TERMS OF SERVICE
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VENDELUX TERMS AND CONDITIONS
Updated March 15, 2023
THESE VENDELUX TERMS AND CONDITIONS (THESE “TERMS”) SHALL GOVERN THE RELATIONSHIP BETWEEN VENDELUX AND CUSTOMER (DEFINED BELOW) AS TO ANY VENDELUX PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO CUSTOMER AS SET FORTH IN A DOCUMENT, FORM OR ONLINE PAGE PROVIDED OR MADE AVAILABLE BY VENDELUX AND INCORPORATING THESE TERMS (AN “ORDER FORM”).
Customer and Vendelux agree as follows:
“Vendelux” means Vendelux Inc., a Delaware limited liability company.
“Customer” means the party to whom Vendelux is to provide products or services pursuant to the Order Form (whether identified as “customer,” “you,” “licensee,” “client” or similar designation in the Order Form) or pursuant to a limited free trial, as the case may be.
“Documentation” means any user guide, help information and other documentation and information regarding the Services that is delivered by Vendelux to Customer in electronic or other form, if any, including any updates provided by Vendelux from time to time.
1.1 General. Vendelux agrees to provide to Customer the products and/or services set forth in the Order Form as the case may be (the “Services”). The Services may include access to certain information (the “Licensed Materials”) and Documentation and/or access to and/or use of software as a service or other technology (the “Vendelux Technology”), or other services such as premium support. Specific Services may be defined by and are subject to the Services definitions and Service-specific terms and conditions included within the Order Form or other Documentation.
Vendelux may make the Services available to the Customer via the Vendelux website and/or a password-protected online access accessible by Customer with usernames and passwords, via an application programming interface (“API”), or as otherwise mutually agreed by the parties.
Subject to these Terms and receipt by Vendelux of any applicable payment in full by Customer, Vendelux grants to Customer during the Term of this Agreement a non-exclusive, non-transferable, limited license to access and use the applicable Services in accordance with this Agreement.
If “Customer” includes more than one legal person (including, without limitation, any business entity and/or natural person), the obligations imposed upon each shall be joint and several, and the act of, notice from or to, assent of, or signature of any one or more of the persons included within “Customer” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to, any renewal, extension, termination, or modification of this Agreement.
1.2 Nature of Services. The Services (including the Vendelux Technology’s features and functions) are provided on an “as is” and “as available” basis and as they may be modified, supplemented, updated, amended or removed from time to time throughout the Term in Vendelux’s sole discretion. Vendelux shall have no liability to Customer for any such changes to any Service, provided that the product or service provided substantially conforms to the description in the Order Form. Information provided or accessible as part of any Licensed Materials may be (but is not required to be) updated on an ongoing basis. Customer acknowledges and agrees that the contents of Licensed Materials may change over time as the data may be updated, and that at any given time it only has a right to access and use the data to which it is subscribed as it exists at that time. As certain elements of the Services may be provided by Vendelux’s third party licensors, Vendelux’s ability to provide such information to Customer will be subject to such licensors continuing to supply such information to Vendelux.
1.3 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties, including those with which the Vendelux Technology may interoperate, such as Customer’s CRM, marketing automation software, or sales enablement software, if any. Vendelux may make available certain “Integration Tools”, which consist of Vendelux Technology designed to allow Customer to use Vendelux Technology and the Licensed Materials in such a way as to interoperate with one or more Third Party Applications. Vendelux disclaims all liability for and does not endorse any Third Party Applications or websites linked to by Vendelux Technology. Customer shall not integrate Licensed Materials into any Third Party Applications thereby allowing persons who are not Authorized Users (defined in Section 2.1 below) to access or use the Licensed Materials.
1.4 Ownership. Customer acknowledges and agrees that, as between Customer and Vendelux, the Services, Licensed Materials, Vendelux Technology, and Documentation (including, without limitation, the layout, content, design, appearance, functions, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or Vendelux Technology) are the sole property of Vendelux, whether or not they are trademarked, copyrighted, or patented. Customer acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Services, Licensed Materials, Documentation, or Vendelux Technology, nor any part thereof, except the limited license expressly provided hereunder, and Customer expressly disclaims and waives any and all claims to any ownership interest in any such information or materials, including any Licensed Materials that Customer saves, downloads, copies, prints, or incorporates into other materials. Customer further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, Vendelux, its affiliates and/or its licensors reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to the Services, Licensed Materials, Documentation and Vendelux Technology. No rights are granted to Customer hereunder other than as expressly set forth herein.
Reference to any services, products, processes, or other information, by logo, company/division/service name, trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Vendelux nor any endorsement, sponsorship, or recommendation of Vendelux by any such person or entity.
2. AUTHORIZED USERS AND RESTRICTIONS
2.2 Qualification of Authorized Users. Customer shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Customer. Customer may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Vendelux’s prior written or email permission and provided Customer takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by Vendelux. In the event of a termination as described in the previous sentence, Customer shall promptly notify Vendelux and take all reasonable steps to ensure that such person ceases accessing the Services. Customer may reassign Authorized User designations in good faith, subject to the foregoing qualification requirements.
2.3 Use of Services. Customer shall not access or use the Services for any purpose except the business-to-business sales, marketing, recruiting, or business development activities of Customer in connection with business conferences, events or trade shows. Customer shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Customer. A “Licensed Contact” means a record regarding a natural person, consisting of at a minimum such person’s name or company affiliation, viewable in Vendelux’s database and made available to Customer as part of any of the Services.
During the Term and thereafter, Customer will, at all times, act in compliance with all applicable local, state, federal and international laws, rules, and regulations (“Applicable Laws”). Subject to such compliance with Applicable Laws, Customer may use the Services during the Term to: (i) view the Licensed Materials; (ii) communicate with any Licensed Contact in a manner that relates to such person’s profession, business, or employment; and (iii) identify prospective sales opportunities, research Customer’s existing customers and prospects, and otherwise analyze the Licensed Materials in a manner relating to Customer’s business-to-business sales, marketing, recruiting, and business development activities. It is Customer’s sole responsibility to ensure its own compliance with Applicable Laws in connection with its use of the Services, including any Licensed Contacts. Customer shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Customer shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Customer acknowledges that the Licensed Materials are for its own use only, and that the disclosure to a third party of Licensed Contacts, or the use of Licensed Contacts for the benefit of or on behalf of any third party, will cause material damage to Vendelux. Except through services provided by Vendelux or its affiliates, Customer shall not use the Licensed Materials to create audience segmentation for or otherwise place digital ads or ads in digital media (also known as onboarding or digital activation). Customer shall not, directly or indirectly, incorporate (or permit the incorporation of) any portion of the Services or Licensed Materials into Customer’s own (or any third party’s) products or services.
Upon expiration or termination of this Agreement for any reason, Customer shall cease accessing the Services and shall cease using the Licensed Materials in any way. Notwithstanding the foregoing, where Customer has, through using the Licensed Materials in a manner permissible under this Agreement, received responsive communication from a Licensed Contact, Customer shall not be required to delete such Licensed Contact record upon expiration or termination of this Agreement, and may continue to use such information in a manner otherwise consistent with this Agreement. Customer is solely responsible for any communications between Customer or any Authorized User and any Licensed Contact. Customer shall not use the Services to determine a consumer’s eligibility for (a) credit or insurance for personal, family or household purposes, (b) employment or (c) a government license or benefit or (d) any other purpose governed by the Fair Credit Reporting Act (FCRA).
2.4 Permitted Use and Certain Restrictions. Customer is permitted to use the Vendelux Technology solely for the purpose of accessing and using the Licensed Materials only as expressly permitted by this Agreement.
Customer shall not, directly or indirectly:
(i) use any of Vendelux’s Confidential Information to create any service, software, documentation or data that is the same as or similar to any aspect of the Vendelux Services;
(ii) disassemble, reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Vendelux Technology, or the underlying ideas, algorithms or trade secrets therein;
(iii) reproduce, modify, create, or prepare derivative works of any of the Vendelux Technology or related documentation;
(iii) distribute or display any of the Vendelux Technology or Documentation other than to Authorized Users;
(iv) share, sell, rent, or lease or otherwise distribute access to the Vendelux Technology, or use the Vendelux Technology to operate any timesharing, service bureau, or similar business;
(v) create any security interest in the Vendelux Technology;
(vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Vendelux Technology or Documentation;
(vii) disclose the results of any Vendelux Technology or program benchmark tests to any third parties without Vendelux’s prior written consent;
(viii) employ any measure intended to circumvent any limitations placed by Vendelux, including with respect to Authorized Users; or
(ix) use automated means, such as bots or crawlers, to access any Vendelux Technology or extract information therefrom (except such means as are included within the Vendelux Technology, such as Integration Tools, or such other means as are expressly approved in advance in writing by Vendelux).
Customer may use Vendelux Technology only during the Term and in strict accordance with this Agreement and not for the benefit of any third party, except with Vendelux’s express prior written permission. If Customer becomes aware of any violation of this Agreement, Customer shall promptly notify Vendelux.
2.5 Limitations on Use of the Services. Customer shall use the Services in a responsible and professional manner consistent with the permissible uses set forth herein, Applicable Laws and standard industry practice. Customer shall not attempt to or actually override or circumvent any security feature, control, or use limits of the Vendelux Technology or Services. Customer will not use the Licensed Materials or Vendelux Technology for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Customer has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. Vendelux, in its sole discretion, may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that may indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitation to purchased credits (if applicable).
2.6 Identifying Information. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with Vendelux by, for example, maintaining a leadsource of “Vendelux.”
2.7 Unauthorized Access or Use. If Vendelux has a reasonable belief that Customer or any Authorized User is engaged in or facilitated any unauthorized access or use of the Services, the Licensed Materials or Vendelux Technology in violation of this Agreement, Vendelux, in its sole discretion, may immediately suspend Customer’s access to the Services, Licensed Materials and/or Vendelux Technology until such violation is resolved to Vendelux’s reasonable satisfaction. Vendelux will have no liability to Customer for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Customer’s continuing obligation to pay the full Subscription Fee.
3. SUBSCRIPTION FEES
3.1 Customer shall pay in full all fees stated in the Order Form and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). Unless otherwise expressly agreed between the parties, all Subscription Fees are due in advance upon submission of the Order Form via credit card, debit card, wire or ACH payment. By providing us your credit, debit card number, or bank account information for payment purposes, you authorize us to charge single or recurring payments electronically via the credit or debit card you provided or make automatic debits via ACH to your bank account provided, in the amount listed on the Order Form. You agree to keep your credit card current and operable throughout the Term. Sales tax may be applied depending on the Services provided. Customer will pay all amounts to Vendelux under this Agreement without setoff or counterclaim, and without any deduction or withholding. Vendelux’s acceptance of partial payment (or any payment of less than the full amount payable at any given time) shall not constitute a waiver or release of Vendelux’s right to unpaid amounts.
3.2 If Customer fails to make any timely payment of any Subscription Fee, Vendelux may, in its sole discretion, take any or all of the following actions: (i) restrict or suspend Customer’s access to all or any portion of the Services (including any Licensed Materials) until Customer makes all past-due payments to Vendelux, (ii) terminate this Agreement immediately, or (iii) accelerate the payment of all Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. Vendelux shall have the right to charge interest (at the lesser rate of (a) 1.5% per month or (b) the highest rate permitted by law) on any late payments. Restriction or suspension of Customer’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Customer’s obligation to pay the Subscription Fee.
3.3 Customer is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Customer’s subscription and use of the Services and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Order Form, all fees, rates, and estimates exclude sales taxes. If Vendelux believes any such tax applies to Customer’s subscription and Vendelux has a duty to collect and remit such tax, the same may be set forth on an invoice to Customer unless Customer provides Vendelux with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Customer immediately or as provided in such invoice. Customer shall indemnify, defend, and hold harmless Vendelux and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns (the “Vendelux Indemnified Parties”) against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to any actual or alleged failure to pay taxes owed by Customer, except to the extent that any such claims, action, or proceeding is directly and solely caused by a failure of Vendelux to remit amounts collected for such purpose from Customer. Vendelux is solely responsible for taxes based upon Vendelux’s net income, assets, payroll, property, and employees.
4. TERM AND TERMINATION
4.1 Term. The Initial Term of the Agreement is set forth in the Order Form (together with any Renewal Term (defined below), the “Term”). The Agreement is not cancellable by Customer and shall remain in effect until it expires or is earlier terminated according to its terms.
4.2 Auto Renewal of the Term. Unless earlier terminated in accordance with this Agreement, the Term for any paid subscription will automatically renew for a period equal to the length of the most recent term unless otherwise specified in the applicable Order Form (the “Renewal Term”) at the end of a given term unless either party notifies the other in writing (including email) at least 30 days before the end of the Initial Term or Renewal Term, as the case may be that the term shall not so extend. If the term is automatically renewed in accordance with this Section (and unless the parties otherwise agree in writing): (1) Customer shall remain subscribed during such Renewal Term to the Services to which it was subscribed in the prior period, and (2) the Subscription Fees to be paid to Vendelux for such Services during such Renewal Term shall be set forth in the applicable Order Form. Subscription Fees for any renewal period shall be due upon renewal of the Term and shall be payable in advance or as invoiced by Vendelux.
4.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual written Agreement. Vendelux may terminate this Agreement at will for any reason or no reason by providing email notice to Customer effective upon receipt by Customer of such email notice, and if Vendelux terminates this Agreement at will, Vendelux will provide a pro-rata refund of any pre-paid Subscription Fees attributable to the period after the effective termination date.
4.4 Effect of Termination.
4.4.1 Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Customer acknowledges and agrees that its access to the Services may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into Vendelux’s systems by Customer destroyed, all in Vendelux’s sole discretion. Upon expiration or termination of this Agreement for any reason, unless otherwise expressly provided herein, Customer agrees to promptly destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form and in any event, shall not use, disclose, distribute or otherwise make available any such Licensed Materials after expiration or termination.
4.4.2 Termination by Vendelux. If this Agreement is terminated by Vendelux due to an uncured material breach by Customer, all Subscription Fees payable to Vendelux for the remainder of the then-current Term shall be immediately due and payable to Vendelux, and Customer shall promptly remit all such fees to Vendelux without reduction, set off or counterclaim.
4.4.3. Termination by Customer. If this Agreement is terminated by Customer due to an uncured material breach by Vendelux, Vendelux shall promptly refund the pro-rata amount of any pre-paid Subscription Fees attributable to periods after the effective date of such termination.
5. DATA PROTECTION AND CONFIDENTIALITY
5.2 “Confidential Information” of a party means such party’s (or its affiliate’s) nonpublic, proprietary information, including, without limitation, the following: inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of Vendelux.
5.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement, and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (i) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (ii) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; (iii) became generally available to the public, by publication or otherwise, through no fault of such party; or (iv) was developed independently by the receiving party as evidenced by written records without reference to the Confidential Information of the other party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this Section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or legal process, provided, however, that the receiving party will (unless prohibited by law or legal process): (a) give the disclosing party prior written notice of such disclosure to afford the disclosing party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
5.4 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all Applicable Laws, including regarding privacy and the lawful processing of personal information. Each party shall have an obligation to notify the other party immediately if it makes a determination that it can no longer meet its compliance obligations under applicable privacy or data protection laws. To the extent that personal data obtained by Customer under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”) or the retained version of the GDPR applicable in the UK (the “UK GDPR”, together with the GDPR the “UK/EU GDPR”), each party agrees: (i) that it is a “controller” with respect to such data as defined in the GDPR; (ii) to comply with all applicable provisions; and (iii) that the Controller-to-Controller Data Processing Addendum is incorporated by reference into these Terms (available online at https://vendelux.com/DPA-c2c/) in relation to such personal data. Notwithstanding anything in this Agreement to the contrary, Customer shall not use any information subject to the UK/EU GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the applicable UK/EU GDPR, or Customer has another lawful basis to process such information. Vendelux may email or make available within the Vendelux Technology a list of persons who have requested that their personal information be removed from Vendelux’s database (the “Removal List”). If Vendelux sends (or makes available to) Customer a Removal List either via email or through the Vendelux Technology, Customer agrees to promptly review such Removal List and to remove from its possession any Licensed Contact records relating to such persons in its possession no later than three business days after Vendelux provides or makes available such list, unless Customer has established an independent lawful basis to process such person’s personal data. To the extent that any Services may involve Vendelux receiving personal data from Customer that is subject to the UK/EU GDPR, the Controller-to-Processor Data Processing Addendum is incorporated by reference into these Terms (available online at https://vendelux.com/DPA-c2p/) and shall set out the status and responsibilities of the parties in relation to such personal data.
5.5 Data Cleansing, Matching, and Related Requests. Customer may have the opportunity to transmit business contact information to Vendelux for purposes of matching, cleansing, or updating records with information from Vendelux’s database. If such information is transmitted to Vendelux, Vendelux will make commercially reasonable efforts consistent with its research protocols and priorities, to respond to match and clean and append requests by researching and/or verifying business contact information so submitted and supplementing Vendelux’s commercial database with information Vendelux is able to verify. Vendelux may also use email deliverability data (such as email “bounce” data) accessible through Customer’s use of Vendelux Technology to improve Vendelux’s database by, for example, eliminating invalid email addresses from the Licensed Materials.
5.6 Related Information. Vendelux may access, collect, and use any information from or relating to Customer and Customer’s use of the Services (“Related Information”) for customer and technical support, for regulatory and third party compliance purposes, to protect and enforce Vendelux’s rights, to monitor compliance with and investigate potential breaches of the terms of this Agreement, and to recommend additional products or services to Customer. Vendelux may share this information with Vendelux’s partners or affiliates for the same purposes. Customer hereby grants Vendelux and Vendelux affiliates the perpetual right to use Related Information and any feedback, suggestions and other information provided by Customer for purposes such as to test, develop, improve, and enhance Vendelux’s products and services, and to create and own derivative works based on Related Information, feedback, suggestions and other information, so long as neither Customer, Authorized User nor any other individual is identified or identifiable as the source of such information.
5.7 Customer Data. Customer is solely responsible for all data, graphics, images, files, information, text, voice content, recordings, and other content and materials that are uploaded, posted, delivered, provided, or otherwise transmitted by Customer in connection with Customer’s use of the Services (collectively, “Customer Data”), and Customer represents and warrants that it has all rights and authority necessary to provide Customer Data to Vendelux without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. Customer shall be solely responsible for making any required notices (including without limitation any privacy notices required by Applicable Laws) and for obtaining any required consents sufficient to authorize Vendelux’s performance of its obligations and exercise of its rights as set forth in this Agreement. Customer expressly acknowledges and agrees that Vendelux may collect and retain aggregated and anonymous data on the use, contents and performance of the 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.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; (2) it has the requisite power and authority to enter this Agreement; and (3) entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2 Customer represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any Applicable Law or any right of any third party.
6.3 Vendelux represents and warrants that it possesses all necessary authority and permissions to provision Customer with access to the Licensed Materials and Vendelux Technology.
7.1 Remedies Not Exclusive. No remedy provided in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
7.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or, as to Customer, Licensed Materials, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
8. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
8.1 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation: (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator. The arbitration award shall be final and binding, and such award may be entered in any court having jurisdiction. This Section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (a) punitive, exemplary, or multiple damages under any legal theory, except in the event of a party’s or its agent’s gross negligence or intentional misconduct; (b) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (c) any damages in excess of the limits set forth in this Agreement. Any arbitration proceedings hereunder shall take place in New York, New York, U.S.A.
8.2 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s Confidential Information; (c) claims by Vendelux to collect Subscription Fees; and (d) claims for mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
8.3 Governing Law and Venue.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of New York. Subject to the arbitration proceedings hereunder, each of the parties to this Agreement consents and agrees that any action to enforce this Agreement or any dispute, whether such dispute arises in law or equity, arising out of or relating to this Agreement shall be brought exclusively in the courts sitting in New York, New York. The parties hereto consent and agree to submit to the exclusive jurisdiction of such courts. Each of the parties to this Agreement waives and agrees not to assert in any such dispute, to the fullest extent permitted by Applicable Law, any claim that (i) such party and such party’s property is immune from any legal process issued by such courts or (ii) any litigation or other proceeding commenced in such courts is brought in an inconvenient forum.
8.4 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
8.5 Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred, including reasonable attorney fees.
9.1 Customer agrees to indemnify, defend, and hold harmless Vendelux and the Vendelux Indemnified Parties from and against any and all actual or threatened claims of third parties arising out of or in connection with: (1) Customer’s access or use of the Licensed Materials in violation of any Applicable Law, (2) Customer’s violation of any provision of this Agreement, (3) Customer’s sending of any information, messages, or materials to any Licensed Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any Applicable Law or the rights of any third party, or (4) the use of any Licensed Materials or Vendelux Technology by any third party to whom Customer has granted access (including access obtained by such third party through use of the usernames and passwords assigned to Customer and its personnel).
9.2 Vendelux shall indemnify Customer for any damages finally awarded by any court of competent jurisdiction against Customer in, or for amounts paid by Customer under a settlement approved by Vendelux in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or Vendelux Technology infringes upon or violates the intellectual property rights of any such third party. The foregoing indemnification obligations do not apply if (i) the allegation does not state with specificity that the Services are the basis of the claim against Customer; (ii) a claim against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Vendelux, if the Services or use thereof would not infringe without such combination; or (iii) a claim against Customer arises from Customer’s breach of this Agreement. This Section states the Vendelux’s sole liability to, and Customer’s exclusive remedy against, Vendelux for any claim or proceeding subject to indemnification hereunder.
9.3 As a condition to any right to indemnification under this Agreement, the indemnified party must: (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF A PARTY’S OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, LOST BUSINESS, LOST OR CORRUPTED DATA, OR LOST PROFITS DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED MATERIAL BREACH BY VENDELUX OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO VENDELUX, AND REFUND OF A PRORATED PORTION OF THE SUBSCRIPTION FEES THAT CUSTOMER HAS ALREADY PAID TO VENDELUX CORRESPONDING TO THE PERIOD AFTER TERMINATION. VENDELUX’S MAXIMUM LIABILITY TO CUSTOMER SHALL BE THE AMOUNTS ACTUALLY PAID TO VENDELUX BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S CAUSE OF ACTION.
11. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE SERVICES, LICENSED MATERIALS, VENDELUX TECHNOLOGY, AND ANY OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
VENDELUX DOES NOT REPRESENT, COVENANT, WARRANT, OR PROMISE THAT ANY OF THE SERVICES MAY BE USED OR RELIED UPON BY CUSTOMER OR ANY OTHER PARTY TO COMPLY WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, NOR THAT ANY OF THE SERVICES WILL RENDER CUSTOMER NOR ANY OTHER PARTY COMPLIANT WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, AND VENDELUX EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW ANY SUCH REPRESENTATION, COVENANT, WARRANTY, OR PROMISE. IF AND TO THE EXTENT THAT CUSTOMER USES ANY OF THE SERVICES WITH THE INTENTION OF OR FOR THE PURPOSE OF COMPLYING WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, CUSTOMER ACKNOWLEDGES AND AGREES THAT SUCH SERVICES ARE, IN THAT REGARD, PROVIDED “AS IS,” AND CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ITS COMPLIANCE. CUSTOMER AGREES THAT VENDELUX SHALL HAVE NO LIABILITY TO CUSTOMER FOR CUSTOMER’S USE OF OR RELIANCE ON ANY SERVICES FOR SUCH PURPOSES.
Vendelux will not be responsible or liable for any failure in the Services resulting from or attributable to: (a) failure to use the 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 gross negligence or willful misconduct.
During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Customer shall maintain complete and accurate records of Customer’s use of the Licensed Materials and Vendelux Technology sufficient to verify compliance with this Agreement. Customer shall permit Vendelux and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Customer in connection with the Licensed Materials. The scope of any such audit will be limited to verification of Customer’s compliance with the terms of this Agreement. Any audit performed under this Section shall be at Vendelux’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Customer shall promptly reimburse Vendelux for its reasonable out-of-pocket expenses incurred in performing such audit.
13.1 Assignment. Either party may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, asset sale, consolidation or otherwise) without the other party’s consent, provided however that: (1) Customer’s assignment hereof shall be effective only after fourteen (14) days’ written notice to Vendelux, and (2) Customer may not assign this Agreement to any competitor of Vendelux without Vendelux’s express written consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto. No rights or obligations under this Agreement may be assigned or delegated except as provided in this Section without the prior written consent of the other party, and any assignment or delegation in violation of this Section shall be void.
13.2 Notices. Customer shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Vendelux shall be sent to [email protected]. If Customer fails to provide an email address for notices, Vendelux may provide notices hereunder by any means reasonably calculated to provide Customer with actual notice thereof.
13.3 Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
13.4 Marketing. Customer hereby authorizes Vendelux to use Customer’s name, trademarks, service marks, trade names, and logos for its marketing efforts unless and until such authorization is revoked in writing.
13.5 Suggestions and Feedback. Vendelux shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Services provided such information does not include any Customer Confidential Information.
13.6 Entire Agreement. As to any particular Order Form, the Order Form, the Services definitions and Service-specific terms and conditions (if applicable), and these Terms together constitute the Agreement of the parties and are referred to collectively herein as the “Agreement.” In the event of any conflict between the Order Form and these Terms, these Terms shall prevail unless the Order Form expressly provides that it is modifying these Terms with respect to such Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Order Form or agreement between the parties for access to Vendelux Services shall be governed by these Terms.
13.7 Amendment. Vendelux may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Customer notifies Vendelux in writing that it does not accept such amendments. In the event Customer notifies Vendelux that it does not accept the proposed amendments, the proposed amendments will not take effect and the then-existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Vendelux and Customer.
13.8 Force Majeure. Neither Vendelux nor any of its agents or affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.9 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Vendelux and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any Authorized User to access or use any Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.10 Unenforceability and Survival. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement, including, without limitation, Sections 1.4 (Ownership), 4.4 (Effect of Termination), 5 (Data Protection and Confidentiality), 7 (Remedies), 8 (Attorney Fees, Dispute Resolution, Class Action Waiver), 9 (Indemnification), 10 (Limitation of Liability), 11 (Disclaimer of Warranties), 12 (Audit), and 13 (Miscellaneous).
13.11 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
13.12 Interpretation and Section Headings. The term “including” shall mean including without limitation. The section and subsection headings of these Terms are included for purposes of convenience only, and shall not affect the construction or interpretation of any of the provisions.
Version: March 15, 2023