These Customer Terms and Conditions (this “Agreement”), effective as of the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement or you execute with Vendora an Order that incorporates this Agreement by reference (the“Effective Date”), is by and between Virtual Fulfillment Technologies, Inc. a Delaware corporation with offices located at 228 Park Avenue South, PMB 30937, New York, NY 10003 (“Vendora”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). This Agreement incorporates the terms and conditions of Vendora’s Privacy Policy available at www.vendora.io/privacy-policy. The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. Vendora and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The Parties agree as follows:
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, CUSTOMER AGREES THAT DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND CUSTOMER WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.1 “Authorized User” means Customer’s employees, consultants, contractors, and agents: (a) who are authorized by Customer to access and use the Services under this Agreement; and (b) for whom access to the Services has been purchased here under.
1.2 “Client-Side Software” means any Vendora software in source or object code form that Vendora makes available to Customer for use in connection with the Services.
1.3 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer, an Authorized User or any customer of Customer in connection with the Services; provided that, for purposes of clarity, Customer Data as defined herein does not include Derivative Data or Product Content.
1.4 “Derivative Data” means data and information related to or derived from Customer Data, Product Content or Customer’s use of the Services that has been aggregated and/or anonymized by Vendora.
1.5 “Documentation” means Vendora’s end user documentation, FAQs, guides and other online help relating to the Services, if any.
1.6 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system, or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
1.7 “Order” means: (a) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (b) if Customer registered for the Services through Vendora’s online ordering process, the results of such online ordering process.
1.8 “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
1.9 “Platform”means Vendora’s proprietary hosted software platform, as made available to Authorized Users from time to time.
1.10 ”Product Content” means the photographs, text, graphics, data, articles, photos, images, illustrations, descriptions and other content posted, uploaded, or otherwise provided through the Services by Customer identifying, describing, illustrating, or showing the products and/or services of Customer, or any such product features, functions, specifications or uses of such products and/or services.
1.11 “Services” means the products and/or services that are provided by Vendora to Customer, including without limitation, the Platform, the Client-Side Software, access to the Documentation, the Virtual Brand Program and the Third-Party Products.
1.12 “Subscription Period” means the time period identified on the Order during which Customer may access and use the Services.
1.13 “Third-Party Products” means any third-party products or data provided with, integrated with, incorporated into or utilized in connection with the Services.
1.14 “Vendora IP” means the Platform, the Client-Side Software, the Documentation, the Virtual Brands Trademarks and any and all intellectual property provided to Customer or any Authorized User in connection with the Services. For the avoidance of doubt, Vendora IP includes Derivative Data and any information, data, or other content derived from Vendora’s provision of the Services but does not include Customer Data.
2.1 Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Customer may, solely through its Authorized Users, access and use the Services (including the Platform and Documentation) during the Subscription Period on a non-exclusive, non-transferable (except in compliance with Section 13.9), and non-sublicensable basis. Such use is limited to Customer’s business purposes and the features and functionalities specified in the Order. The foregoing includes a limited license for Customer to install and use the Client-Side Software solely in connection with Customer’s authorized use of the Services. Customer shall implement such integrations and customizations as may be reasonably required to enable Customer to make use of the Services in accordance with the instructions provided by Vendora, which may include access and use APIs or other data pass-through mechanisms in connection with online marketplaces owned or operated by Customer. Each Authorized User must have its own unique account on the Services and Authorized Users may not share their account credentials with one another or any third party. Customer will be responsible for all of the acts and omissions of its Authorized Users in connection with this Agreement and for all use of Authorized Users’ accounts.
2.2 Virtual Brand Program
(a) Program Specifics. As part of the Services, Vendora has developed, operates and maintains an online order management system (the “Virtual Brand Program”) that collects orders from third-party customers (“Virtual Brand Customers”) for virtual brands owned and operated by or on behalf of Vendora (each, a “Virtual Brand”). In connection with Customer’s participation in the Virtual Brand Program, Customer agrees to manage and fulfill orders of Virtual Brand Customer (“Third-Party Orders”) that are assigned to Customer by Vendora, in Vendora’s sole discretion, in accordance with the details as may be set forth on a mutually agreed written order form, cover sheet, statement of work, addendum or other order mechanism (“Specifications”). Customer acknowledges that Vendora assigns Third-Party Orders to customers participating in the Virtual Brand Program based on a variety of factors, and that Vendora has no obligation hereunder to assign any Third-Party Orders to Customer. Customer acknowledges that Vendora is free to suspend Customer’s participation in the Virtual Brand Program for any reason at any time in Vendora’s sole discretion, including without limitation if Customer does not meet the Specifications or based on feedback Vendora may receive about Customer from Virtual Brand Customers regarding the Third-Party Orders.
(b) Revenue Share. Vendora shall collect Third-Party Orders from Virtual Brand Customers for prices set and established exclusively by Vendora in its sole discretion. In consideration for Customer’s participation in the Virtual Brand Program, Vendora shall pay to Vendora the revenue share set forth in an applicable Order based on gross revenue received under Third-Party Orders, less applicable deductions set forth on the Order (the “Revenue Share”). To the extent not received by Customer directly, Vendora shall pay Customer its Revenue Share on a monthly basis throughout the Subscription Period.
(c) Packaging. Customer shall only package Third-Party Orders in packaging approved by Vendora in writing. Vendora may provide such packaging for Customer’s use or otherwise require Customer to source such packaging, as determined by Vendora in its sole discretion. Customer shall not use or display any trademark, service mark, trade name, logo, or other indicia or origin (collectively, “Trademarks”) on any packages of Third-Party Orders, including without limitation any of Customer’s own Trademarks, except for the Trademarks provided by Vendora for use in connection with the Virtual Brand to which the Third-Party Orders belong (the “Virtual Brand Trademarks”). Vendora hereby grants to Customer a limited, non-exclusive, royalty-free, revocable right and license to use the Virtual Brand Trademarks during theSubscription Period solely in connection with Customer’s participation in the Virtual Brand Program and the management and fulfillment of Third-Party Orders.
2.3 Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, translate or create derivative works of the Services, whether in whole or in part, including any ideas, features, functions or graphics therein; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services; (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; (f) use the Services in any manner or for any purpose that violates applicable U.S. or foreign federal, state, or local statutes, laws, rules or regulations, including without limitation with respect to the collection, use and disclosure of data from or about end users and/or specific devices or otherwise relating to relating to privacy and/or marketing; (g) access or use any Vendora IP for purposes of competitive analysis of Vendora or the Services, the development, provision, or use of a competing software service or product or other service or product using similar ideas, features, functions or graphics, or any other purpose that is to Vendora’s detriment or commercial disadvantage; (h) bypass or breach any security device or protection used by the Services, access or use the Services other than by an Authorized User through the use of valid access credentials or otherwise knowingly interfere with or disrupt the integrity or performance of the Services; (i) input, upload, transmit, or otherwise provide to or through the Services any information or materials, including Customer Data or Product Content, that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code; or (j) use any Vendora IP for any activity where use or failure of the Vendora IP could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
2.4 Reservation of Rights. Vendora reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Vendora IP.
2.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Vendora may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services: (a) if Vendora reasonably determines that (i) there is a threat or attack on any of the Vendora IP; (ii) Customer’s or any Authorized User’s use of the Vendora IP disrupts or poses a security risk to the Vendora IP or to any other customer or vendor of Vendora; (iii) Customer, or any Authorized User, is using the Vendora IP for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (v) Vendora’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (vi) any Customer Data or Product Content submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services may infringe or otherwise violate any third party’s intellectual property or other rights or applicable U.S. or foreign federal, state, or local statutes, laws, rules or regulations; (b) if any vendor of Vendora has suspended or terminated Vendora’s access to or use of any Third-Party Products required to enable Customer to access the Services; or (c) in accordance with Section 5.1 (any such suspension described in subclauses (a), (b), or (c), a “Service Suspension”). Vendora shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Vendora shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Vendora will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.6 Derivative Data. Notwithstanding anything to the contrary in this Agreement, Vendora may monitor Customer’s use of the Services and collect and compile Derivative Data. As between Vendora and Customer, all right, title, and interest in Derivative Data, and all intellectual property rights therein, belong to and are retained solely by Vendora. Customer acknowledges that Vendora may compile Derivative Data based on Customer Data and Product Content input into the Services. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Vendora may use and disclose Derivative Data for any lawful purpose.
2.7 Free Trial. Vendora may make the Services available to Customer on a demonstration, pilot, pre-release, or trial basis free of charge (collectively,“Trial Basis Services”). Notwithstanding anything to the contrary in this Agreement, if Vendora provides Customer access to Trial Basis Services, (a) Customer acknowledges that the Trial Basis Services are provided “AS IS”, without warranty of any kind, and (b) Vendora’s obligations pursuant to Sections 4 (“Support”) and 10 (“Indemnification”) shall not apply to such Trial Basis Services.
3.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
3.2 Third-Party Products. Vendora may from time to time make Third-Party Products available to Customer in connection with the Services, including with respect to the delivery of certain goods or services by or on behalf of Customers. Further, Vendora may access or interact with certain Third-Party Products to allow for the transmission of Customer Data from or to such Third-Party Products. For example, Vendora may need to electronically retrieve certain online marketplace information relating to the sale of Customer’s products and services (“Customer Marketplace Information”) maintained by Third-Party Products with whom Customer has a contractual relationship. Customer acknowledges that, in order to make use of the Services, Customer may need to provide Vendora with certain account credentials, authority and/or account information of such Third-Party Products. In furtherance of the foregoing, Customer expressly authorizes and directs Vendora to retrieve such Customer Marketplace Information from such Third-Party Products. Such Third-Party Products may be subject to their own terms and conditions. Vendora is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Vendora to transmit Customer Data from Third-Party Products into the Platform, Customer represents and warrants to Vendora that it has all right, power, and authority to provide such authorization. Customer acknowledges and agrees that Vendora shall not be liable or responsible, directly or indirectly, for Customer’s and/or Vendora’s access to or use of any Third-Party Products, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from such access or use.
3.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;(c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party platforms or service providers ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
During the Subscription Period, Vendora will use commercially reasonable efforts to provide Customer with basic customer support via Vendora’s standard support channels during Vendora’s normal business hours.
5.1 Fees. The Services may be provided for a fee or other charge. Customer shall pay Vendora the fees (“Fees”) identified in the Order (including without limitation the subscription fee, Vendora’s portion of the Revenue Share associated with the Virtual Brand Program and any delivery or other pass-through fees paid by Vendora attributable to Customer) without offset or deduction at the cadence identified in the Order (e.g., monthly or annually). Fees paid by Customer are non-refundable. All payments hereunder shall be made in US dollars by ACH or credit or debit card payment or by another mutually agreed-upon payment method. All payments hereunder are subject to, and Customer agrees to be bound by, the Stripe, Inc.’s Terms of Service, available at https://stripe.com/us/legal, and their Privacy Policy, available at https://stripe.com/us/privacy. Customer acknowledges and agrees that as long as an Order remains in effect, Vendora may charge Customer’s credit card or debit Customer’s bank account, as applicable, for, and Customer is responsible for, all applicable Fees for use of the Services as set forth in such Order. If Vendora is unable to charge Customer’s credit card or debit Customer’s bank account, as applicable, and Customer otherwise fails to make any payment when due, without limiting Vendora’s other rights and remedies: (a) Vendora may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Vendora for all reasonable costs incurred by Vendora in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days or more, Vendora may suspend Customer’s and its Authorized Users’ access to all or any part of the Services until such amounts are paid in full.
5.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Vendora’s income.
6.1 Definition. From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Information, Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
6.2 Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
6.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7.1 Customer Data. Customer hereby grants to Vendora a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Vendora to provide the Services, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Derivative Data.
7.2 Security Measures. Vendora will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data (including Personal Information) from unauthorized access, use, alteration, or disclosure.
7.3 Processing of Personal Information. Vendora’s rights and obligations with respect to Personal Information are set forth in Vendora’s Privacy Policy, available at www.vendora.io/privacy-policy.
8.1 Vendora IP. Customer acknowledges that, as between Customer and Vendora, Vendora owns all right, title, and interest, including all intellectual property rights, in and to the Vendora IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
8.2 Customer IP.
(a) Customer Data; Product Content. Vendora acknowledges that, as between Vendora and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and the Product Content. Customer hereby grants Vendora a perpetual, irrevocable, worldwide, nonexclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, create derivatives from, distribute and transmit the Product Content (i) in connection with providing the Services, and (ii) for Vendora’s lawful business purposes, including for improving, testing, and operating Vendora’s products and services. Customer acknowledges and agrees that Vendora may use Product Content to provide services and products to Vendora’s other customers and business partners, and share Product Content with such third parties without the consent of or attribution to Customer.
(b) Customer Trademarks. Customer hereby grants to Vendora a limited, non-exclusive, royalty-free, revocable right and license to use Customer’s Trademarks(the “Customer Trademarks”) during the Subscription Period for the sole purpose of providing the Services, including in connection with the development and hosting of an online storefront for Customer’s products and services, as requested by Customer, or as otherwise expressly provided in this Agreement. Vendora acknowledges that, as between Vendora and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Trademarks, and all goodwill associated with the Customer Trademarks shall inure to the benefit of Customer.
8.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Vendora by mail, email, telephone, or otherwise, suggesting or recommending changes to the Vendora IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Vendora is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
THE SERVICES, VENDORA IP AND THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS” AND VENDORA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VENDORA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VENDORA MAKES NO WARRANTY OFANY KIND THAT THE SERVICES, VENDORA IP, THIRD-PARTY PRODUCTS OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE,ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
10.1 Vendora Indemnification
(a) Vendora shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Customer alleging that any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Vendora in writing of the claim, cooperates with Vendora, and allows Vendora sole authority to control the defense and settlement of such claim.
(b) If such a claim is made or appears possible, Customer agrees to permit Vendora, at Vendora’s sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Vendora determines that neither alternative is reasonably commercially available, Vendora may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(c) This Section 10.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Vendora or authorized by Vendora in writing; (ii) modifications to the Services not made by Vendora; (iii) Customer Data or Product Content; or (iv) Third-Party Products.
10.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Vendora’s option, defend Vendora from and against any Losses resulting from any Third-Party Claim alleging that the Customer Data, Product Content or any use of the Customer Data or Product Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s or any Authorized User’s (a) negligence or willful misconduct; (b) use of the Services in a manner not authorized by this Agreement; or (c) use of the Services in combination with data, software, hardware, equipment or technology not provided by Vendora or authorized by Vendora in writing; in each case provided that Customer may not settle any Third-Party Claim against Vendora unless Vendora consents to such settlement, and further provided that Vendora will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10.3 Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND VENDORA’S SOLE LIABILITY AND OBLIGATION FORANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL VENDORA’S AGGREGATE LIABILITY UNDER THIS SECTION 10 EXCEED ONE TIMES (1X) THE TOTAL AMOUNTS PAID TO VENDORA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION,REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TOUSE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO VENDORA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.1 Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the“Subscription Period”).
12.2 Termination. In addition to any other express termination right set forth in this Agreement:
(a) Vendora may terminate this Agreement, (i) effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Vendora’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2.3 or Section 6; or (ii) effective upon 30 days’ prior written notice, for convenience for any reason or no reason.
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Vendora IP and certify in writing to the Vendora that the Vendora IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
12.4 Survival. This Section 12.4 and Sections 1,6, 8, 9, 10, 11, 12.3, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
13.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of thisAgreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; and (b) second, any other documents incorporated herein by reference.
13.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
13.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
13.4 Amendment and Modification. Vendora may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Vendora will use commercially reasonable efforts to provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Services or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order with Vendora, as of the date of execution of such Order.
13.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
13.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.7 Governing Law. This Agreement is governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
13.8 Arbitration. Customer acknowledges that it has read this Section carefully and understands that it requires Customer to arbitrate certain disputes and claims with Vendora and limits the manner in which Customer can seek relief from Vendora. Both Customer and Vendora acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Vendora’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon Customer’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either Party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York.The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Vendora will pay all arbitration fees for claims less than twenty-five thousand ($25,000) dollars. Vendora will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Customer’s claim is frivolous.
(c) Small Claims Court; Infringement. Either Customer or Vendora may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where Customer is based. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each Party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a Party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. CUSTOMER AND VENDORA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE ORJURY. Customer and Vendora instead agree to have claims and disputes resolved by arbitration. Customer and Vendora acknowledge that arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Vendora over whether to vacate or enforce an arbitration award, CUSTOMER AND VENDORA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Vendora is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. Customer has the right to opt out of the provisions of this Section by sending written notice of Customer’s decision to opt out to the following address: 228 Park Avenue South, PMB 30937, New York, NY 10003, postmarked within thirty (30) days of first accepting this Agreement. Customer must include (i) Customer’s name and residence address, (ii) the email address and/or telephone number associated with Customer’s account, and (iii) a clear statement that Customer wants to opt out of this Agreement’s arbitration agreement.
(g) Exclusive Venue. If Customer sends the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either Customer or Vendora to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration agreement will not apply to either Party, and both Customer and Vendora agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section will be null and void. This Section will survive the termination of Customer’s relationship with Vendora.
13.9 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Vendora. Any purported assignment or delegation in violation of this Section will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. No assignment or delegation will relieve the assigning or delegatingParty of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
13.10 Publicity. Vendora may identify Customer as a user of the Services and may use Customer’s name, logo, and other trademarks in Vendora’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, except as expressly provided for herein, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
13.11 Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
13.12 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Subscribe to our newsletter
