Master Subscription Agreement
Vendori takes your security and privacy seriously so you can transact with confidence. Please find our standard Privacy, Security, and other legal documentation below.
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 constitutes a binding agreement between Vendori, Inc. (“Vendori,” “We,” “Us” or “Our”), a Delaware corporation, and You (as defined below). This MSA is effective as of the earlier of: (1) the date the You and Vendori agree to an Order Form referencing or attached to this MSA; (2) the date of last signature below (if signed), or (3) the date You click a button or check a box indicating acceptance of this MSA (the “Effective Date”).
1. DEFINITIONS
“Affiliate” means any entity that controls, is controlled by, or is under common control with a party (“control” meaning direct or indirect ownership or control of more than 50% of the voting interests of the subject entity).
“Agreement” means, collectively, this MSA, any Order Form(s), the Policies, and Supplemental Terms.
“Credentials” means the usernames and passwords permitting Users to access and use the Services.
“Documentation” means Vendori’s published documentation describing use of the Services (as may be updated from time to time) currently found at https://www.vendori.com/support. For clarity, marketing materials are not Documentation.
“Evaluation Services” means Services made available to You (whether or not reflected in an Order Form) that are provided for trial or evaluation purposes at no (or no additional) charge, including Services designated as “beta,” “early access,” “experimental,” “preview,” “trial,” or with similar terms.
“Force Majeure Event” means circumstances beyond a party’s reasonable control, including (without limitation) an act of God, 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 any 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 are not covered by standard maintenance and support included with the Subscription Services.
“Integration” means a Vendori-provided 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, and Trojan horses.
“Order Form” means an ordering document referencing this MSA and specifying the 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.
“Personal Data” means information relating to an identified or identifiable natural person and is protected under applicable data protection or data privacy laws.
“Policies” means, collectively, the Privacy Notices and Service Level Agreement.
“Privacy Notices” means the privacy notices for Our website and the Services located at https://www.vendori.com/privacy-notice/ and https://vendori.com/platform-privacy-notice (and any successor 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 in connection with the Agreement.
“SLA” means the service level agreement for the Subscription Services located at https://vendori.com/service-level-addendum/ (and any successor locations designated by Us), as may be updated by Us from time to time.
“Subscription Services” means the Vendori cloud-based services that are made available for access by You via the internet, including any updates or upgrades made available 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 Service-specific terms and conditions applicable to the Services that You access or use located at https://www.vendori.com/supplemental-terms/ (and any successor locations designated by Us), as may be updated by Us from time to time.
“Third Party Applications” means products, services or information made available to You by third parties that interoperate with the Subscription Services (for example, SSO or CRM solutions). Third Party Applications are not “Services” hereunder.
“Usage Data” means data and other information relating to the provision, use, and performance of various aspects of the Services, such as login times, diagnostic and error information, and features utilized. Usage Data does not include Your Data.
“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, information, programs, and similar content designed to assist with Your implementation, configuration, and/or use of the Services.
“You”, “Your”, and “Customer” means, as applicable, (a) the the entity identified as “Customer” in the signature block below, (b) the entity identified as “Customer” in an Order Form referencing or attached to this MSA, or (c) where this MSA becomes effective by click-through/click-accept, the organization the person clicking-through/click-accepting this MSA represents.
“Your Data” means Your electronic data and information submitted, transferred, or uploaded by You to the Subscription Services (including via Integrations), as well as edits and manipulations made thereto by You via the Services.
2. SERVICES
2.1. Provision of Subscription Services. Subject to Your payment of applicable fees and compliance with the Agreement, We grant You a limited, non-exclusive, non-transferable, non-sublicensable right for Users to access and use the Subscription Services and Documentation during each Subscription Term for Your reasonable internal business purposes. The SLA applies 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 include, but are not limited to, measures intended to prevent access, modification, destruction, or disclosure of Your Data by or to unauthorized third parties. A summary of these safeguards is currently available at https://www.vendori.com/security/. In the event You authorize transmission of Your Data outside of the Subscription Services (whether via Integration or otherwise), We have no responsibility to protect Your Data beyond the demarcation line of the Subscription Services.
2.3. Integrations. To the extent We make available any Integrations available to You (under an Order Form or otherwise), We grant You a limited, non-exclusive, non-transferable, non-sublicensable right for Users to access and use such Integrations during the Subscription Term. To the extent You enable or make use of an Integration, You authorize Us to transmit and receive Your Data to and from the applicable 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).
2.4. Vendori Content. From time to time, We may make Vendori Content available to You, which may or may not be set forth in an Order Form. In the event You access any Vendori Content, We grant You a limited, non-exclusive, non-transferable, non-sublicensable license to download and use such Vendori Content during the Subscription Term in connection with Your use of the Services.
2.5. Implementation Services. Implementation Services, if applicable, will be provided as more fully described in an Order Form.
2.6. Evaluation Services. From time to time, We may make Evaluation Services available to You. Evaluation Services are provided for evaluation purposes only, meaning they are not intended for production use, are not supported, and may be subject to additional terms. We may discontinue Your access to Evaluation Services at any time in Our sole discretion, with or without notice to You.
2.7. Your Affiliates. You may allow Your Affiliates to make use of the Services You subscribe to under an Order Form (subject to any limits set forth therein). You are responsible for any such Customer Affiliates’ use of 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 Customer hereunder.
3. YOUR USE OF SERVICES
3.1. Usage Limits. The Services may be subject to usage limits. Unless otherwise specified in an Order Form, the quantity of Subscription Services listed in an Order Form refers to the number of permitted Users. An individual User’s Credentials may not be shared with any other individual. In the event a User no longer requires ongoing access to the Subscription Services, a replacement User may be granted Credentials in the outgoing User’s place. 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, 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 technical and functional limitations (including storage limits) with respect to the Services, which may be set forth in an Order Form, the Documentation, or on Our website.
3.2. Your Responsibilities. You shall: (a) be responsible for Users’ compliance with the Agreement as though they were You hereunder, (b) be responsible for Your Data as transmitted to the Subscription Services (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 Service, 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) perform security testing on any Service or its related systems or networks without Our prior written consent, (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 may suspend any User’s access to the Services in the event of a security threat or Your actual or reasonably suspected breach of any restriction in this Section 3. We will lift any such suspension as soon as We determine that the reason for the suspension has been resolved or mitigated to Our reasonable satisfaction. Where suspension is imposed due to no fault on Your part, We will extend Your then-current Subscription Term by the period the Service(s) were suspended upon request.
3.5. Credentials. You are responsible for: (a) approving and directing the delivery of Credentials to Users, (b) ensuring that Users maintain the confidentiality of and do not share Credentials with other Users or third parties, and (c) ensuring 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 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 generated via the Services, or to complete payment to Us under an Order Form); (d) sensitive government or military information, including information subject to U.S. FedRAMP requirements; (e) information collected from or regarding persons under age 18; (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.
4. THIRD PARTY APPLICATIONS
4.1. Third Party Applications. 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), is not subject to the Agreement, and is at Your own risk. Your usage of an Integration may cause You to incur transmission or other 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 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. Other than as set forth in Section 5.4 below, 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 Due to Non-Payment. If any amount owing by You under an Order Form is thirty (30) or more days overdue and not in dispute pursuant to Section 5.4, We may, without limiting Our other rights and remedies, suspend Your access to the Services 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. In the event You reasonably and in good faith dispute the fees invoiced under the Agreement, You shall promptly notify Us and provide a written basis for Your dispute. The Parties will cooperate diligently to promptly resolve any such dispute, and the due date for any amounts in dispute in accordance with this section will be extended until such resolution.
5.5. Taxes. Our fees do not include, and You are responsible for payment of, any taxes, levies, duties, or similar governmental assessments of any nature applicable to Your subscription to and/or use of the Services, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes”), excluding any taxes based upon Our income, property, and employees. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You for such Taxes, 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).
5.6. Interest; Recovery. In addition to 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 (other than any Personal Data contained therein), 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 non-exclusive, worldwide right during the Subscription Term (and for a reasonable period thereafter) to host, copy, process, transmit, and display Your Data as necessary for Us to provide the Services, perform Our obligations, and exercise Our rights under the Agreement and applicable law, or as otherwise requested by You, including (without limitation): (a) to provide support, address service issues/requests, or otherwise enhance use of the Services; (b) as required by law, regulation, or in accordance governmental request with legal process; and (c) 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, nor any rights You have in a Third Party Application.
6.3. License by You to Use Feedback; Marketing. You may, at Your option, provide suggestions, enhancement requests, recommendations, ideas, improvements, or other feedback relating to the Services or Our business generally (“Feedback”) to Us. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use any Feedback for any purpose in Our discretion (including incorporation into the Services or future offerings). We will not identify You or Your Users as the source of such Feedback in a public-facing manner without Your prior written consent. Additionally, during the Subscription Term and for a reasonable period thereafter, We may reference You as 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 Usage Data during the Subscription Term. Usage Data may be used by Us (and Our third party contractors acting on Our behalf in compliance herewith) as permitted under applicable law for any purpose in Our sole discretion, including: (a) to improve and enhance the Services, (b) for billing purposes, and (c) for other development, benchmarking, diagnostic, and corrective purposes in connection with the Services and Our other (existing or future) offerings. To the extent any Usage Data constitutes Personal Data, We may de-identify such Personal Data (via aggregation and/or anonymization) in accordance with applicable law. For clarity, We will comply with Our obligations under applicable law with respect to any Usage Data constituting Personal Data.
7. CONFIDENTIALITY
7.1. Confidential Information. “Confidential Information” means any information disclosed by a party (“Discloser”) to the other party (“Recipient”), 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 surrounding disclosure, which is subject to reasonable efforts by Discloser to maintain as confidential. 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. Notwithstanding the foregoing, Confidential Information does not include any information that (a) is or becomes generally known to the public other than through a wrongful act of Recipient, (b) was known to Recipient free of any confidentiality obligation prior to its disclosure by Discloser, (c) is lawfully received from a third party without breach of any confidentiality obligation owed to another party, or (d) was independently developed by Recipient without use of or reference to the Confidential Information.
7.2. Protection of Confidential Information. Recipient will protect Confidential Information from unauthorized access and disclosure using 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). Recipient shall limit access to Confidential Information 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 Recipient’s obligations or exercising its rights under the Agreement, or (ii) in connection with advisory or business services such Representative provides to Recipient. Recipient shall ensure all Representatives have agreed to confidentiality obligations with Recipient at least as stringent as those set forth herein (or are subject to a statutory or regulatory obligation of confidentiality). Recipient shall only use Confidential Information to perform its obligations and exercise its rights under the Agreement and in furtherance of the parties’ business relationship. Except as otherwise expressly provided under this Section 7, Recipient shall not disclose Confidential Information to any third party.
7.3. Compelled Disclosure. Recipient may disclose Confidential Information to the extent compelled by law, regulation, or court order, provided that Recipient (a) gives Discloser prior notice of the compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the requested disclosure, and (b) only discloses Confidential Information to the extent 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 Discloser. Therefore, in the event of any such actual or threatened breach, Discloser 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, AND DISCLAIMERS
8.1. Representations. Each party represents and warrants that it has the full corporate (or other organizational) 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 their Documentation. In the event of a breach of the foregoing warranty, as Our sole and exclusive obligation and Your sole and exclusive remedy, 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 the Subscription Term.
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. You further warrant that Your Data is not illegal, infringing, or obscene.
8.4. Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT REPRESENTATION OR WARRANTY 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, PERFORMANCE, USAGE OR TRADE PRACTICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, EVALUATION SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR INDEMNIFICATION OF ANY KIND, AND WE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH EVALUATION SERVICES. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY DAMAGES CAUSED BY ANY THIRD PARTY APPLICATION. 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 YOUR ACCOUNTS WITHIN AND CONFIGURATIONS OF THIRD PARTY APPLICATIONS.
9. 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 the Subscription Services as delivered hereunder infringe 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 agreed to by Us in settlement, to the extent based on such 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 will not apply if the Claim results from: (i) modification of the Subscription Services by You or Your Users, (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 sets forth Our sole and exclusive 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. In the event of a Claim, the party seeking defense and indemnification: (a) shall notify the indemnifying party in writing 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 LIABILITY ARISING FROM (A) YOUR FAILURE TO PAY FEES OWED UNDER THE AGREEMENT, (B) 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, LOST REVENUES, OR LOST DATA, 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 PRECEDING 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, AND 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 for so long as You are permitted to access or use the Services (whether pursuant to an Order Form, as Evaluation Services, or otherwise), unless 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. Unless otherwise expressly stated in an Order Form, the pricing in such Order Form only applies to the Subscription Term set forth therein (and not to any renewal or future Subscription Terms).
11.3. Termination. A party may terminate the Agreement (or a portion thereof): (a) upon thirty (30) days’ written notice to the other Party of the other Party’s material breach, unless such breach is cured during that thirty (30) day 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 surrounding the alleged material breach.
11.4. Data Retention. You authorize Us (but We are not obligated) to retain Your Data for up to sixty (60) days after any termination or expiration of the Agreement. Notwithstanding the foregoing, in the event We are required to retain Your Data pursuant to applicable law or Our reasonable internal retention policies, We may do so, provided that We abide by the other obligations regarding Your Data under the Agreement for so long as retained.
11.5. Surviving Provisions. The sections titled “Usage Restrictions,” “Fees and Payment for Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “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 material breach, 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, Suite A7-2738, 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. Trade 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 neither it, nor any Affiliates and Users performing or enjoying the Services hereunder, are named on any U.S., U.K., or E.U. government denied-party list, 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, (b) by individual or entity listed on any U.S. sanctions or export control 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 and warrants 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 in violation of applicable law. Each party will comply with all applicable anti-bribery and anti-corruption laws in connection with its activities under the Agreement.
13.3. Policies and Supplemental Terms. In addition to the terms contained in this MSA, Your use of the Services is subject to and governed by the Policies and any applicable Supplemental Terms. The Policies and Supplemental Terms are incorporated by reference herein and comprise a part of this MSA.
13.4. Personal Data. Each Party will comply with all applicable laws and regulations with respect to the exchange of Personal Data contemplated hereunder. Where required by applicable law, the parties will enter into a data processing agreement (including Standard Contractual Clauses) to enable the lawful processing of Personal Data in connection with the Agreement.
13.5. 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. 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 imposed by You via purchase order, supplier information/registration or similarly titled forms or systems, invoice management platforms, or any other documentation is void and of no force or effect, including where such purchase 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 document by name and effective date. Electronic signatures that comply with applicable law are deemed original signatures. The English language version of the Agreement shall control over any non-English version, however prepared.
13.6. 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) without consent upon written notice: (a) to an Affiliate or (b) 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.
13.7. 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. There are no third-party beneficiaries under the Agreement.
13.8. 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.
13.9. Force Majeure. Any delay in performance by a party (other than payment of amounts due) caused by a Force Majeure Event is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
13.10. Waiver. Any failure or delay by either party in exercising any right under the Agreement will not constitute a waiver of that right, unless such waiver is provided in writing.
13.11. 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.
