TERMS OF SERVICE

TERMS OF SERVICE

TERMS OF SERVICE

Thank you for using Vendelux!

These Business Terms of Service (“Terms”) govern your business’s access to and use of the Vendelux website, apps, APIs and widgets. Please read these Terms carefully and contact us if you have any questions. By creating an account under these Terms (“Business Account”), or by accessing or using the Service, you agree to be bound by these Terms and our Privacy Policy

1. Definitions.

“Customer Data” means all data and information provided by or on behalf of Customer to Vendelux in connection with the Vendelux Services.

“Documentation” means any user guide, help information and other documentation and information regarding the Hosted Service that is delivered by Vendelux to Customer in electronic or other form, if any, including any updates provided by Vendelux from time to time.

“Hosted Service” means the event discovery, measurement, and management platform and services hosted by Vendelux and provided to Customer from time to time. The Hosted Service includes any change, improvement, extension or other new version thereof that is developed or otherwise made available to Customer.

“Platform” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Vendelux in providing the Vendelux Services.

“Vendelux Services” means, collectively, the Hosted Service, Platform, and Documentation.

2. Vendelux services

2.1 Hosted Service. Subject to all terms and conditions of this Agreement, Vendelux will use commercially reasonable efforts to operate the Platform in connection with making the Hosted Service available to Customer. Customer may use the Documentation solely in connection with the Hosted Service. Vendelux reserves the right to modify the Hosted Service (in whole or in part) at any time, provided that Vendelux will not materially reduce the functionality of the Vendelux Services.

2.2 Support. Vendelux will use commercially reasonable efforts to provide Customer with technical support and updates for the Hosted Service from time to time.

2.3 Limitations. Vendelux will not be responsible or liable for any failure in the Vendelux Services resulting from or attributable to: (a) failure to use the Vendelux Services in accordance with the Vendelux’s requirements, including without limitation with instructions included in the Documentation; (b) any Customer Data; (c) failures in any telecommunications, network or other service or equipment that are not within Vendelux’s reasonable control; (d) Customer’s products, services, negligence, acts or omissions; (e) any force majeure or other cause beyond Vendelux’s reasonable control; (f) scheduled maintenance communicated by Vendelux to Customer; or (g) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by Vendelux’s negligence or willful misconduct.

2.4 Privacy. Customer shall maintain privacy policies that are consistent with industry privacy, security standards and all applicable legal requirements. Vendelux shall have no liability or responsibility for any personally identifiable information that Customer provides to Vendelux, including as part of the Customer Data or any Third Party Content (as defined below).

3. Proprietary Rights.

3.1 Vendelux Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Vendelux hereby agrees that Customer has the right to access and use the Vendelux Services during the term of this Agreement only for the use contemplated herein or in an applicable Order Schedule. For clarity, the Vendelux Services are hosted by Vendelux, and no software code for the Vendelux Services will be provided to Customer hereunder. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Vendelux (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Vendelux Services.

3.2 Customer Data. Customer shall own all rights in and to all Customer Data. Notwithstanding the foregoing, Customer hereby grants Vendelux a non-exclusive, worldwide license to access, use and analyze Customer Data in accordance with this Agreement.

3.3 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly: (a) use any of Vendelux’s Confidential Information (as defined below) to create any service, software, documentation or data that is similar to any aspect of the Vendelux Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use the Vendelux Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Vendelux Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (f) permit any third party to engage in any of the foregoing proscribed acts.

3.4 Analytics. Customer expressly acknowledges and agrees that Vendelux may collect and retain aggregated and anonymous data on the use, contents and performance of the Vendelux Services and Customer Data to produce reports, analyses, data, databases and other similar materials; provided that none of the foregoing specifically identify Customer. Any such materials produced using such aggregated and anonymized data are the sole and exclusive property of Vendelux.

3.5 Feedback. If Customer provides any feedback to Vendelux concerning the functionality and performance of the Vendelux Services (including identifying potential errors and improvements), Customer hereby assigns to Vendelux all right, title and interest in and to the feedback, and Vendelux is free to use such feedback without payment or restriction.

3.6 Third Party Content. In order to make full use of the Vendelux Services, Customer acknowledges and agrees that it may need to provide Vendelux with certain data and information provided by third parties (“Third Party Content”). Customer shall be solely responsible for ensuring it has all necessary rights to such Third Party Content in order to make such Third Party Content available to Vendelux for use in connection with Vendelux’s provision of Vendelux Services to Customer. Customer shall defend, indemnify and hold harmless Vendelux for any claims, losses and expenses incurred by Vendelux and arising from any third party claim relating to Vendelux’s use of the Third Party Content to provide the Vendelux Services to Customer. Customer shall provide reasonable cooperation and assistance to Vendelux to enable Vendelux to adequately integrate such Third Party Content into the Hosted Platform. Vendelux shall not be liable for any failure to provide the Services to Customer arising out of Customer’s failure to provide Vendelux sufficient access to Third Party Content.

4. Confidentiality.

Each party agrees that the business, technical and financial information that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that: (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes known to the general public, through no act or omission on the part of the receiving party; (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.

5. Limited Warranty and Disclaimers.

5.1 General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

5.2 Vendelux. Vendelux warrants to Customer that (a) the Vendelux Services will be provided in a professional and workmanlike manner; and (b) the Vendelux Services will perform in accordance with the Documentation in all material respects.

5.3 Customer. Customer represents and warrants to Vendelux that: (a) Customer owns or otherwise has the right to use and provide the Customer Data and Third Party Content as contemplated herein, including any personally identifiable information included in the Customer Data and Third Party Content; and (b) Customer will use the Vendelux Services only in compliance with applicable laws and regulations.

5.4 Disclaimers. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE VENDELUX SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. VENDELUX DOES NOT WARRANT THAT THE VENDELUX SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME OR QUANTITY OF REFERRALS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, VENDELUX HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE VENDELUX SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

6. Indemnification.

6.1 Customer. Customer agrees to defend, indemnify and hold harmless Vendelux and its officers, directors, employees, agents, shareholders, affiliates, successors and permitted assigns against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement or by a court, arising from Customer’s breach of any representation, warranty, covenant or other agreement made herein and any third party claim or allegation relating to or arising out of any aspect of the Customer Data or Third Party Content.

6.2 Infringement. Except as provided below, Vendelux agrees to: (a) defend Customer against any claim by a third party that the Hosted Service infringes a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party; and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any Hosted Service becomes or, in Vendelux’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Vendelux may, at its option (i) obtain for Customer the right to continue using the Hosted Service or (ii) replace or modify the Hosted Service so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Vendelux, then it may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Hosted Service fees that were pre-paid for the then-current term, pro-rated for the remainder thereof. The foregoing states the entire liability of Vendelux, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Vendelux Services, any part thereof or its use or operation.

6.3 Exclusions. Vendelux shall have no liability or obligation hereunder with respect to any claim based upon: (a) use of any Hosted Service in an application or environment or on a platform or with devices for which it was not designed or contemplated; (b) modifications, alterations, combinations or enhancements of the Hosted Service not created by or for Vendelux; (c) any portion of the Hosted Service that implements Customer’s requirements; (d) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement; or (e) any intellectual property right in which Customer or any of its affiliates has an interest.

6.4 Procedures. Any claim for indemnification hereunder requires that: (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith; and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.

7. Limitation of Liability.

EXCEPT for any breach of SECTION 4 (CONFIDENTIALITY), indemnification obligations or a party’s gross negligence or willful misconduct, In no event shall Vendelux or its suppliers, officers, representatives, contractors or employees BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any: (A) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL; OR (C) damages, IN THE AGGREGATE, in excess of the amountS PAID TO VENDELUX HEREUNDER DURING THE PREVIOUS 6 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Term and Termination.

8.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below.

8.2 Termination. Vendelux may terminate, suspend, or restrict your right to access or use this Service for any reason with appropriate notice. To the extent permissible by law, we may terminate, suspend, or restrict your access or use immediately and without notice if we have good reason, including any violation of these Terms or our Community Guidelines or other policies.

8.3 Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that: (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) Customer shall remove all Vendelux java or other scripting, including, but not limited to all widgets and other embeddable snippets derived from the Vendelux Services within 10 days following any termination or expiration of this Agreement (if Customer does not do so, then Vendelux reserves the right to continue to charge the monthly fees payable hereunder until such scripting is removed); and (c) the provisions of Sections 3.3-3.5 (Proprietary Rights), 5 (Confidentiality), 7 (Limited Warranty and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 shall survive.

9. General Provisions.

9.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects.

9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York County having jurisdiction over Vendelux’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

9.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

9.4 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; upon receipt, if sent by certified or registered mail, return receipt requested; or the following business day, if transmitted via electronic mail.

9.5 Publicity. Both parties shall have the right to use the other party’s trademarks, service marks, logos or trade names or make any public statements concerning this Agreement or the relationship between the parties unless otherwise expressed in writing by the other party.

9.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.