This Master Subscription Agreement (“MSA”) sets forth the terms and conditions that govern Your access to and use of the Services (as defined below), and is an agreement between Vendori, Inc. (“Vendori,” “We,” “Us” or “Our”), a Delaware corporation, and all other parties engaged in the use of Vendori Services (“Customer,” “You” or “Your”). This Agreement is effective (the “Effective Date”), and You agree to its terms and conditions, as of the earlier of the date of last signature below or the date that You accept the Agreement by (1) clicking a box indicating Your acceptance; (2) executing an order form that references this Agreement; or (3) using the Services (the “Effective Date”). This MSA and any Order Form(s) (defined below) collectively constitute the “Agreement.”
This Agreement was last updated on January 30, 2024.
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means Our products or services made available to You (whether or not reflected in an Order Form) that are not yet released as “generally available” and are designated by Us as “beta,” “early access,” “experimental,” “preview,” “trial” or using similar terms.
“Credentials” means the username and password permitting access to and use of the Services under Your account with Us.
“Data Protection Addendum” means the data protection addendum located at https://www.vendori.com/platform-privacy-notice/ (and any successor or related locations designated by Us), as may be updated by Us from time to time.
“Documentation” means the online documentation describing how to use of the Services made publicly available (and as may be updated) by Vendori and currently found at http://help.vendori.com/. For clarity, marketing materials are not Documentation.
“Force Majeure Event” means circumstances beyond either party’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving such party’s personnel), failure or delay of providers of Internet service or Third Party Applications, or denial of service attack.
“Implementation Services” means onboarding, implementation, training, and/or configuration services set forth in an Order Form. For the avoidance of doubt, Implementation Services are not tied to the Subscription Term of Subscription Services and also exclude standard maintenance and support included with the Subscription Services.
“Integration” means a Vendori-supported or enabled interface permitting the interoperation of the Subscription Services with Third-Party Applications.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document referencing this MSA and specifying the Subscription Services and/or Implementation Services to be provided hereunder, as well as the Subscription Term, pricing, and other related information, that is entered into between You or one of Your Affiliates and Us or one of Our Affiliates, including any addenda and supplements thereto. Integrations and Vendori Content may be listed in an Order Form or made available by Us at no additional charge outside of an Order Form.
“Personal Data” personal data, personal information, personally identifiable information or other equivalent term (each as defined under applicable data protection or data privacy laws).
“Policies” means, collectively, the Privacy Notices, Supplemental Terms, Support Policy, Service Level Agreement, and Data Protection Addendum.
“Privacy Notices” means the privacy notices for Our website and the Services located at https://www.vendori.com/privacy-notice/ (and any successor or related locations designated by Us), as may be updated by Us from time to time.
“Services” means the Subscription Services, Integrations, Implementation Services, as well as any Vendori Content made available to You under this MSA.
“SLA” means the service level agreement for the Subscription Services located at https://www.vendori.com/master-subscription-agreement/ (and any successor or related locations designated by Us), as may be updated by Us from time to time.
“Subscription Services” means the Vendori cloud-based services that are ordered by You pursuant to an Order Form and made available online by Us, including any releases, updates, or upgrades during the Subscription Term.
“Subscription Term” means each twelve (12) month period (or other period set forth in an Order Form) during which You may access and use the Subscription Services as permitted under the Agreement.
“Supplemental Terms” means any additional terms and conditions applicable to the Services located at https://www.vendori.com/master-subscription-agreement/ (and any successor or related locations designated by Us), as may be updated by Us from time to time.
“Support Policy” means the terms and conditions applicable to Our provision of support for the Subscription Services located at https://www.vendori.com/master-subscription-agreement/ (and any successor or related locations designated by Us), as may be updated by Us from time to time.
“Third Party Applications” means products, services or information that interoperate with the Services made available to You by third parties. Third Party Applications are not “Services” hereunder.
“Users” means Your employees, consultants, contractors and agents who are authorized by You to use any Services on Your behalf and to whom You (or We at Your request) have supplied Credentials.
“Vendori Content” means sample code, APIs, command line tools, software libraries, templates, advice, information, programs, and similar content designed to assist with Your implementation, configuration, and/or use of the Services.
“Your Data” means Your electronic data and information submitted, transferred, or uploaded by You to the Subscription Services or received by the Subscription Services from Third Party Applications via Integrations as enabled by You. Your Data excludes Usage Data (defined below).
2. Services
2.1. Provision of Subscription Services. Subject to and conditioned on Your payment of applicable fees and compliance with the Agreement, We grant You a limited, non-exclusive, non-transferable, right for Users to access and use the Subscription Services and Our Documentation during each Subscription Term for Your reasonable internal business purposes. The SLA and Support Policy also apply to the Subscription Services, as set forth therein.
2.2. Protection of Your Data. We will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and integrity of Your Data stored by the Subscription Services. Those safeguards will include, but will not be limited to, measures intended to prevent access, modification, destruction, or disclosure of Your Data by or to unauthorized third parties, except (a) where compelled by law in accordance with Section 7.3 (Compelled Disclosure) below or (b) as You expressly permit in writing. A summary of these safeguards is currently available at https://www.vendori.com/security/.
2.3. Beta Services. From time to time, We may invite You to try or otherwise make Beta Services available to You at no charge. You may accept or decline any such Beta Services in Your sole discretion. Beta Services are for evaluation purposes only and are not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this MSA, provided however, all restrictions applicable to the Services in the Agreement shall apply to Your use of Beta Services as though they were Services hereunder. We may discontinue Beta Services at any time in Our sole discretion and are not obligated to make them generally available.
2.4. Implementation Services. Implementation Services, if applicable, shall be provided as more fully described in an Order Form.
2.5. Integrations. We may make available, at no additional fee or for a fee (where set forth in an Order Form), and You may choose to utilize, Integrations with certain Third Party Applications (for example, single-sign on providers or CRM solutions). To the extent You decide to enable or make use of an Integration, You authorize Us and the Subscription Services to transmit and receive Your Data to and from such Third Party Application (and, where required by the applicable Third Party Application provider, You appoint Us as Your contractor or agent for the limited purpose of establishing and make use of the Integration on Your behalf as contemplated hereunder).
2.6. Vendori Content. In conjunction with the Services, We may make Vendori Content available to You. In the event You receive access to any Vendori Content, We grant You a limited, non-exclusive, non-transferable, license to install and use such Vendori Content during the term of this MSA in connection with of Your use of the Services.
2.7. Your Affiliates. You may also allow Your Affiliates to make use of the Services You subscribe to under an Order Form as though such Customer Affiliate were You hereunder. You are responsible for such Customer Affiliates’ use the Services in compliance with the terms of the Agreement as though such Affiliate were You hereunder, and any breach of the terms of the Agreement by any of Your Affiliates will constitute a breach by You. Additionally, any of Your Affiliates may independently enter into Order Forms that reference this MSA, in which case, each such Customer Affiliate agrees to be bound by the terms of this MSA as though it were You hereunder.
3. Your Use of Services
3.1. Usage Limits. The Subscription Services are subject to usage limits, including, for example, the quantity of Users who may access the Subscription Services as specified in Order Forms, as well as technical and functional limitations set forth within Our Documentation or on Our website. Unless otherwise specified, (a) the quantity in an Order Form refers to Users, and the Subscription Services may not be accessed by more than that number of Users, (b) a User’s account may not be shared with any other individual, and (c) a User’s access to the Subscription Services may be reassigned to a new User replacing one who no longer requires ongoing use of the Subscription Services. Notwithstanding the foregoing, with respect to temporary Users who will access the Subscription Services for no more than ninety (90) continuous days during a Subscription Term, You may exceed the number of Users set forth in the applicable Order Form by up to 5% at no additional charge. Otherwise, We will invoice You, and You agree to pay for, any excess Users accessing the Subscription Services on a pro-rata basis at the end of Your then applicable Subscription Term (or when We enter into a new Order Form, whichever is sooner). We may also impose reasonable storage limits with respect to the Subscription Services.
3.2. Your Responsibilities. You shall: (a) be responsible for Users’ compliance with the Agreement, (b) be responsible for Your Data (including its accuracy and quality), (c) prevent unauthorized access to or use of the Services using any User’s Credentials, and notify Us promptly of any such unauthorized access or use, (d) use the Services only in accordance with applicable laws and regulations, and (e) comply with terms of service of any Third Party Applications You use in conjunction with an Integration.
3.3. Usage Restrictions. You shall not (a) make any Service available to, or use any Service for the benefit of, any third party (except as otherwise expressly set forth herein), (b) sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit data that infringes or violates the intellectual property, proprietary, or privacy rights of any party, (d) use a Service to store, process, or transmit any illegal or infringing material, or Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or data contained therein, (f) attempt to gain unauthorized access to or perform security testing on any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function, or user interface thereof to create a commercial offering, (i) access, use, or monitor any Service for any competitive purpose (including the development of competitive products or services), or (j) reverse engineer any Service (except and only to the extent a right to reverse engineer is provided, and cannot be prohibited or limited, by applicable law).
3.4. Suspension. We retain the right to suspend the Services, Your accounts, and User accounts in the event of any security threat or Your breach or threatened breach of any of the restrictions in this Section 3. We will lift any such suspension as soon as We determine that the risk underlying the suspension has been mitigated to Our satisfaction.
3.5. Credentials. You are responsible for approving and directing the delivery of Credentials for Users to the Services, for ensuring against unauthorized access by Users, and for ensuring that Users maintain the confidentiality of and do not share Credentials with other Users or third parties, and that Credentials are revoked/disabled in a timely manner whenever a Credential-holder ceases to be a User hereunder. You are responsible for all activities that occur under Your and Users’ Credentials or as a result of Your or Users’ access to the Services.
3.6. Additional Limitations on Use. You acknowledge and agree that the Services are not designed and not intended to transmit, store, or otherwise process Highly Sensitive Information (defined below), and You shall not upload, transmit, or otherwise provide to the Services or to Us any Highly Sensitive Information. “Highly Sensitive Information” is defined as (a) government identification numbers, such as social security numbers, passport numbers, or driver’s license numbers; (b) personal health or medical information (including Protected Health Information under HIPAA); (c) banking or payment card information (except to the extent You choose to upload this information for display on your own Order Forms / Quotes or to complete payment to Us under an Order Form, in which case such information may be provided to Us or Our appointed bank/payment processor); (d) sensitive government or military information, including information subject to U.S. FedRAMP requirements; (e) information collected from or regarding minors or children; (f) other personal information which a reasonable person would believe to be particularly sensitive, such as a person’s religious or philosophical beliefs, sexual life or sexual orientation, or criminal history; (g) data which by law must be localized in a jurisdiction outside of the United States or requires additional requirements beyond those agreed upon herein to permit transfer to the United States; or (h) sensitive data or sensitive personal data, as defined under the European Union’s General Data Protection Regulation. Notwithstanding anything to the contrary in the Agreement, We shall not be liable for Our noncompliance with a law or regulation where such noncompliance would not have occurred but for Your breach of this Section 3.6.
4. Third Party Applications
4.1. Third Party Applications. No procurement of Third Party Applications is required to use the Services. Your access to and use of any Third Party Application in conjunction with Integrations or otherwise is subject to a separate agreement between You and the Third Party Application provider (which may include fees You owe to them or their reseller), and is not subject to the Agreement. Your usage of an Integration may cause You to incur additional fees with the corresponding Third Party Application provider or their reseller, and You are solely responsible for the payment of such fees. We assume no responsibility for, and specifically disclaim any liability, warranty, and obligation with respect to Third Party Applications, whether or not they are recommended or approved by Us, listed within any Integration directory We make available, or otherwise. If the provider of a Third Party Application ceases to make the Third Party Application available for an Integration on reasonable terms (or altogether), We may cease providing such Integration without entitling You to any refund, credit, or other compensation.
5. Fees and Payment for Services
5.1. Fees. You will pay all fees specified in each Order Form. Except as otherwise expressly stated herein or in an Order Form, (a) payment obligations are non-cancelable and fees paid are non-refundable, and (b) quantities purchased cannot be decreased during the relevant Subscription Term.
5.2. Invoicing and Payment. We charge and collect in advance the annual fees for the Services as set forth in the applicable Order Form. We will invoice you promptly following the execution of an Order Form and prior to the start of any renewal Subscription Term. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date and all payments are due in United States Dollars. You will pay all wire, electronic transfer, and administrative fees associated with Your payment of fees under the Agreement; such fees may not be deducted from the amount payable to Us hereunder. You shall not withhold, reduce, or set-off fees owed under the Agreement. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Suspension of Services and Acceleration. If any amount owing by You under an Order Form for the Services is thirty (30) or more days overdue, We may, without limiting Our other rights and remedies, (a) accelerate Your unpaid fee obligations under such Order Form so that all such obligations become immediately due and payable, and/or (b) suspend Our provision of the Services to You until such amounts are paid in full. We will give You at least twenty (20) days’ prior notice (email sufficient) that Your account is overdue before suspending Services to You.
5.4. Payment Disputes. We will not exercise Our rights under 5.3 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith, have provided a written basis for Your dispute, and are cooperating diligently to resolve the dispute.
5.5. Taxes. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.5, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority at least five (5) days prior to payment due date. For clarity, We are responsible for taxes assessable against Us based on Our income, property, and employees.
5.6. Interest; Recovery. In addition to the rights above and any other rights available to Us, in the event You fail to pay any amounts owed and not in dispute by the date such amounts are due, then We may charge interest on the outstanding amount at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower. In any action to collect or recover past due balances and interest under the Agreement, We will be entitled to recover reasonable attorneys’ fees in addition to other costs of enforcement to the maximum extent permitted under applicable law.
5.7. Future Functionality. You agree that Your purchases under any Order Form are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. Proprietary Rights and Licenses
6.1. Reservation of Rights. We (or Our licensors) own and retain all right, title, interest, and all intellectual property rights (including, without limitation, all copyrights, trademarks, patents, goodwill, trade secret rights, moral rights, and proprietary rights) in and to the Services, Our Confidential Information, the Documentation, Usage Data, and any and all derivative works thereof. The Services are never undertaken or provided to You as works for hire as such term is defined under applicable copyright laws. All rights not expressly granted to You hereunder are reserved by Us.
6.2. Your Data. You grant Us and Our Affiliates a worldwide, right during all Subscription Terms (and for a reasonable period thereafter) to host, copy, transmit, and display Your Data (a) as necessary for Us to provide the Services, or otherwise exercise Our rights or obligations pursuant to the Agreement or under applicable law; (b) as necessary to provide support, address service issues/requests, or otherwise enhance use of the Services; (c) as required by law, regulation, or in accordance governmental request with legal process; (d) as requested by You; (e) to investigate or address security, integrity, functionality or availability issues related to the Services. Except for the express rights granted to Us under the Agreement, We acquire no right, title, or interest in or to Your Data or any rights You have in a Third Party Application.
6.3. License by You to Use Feedback; Marketing. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use for any purpose in Our discretion (including incorporation into the Services or future Services) any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the Services or Our business generally (“Feedback”). Feedback shall not be considered Your Confidential Information hereunder, and We shall have no obligations or liability to You with respect to Our use or disclosure of such Feedback (provided that We will not identify You as the source of such Feedback without Your prior written consent). We may, during Term of the Agreement, reference You as a customer or user of the Services subject to any trademark or logo usage guidelines that You may provide to Us.
6.4. Usage Data. We shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Usage Data”), provided that any Usage Data that is also Personal Data will be de-identified prior to Our usage under this Section 6.4. We may (during and after the term hereof) use such Usage Data to improve and enhance the Services, for billing purposes, and for other development, benchmarking, diagnostic, and corrective purposes in connection with the Services and Our other (existing or future) offerings. We may also use third party service providers, contractors, and subcontractors (“Our Providers”) to assist in providing, supporting, and improving the Services, and may share Usage Data with Our Providers, who may store and use it solely to provide, support, and improve the Services and in support of Our business. We shall be responsible for the compliance of Our Providers with the provisions of this Section 6.4 as though they were Us.
7. Confidentiality
7.1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of the Agreement (including pricing), as well as each party’s business and marketing plans, technology and technical information, product plans and designs, and business practices and processes. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party free of any confidentiality obligation prior to its disclosure by the Disclosing Party, (c) is lawfully received from a third party without breach of any confidentiality obligation owed to another party, or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar confidential information (but in no event less than reasonable care). The Receiving Party shall: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement or in furtherance of the parties’ business relationship, and (b) except as otherwise authorized by the Disclosing Party in writing or as permitted under Section 7.3 (Compelled Disclosure) below, not disclose the Disclosing Party’s Confidential Information to any third party. The Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ directors, officers, employees, agents, contractors, legal counsel, auditors, and accountants (collectively, “Representatives”) who need that access (i) for purposes of performing the Receiving Party’s obligations or exercising its rights under the Agreement, or (ii) in connection with advisory or business services such Representative provides to the Receiving Party. The Receiving Party shall ensure all Representatives have agreed to confidentiality obligations with the Receiving Party at least as stringent as those set forth herein (or are subject to a statutory or regulatory obligation of confidentiality).
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, regulation, or court order, provided that the Receiving Party (a) gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the requested disclosure, and (b) only discloses the Confidential Information required.
7.4. Equitable Relief. The parties agree that money damages are an inadequate remedy for breach of the obligations in this Section 7, and that any such breach would result in irreparable harm to the Disclosing Party. Therefore, in the event of any such actual or threatened breach, the Disclosing Party will be entitled, in addition to any other rights or remedies available to it at law or equity, to seek specific performance or injunctive relief without the posting of a bond.
8. Representations, Warranties, Exclusive Remedies and Disclaimers
8.1. Representations. Each party represents and warrants that it has the full corporate (or other legal entity) power and authority to execute this MSA and each Order Form.
8.2. Our Warranties. We warrant that the Subscription Services will substantially conform in all material respects with the then current version of the applicable published Documentation provided by Us. For any breach of such warranty, as Your sole and exclusive remedy and our sole and exclusive obligation, We will use reasonable efforts to correct the nonconformity within a reasonable period of time. Subject to the foregoing, We reserve the right to make changes, improvements, and/or updates to the Subscription Services (such as to the infrastructure, security, technical configurations, application features, service descriptions, etc.) during Your subscription, including to reflect changes in technology, industry practices, and patterns of system use.
8.3. Your Warranties. You warrant that You own or otherwise have the right to provide Us with Your Data and grant Us the rights set forth in Section 6.2 (Your Data) of this MSA for the purposes contemplated hereunder.
8.4. Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR COURSE OF PERFORMANCE. BETA SERVICES AND ANY SERVICES PROVIDED AS PART OF A NO-COST EVALUATION ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR INDEMNIFICATION OF ANY KIND. WE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE OR SERVICES PROVIDED AS PART OF A NO-COST EVALUATION. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS. WE ARE NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND YOU WILL MAINTAIN BACKUP COPIES OF YOUR DATA ON YOUR OWN SYSTEMS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR DATA OR THIRD PARTY APPLICATIONS. VENDORI HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY APPLICATIONS.
9. Mutual Indemnification
9.1. Indemnification by Us. We will defend You and Your officers, directors, employees, agents, and contractors (“Your Indemnified Parties”) from and against any claim, demand, suit, or proceeding brought by a third party (“Claim”) alleging that Your use of Subscription Services in accordance with the Agreement infringes such third party’s United States patent, copyright, trademark, or trade secret. We will indemnify Your Indemnified Parties against any liabilities, damages, and costs (including, without limitation, reasonable attorney’s fees) finally awarded by a court of competent jurisdiction or entered into a settlement to the extent based on such a Claim. In connection with a Claim, in the event Your usage of the Subscription Services is enjoined (or We reasonably believe it will be enjoined) in connection with a Claim, then We, at Our expense and in Our sole discretion, will either: (a) procure for You the right to continue using the Subscription Services, (b) replace the same with non-infringing solution of substantially equivalent functions, (c) modify the Subscription Services to be non-infringing, provided that such modification does not have a material adverse effect on the functionality of the Subscription Services, or (d) terminate the Agreement (or the affected portion thereof) and refund You a prorated amount equal to the pre-paid fees from the date of such termination through the remainder of then-applicable Subscription Term. Our obligations set forth in this Section 9.1 will not apply if the Claim results from: (i) modification of the Subscription Services by any party other than Us, (ii) combination of the Subscription Services with other products, applications, data, services or processes not provided by Us (including Your Data and Third Party Applications), (iii) use of the Subscription Services in violation of the Agreement, or (iv) failure to use an upgrade or update made available by Us to the Subscription Services. This Section 9.1 sets forth Our sole, exclusive, and entire liability, and Your sole and exclusive remedies, with respect to any Claim.
9.2. Indemnification by You. You will defend Us and Our Affiliates, and Our and their officers, directors, employees, agents, and contractors (“Our Indemnified Parties”), from and against any Claims arising from or relating to Your Data, and will indemnify Our Indemnified Parties against any liability, damages, costs, and expenses (including but not limited to reasonable attorney fees) incurred in connection with such Claims.
9.3. Procedures. The party against whom a Claim is brought: (a) shall notify the indemnifying party in writing of any such claim within thirty (30) days of learning of such Claim; (b) shall make no admissions or settlements without the indemnifying party’s prior written consent; (c) shall reasonably cooperate in the defense and give the indemnifying party all information and assistance as it may reasonably require; and (d) may participate in the defense (at its own expense) through counsel reasonably acceptable to the indemnifying party. The indemnifying party shall have the right to fully control the defense. Any settlement of a Claim will not include a financial or specific performance obligation on, or admission of liability by, an indemnified party, without the indemnified party’s written consent (such consent not to be unreasonably withheld, delayed, or conditioned).
10. Limitation of Liability
10.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO (A) YOUR OBLIGATIONS TO PAY FEES UNDER THE AGREEMENT, (B) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (C) A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), OR (D) YOUR VIOLATION OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES, LOST PROFITS, OR LOST REVENUES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND NOT OTHERWISE SEPARATELY DISCLAIMED AND/OR LIMITED HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO US UNDER THE AGREEMENT DURING THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL APPLY WHETHER SUCH CLAIM IS BROUGHT IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Term and Termination
11.1. Term of MSA. This MSA commences on the Effective Date and continues until all Subscription Terms have expired, unless the Agreement is earlier terminated pursuant to Section 11.3 (Termination).
11.2. Term of Subscriptions. The initial Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, the Subscription Term will automatically renew for additional periods equal to the expiring Subscription Term or twelve (12) months (whichever is shorter), unless (a) either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term, or (b) the parties enter into another Order Form in place of such automatic renewal. We will provide You with notice of and the fees applicable for each renewal Subscription Term at least thirty (30) days prior to the end of the then-current Subscription Term. We reserve the right to apply a price increase to any renewal Subscription Term. Unless otherwise expressly stated in an Order Form, any discounts or promotional pricing included in an Order Form will not apply to any renewal Subscription Term.
11.3. Termination. A party may terminate the Agreement: (a) upon thirty (30) days written notice to the other party of a material breach, if such material breach remains uncured at the expiration of such period, or (b) upon notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Notice of material breach shall specify in reasonable detail the facts and circumstances constituting such material breach.
11.4. Data Retention. You authorize Us to retain Your Data for up to sixty (60) days after any termination or expiration of the Agreement. Notwithstanding the foregoing, following any such termination or expiration, We have no obligation to maintain Your Data. Upon request, We will delete or destroy all copies of Your Data in the Subscription Services, unless legally prohibited.
11.5. Surviving Provisions. The Sections titled “Usage Restrictions,” “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Mutual Disclaimers,” “Additional Disclaimers,” “Indemnification,” “Limitation of Liability,” “Term and Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions,” and any other provision that by its nature would customarily survive termination or expiration, will survive any termination or expiration of the Agreement.
12. Notices, Governing Law and Jurisdiction
12.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You. You are responsible for ensuring You have provided Us with up-to-date contact information for purposes of notices and billing. Notices to Us should be addressed to Vendori, Inc., 1700 Northside Drive, Atlanta, Georgia 30318; Attention: Legal Department with a copy to: legal@vendori.com. Either party may update its contact information upon notice (email sufficient) to the other party.
12.2. Governing Law and Jurisdiction. Each party agrees to the governing law of the State of Delaware without regard to its conflicts of law rules, and each party submits to the exclusive jurisdiction of the state and federal courts located in the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to the Agreement.
13. General Provisions
13.1. Export Compliance. The Services and Our Confidential Information are subject to laws and regulations of various countries, including the laws of the United States. Each party represents and warrants that it, as well as any Affiliates or Users performing or enjoying the Services hereunder, is not named on any U.S., U.K., or E.U. government denied-party list, including but not limited to those administered or enforced by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”), or otherwise the subject of any governmental restrictions or sanctions that would prevent or interfere with its obligations or rights under the Agreement. You shall not permit access to or use of any Service: (a) in or from a country or region prohibited by U.S. laws and regulations (which, as of April 2023, include Cuba, Iran, North Korea, Sudan, Syria, as well as the Crimea, Donetsk, and Luhansk regions of Ukraine (even where claimed by Russia), (b) by individual or entity listed on any U.S. sanctions- or export-controlled related restricted party list, including, without limitation, OFAC’s Specially Designated Nationals and Blocked Persons List or any entity that is, in the aggregate, 50 percent or greater owned, or otherwise controlled by, any individual(s) or entity(ies) on such lists, or (c) otherwise in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. Each party represents that neither it, nor its personnel or agents, has given or received (or offered or requested) any bribe, kickback, payment, gift, or thing of value in connection with the execution of the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Each party will comply with all applicable anti-bribery and anti-corruption laws in connection with its activities under the Agreement.
13.3. Policies. In addition to the terms contained in this MSA, Your use of the Services is subject to and governed by the Policies. The Policies are located at https://www.vendori.com/master-subscription-agreement/, are incorporated by reference herein, and comprise a part of this MSA.
13.4 Entire Agreement and Order of Precedence. The Agreement constitutes the entire agreement between You and Us regarding Your use of the Services and supersedes all prior and contemporaneous agreements, proposals, negotiations, representations, marketing materials, quotes, or understandings, written or oral, concerning its subject matter. We may modify this MSA (including the Policies) by updating the same as they appear on Our website. Additionally, the parties may modify or amend the Agreement in a written instrument signed by both parties. Changes or amendments to Your Order Form(s) may be accomplished only in a written instrument signed by both parties. The parties agree that any term or condition stated in Your purchase order, supplier information/registration or similarly titled forms or systems, invoice management platforms, or in any other of Your documentation is void and of no force or effect, including where such order, form, or other documentation is signed by Us. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable Order Form, (b) the Policies, and (c) this MSA. Any amendments, additions, or modifications to the terms of the Agreement must be set forth in a written document signed by both parties and expressly reference the Agreement by name and effective date or date of signature. Electronic signatures that comply with applicable law are deemed original signatures.
13.5. Assignment. Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign the Agreement in its entirety (including all Order Forms), following written notice to but without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.6. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.7. Our Affiliates. You acknowledge and agree that the Services and Our obligations under the Agreement may be performed in part or in whole by Our Affiliates worldwide, who will be considered “Vendori” when performing hereunder. We shall be responsible for any performance hereunder by Our Affiliates as though they were Vendori hereunder.
13.8. No Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.
13.9. Waiver. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right.
13.10. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law, and the remaining provisions of the Agreement will remain in effect.
