WHATFIX END USER LICENSE AGREEMENT

THESE SUBSCRIPTION TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM AND/OR STATEMENT OF WORK EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER” OR “YOU”) AND RESELLER, PURSUANT TO WHICH THE CUSTOMER HAS RECEIVED THE RIGHT TO USE THE SAAS SERVICES AND/OR PROFESSIONAL SERVICES SUBJECT TO THESE SERVICE TERMS. BY SIGNING SUCH SOW OR ORDER FORM (AS APPLICABLE) YOU AGREED TO BE BOUND BY THESE SERVICE TERMS. THESE SERVICE TERMS AND YOUR WRITTEN CONSENT TO THEM WILL FORM A MASTER AGREEMENT BETWEEN YOU AND WHATFIX PRIVATE LIMITED (FORMERLY KNOWN QUICKO TECHNOSOFT LABS PRIVATE LIMITED) AND ITS AFFILIATES (“WHATFIX”) AND SHALL GOVERN YOUR CURRENT AND ALL FUTURE USE OF SERVICES AND MAY NOT BE AMENDED WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES. THESE SERVICE TERMS FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND WHATFIX (“AGREEMENT”), EFFECTIVE AS OF THE EFFECTIVE DATE OF THE ORDER FORM AND/OR THE SOW.

1.    DEFINITIONS
“Affiliate” means, with respect to a Party, any entity that is directly or indirectly controlling, controlled by, or under common control with such Party. For purposes of this definition only, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such controlled entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, such control will be presumed to exist when an entity owns or directly controls greater than fifty percent (50%) of the outstanding voting stock or other ownership interests of the controlled entity. Such entity shall be deemed to be an “Affiliate” only so long as such relationship with the applicable Party exists.
“Host Application” or “Host Environment” shall mean any software application, website, mobile application, operating system, desktop environment, or other digital interface used or accessed by Customer for its internal or external purposes and on which the SaaS Services are deployed or made available. For the purposes of determining deployment scope, each application shall be treated as distinct if: (a) the host names or URLs are different or (b) it is a separate product offering from the same licensor or a different licensor or (c) hosted on different server, operating system, technology stack or runtime environment, or (d) Customer Content is managed by separate Customer teams.
“Customer Content” means all data, content, and other materials that are (i) provided or made available by or on behalf of Customer or its End Users in connection with the SaaS Services, or (ii) created by Customer or its End Users using the SaaS Services, including, without limitation, flows, text snippets, images, and videos.
“Documentation” means the user guides, online help content available on Whatfix Support website, release notes and training materials provided or made available by Whatfix, to Customer regarding the use or operation of the SaaS Services.
“End User(s)” or “User” means any individual who is authorized to access, or use a Host Application, in respect whereof there is an active subscription to the SaaS Services and includes Platform users. The methodology for counting Users for billing and subscription purposes shall be as set forth in the applicable Order Form.
“Intellectual Property Rights” means all rights in, and to, patents, copyrights, trademarks, service marks, trade names, trade secrets, and other similar proprietary rights, including all registrations, applications, renewals, and extensions thereof, in any jurisdiction.
“Monthly Active Users” or “MAU” means, for Customer’s external-facing deployment of the SaaS Services, the number of unique End Users who access a Host Application with an active subscription during a calendar month. Each End User is counted once per Host Application per calendar month, regardless of the number of accesses. An End User who accesses (a) the same Host Application in different months will be counted in each such month, and (b) multiple Host Applications will be counted separately for each Host Application.
“Order Form” shall mean the order form or the statement of work or any other equivalent document, executed by the Reseller and Customer, defining the scope of Customer’s subscription plan for use and access of the Software/ the Professional Services.
“Personal Data” means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller
“Professional Services” means consulting, implementation or other professional services provided by Whatfix to Customer under this Agreement, as further described in the applicable Order Form. Professional Services are distinct from Support Services and are provided subject to the terms of the applicable Order Form.
“Platform User” means each Customer employee designated by Customer to serve as admin user of the Whatfix SaaS platform on Customer’s behalf. Each Platform User must complete training and qualification requirements reasonably requested by Whatfix.
“Reseller” refers to the entity named as Reseller in the reseller order form between Whatfix and the Reseller.
“Software” means the object code version of the Whatfix software products specified in the applicable Order Form, which may include (i) the Digital Adoption Platform (DAP) solution, (ii) the Product Analytics solution, (iii) the Mirror solution, and/or (iv) any additional modules or functionality expressly identified in the applicable Order Form, together with all updates, upgrades, enhancements, modifications, or new versions of the foregoing that Whatfix makes generally available. Software may include functionality that utilizes artificial intelligence, machine learning, generative models, or similar technologies (“AI Features”) to generate recommendations, content, guidance, automation, or other outputs based on Customer Data and system inputs.
“SaaS Services” or “Services” means the cloud-based delivery of the Software by or on behalf of Whatfix to Customer in a hosted, software-as-a-service format, including access through applicable interfaces and Documentation.
"SOW" means the Statement of Work that is entered into by the parties and references this Agreement, which sets forth the specific services, deliverables, timelines, and other terms and conditions to be provided under this Agreement.
“Support Services” means the technical support services for the SaaS Services available at the link provided under Service Level Agreement clause (“Support Terms”).
“Subscription Fees” or “Fees” shall mean the amounts payable by the Reseller to Whatfix as mentioned in the applicable reseller order form.
“Usage Data” means data or information generated in connection with Customer’s use of the SaaS Services that is aggregated and de-identified such that it does not identify Customer or any individual, including statistical or performance information, telemetry, and usage trends.
“Whatfix Technology” means the (i) the SaaS Services, Software, and Documentation, and the look and feel, user interface, design elements, workflows, and visual displays thereof; (ii) all technology, tools, templates, methodologies, processes, algorithms, models, works of authorship, and know-how owned or controlled by Whatfix prior to or independent of this Agreement; and (iii) all improvements, enhancements, modifications, derivative works, developments, and know-how conceived, developed, or acquired by Whatfix in the course of providing the SaaS Services or Professional Services, provided that such improvements, developments, or know-how do not incorporate Customer Content or Customer Confidential Information.

2.    SAAS SERVICES
2.1.    During the subscription term, and subject to the terms of this Agreement and the applicable Order Form, Customer will receive a non-exclusive, non-assignable, non-sublicensable, royalty-free, worldwide right to access and use the SaaS Services (and, where mutually agreed under the Order Form, to deploy and use the Whatfix Software provided for Customer-hosted or on-premise environments) solely in connection with Customer’s authorized applications (whether internal or external-facing) as specified in the applicable Order Form, and only up to the number of Host Applications and Users set forth therein. Whatfix may perform its obligations under this Agreement through its Affiliates and subcontractors; provided that Whatfix remains fully responsible for their performance in accordance with this Agreement.
2.2.    Whatfix will provide Customer with Support Services and service levels in accordance with Whatfix’s then-current Service Level Agreement (“SLA”), provided that Whatfix has received all outstanding Subscription Fees.
2.3.    Customer acknowledges that this Agreement is a services agreement and that no copies of the Software are delivered as part of the SaaS Services. In case of an approved self-hosted deployment, Whatfix will provide Customer the technical capability to host Customer Content and the applicable SaaS Services on Customer’s servers, subject to the same license restrictions and Whatfix’s ownership of all Intellectual Property Rights in the SaaS Services.
3.    PROFESSIONAL SERVICES
3.1.    Any Professional Services purchased by Customer will be set forth in an applicable Order Form, which will describe the scope, deliverables, fees, and any applicable assumptions. Unless otherwise specified, Professional Services will be provided remotely. If onsite delivery is agreed in writing, Customer will reimburse Whatfix for reasonable travel and related expenses in accordance with Customer’s expense policy provided in advance. Any changes to the agreed scope, deliverables, or assumptions must be documented in a written change order signed by both Parties.     
4.    CUSTOMER’S OBLIGATIONS
4.1.    Restrictions: Customer shall not, and shall not permit any third party to: (i) copy, reproduce, or otherwise make the SaaS Services (including the Software and Documentation) available except as expressly permitted under this Agreement; (ii) use the SaaS Services for the benefit of anyone other than authorized End Users, including on a service bureau, time-sharing, hosting, or similar basis; (iii) modify, adapt, translate, or create derivative works of the SaaS Services; (iv) remove or obscure any proprietary notices contained therein; (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying structure of the Software, except to the extent expressly permitted by applicable law; (vi) license, sell, resell, transfer, rent, lease, assign, distribute, exploit, or otherwise provide the SaaS Services to any third party other than authorized End Users; (vii) embed or present the SaaS Services within any other application, website, or service except as expressly permitted in an applicable Order Form; (viii) access or use the SaaS Services or Documentation to build, train, benchmark, or improve any competitive product or service; (ix) circumvent or attempt to circumvent any security or access controls; or (x) input, upload, transmit, or provide any unlawful, harmful, malicious, or infringing content through the SaaS Services. The restrictions in this Section shall survive termination or expiration of this Agreement.
4.2.    Assistance: Customer shall provide commercially reasonable cooperation, information, and assistance to enable Whatfix to deliver the SaaS Services. Upon request, Customer shall (i) promptly deliver Customer Content in an electronic format reasonably specified by Whatfix; (ii) provide access to training or development environments of the Host Applications in a timely manner and such access to remain active for the duration necessary to enable Whatfix to perform its obligations under this Agreement; (iii) make necessary connections with business and technical teams; and (iv) provide information regarding business objectives and processes relevant to the SaaS Services. Customer shall also ensure that its Host Applications, systems, and technical environments are, and remain, capable, configured, and compatible for integration with and use of the SaaS Services, including meeting any technical requirements communicated by Whatfix. Customer acknowledges that Whatfix’s ability to perform depends on the accuracy and timeliness of such cooperation, and delays caused by Customer shall not relieve Customer of its payment obligations or entitle Customer to any remedies. Customer shall ensure a professional and respectful working environment in its interactions with Whatfix personnel and, in the event of any workplace concern or allegation of misconduct involving Customer personnel, Customer shall cooperate in good faith with Whatfix’s requests to address and resolve the matter, including facilitating appropriate internal escalation where necessary. 
4.3.    Access to Application: Customer represents and warrants that (i) it has all necessary rights and authority to access and use, and to grant Whatfix access to, and use of, any Host Applications required for Whatfix to perform the SaaS Services and Professional Services under this Agreement, and (ii) its use of the SaaS Services and Professional Services do not and will not violate any agreement, obligation, or applicable law binding on Customer. 
4.4.    Compliance with Laws: Customer shall use the SaaS Services only in compliance with all applicable local, state, national, and foreign laws, including those relating to data privacy, intellectual property, communications, and export control. Customer acknowledges that Whatfix does not control the content transmitted by Customer or its End Users through the SaaS Services. Customer shall not upload, post, transmit, reproduce, or distribute through the SaaS Services any (i) unlawful, harmful, or malicious code or content, or (ii) information, software, or other material protected by copyright, privacy rights, or other intellectual property rights without first obtaining all necessary consents or permissions from the rights holders.
4.5.    Platform Access: Customer shall be solely responsible for the acts and omissions of its End Users and Platform Users and shall ensure that such users comply with this Agreement. Whatfix shall not be liable for any loss of data, security incident, or degradation of functionality caused directly or indirectly by Customer’s End Users or Platform Users.
4.6.    Customer Content: Customer is solely responsible for the collection, accuracy, quality, legality, and appropriateness of Customer Content. Customer represents and warrants that Customer Content will not (i) infringe, misappropriate, or otherwise violate any third-party rights; or (ii) include anything that is obscene, defamatory, harassing, offensive, or malicious. Customer shall (a) notify Whatfix promptly of any unauthorized use of any account credentials or any known or suspected security breach; (b) use reasonable efforts to stop any unauthorized use of the SaaS Services by its End Users; and (c) not provide false identity information to gain access to or use the SaaS Services. 
4.7.    Third-Party Technology: Certain third-party technology may be necessary or appropriate for use with the SaaS Services, which shall be specified in the Documentation or Order Form, as applicable. Customer’s right to use such third-party technology is governed solely by the terms of the applicable third-party license agreement, and not this Agreement, and Customer is responsible for complying with such terms. Whatfix makes no representation or warranty with respect to such third-party technology except as expressly set forth in the applicable Order Form or Documentation.
5.    INTELLECTUAL PROPERTY
5.1.    Customer Content: As between the Parties, Customer retains all rights, title, and interest in and to its Customer Content, including (i) Customer Content provided to Whatfix in connection with the SaaS Services or Professional Services; (ii) Customer Content created by Customer using the SaaS Services; and (iii) deliverables created by Whatfix specifically for Customer in the course of providing Professional Services that incorporate Customer’s copyrighted works and/or Customer’s Confidential Information. Customer Content does not include Whatfix Technology and Usage Data.
5.2.    License to Whatfix: Customer hereby grants Whatfix a limited, non-exclusive, non-transferable, royalty-free license to host, copy, store, configure, perform, display, and transmit Customer Content solely as necessary to provide the SaaS Services in accordance with this Agreement and the applicable Order Form. 
5.3.    Usage Data: Whatfix may collect and use Usage Data for purposes of operating, maintaining and improving the SaaS Services and related offerings. 
5.4.    Whatfix Technology: As between the Parties, Whatfix retains all right, title, and interest in and to the Whatfix Technology. Nothing in this Agreement shall be construed to limit Whatfix’s use of information retained in the unaided memory of its personnel in the course of performing the Services, provided that Whatfix continues to comply with its confidentiality obligations under this Agreement.
5.5.    Feedback: Customer grants Whatfix a royalty-free, worldwide, perpetual, irrevocable license to use and incorporate into the SaaS Services or Professional Services any suggestions, enhancement requests, recommendations, or feedback provided by Customer or its End Users relating to the SaaS Services (“Feedback”). For clarity, Feedback shall not be deemed Customer’s Confidential Information or Customer Content.
5.6.    Third-party Technology: Customer’s use of any third-party technology provided with the SaaS Services is governed solely by the applicable third-party license terms.

6.    ORDERS AND PAYMENT
6.1.    Orders: Customer shall order SaaS Services and/or Professional Services pursuant to the Order Form. All SaaS Services and Professional Services acquired by Customer shall be governed exclusively by this Agreement and the applicable Order Form. In the event of a conflict between the terms of an Order Form and this Agreement, the terms of this Agreement shall take precedence with respect to the SaaS Services and/or Professional Services. 
6.2.    Invoicing and Payment: The invoicing and payment terms will be governed by the Order Form or such other agreement executed between the Reseller and the Customer. The invoicing and payment terms vis-a-vis the Reseller and Whatfix shall be governed by the order form executed between the Reseller and Whatfix.
6.3.    Expenses: Customer will reimburse Whatfix for its reasonable, out-of-pocket travel and related expenses incurred in performing Professional Services. Whatfix shall notify Customer prior to incurring any such expense. Whatfix shall comply with Customer’s travel and expense policy (as provided by Customer to Whatfix).

7.    TERM AND TERMINATION
7.1.    Term: The term of this Agreement shall be as per the subscription term mentioned in the Order Form.
7.2.    Suspension: 
(a)    Non-Payment: Whatfix may suspend the SaaS Services if Whatfix does not receive the undisputed amounts when due, provided that Whatfix has given Reseller at least fifteen (15) days’ prior written notice of such non-payment. If payment remains overdue beyond fifteen (15) days from such notice, such failure shall constitute a material breach, and if such overdue continues for more than thirty (30) days from such notice, Whatfix shall have the right to suspend the SaaS Services and exercise any other rights and remedies available to it, including termination. Any suspension shall not relieve Reseller of its payment obligations, and Whatfix shall have no liability for any resulting loss or damage.
(b)    Ongoing Harm: Whatfix may suspend the SaaS Services if Customer’s or any End User’s use of the SaaS Services (i) poses a security risk or may disrupt the SaaS Services or systems of Whatfix or any third party, (ii) could subject Whatfix to legal liability, or (iii) violates this Agreement. Whatfix will promptly notify Customer of any suspension under this Section and work with Customer in good faith to resolve the underlying issue.
7.3.    Termination for cause: Either Party may terminate this Agreement by written notice to the other Party if:
(i) the other Party commits a material breach of this Agreement that is incapable of remedy, or, if capable of remedy, fails to cure such breach within thirty (30) days after receiving written notice requiring its cure; or (ii) the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver appointed, or becomes the subject of bankruptcy, liquidation, or analogous proceedings that are not dismissed within thirty (30) days.

7.4.    Effect of Termination: 
(a) Upon termination of this Agreement or expiration of the subscription term, Whatfix shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate. 
(b)    If Whatfix terminates this Agreement due to a breach by Customer, all Fees remaining for the applicable Subscription term shall become immediately due and payable. If Customer terminates this Agreement due to a breach by Whatfix, then Whatfix shall refund to Customer all pre-paid amounts for any unperformed SaaS Services after the effective date of termination. 
(c)    Customer is solely responsible for exporting Customer Content from the SaaS Services prior to the expiration or termination of the applicable Subscription term. Whatfix shall have no obligation to maintain or provide any Customer Content after such expiration or termination and may delete or anonymize Customer Content in accordance with its data retention policies.
(d)    Upon written request, each Party shall return or destroy the other Party’s Confidential Information, except that each Party may retain one archival copy for legal, regulatory, or dispute-resolution purposes.

8.    SERVICE LEVEL AGREEMENT
8.1.    The Service Level Agreement (“SLA”) for the SaaS Services is set forth under the Support Terms. The SLA sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.

9.    WARRANTIES
9.1.    SaaS Services Warranty: Whatfix represents and warrants that the SaaS Services and Professional Services will be provided in a professional and workmanlike manner consistent with generally accepted industry standards and will perform, in all material respects, in accordance with the applicable Documentation. Customer’s sole and exclusive remedy for any breach of this warranty shall be for Whatfix, at its option and expense, to (i) use commercially reasonable efforts to correct the non-conformity, or (ii) if Whatfix is unable to correct such non-conformity within a reasonable period of time, permit Customer to terminate the affected Order Form and receive a pro rata refund of any prepaid, unused Fees for the remainder of the Subscription term. Customer acknowledges that outputs generated by AI Features may be probabilistic in nature and may not always be accurate, complete, or suitable for Customer’s specific purposes. AI Features are intended to assist users and do not replace independent human judgment. Customer is responsible for reviewing and validating AI-generated outputs before relying on them for any decisions.
9.2.    Professional Services Warranty: Whatfix warrants that any Professional Services will be performed in a professional and workmanlike manner in accordance with the Statement of Work. Customer shall notify Whatfix in writing of any non-conforming Professional Services within fifteen (15) days of delivery of such Professional Services, failing which such Professional Services shall be deemed accepted, providing reasonable details of the alleged non-conformity. Customer’s exclusive remedy for a breach of this warranty shall be re-performance of the services non-conforming with the relevant Statement of Work, or, if Whatfix is unable to re-perform, a refund of the Fees paid for the non-conforming Professional Services which are unused.
9.3.    Exclusions: Whatfix does not warrant that the SaaS Services will be error-free, uninterrupted, or that all defects will be corrected. Customer acknowledges that Whatfix does not control the transfer of data over communications facilities, including the Internet, and that the SaaS Services may be subject to limitations, delays, and other problems inherent in such use.
9.4.    Disclaimer: EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SAAS SERVICES, SOFTWARE, DOCUMENTATION, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” WHATFIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WHATFIX DOES NOT WARRANT THAT THE SAAS SERVICES OR SOFTWARE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SAAS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.

10.    LIMITATIONS OF LIABILITY
10.1.    EXCEPT FOR LIABILITY ARISING UNDER THE EXCEPTIONS SET FORTH IN SECTION 10.3, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, BUSINESS, REVENUE, DATA, OR USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
10.2.    Except for liability arising under the exceptions set forth in Section 10.3, each Party’s total aggregate liability for all claims arising out of or relating to this Agreement shall not exceed one hundred percent (100%) of the Fees paid or payable by Customer for the SaaS Services under the applicable Order Form during the twelve (12) months immediately preceding the event giving rise to the claim; and
10.3.    The foregoing limitations and exclusions shall not apply to:
(a)    either Party’s breach of Section 5 (Restrictions) or Section 12 (Confidentiality);
(b)    either Party’s liability for gross negligence, fraud, or wilful misconduct;
(c)    Customer’s obligation to pay Fees due under this Agreement; or
(d)    either Party’s liability for death or personal injury to the extent such limitation is prohibited by law.
10.4.    To the extent any limitation or exclusion of liability under this Section 10 is not enforceable under applicable law, such limitation or exclusion shall apply to the maximum extent permitted by such law.
11.    INDEMNIFICATION
11.1.    Indemnification by Whatfix: Whatfix shall defend Customer and its directors, officers, and employees (“Customer Indemnitees”) from and against any third-party claim alleging that the SaaS Services infringe any patent, copyright, or trademark, or misappropriate any trade secret and shall pay all damages, costs, and reasonable attorneys’ fees finally awarded against Customer Indemnitees or agreed to in a written settlement agreement signed by Whatfix, to the extent arising from such claim. Whatfix shall have no liability or obligation under this Section for any claim to the extent arising from:
(a)    Customer Content;
(b)    modification of the SaaS Services not authorized by Whatfix;
(c)    use of the SaaS Services in combination with products, software, or data not supplied by Whatfix;
(d)    Customer’s failure to use the most current version or update of the SaaS Services made available by Whatfix; or
(e)    use of the SaaS Services other than in accordance with this Agreement and the Documentation.

In the event of such a claim, Whatfix may, at its option and expense:
(i) procure for Customer the right to continue using the SaaS Services;
(ii) modify the SaaS Services so that they become non-infringing while maintaining substantially equivalent functionality; or
(iii) if neither (i) nor (ii) is commercially reasonable, terminate the affected Order Form and refund to Reseller any prepaid, unused Fees for the remainder of the Subscription term.
The foregoing indemnification obligations set forth in this Section constitute Whatfix’s sole and exclusive liability, and Customer’s sole and exclusive remedy, with respect to any third-party claim alleging infringement of intellectual property rights arising from the SaaS Services.
11.2.    Indemnification by Customer: Customer shall defend Whatfix and its directors, officers, employees, and affiliates (“Whatfix Indemnitees”) from and against any third-party claim arising out of or relating to (a) Customer Content, including any allegation that such content infringes or misappropriates a third party’s intellectual property, privacy, or other rights; or (b) Customer’s or any End User’s use of the SaaS Services in violation of this Agreement. Customer shall pay all damages, costs, and reasonable attorneys’ fees finally awarded against the Whatfix Indemnitees or agreed to in a written settlement agreement signed by Customer, in connection with such claim, except to the extent such claim results from Whatfix’s breach of this Agreement.
11.3.    Conditions for Indemnification: The Party seeking indemnification (“Indemnified Party”) shall (a) promptly notify the other Party (“Indemnifying Party”) in writing of the claim; provided that failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations except to the extent the Indemnifying Party is materially prejudiced by such failure; (b) grant the Indemnifying Party sole control of the defense and settlement of the claim; and (c) provide reasonable cooperation, information, and assistance, at the Indemnifying Party’s expense, in the defense and settlement of the claim. The Indemnifying Party shall not enter into any settlement that imposes any liability or obligation on, or admits fault by, the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed.
12.    CONFIDENTIALITY
12.1.    “Confidential Information” means any information disclosed by or on behalf of a party (“Disclosing Party”) to the other party (“Receiving Party”), directly or indirectly, in any form or medium (including written, graphic, machine-readable, electronic, oral, visual or demonstrative), that: (a) is marked or identified as “confidential,” “proprietary,” or similar at the time of disclosure; (b) if disclosed orally or by demonstration, is identified as confidential at the time of disclosure and confirmed in writing as confidential within thirty (30) days thereafter; (c) is specifically designated as confidential under this Agreement, including the terms of this Agreement; or (d) reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation: (i) business, financial, commercial, marketing, pricing and strategy information; (ii) information regarding a party’s businesses, assets (including intellectual property), Software (including user interfaces), trade secrets, technology, operations, costs, financial condition and prospects; and (iii) any information disclosed by third parties to the Disclosing Party under an obligation of confidentiality. Subject to any permitted use or display as contemplated under this Agreement, Customer Content is Confidential Information of Customer. Whatfix’s Software and Documentation are Confidential Information of Whatfix. For the avoidance of doubt, any Personal Data collected, accessed or processed in connection with the Services shall be collected, used, retained, processed and deleted in accordance with the Data Processing Agreement. 
12.2.    Confidentiality Restrictions: During the Term and for five (5) years thereafter (and indefinitely with respect to Software and trade secrets), each Party shall:
(a)    maintain the other Party’s Confidential Information in strict confidence and protect it using the same degree of care it uses for its own information of a similar nature, but no less than reasonable care;
(b)    use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement;
(c)    not disclose Confidential Information to any third party except to its and its Affiliates’ employees, contractors, and professional advisers who have a legitimate need to know and are bound by written confidentiality obligations at least as protective as those herein; 
(d)    promptly notify the Disclosing Party of any actual or suspected unauthorized use or disclosure of Confidential Information and cooperate with the Disclosing Party to mitigate the effects thereof.
Each Party shall implement appropriate physical, technical, and organizational safeguards to protect Confidential Information against unauthorized access or disclosure. Neither Party shall reverse engineer, decompile, or disassemble any software, prototypes, or other tangible objects embodying the other Party’s Confidential Information.
12.3.    Exceptions: Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors. For clarity, Feedback and Usage Data shall not be considered Confidential Information of Customer.
13.    PRIVACY, DATA PROTECTION AND SECURITY
13.1.    Customer acknowledges that, in connection with the provision of the SaaS Services, Whatfix may process Personal Data on behalf of Customer. The Parties agree that Customer acts as the data controller (or equivalent under applicable law) and Whatfix acts as the data processor (or equivalent under applicable law). Such processing shall be performed in accordance with applicable data protection laws, including the EU General Data Protection Regulation (GDPR), the UK GDPR, the Indian Digital Personal Data Protection Act, 2023, and any similar laws and any Personal Data shall be processed in accordance with the Data Protection Agreement linked here. 
13.2.    Customer’s Undertakings: Customer shall be solely responsible for determining the purposes and means of processing Personal Data, for ensuring that its instructions to Whatfix are lawful, and for obtaining all necessary consents, authorizations, and notices required under applicable data protection laws. Customer shall not instruct Whatfix to process Personal Data in violation of applicable law. Prior to processing, Customer shall inform Whatfix of (i) any special categories of Personal Data or other sensitive data contained within Customer’s data, and (ii) any restrictions or special requirements applicable to the processing or cross-border transfer of such data.
13.3.    Security: Whatfix complies with security standards, such as encryption of data in motion over public networks and auditing standards (such as SOC 2 Type 2 and ISO 27001:2022). Furthermore, Customer’s information is stored with logical separation from information of other customers. In addition, Whatfix 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.
14.    GENERAL PROVISIONS 
14.1.    Non-Exclusive Service: Customer acknowledges that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Whatfix’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties. 
14.2.    Assignment: Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may assign this Agreement, without such consent, in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, upon written notice to the other Party. Notwithstanding the foregoing, Customer may not assign this Agreement to a direct competitor of Whatfix, and any such purported assignment shall be void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
14.3.    Notices: Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered post or certified U.S. mail, (b) when transmitted if sent by email, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this Agreement (which may be updated by written notice to the other party (email accepted)). Notices shall be sent to Whatfix at legal@whatfix.com, Attn: Legal Department.
14.4.    Force Majeure: Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures. A Party claiming Force Majeure shall provide prompt written notice and use commercially reasonable efforts to mitigate the effects.
14.5.    Waiver: No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach. 
14.6.    Severability: If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force. 
14.7.    Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.8.    Entire Agreement: This Agreement (including all exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation or other Customer ordering documents are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms. 
14.9.    Survival: Sections 1, 4, 7, and 9 through 14 of this Agreement shall survive the expiration or termination of this Agreement for any reason. 
14.10.    Publicity: Both Parties agree to jointly work towards the publicity and marketing of this arrangement. The Customer agrees to commission the following activities within a timeframe mutually agreed:
i.    Whatfix shall release a win story through social media platform, within a timeframe mutually agreed by both the parties, announcing that Customer has selected Whatfix as its Saas Service Provider. The Customer shall have the right to edit and approve the win story prior to its publication.
ii.    Customer shall assist Whatfix in providing a video or written testimonial, to be used as a marketing collateral. The video testimonial shall be recorded at the Customer's premises, at Whatfix’s cost. The Customer shall have the right to edit and approve the testimonial prior to its publication.
iii.    Customer agrees to serve as a reference customer for prospective customers, investors, media, or analysts of Whatfix and make appropriate representatives available via telephone for such purposes.
iv.    Customer agrees that Whatfix may use Customer’s name and logo on the website located at www.whatfix.com and for the purpose of marketing the Service.
14.11.    Export Compliance: The Services, Content, other technology Whatfix makes available, and derivatives thereof may be subject to export laws and regulations issued by Bureau of Industry and Security and any other applicable export or import control laws or regulations. Each party represents that it is compliant with the same. The Customer shall not permit Users to access or use any Service or Content in violation of the aforesaid regulations.
14.12.    No Third Party Beneficiaries: This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity. 
14.13.    Independent Contractor: The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel. 
14.14.    Governing Law and Jurisdiction: The governing law and exclusive jurisdiction applicable to this Agreement shall depend on the Whatfix entity identified as the contracting entity in the applicable Order Form, as set forth in the table below. Each Party irrevocably submits to such jurisdiction for any dispute arising out of or relating to this Agreement.

14.15.    Compliance with Laws: Whatfix shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. 
14.16.    Dispute Resolution: Customer’s satisfaction is an important objective to Whatfix in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it. 

AI Addendum

This AI Addendum supplements the Whatfix Agreement (“Agreement”) and governs Whatfix's provision of AI-enabled features and functionality (“AI Product”) to Customer. Capitalized terms not defined herein have the meanings given in the Agreement. In case of conflict, this Addendum prevails with respect to AI Products.

1. Definitions.

a. “AI Product” means AI Technology (as defined below) that is provided or made available by Whatfix to Customer, including any AI Technology that is part of a feature or enhancement to other Whatfix products, services, and/or solutions. The AI Product does not include Output (as defined below).

b. “AI Technology” means artificial intelligence or machine learning models, cognitive algorithms, or cognitive computing systems designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

c. “User” means an individual that uses the Whatfix’s software and interacts with the AI Product forming part of such software and such user may include Customer’s employees, contractors or customers.

d. “Input” means Customer and Customer’s Users input to the AI Product.

e. “Output” means any content, data, information, or other materials or items (including audio, videos, images, and text) that are created, generated, developed, customized, or otherwise delivered to the Customer, in each case using the Input, through the use of the AI Product, and any and all updates and modifications to any of the foregoing, excluding the underlying AI Technology to produce such Output.

2. AI-Specific Data Use. Whatfix shall not use Customer Content or Input to train or fine-tune its underlying AI models without Customer's prior written consent. Whatfix may: (a) use de-identified, aggregated usage data to operate and improve its services; and (b) apply retrieval-augmented generation (RAG) to Customer Content solely to improve AI Product accuracy — this does not constitute model training. Customer shall not use the AI Product or Output to develop or improve any competing product or service.

3. Output Disclaimer. Customer acknowledges and agrees that the AI Product and any Output are generated through artificial intelligence and machine learning models that are probabilistic in nature and may produce inaccurate, incomplete, or unintended results, including “hallucinations” or other errors. The AI Product and any Output are not guaranteed to be accurate or suitable for any particular purpose. Except as expressly set forth in this Addendum, Whatfix makes no representations or warranties, express or implied, regarding the accuracy, reliability, or fitness of any Output. Whatfix shall have no liability or responsibility arising from or relating to (a) Customer’s reliance on any Output, (b) Customer’s interpretation or use of any Output, or (c) any consequences resulting from such reliance, interpretation, or use.

4. Whatfix’s AI Commitments. Whatfix will: (a) use industry-standard practices to monitor AI model performance and address model drift or failure; (b) use commercially reasonable measures to prevent Output from containing biased, misleading, defamatory, obscene, harassing, discriminatory, or unlawful results; (c) maintain a mechanism for Users to report inaccurate Output; and (d) minimize PII processing within the AI Product. The AI Product does not require PII to function, and any PII included in Input is submitted at Customer’s discretion and risk.

5. Ownership.

1. Whatfix’s Rights. Whatfix and its licensors will retain ownership of all Intellectual Property Rights in the AI Product developed or acquired by Whatfix, independently from (i) any Customer Materials and (ii) any materials licensed or otherwise provided to Whatfix by Customer. Whatfix owns the AI Product (and any underlying models) or it has procured, at its sole expense, all rights, licenses and consents necessary to grant the licenses and other rights granted to Customer under the Agreement and for Customer to exercise its rights under the Agreement without the consent of, or payment to, any third party.

2. Customer’s Rights. Notwithstanding anything to the contrary in the Agreement, as between Whatfix and Customer, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to (i) all materials, content, data, and technology developed or acquired by Customer or its affiliates independently of Whatfix, (ii) any Input, or (iii) any Output, ((i)-(iii) collectively, the “Customer Materials”). To the extent that Whatfix may have or acquire any right, title, or interest (including any Intellectual Property Rights) in or to any Customer Materials (including, to any Output), to the extent permitted by applicable law, Whatfix hereby assigns to Customer all right, title and interest (including any Intellectual Property Rights therein) it has or acquires in or to those Customer Materials and Whatfix hereby waives any claim of ownership and all moral rights it has or acquires in and to the Customer Materials, provided however that Customer acknowledges that the AI Technology may generate outputs that are identical or substantially similar to outputs generated in response to the same or substantially similar inputs from other users or third parties, and such similarity shall not, by itself, confer any proprietary rights or give rise to any claim of ownership, infringement, or misappropriation.