obligation, to remove any Data from the Services that may, in its sole discretion, violate this Agreement or that is otherwise objectionable.
5.1 Each Party represents, warrants and covenants that it has the full corporate right and authority, to enter into this Agreement; an authorized representative has accepted this Agreement and it will comply with all applicable laws and regulations pertaining to this Agreement.
5.2 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE THE ONLY EXPRESS WARRANTIES PROVIDED BY LICENSOR IN CONNECTION WITH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR EXPRESSLY DISCLAIMS, AND CLIENT EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, FITNESS FOR A PARTICULAR PURPOSE AND ANY AND ALL WARRANTIES IMPLIED FROM CUSTOM, USAGE IN TRADE OR COURSE OF DEALING. CLIENT ACKNOWLEDGES THAT THERE IS NO WARRANTY AGAINST INTERFERENCE WITH ENJOYMENT OR INFRINGEMENT IN CONNECTION WITH THE SERVICES. LICENSOR DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM ERROR OR WILL FUNCTION WITHOUT INTERRUPTION.
6.1 General. The Client acknowledges and agrees that the Services contain proprietary and sensitive information of Licensor. Client will protect the Services from unauthorized use and disclosure using the same means it uses to protect its own information and data of like importance, but in no event using less than a reasonable degree of care. The Client may only disclose the Services to its employees and consultants: (a) who have a need to know in order for the Client to use the Services in accordance with the Agreement, and (b) who are subject to binding confidentiality obligations with the Client regarding limitations on use and disclosure that are at least as restrictive as those in this Section 6. The Client will immediately notify the Licensor of any unauthorized use or disclosure of the Services. The Client agrees to reasonably assist the Licensor in remedying any such unauthorized use or disclosure.
6.2 Exceptions. The foregoing restrictions will not apply to the extent the Services (a) are properly known by the Client at the time of disclosure by the Licensor, without restriction, (b) has become publicly known through no wrongful act of the Client, (c) has been rightfully received from a third party authorized to make such communication without restriction, (d) has been independently developed by the Client as evidenced by written records, or (e) is required by law to be disclosed; provided that if the Client is required to disclose the Services pursuant to an order under law, the Client must, to the extent not prohibited by applicable law, give the Licensor sufficient notice of such disclosure to allow a reasonable opportunity to object to and to take necessary legal action to prevent such disclosure.
7.1 Subscription Term. This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, continue for a period of two (2) years following the Effective Date (the “Initial Term”), provided that this Agreement will automatically renew for additional one-year periods thereafter (each, a “Renewal Term”, and, together with the Initial Term, the “Subscription Term”) at the end of the Initial Term or the then-current Renewal Term, unless either Party provides written notice of non-renewal at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term.
7.2 Termination by Licensor. Licensor may terminate this Agreement at any time upon written notice to Client if Client breaches any material provision hereof and fails to cure such breach within thirty (30) calendar days after receiving written notice of such breach from Licensor or if the Services are, in Licensor’s sole determination, likely to be or are determined to be illegal. In addition, Licensor may terminate this Agreement if Client directly or indirectly commences legal action or otherwise challenges the validity of the intellectual property rights in the Wingspan Platform or in the Services.
7.3 Suspension. Upon providing Client with written notice, Licensor may immediately suspend Client’s license and/or privilege to use the Wingspan Platform and/or the Services, which suspension shall be without any liability to Licensor if Licensor has reason to believe (a) Client’s use of the Wingspan Platform and/or the Services will disrupt or threaten the use of the Wingspan Platform and/or the Services, (b) Client has breached any material term of this Agreement, or (c) there has been or may be a violation of the rights of a third party, violation of any applicable laws and regulations, breach of security, fraud, or misrepresentation in connection with Client’s use of the Services, or (d) Client is using the Services to (i) interfere or attempt to interfere with the functionality or proper working of the Wingspan Platform and/or the Services, including but not limited to participating in any flooding or denial or service activities of any kind, or (ii) to engage in, promote or facilitate illegal activities; (e) the Data (i) infringes, violates or misappropriates any rights of any third party; (ii) constitutes defamation, invasion of privacy or publicity, or otherwise violates any applicable law or regulation, or (iii) contains malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
7.4 Effect of Termination. Upon expiration or termination of this Agreement, the rights granted under this Agreement, including the Order Form, will be immediately revoked and Licensor may immediately deactivate Client’s account and access to the Services. Licensor may keep copies of Data and use same for any lawful purpose. In no event shall any termination relieve Client of the obligation to pay any fees payable to Licensor for any period prior to the effective date of termination, unless otherwise stated in this Agreement.
7.5 Survival. Unless and to the extent otherwise specified herein, all terms of this Agreement which by their nature extend beyond its termination, remain in effect until fulfilled, and apply to respective successors and assigns.
The Services may utilize or include certain applications or software products that are developed by third parties, and that may interoperate with or add functionality to the Services, the use of which is governed by the applicable terms and conditions specified by such third party (“Third-Party Software”). Client’s use of the Third-Party Software may be governed by the applicable Third-Party Software terms and conditions. Any use by Client of Third-Party Software and any exchange of Data between Client and the Third-Party Software provider are solely between Client and the Third-Party Software provider. Licensor does not warrant or support Third-Party Software. Any Data exchanged with Third-Party Software is governed by that provider’s respective privacy policy. If a third party ceases to make the Third-Party Software available, Licensor may cease providing such Third-Party Software without entitling Client to any refund, credit, or other compensation.
“Usage Data” means diagnostic and usage related data from the computer, mobile phone or other devices the Client and the End Users use to access the Wingspan Platform and the Services, which may include, but is not limited to, IP addresses, internet service, location, type of browser and modules that are used and/or accessed, licensing, system and service performance data. In the course of providing Client and the End Users with the Services, Licensor may collect, use, process and store the Data and Usage Data in order to create and compile anonymized and aggregated statistics about the Services. For further information and details see Licensor’s privacy policy here: https://www.wingspan.app/privacy-policy.
10.1 Licensor Indemnity. Subject to the limitations and contingencies set forth below and to the extent the Client is not in default under this Agreement, Licensor shall at its expense defend any claim brought against Client by a third party alleging that the Services infringe any United States copyright, or trademark rights or misappropriate of trade secrets of any third party. As part of Licensor’s defense obligations, Licensor will pay all associated and reasonable attorneys’ fees and defense costs, and pay any corresponding judgment finally awarded by a court of competent jurisdiction or any settlement amount agreed to in a written settlement agreement approved, in writing, by an authorized Licensor representative. In the event the Services are held by a court of competent jurisdiction to infringe the aforementioned intellectual property rights and Client’s use of the Services is enjoined, or Licensor concludes that the Services infringe the foregoing intellectual property rights of a third party, Licensor will, at its option and expense either: (a) procure for the Client the right to continue using the Services in accordance with this Agreement, (b) replace the infringing components of the Services with other components with the same or similar functionality, (c) modify the Services so that they are non-infringing and reasonably acceptable to the Client, or (d) if options (a), (b) and (c) are not commercially viable, terminate the Client’s license to use the infringing Services and refund to the Client the amounts described below.
10.2 Limitation. Notwithstanding the provisions of Section 10.1 above, Licensor assumes no liability for (a) infringement arising from combinations of the Services with non-Licensor software or hardware, including any of the Client’s or any End User’s software or code, (b) modifications to the Services made by any party other than Licensor, (c) use of a prior version of the Services to the extent such infringement would have been avoided by the use of the current version of the Services, provided that Licensor has offered or provided such current version to the Client and or the End Users, as applicable, at no additional cost, or (d) trademark infringements involving any marking or branding not applied by Licensor or involving any marking or branding applied at the Client’s request.
10.3 Entire Liability. Section 10.1 states the entire liability and obligations of Licensor and the exclusive remedy of the Client with respect to any alleged or actual infringement of patents, copyrights, trademarks or other intellectual property rights by the Services or any part thereof.
10.4 Client Indemnity. Client shall at its expense indemnify, hold harmless and defend Licensor, and its agents, officers or employees from and against any third party claim arising from Client’s breach of or failure to comply this Agreement (including, without limitation Client’s failure to comply with Section 3.2), Licensor’s use of the Data in accordance with this Agreement, and the negligent, willful or reckless act or omission of Client.
10.5 Contingencies. As a condition to the foregoing indemnity obligations, the indemnified Party shall provide the indemnifying Party with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the indemnifying Party in connection with any such claim. The indemnifying Party shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing; provided, however, that the indemnifying Party may not agree to any settlement other than the payment of money or release of any claim without the indemnified Party’s written permission, which shall not be unreasonably withheld, conditioned or delayed.
10.6 LIMIT OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT LICENSOR’S MAXIMUM LIABILITY TO CLIENT FOR ANY ACTION ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT FOR THE SERVICES FOR WHICH THE CLAIM AROSE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN NO EVEN SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
11.1 Fees. Client shall pay all fees, without deduction or offset, specified in the applicable Order Form and such fees are: (a) fixed during the applicable Subscription Term, (b) quoted and payable in United States dollars (unless expressly agreed otherwise in an Order Form), (c) exclusive of all duties and taxes imposed, and (d) non-cancelable and non-refundable, except as otherwise provided herein. Fees are due 30 days from the date of the invoice, unless otherwise noted in an Order Form. Licensor will invoice the Client based on the billing information in the Order Form. All invoices shall be deemed final and binding unless Client notifies Licensor in writing of any alleged discrepancies no later than twenty (20) days from the date of such invoice. Overdue amounts are subject to interest at a rate of 2.0% per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by Client to Licensor remains unpaid 30 days after its due date, Licensor may, without limiting its rights and remedies, suspend Client’s use of the Services until such amounts are paid in full.
11.2 Authorization to Transfer Funds. In order to provide Client certain services, Wingspan requires Client to agree to open up Client bank accounts with Blue Ridge Bank N.A, The Currency Cloud Limited and Community Federal Savings Bank (CFSB) (“Client Wingspan Account(s)”). For Wingspan to provide certain Services, Client must provide authorization to initiate the transfer of funds. Wingspan may initiate transfers between a bank account designated by client (“Client Designated Bank Account”) and the Client Wingspan Accounts for payees that Client or Wingspan has identified and designated. These fund transfers may be in the form of ACH credit or debit, check, wire, electronic, or other payment transfer methods. Client agrees to authorize Wingspan to initiate the transfer of funds as described above. Client authorization includes transfers both in response to Client direct request and automatically based on instructions Client provide (e.g. via Wingspan’s invoice collection and payments processing Services). It is Client’s responsibility to ensure that there are sufficient funds in Client Designated Bank Account for the fund transfer activity initiated by Wingspan. If there are not sufficient funds, Wingspan may choose to decline or cancel the request to transfer funds. Wingspan is not responsible for any associated fees assessed by Client bank (the bank where Client Designated Bank Account is), including, but not limited to, overdraft fees. Wingspan is not responsible for the content or accuracy of the payment information Client provides to Wingspan. Wingspan is not responsible for any penalties or late fees incurred for payments that are not processed due to insufficient funds, incorrect or insufficient information, or other errors. Client understands and agrees that payments are not confirmed as complete until either marked as complete in the Wingspan Services or Client receives confirmation of payment from Wingspan. Client agrees that it is Client responsibility to verify payments are complete and accurate. Wingspan may share data with third parties to process payments. Wingspan may utilize third-party services for the provision of services provided. Any data sharing will be in accordance with Wingspan’s Privacy Policy. Wingspan may charge a fee for these services, and all fees will be clearly disclosed in the Order Form.
12.1 Publicity. Except for disclosures required by law, Client agrees not to issue a press release or public statement relating to this Agreement or use Wingspan’s name, logo, or other identifying information unless in each case Wingspan has provided written consent, such consent to not be unreasonably withheld. Any such disclosures or uses of name, logos and identifying information shall be in good taste, shall not be disparaging and shall uphold the professional standards and goodwill associated with Licensor.
12.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Licensor may assign this Agreement in its entirety (including the Order Form), without the consent of Client, to its affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Licensor’s assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 12.2 shall be void.
12.3 Choice of Law and Arbitration. This Agreement is governed by and construed in accordance with the laws of the State of New York, without regard to choice of law provisions. Any legal proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts of the State of New York located in the State of New York, and the Parties hereby consent to the personal and exclusive jurisdiction of such courts and hereby waive any objection that a Party may have to the laying of venue of any such proceeding and any claim or defense of inconvenient forum. EACH PARTY WAIVES TRIAL BY JURY IN ANY PROCEEDING ARISING UNDER THIS AGREEMENT.
12.4 Attorney’s Fees. In any action related to this Agreement, if any Party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other Party shall pay, on demand, the prevailing Party’s reasonable attorneys’ fees and reasonable costs.
12.5 Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations which may be delayed but not excused) due to circumstances beyond such Party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such Party's reasonable control, and denial of service attacks. Performance times shall be considered extended for a period equivalent to the time lost because of any such delay.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
12.7 Relationship of the Parties. Wingspan and Client are independent contractors, and nothing in this Order Form or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
12.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified, (b) when sent by confirmed electronic mail if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications to a Party shall be sent to the Party’s address set forth in this Order Form or at such other address(es) as such Party may designate by 10 days’ advance written notice to the other Party hereto.
12.9 Entire Agreement. This Agreement represents the entire agreement of the Parties concerning its subject matter and is intended to be the final expression of their agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. No amendment or waiver of any provision of this Agreement or an Order Form shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Client and Licensor. In the event of any conflict or inconsistency between the provisions of (a) the Order Form, (b) the MSA, and (c) any other documents or policies referenced in this Order Form or the MSA, the governing order of precedence shall be in the priority listed in this sentence.