Vyopta Terms of Service for Product
Effective as of September 5, 2019
Vyopta Terms of Service for Product
These Terms of Service (the “Terms”) govern your purchase, use and access to the products and services provided by Vyopta Incorporated, a Delaware corporation (“Vyopta”). Please review these Terms carefully before using the Services.
By using the Services, clicking on the “I Agree” or other acceptance button, completing the registration process, and/or browsing the Site or downloading any of our Data Collectors, you represent that you:
- have read, understand, and agree to adhere to and be bound by the Terms;
- are of legal age to form a binding contract with Vyopta, and
- have the authority to enter into the Terms personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms. In the event that you are agreeing to these Terms on behalf of a company or organization, “you”, “your”, and “Customer” shall refer to the entity that you are representing. (Customer and Vyopta may be referred to individually as a “Party”; and collectively as the “Parties”).
The terms used herein shall have the following meanings:
- 1.1 “Affiliate” means, with respect to any Party, (a) any person or entity directly or indirectly controlling, controlled by or under common control with such Party, where control means the legal, beneficial, or equitable ownership, directly or indirectly, of fifty percent or more of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights, or (b) any other entity that the Parties mutually agree to treat as an Affiliate of such Party due to the effective control of the activities of such entity regardless of the percentage of ownership.
- 1.2 “Customer Data” means data and information (i) to which Vyopta has access in connection with the provision of the Services, (ii) processed, prepared, stored, transmitted or generated by or through the Vyopta Portal, (iii) that is text, pictures, sound, graphics, video and other data provided by or on behalf of Customer End Users, (iv) about or relating to End Users, (v) reports describing the utilization and operation of the Vyopta Portal, (vi) and/or information provided to Customer by suppliers or other entities invited to participate in Events run on the Vyopta Portal by Customer.
- 1.3 “Data” means any data, information or material provided or submitted by Customer to the Vyopta platform in the course of using the Services.
- 1.4 “Data Collector” means the software application provided by Vyopta to collect and transmit Data to the SaaS Application.
- 1.5 “End User” means a person authorized by Customer to access the Vyopta Portal and utilize the vAnalytics Platform. An End User must be an employee, contractor or agent of Customer or a Customer
- 1.6 “Fee” means a fee specifically identified herein.
- 1.7 “NPPI” means any “non-public personal information” as that information is defined in Privacy Act and Regulations.
- 1.8 “Privacy Act and Regulations” means the provisions of Title V of the Federal Gramm-Leach-Bliley Act and any state statutes adopted to comply therewith, the FTC regulations promulgated pursuant thereto (including 16 CFR § 313, 16 CFR § 314, 12 CFR § 332 and 12 CFR § 364), and any state regulations promulgated under state privacy statutes or in compliance with the Gramm-Leach-Bliley Act and any successor statutes and regulations to the foregoing.
- 1.9 “Reseller” means any authorized reseller of Vyopta Services.
- 1.10“SaaS Application” means any of the applications provided as a subscription service by Vyopta on its cloud platform as specified, listed or described in a purchase order.
- 1.11 “Services” means the services provide through the SaaS Application, Data Collector, the Vyopta Portal and the provision of the services to be performed by Vyopta as described in Section 3.0.
- 1.12 “Subscription Term” means the term of the subscription for rights to access and use the SaaS Applications and Data Collectors as specified in a purchase order.
- 1.13 “Vyopta Portal” means the website that provides End User access to Data, SaaS Application, and Services.
These Terms shall commence upon and run for a subscription period as mutually agreed upon by the Parties as evidenced in writing.
3.0 VYOPTA RESPONSIBILITIES
During each active Subscription Term, Vyopta will provide the following:
- 3.1 Access to the SaaS Application, the Data Collector, and Vyopta Portal, pursuant to the rights granted in Section 5.0 and the relevant purchase order.
- 3.2 Maintenance, support and updates to the SaaS Application, Data Collector and Vyopta Portal.
4.0 CUSTOMER RESPONSIBILITIES
During the Term, Customer shall:
- 4.1 Provide and maintain, if applicable, servers or virtual machines necessary to host the Data Collector.
- 4.2 Provide the access or service accounts necessary for the Data Collector to collect the Data.
- 4.3 Specify and manage the End Users permitted access to the SaaS Application, Data Collectors, and Vyopta Portal, and prevent unauthorized use or access by its End Users.
- 5.1 License Grant. Subject to the payment of the Fees described herein and during the applicable Subscription Term, Vyopta hereby grants to Customer and End Users, a non-exclusive, worldwide license to use, display, and execute the SaaS Application and Data Collector during the Subscription Term and any renewals thereof, if any, solely for its own internal business operations.
- 5.2 License Restrictions. The license granted above is subject to the following restrictions: (i) title to and ownership of the Services shall remain with Vyopta; (ii) Customer shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Vyopta Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iii) Customer shall not access the Vyopta Services to build a similar or competitive website, application or services; (iv) Customer shall not use the Services for commercial time-sharing, rental, or service bureau use; (v) Customer shall not assign, sublicense, lease, transfer, or rent the Service; (vi) Customer shall not use any data mining or similar data gathering and extraction methods in connection with the Services; and (vii) Customer shall not use the Vyopta Services to violate any applicable law.
- 5.3 Aggregated Information. Vyopta may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). We may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer Data, personal Data or Confidential Information in a form that could serve to identify Customer or any individual. We retain all intellectual property rights in Service Analyses.
6.0 ORDERS; PAYMENTS
- 6.1 Directly with Vyopta. Vyopta purchase orders will specify your authorized scope of use for the Services, which may include: (1) number and type of authorized users, (2) number of installations of Data Collectors or instances, or (3) other restrictions or billable units (as applicable, the “Scope of Use”). The purchase order may also include any applicable products, services, support or maintenance renewal, or purchases made to increase or upgrade your Scope of Use.
- 6.2 Reseller Orders. These Terms apply whether you purchase access to and use of Vyopta Services directly from us or through a Reseller. If you purchase through a Reseller, your Scope of Use shall be stated in the purchase order placed by the Reseller for you, and Reseller is responsible for the accuracy of any such purchase order. Resellers are not authorized to make any promises or commitments on Vyopta’s behalf, and we are not bound by any obligations to you other than what we specify in these Terms.
- 6.3 Fee. In consideration of Vyopta’s performance of the Services, Customer shall pay the Fees listed on the applicable invoice.
- 6.4 Payments. Customer agrees to pay all fees in U.S. dollars within thirty (30) days of the date of a valid invoice. In making payments, you acknowledge that you are not relying on future availability of any Services beyond the current subscription term or any upgrades or feature enhancements. You agree that we may bill your credit card for renewals, upgrades or additions, and unpaid fees, as applicable. If you purchase any Services through an authorized Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use the Services if we do not receive our corresponding payment from the Reseller. Fees are non-refundable and non-cancelable, provided, however, if you terminate these Terms for cause as provided herein, you will have the right to a refund of the unused portion of the paid fees within thirty (30) days.
Customer will pay any and all applicable federal, state and local sales, use, value-added, excise, duty and any other taxes of any nature assessed on the Services, if any. However, taxes based upon Vyopta’s net income or gross receipts, personal property taxes on property it owns or leases, and franchise or privilege taxes on its business will be the sole responsibility of Vyopta. Vyopta shall issue to Customer a separate invoice for taxes or identify on a separate line item on such invoice the taxes due on any Service supplied by Vyopta.
8.0 INDEPENDENT CONTRACTOR
The relationship of Vyopta (including without limitation, all Vyopta’s employees) to Customer shall be that of an independent contractor rendering professional services. Nothing contained herein shall be deemed to create the relationship of employer and employee, or principal and agent, joint venture or partner between Vyopta (or any of Vyopta’s employees) and Customer.
9.0 INTELLECTUAL PROPERTY RIGHTS
- 9.1 Vyopta (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related intellectual property rights, in and to the SaaS Application, Data Collector, Vyopta Portal, Service Analyses, Services, and any additional inventions, technologies or intellectual property created by Vyopta in provisioning the Services. These Terms does not convey to Customer any rights of ownership in or related to the SaaS Application, Data Collector, Vyopta Portal, Services, or any other intellectual property rights owned by Vyopta. Vyopta’s name, logo, and product names associated with the Services are trademarks of Vyopta, and no right or license is granted to use them except as specified herein.
- 9.2 All Customer Data shall belong to Customer and Vyopta shall have no right to withhold, remove, or discard Customer Data for any reason whatsoever except as authorized under these Terms. Customer Data will be promptly returned to Customer upon request. Customer Data shall be provided by Vyopta as a standard flat file format at no additional cost to Customer.
- 10.1 Confidential Information. For purposes of these Terms, the term “Confidential Information” shall be deemed to include all information and materials furnished by or on behalf of either Customer or Vyopta (and/or or its parent, affiliated and subsidiary companies and/or their respective employees, agents, representatives and/or contractors) to the other Party or by or on behalf of either Customer or Vyopta, it’s Affiliates, their respective employees, agents, representatives, contractors, or any of them to the other Party, and/or otherwise arising from and/or in connection with the Services which have been prominently identified as “confidential information”, including, without limitation, all information transmitted in writing, orally, visually (i.e., video terminal display) or on magnetic media, and including all financial and credit information, product plans and technologies, trade secrets, know-how, ideas, concepts, designs, drawings, sketches, flow charts, blue prints, diagrams, manufacturing and test data, computer programs, progress reports, methods research and any other personal or intellectual property relating, as appropriate, to Customer or Vyopta, or their respective parents, Affiliates or subsidiaries. Notwithstanding the foregoing, any NPPI and any information relating to the business, operations, dealers, distributors, customers, employees, contractors, financial and/or credit condition, systems, projections, strategies, intellectual property and trade secrets of either Party and/or its Affiliates shall not need to be prominently identified as confidential information to be considered as such under these Terms. Confidential Information specifically includes all Customer Data. “Confidential Information” as defined herein shall not include information that:
- 10.1.1 is or becomes known to the public through no fault of the receiving Party; or
- 10.1.2 is known to the receiving Party prior to its receipt or becomes known to the receiving Party by disclosure from a third Party who has a lawful right to disclose the information; or
- 10.1.3 is known to the receiving Party from its own independent development of same, as reasonably established by the receiving Party; or
- 10.1.4 is authorized to be disclosed by prior written consent of the disclosing Party.
- 10.2 Data Privacy
- 10.2.1 NPPI.
Vyopta expressly understands and acknowledges that Customer’s Confidential Information may include NPPI, the disclosure of which to Vyopta under these Terms constitutes a disclosure to a “nonaffiliated third party” under an exception to certain restrictions on disclosures contained in the Privacy Act and Regulations. NPPI includes personally identifiable information, and any list, description or other grouping of individuals (including publicly available information pertaining to them) that is derived using any personally identifiable information that is not publicly available.
- 10.2.2 Vyopta Agreement.
Without exception, Vyopta will not use or disclose the NPPI it receives for purposes other than those necessary to carry out the Services subject to these Terms and the applicable exception to restrictions on disclosures to nonaffiliated parties contained in the Privacy Act and Regulations (e.g., 16 CFR §§ 313.14 and 313.15). Vyopta will implement and maintain safeguards for the NPPI it receives consistent with the applicable requirements of the Privacy Act and Regulations, including as set forth at 16 CFR § 314.3, in order to (a) ensure the security and confidentiality of the NPPI, (b) protect against anticipated threats or hazards to the security or integrity of such information, and (c) protect against unauthorized access to or use of such information.
- 10.2.1 NPPI.
- 10.3 Ownership; Return. All Confidential Information is and shall remain the property of the disclosing Party respectively and shall be returned to the disclosing Party in accordance with Section14.1 or immediately upon request by the disclosing Party.
- 10.4 Nondisclosure. Subject to the provisions of Section 5.5 above, the receiving Party agrees and acknowledges that it shall have no proprietary interest in the Confidential Information and will not disclose, communicate nor publish the nature or content of such information to any person or entity, nor use, except in connection with the performance of its obligations under these Terms or as otherwise authorized in writing by the disclosing Party, any of the Confidential Information it produces, receives, acquires or obtains from the disclosing Party. The receiving Party shall take all necessary steps to ensure that the Confidential Information is securely maintained. The receiving Party’s obligations set forth herein shall survive the termination or expiration of these Terms. In the event the receiving Party becomes legally compelled to disclose any of the Confidential Information, it shall provide the disclosing Party with prompt notice thereof and shall not divulge any information until the disclosing Party has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions by the disclosing Party are unsuccessful, or the disclosing Party otherwise waives its right to seek such remedies, the receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose.
- 10.5 Remedies. The parties acknowledge and agree that remedy at law for a breach or threatened breach of any of the provisions under this Section would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by the receiving Party of any of the provisions contained in this Section, the disclosing Party, without posting any bond, shall be entitled to obtain provisional equitable relief in the form of temporary restraining order and/or temporary injunction or any other provisional equitable remedy which may then be available, and the receiving Party hereby agrees not to contest same. Nothing herein contained shall be construed as prohibiting the disclosing Party from pursuing any other remedies available to it from such breach or threatened breach. Pursuit of any remedy at law or in equity shall not be deemed as an election of remedies.
- 10.6 Data Security. Vyopta shall at all times during the Term provide and maintain up-to-date security with respect to (a) the Services, (b) the Vyopta Portal, (c) Vyopta’s physical facilities, and (d) Vyopta’s networks, to prevent unauthorized access or “hacking” of Customer’s Confidential Information. Vyopta shall provide security for its networks and all internet connections consistent with best practices observed by other organizations in its industry, and Vyopta will promptly install all patches, fixes, upgrades, updates and new versions of any security software it employs.Vyopta will ensure that Customer Data is: (i) logically separated from information of any other person or entity that Vyopta stores or processes, and (ii) encrypted when in transmission or archived.Vyopta will maintain appropriate safeguards to restrict access to the Customer Confidential Information to those employees, agents or service providers of Vyopta who need the information to carry out the purposes for which it was disclosed to Vyopta. For information disclosed in electronic form, Vyopta agrees that appropriate safeguards include electronic barriers (e.g., “firewalls” or similar barriers) and password protected access to the Customer Confidential Information.Vyopta also will establish and maintain any additional physical, electronic and procedural controls and safeguards to protect the Customer Confidential Information from unwarranted disclosure as may be required for Customer to comply with all applicable federal, international and state laws and regulations now in effect or hereafter imposed, passed or promulgated.
- 10.7 Loss or Unauthorized Access. In the event of any reasonably suspected disclosure or loss of, inability to account for, or unauthorized access to any Confidential Information of the disclosing Party, the receiving Party shall (a) notify the disclosing Party promptly upon becoming aware thereof, and (b) take any actions reasonably requested by, and provide all reasonable cooperation with, the disclosing Party to minimize the disclosure or loss and mitigate any damage associated with such disclosure or loss.
- 10.8 Data Storage. Vyopta provides the Service from the United States. By using and accessing the Service, Customer understands and agrees to the storage and processing of Data and any other information provided in the United States. Storage and Data in a location outside of the United States may be available by mutual agreement of the Parties.
11.0 WARRANTIES AND REPRESENTATIONS OF VYOPTA
- 11.1 Vyopta represents and warrants that it has the power and authority to enter into and perform its obligations under these Terms.
- 11.2 Vyopta has secured full right, title, all permits, licenses, regulatory approvals, registrations and authority, including, without limitation, registration with the appropriate taxing authorities for remittance of taxes, to provide the Services.
- 11.3 Vyopta’s personnel have the proper skill, training and background suitable to perform the Services in a competent, timely, and professional manner in accordance with the Terms.
- 11.4 The Services shall conform in all material aspects to the specifications and documentation for such Services.
- 11.5 There will be no material reduction in functionality of the Services during the Subscription Term, and Vyopta will notify Customer of any material changes to the Services at least thirty (30) days prior to such change.
- 11.6 Vyopta represents and warrants that none of the Services, Data Collector, and/ or SaaS Applications) will infringe on any patent, copyright, trademark, trade secret or other intellectual property right of any third Party.
- 11.7 Vyopta represents and warrants to Customer that it has not violated any applicable laws or regulations or any Customer policies of which Vyopta has been given notice regarding the offering of unlawful inducements in connection with these Terms.
- 11.8 Vyopta represents and warrants that the Services, SaaS Application, and Data Collector, including future enhancements and modifications thereto, shall be free of any programs, subroutines, code, or instructions (including but not limited to viruses, worms, or time bombs), that inhibit, damage, interrupt, interfere with or hinder the operation of the Data Collector, the system in which it resides, or any other software or data on such system or any other system with which it is capable of communicating.
- 11.9 EXCEPT AS EXPRESSLY INDICATED IN THESE TERMS AND SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, VYOPTA MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SAAS APPLICATION, DATA COLLECTOR OR SERVICE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE.
12.0 CUSTOMER REPRESENTATIONS AND WARRANTIES
- 12.1 Customer represents and warrants to Vyopta that: (i) Customer has the power and authority to enter into and perform its obligations under these Terms; (ii) the Customer Data does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Customer owns the Customer Data and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Customer Data on and within the Vyopta Portal.
- 12.2 Customer warrants that any and all information posted to the Vyopta Portal will not contain any illegal, obscene or other offensive material whatsoever.
- 12.3 Customer agrees to accept responsibility for the acts and omissions of its End Users. Any End User that is not an employee of Customer or its Affiliates shall be subject to a confidentiality agreement between Customer and such End User (or such End User’s employer) that restricts such End User from using or disclosing information such as Vyopta’s Confidential Information outside the scope of the End User’s services for Customer.
- 12.4 Customer agrees not to use, export, import or transfer the Vyopta Services except as authorized by U.S. law, the laws of the jurisdiction in which the Vyopta Services were obtained and any other applicable laws. In particular, but without limitation, the Vyopta Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Vyopta Services, Customer represent and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Vyopta are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Vyopta Services, or any portion thereof, either directly or indirectly, to any country in violation of such laws and regulations.
- 13.1 Material Breach.
- 13.1.1 Customer may terminate these Terms upon written notice if Vyopta breaches any of its obligations hereunder in any material respect, which breach is not cured within thirty (30) days of receipt of written notice of such breach.
- 13.1.2 Vyopta may terminate these Terms upon written notice if Customer breaches any of its obligations hereunder in any material respect, which breach is not cured within thirty (30) days of receipt of written notice of such breach.
- 13.1.3 In the event that any undisputed invoice under these Terms is at any time outstanding and unpaid for ninety (90) days, and Customer fails to make such payment within 10 business days of receiving written notice from Vyopta of the failure to make such payment, Vyopta may, by giving written notice to Customer, terminate these Terms as of a date specified in the notice of termination.
- 13.1.4 Termination Assistance. Commencing upon any notice of termination of these Terms by either Party (other than termination by Vyopta under Sections 13.1.2 or 13.1.3), and for a maximum period of three (3) months thereafter, Vyopta will, upon Customer’s request, continue to provide the Services which were provided by Vyopta prior to such expiration or termination (at the same fees that Customer was paying prior to the notice of termination of the Terms), to continue without interruption or adverse effect. During this three (3) month period, Vyopta will provide to Customer reasonable assistance (at no additional cost) to provide or download all Customer Data, in a standard flat file format.
14.0 EFFECT OF TERMINATION
- 14.1 Return of Confidential Information. Upon any expiration or termination of these Terms, each Party shall return upon request the Confidential Information of the other Party provided hereunder.
- 14.2 Payments.
- 14.2.1 Within thirty (30) days of the termination of these Terms, Vyopta shall provide an invoice indicating its final billing for any outstanding Fees or expenses.
- 14.2.2 In the event of termination by Customer pursuant to Section 13.1.1, Vyopta shall return to Customer the unused portion of the Fees paid in advance based upon the date of the breach event.
- 14.3 Survival. The provisions of the following Sections of the Terms, as well as any other provisions of these Terms which contemplate performance or observance subsequent to termination or expiration of these Terms, shall survive termination or expiration of these Terms and continue in full force and effect: 1, 7, 9, 10, 11.6, 11.7, 11.9, 12.1, 12.3, 13.2 14, 15, 17 and 18.
- 15.1 Each Party (each, an “Indemnitor”) shall defend, indemnify and hold the other Party (the “Indemnitee”), its parent, subsidiaries, Affiliates, and their respective directors, officers, agents, representatives, contractors, employees, successors and assigns, harmless from and against any and all costs, expenses, damages, claims, suits, actions, liabilities, losses and judgments, including, without limitation, attorneys’ fees and legal expenses, based upon (i) personal injury and/or death, (ii) property damage, (iii) breaches of confidentiality arising out of Indemnitor’s performance of these Terms, or (iv) otherwise arising in connection with the acts or omissions of Indemnitor, its employees, agents or contractors, at no expense to the Indemnitee. This obligation shall extend beyond the termination or expiration of these Terms.
- 15.2 Vyopta shall indemnify, defend and hold Customer harmless from and against any and all damages that arise from or relate to any and all claims made or threatened by any third party that the SaaS Application, Data Collector or Services with other products or services not furnished and used within the scope of these Terms infringe or violate a patent, copyright, trademark, trade secret or other intellectual property right of a third party. Vyopta shall have no liability for any claim based on: (a) use of the SaaS Application, Data Collector or Service outside the scope of these Terms; (b) the combination, operation, or use of the SaaS Application, Data Collector or Services furnished or authorized by Vyopta; or (c) any modification by Customer of the SaaS Application, Data Collector or Services not made or authorized in writing by Vyopta.
- 15.3 In the event the SaaS Application, Data Collector or Service is held to infringe, or is believed by Vyopta to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Vyopta shall have the option within a commercially reasonable period of time, at its expense, to: (a) modify the infringing item to be non-infringing; (b) obtain for Customer a license to continue using the Services, or (c) replace the infringing item with a non-infringing software or service with functionality and/or performance equal to or better than the original software or service.
- 15.4 NEITHER PARTY TO THESE TERMS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY TO THESE TERMS IN CONNECTION WITH THESE TERMS, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACHES OF THESE TERMS RELATING TO SECTION 10 (CONFIDENTIALITY) SECTION 11.7 (INTELLECTUAL PROPERTY), OR CLAIMS ARISING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AGGREGATE DAMAGES OF ANY KIND IN EXCESS OF THE NET AMOUNTS PAID BY CUSTOMER TO VYOPTA PURSUANT TO THESE TERMS HEREUNDER FOR THE SUBSCRIPTION TERM UNDER WHICH THE EVENT GIVING RISE TO LIABILITY OCCURRED.
16.0 FORCE MAJEURE
- 16.1 Liability. No Party shall be liable for any default or delay in the performance of its obligations under these Terms if and to the extent such default or delay is caused, directly or indirectly, by: fire, flood, earthquake, elements of nature or acts of God; riots, terrorism, civil disorders, or any other cause beyond the reasonable control of such Party (a “Force Majeure Event”).
- 16.2 Duration. In such event, the non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so delayed in its performance shall immediately notify the Party to whom performance is due and describe at a reasonable level of detail the circumstances causing such delay.
- 16.3 Effect. If any event under Section 16.1 above substantially prevents, hinders, or delays performance of the Services as critical for more than fifteen (15) consecutive days, then at Customer’s option: (i) Customer may terminate any portion of these Terms so affected and the charges payable hereunder shall be equitably adjusted to reflect those terminated Services; or (ii) Customer may terminate these Terms without liability to Customer or Vyopta as of a date specified by Customer in a written notice of termination to Vyopta. Vyopta shall return to Customer the unused portion of the Fee paid upfront for the Subscription term starting from the date of such notice.
- 16.4 Disaster Recovery. In the event of a disaster, as defined below, Vyopta will be responsible for providing disaster recovery services in accordance with the provisions of their disaster recovery plan. This disaster recovery plan shall be reviewed no less frequently than annually. In the event that a disaster occurs and Vyopta fails to restore the Services within 48 hours of the initial disruption to Services, Customer may, in its discretion, deem such actions to be a material default by Vyopta incapable of cure, and Customer may terminate these Terms related to the disrupted Services upon written notice to Vyopta and receive a refund for the unused portion of the Fees paid under the applicable order. For purposes of these Terms, a “disaster” shall mean an interruption in the Services or the inability of Vyopta to provide Customer with the Services for any reason that could be remedied without relocating the Services to a different physical location outside the proximity of its primary data center.
17.0 GOVERNMENT USE
If Customer is a U.S. government entity, it acknowledge that any Services provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
18.0 GENERAL PROVISIONS
- 18.1 Notices. All notices, accountings, payments, etc., which either Party desires or is required to give to the other shall be given in writing by personal delivery, overnight courier, or sent by United States mail postage prepaid, return receipt requested or facsimile transmission acknowledged as received followed by personal or mail delivery. In addition, notice delivered via facsimile or email is legally effective if it is: (a) confirmed as received by the other Party; or (b) an original (hard copy) follows it in a timely manner. All such notices shall be effective upon receipt or refusal thereof. Either Party may change its notice address by a notice given to the other in the manner provided for in this Section.
- 18.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Texas. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Terms.
- 18.3 Waiver. A delay or omission by either Party hereto to exercise any right or power under these Terms shall not be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained.
- 18.4 Cumulative Remedies. Except as otherwise expressly provided herein, all remedies provided for in these Terms shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
- 18.5 Severability. In the event that any provision of these Terms shall be held illegal or otherwise unenforceable, such provision shall be severed and the entire Terms shall not fail on account thereof and the balance of these Terms shall continue in full force and effect.
- 18.6 Headings. The captions and headings in these Terms are inserted only as a matter of convenience and for reference and in no way define the scope or content of these Terms or the construction of any provision hereof or of any document or instrument referred to herein.
- 18.7 Compliance with Law. In performing its obligations under these Terms, Vyopta shall comply with all applicable federal, state and local laws, rules and regulations.
- 18.8 Alternative Dispute Resolution. Except for claims for provisional equitable relief, all disputes arising hereunder shall be settled in an amicable discussion between the signatories to these Terms including their appointee or successors. If any dispute should arise between the parties which cannot be resolved in such manner, before resorting to any other legal remedy (other than provisional equitable remedies such as temporary injunction and/or restraining order), the parties shall attempt in good faith to resolve any such controversy or claim by mediation before and in compliance with the rules established by any mutually acceptable alternative dispute resolution organization. The selection of an organization shall be made within ten (10) business days after notification from one Party to the other of a desire to mediate a dispute.
- 18.9 Assignment. Neither Party may assign or transfer these Terms or any of its rights nor duties under these Terms without the written consent of the other Party and any such attempt to transfer without such written consent will be deemed null and void. However, consent to assign is hereby expressly granted for an assignment to a successor-in-interest in the event of a merger, acquisition or sale of all or substantially all of a Party’s assets. These Terms shall will be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns. Notwithstanding the foregoing, Customer shall have the right to assign these Terms, and/or any rights and/or obligations hereunder, to an affiliated entity without the prior consent of Vyopta.
- 18.10 Entire Agreement/Modification. These Terms, including any schedules, appendices, exhibits and attachments hereto, constitutes the entire agreement between Customer and Vyopta relating to the transactions contemplated hereby. These Terms may not be modified or amended except by a written agreement signed by an authorized representative of each Party. Any terms or conditions contained in Customer purchase orders are superseded by these Terms.
- 18.11 Publicity. With the prior written approval of Customer, Vyopta may use the names or trademarks of Customer for the approved use.
- 18.12 Non-Solicitation. Neither Party will directly or indirectly solicit for employment any employee of the other Party during the term of and for a period of one year after termination of these Terms. If either Party directly or indirectly solicits and then employs such an employee during this timeframe, the soliciting Party will pay the other Party a recruitment fee equal to Ten Thousand Dollars ($10,000) for any single hiring as full payment for such solicitation. For the avoidance of doubt, neither Party is prohibited from employing an individual who initiates contact concerning employment opportunities or who applies for a position in response to a general solicitation of employment, or whose résumé is posted by the individual to an employment web site that is searchable by a Party.
- 18.13 Government End Users. Vyopta Services are commercial computer software. If the user or licensee of Vyopta Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of Vyopta Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. Vyopta Services were developed fully at private expense. All other use is prohibited.
- 18.14 Nondiscrimination. Vyopta shall, and shall cause its subcontractors to, abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
- 18.15 No Third Party Beneficiaries. Except as stated herein, these Terms does not create any right or cause of action in or on behalf of any person or entity other than the Parties.
- 18.16 Interpretation. These Terms shall be construed without the aid of any canon or rule of law requiring interpretation against the Party drafting or causing the drafting of an agreement or the portions of an agreement in question, it being agreed that all parties hereto have participated in the preparation of these Terms.