Master Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF SERVICES MADE AVAILABLE BY VINTRA, INC. (“WE,” “US”
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES OR FOR OTHER FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE SERVICES.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR, FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "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.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on April 16, 2019, 2019. It is effective between You and Us as of the date of Your executing an Order Form or otherwise accepting this Agreement.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Content” means information obtained by Vintra from publicly available sources or third party content providers and made available to You through the Services or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Vintra Application” means any application, process, functionality, software or service that is provided by You or a third party and that interacts with a Service, including, for example, an application that is developed by or for You or Your video management system.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us, that including any addenda and supplements thereto. If Your Affiliate enters into an Order Form hereunder, such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Free Services” means Services that Vintra makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“On-Premises Customer” means a User that licenses certain of Our software under this Agreement that will perform functions of the Services for implementation on such User’s premises instead of accessing the Services online.
“Professional Services” means implementation, configuration, and other related services provided by Us pursuant to an Order Form in order to enable On-Premises Customers to operate Our software on their premises.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form or otherwise under this Agreement, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available to You by Us, including associated Vintra offline, on-premises, or mobile components, as described in the Documentation. The term “Services”
includes Free Services and Purchased Services but excludes Content and Non-Vintra Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Your Data” means electronic data, video footage, audio data, infrared footage, time series data and other data or information submitted by or for You to the Services, excluding Content and Non-Vintra Applications.
FREE TRIAL AND FREE SERVICES
- Free Trial. If You register on Our website or execute an Order Form for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Use of the Services during a free trial is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.1 (Free Trial) and any other portion of this Agreement, this section shall control. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You purchase any Purchased Services.
- Free Services. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services. You agree that Vintra, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that Vintra will not be liable to you or any third party for such termination. You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law We will provide you a reasonable opportunity to retrieve Your Data.
- NOTWITHSTANDING SECTIONS 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 9.1 (INDEMNIFICATION BY US), ANY SERVICES PROVIDED DURING A FREE TRIAL AND ANY FREE SERVICES ARE PROVIDED “AS-IS”
WITHOUT ANY WARRANTY AND VINTRA SHALL HAVE NO WARRANTY, INDEMNIFICATION OR OTHER OBLIGATIONS WITH RESPECT TO THE FREE SERVICES OR YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, VINTRA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES OR YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES OR YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO VINTRA FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
- Provision of Purchased Services. During the Subscription Term, We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms and, in the case of On-Premises Customers, provide hardware specifications that specified the hardware and network requirements to use the Services on such Users’
premises rather than online, (b) provide applicable Vintra standard support for the Purchased Services to You during business hours at no additional charge via the method and frequency described in Your Order Form, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) maintenance and planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Vintra Application, or denial of service attack; provided, that (c) will not apply to On-Premises Customers.
- Professional Services. We will use commercially reasonable efforts to provide You with the Professional Services specified on the applicable Order Form.
- Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data that is in our possession. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data in our possession by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing, including pursuant to Section 6 (Proprietary Rights and Licenses) below.
USE OF SERVICES AND CONTENT
- Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, Purchased Services and access to Content are purchased as subscriptions.
- Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment). On-Premises Customers hereby agree to provide all information and documentation requested by Us to confirm the On-Premises Customers’
compliance with all usage limits specified in the applicable Order Forms and will permit Us or Our auditors to review and audit the On-Premises Customers’
books and records and network usage upon Our request to confirm compliance with such usage limits and other terms of the Agreement.
- Your Responsibilities. You will (a) be responsible for Users’
compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data and Your use of Your Data with our Services, (c) obtain any consents necessary for Us to use Your Data to perform the Services and to exercise Our rights under this Agreement, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (e) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, (f) comply with terms of service of any Non-Vintra Applications with which You use Services or Content.
- Usage Restrictions. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Vintra Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Vintra Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates Our Acceptable Use Policy (as posted on our website and updated from time to time), or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service, Content or any software provided to you by Us, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services or, in the case of On-Premises Customers, termination of this Agreement or any Purchase Orders, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension or termination.
- Removal of Content and Non-Vintra Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Vintra Application hosted on or used in conjunction with a Service by You may violate Our Acceptable Use and External-Facing Services Policy or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Vintra Application or modify the Non-Vintra Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Vintra Application until the potential violation is resolved or, in the case of On-Premises Customers, terminate this Agreement and any related Purchase Orders.
- We or third parties may make available third-party products or services, including, for example, Non-Vintra Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Vintra provider, product or service is solely between You and the applicable Non-Vintra provider. We do not warrant or support Non-Vintra Applications or other Non-Vintra products or services, whether or not they are designated by Us as “certified”
or otherwise, unless expressly provided otherwise in an Order Form.
- Non-Vintra Applications and Your Data. If You choose to use a Non-Vintra Application with a Service, You grant Us permission to allow the Non-Vintra Application and its provider to access Your Data as required for the interoperation of that Non-Vintra Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Vintra Application or its provider.
- Interoperation with Non-Vintra Applications. The Services may contain features designed to interoperate with Non-Vintra Applications. To use such features, You may be required to obtain access to such Non-Vintra Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Vintra Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Vintra Application ceases to make the Non-Vintra Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
- Disclaimer of Interoperability. We do not guarantee that Our Services will interoperate with any Non-Vintra Applications, including Your video management system, hardware or software. Notwithstanding any warranty or other provision in this Agreement, You agree that We are not responsible for the performance of the Services to the extent the Services are affected by any Non-Vintra Applications. You agree that We are not responsible for any effects our Services may have on any Non-Vintra Applications.
FEES AND PAYMENT FOR PURCHASED SERVICES
- Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
- Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
- Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
- Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full or, in the case of On-Premises Customers, terminate the Agreement or any Order Forms. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’
prior notice that Your account is overdue, in accordance with Section 12.1 (Manner of Giving Notice) for billing notices, before suspending services to You or terminating the Agreement and Order Forms.
- Taxes. Our 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”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.5, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
- Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
PROPRIETARY RIGHTS AND LICENSES
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You own Your Data and any intellectual property rights therein.
- Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
- License to Host Your Data and Applications. You grant Us and Our applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-Vintra Applications and program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement.
- License to Your Data on Free Trials and Free Services. You hereby grant Us the right to access, use, analyze, modify and disclose any of Your Data, including video footage, audio data, infrared footage, and time series data, that You upload or provide to any online free trial or Free Service, including to provide it to third party vendors or other third parties to use, analyze and modify, in each case for the purpose of training Our algorithms, improving our Services, and creating new Services. You hereby represent and warrant that you will not upload to a free trial or Free Service any video footage, audio data, infrared footage, or time series data of active cases or investigations, and that You have obtained all necessary consents to allow Us to use any uploaded data, including any video footage, audio data, infrared footage, and time series data, in accordance with this Agreement.
- License to Your Data on Purchased Services. Upon the completion of any case or investigation involving Your Data that is video footage, audio data, infrared footage, or time series data, or otherwise upon receiving Your consent, You hereby grant Us the right to access, use, analyze, modify and disclose any such video footage, audio data, infrared footage, and time series data that You upload or provide to any online Purchased Service, and to provide it to third party vendors or other third parties to use, analyze and modify, in each case for the purpose of training Our algorithms, improving our Services, and creating new Services. You hereby represent and warrant that you will promptly inform us of the completion of any case or investigation involving Your Data that is uploaded to a Purchase Service, and that You have obtained all necessary consents to allow Us to use any uploaded video footage, audio data, infrared footage, and time series data in accordance with this Agreement
- On-Premises Customer License. If You are an On-Premises Customer, subject to the terms of this Agreement (including any related Order Forms), We grant You a non-exclusive, non-transferable, non-sublicenseable license to install the software described on the applicable Order Form solely at the locations and on the hardware specified on such Order Form during the applicable Subscription Term. Upon the completion of any Subscription Term You represent and warrant that You will remove Our software from your systems and promptly certify to Us in writing that You have done so.
- Certain On-Premises Customer Data. We may request your consent to enter Your site and collect certain of Your Data, including video footage, audio data, infrared footage, and time series data, that is stored or accessed by you in connection with your use of the Services and to use, analyze, modify and disclose such of Your Data and provide it to third party vendors or other third parties to use, analyze and modify, in each case for the purpose of training Our algorithms, improving our Services, and creating new Services. Any such access to the site or collection or user of Your Data will be subject to terms agreed in advance by You and Us. You hereby represent and warrant that You have obtained all necessary consents to allow Us to use any of Your Data collected under this Section 6.7 in accordance with this Agreement.
- Professional Services. Any content, invention, work product or other intellectual property created during the provision of Professional Services are Our property, and are hereby licensed to You as part of the applicable Service for which such Professional Services were provided for the Subscription Term of such Service. Such license will terminate upon the expiration or termination of the applicable Service.
- License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’
services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’
- Federal Government End Use Provisions. We provide the Services, including related software and technology, that may be delivered to a federal government end user, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227- 7015 (Technical Data –
Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
- 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 the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services, Documentation and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any 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.
- 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 “Confidentiality”
section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Vintra Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
- 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.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
- Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
- Our Warranties. We warrant that during an applicable Subscription Term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data that is in our possession, (b) We will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination”
and “Refund or Payment upon Termination” sections below.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,”
EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
- Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under Section 8.2 above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’
written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non-Vintra Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
- Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (a) any of Your Data or Your use of Your Data with our Services, (b) a Non-Vintra Application provided by You, or (c) the combination of a Non-Vintra Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
- Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
LIMITATION OF LIABILITY
- Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’
PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
- Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’
REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
- Term of Agreement. This Agreement commences on the date stated on the applicable Order Form and continues until all subscriptions granted under the Order Form have expired or have been terminated.
- Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form (together with any renewal term, the “Subscription Term”). Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the then-current Subscription Term. We may increase the per-unit pricing during any renewal term by up to 7% above the applicable pricing in the prior term provided We notify You of such increase at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
- Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
- Effect of Termination. Upon expiration or termination of this Agreement for any reason, You must immediately cease all use of the Services and destroy all copies of the Service, including with respect to On-Premises Customers any of Our software. Our failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any rights.
- Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses”
(but only Sections 6.1, 6.4, 6.5, 6.7 and 6.10), “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-Vintra Applications,” “Surviving Provisions”
and “General Provisions” will survive any termination or expiration of this Agreement.
NOTICES, GOVERNING LAW AND JURISDICTION
- Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
- Arbitration. The parties shall endeavor to resolve any dispute arising out of or related to this Agreement or the breach, termination or validity thereof (the “Dispute”), by negotiation. Any Dispute which remains unresolved 30 days after either party gives written notice of the existence of such Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one arbitrator appointed in accordance with such rules. The place of arbitration shall be San Jose, California. The arbitration shall be conducted in English. Judgment on the award may be entered in any court having jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.
- No Class Action; Waiver of Jury Trial. The parties each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
- Agreement to Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of California without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. For any and all claims, other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement will upon Our request be vested exclusively in, and venue will be in, the state or federal courts sitting in Santa Clara County, California, except that, following confirmation of an arbitration award in a state or federal court in Santa Clara County, California, a judgment arising from the same may be executed in any court of competent jurisdiction.
- Export Compliance. The Services, Content, other technology We make 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. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
- Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at firstname.lastname@example.org.
- Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
- 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. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
- 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.