Terms of Service
Last Updated: 6/1/2017
These Terms of Service is entered into by and between the customer (“Customer” or “You”) identified in an ordering document (“Order” and together with these Terms of Service, the “Agreement”) that references this Agreement and VividCortex, Inc. (“VividCortex” or “We” or “Us”), and is effective as of the date specified on an Order (the “Effective Date’). This Agreement governs your use of our service offering and its related documentation (collectively, the “Service”) and any related software and technology that we provide you for use in conjunction with the Service, including any updates, modifications or enhancements thereto (collectively, the “Software”). Certain Software is required to access the Service.
If VividCortex makes a material change to this Agreement, then VividCortex will notify Customer by either sending an email to the notification email address or posting a notice to the administrator in Customer’s account at least 30 days prior to the change taking effect.
In the event of a conflict between the terms of this Agreement and the Order, the terms of this Agreement will govern and prevail unless the Order expressly identifies the provision of this Agreement to be modified by the Order.
1.1. Grant of License. Subject to the terms of this Agreement, VividCortex grants you a limited, revocable, non-exclusive and non-transferable right and license during the Term to do the following, in each case solely in accordance with documentation or instructions that may be provided by VividCortex for such purposes and the limits set forth in your Order: (a) install, integrate, perform and use the Software solely to access and use the Service; and (b) access the features and functions of the applicable Service. To the extent VividCortex provides you with any updates or upgrades to the Software or Service, such updates and upgrades will be deemed to constitute part of the Software or Service and will be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to licenses, use restrictions and ownership of the Software or Service.
1.2. Access; Limitations. We will enable you to authorize: (a) administrative users to create user accounts for users; and (b) users to access the Service. User accounts may only be created for individuals (e.g., team or departmental accounts are prohibited). Use of the Service will be subject to the service limitations based on the service tier set forth in your Order. You must ensure that all information associated with each user account remains complete and accurate. You will ensure your users keep these passwords and protocols to themselves and do not share them with anyone else, and you will promptly notify us if there is any breach of the confidentiality of these passwords and protocols, or unauthorized access to or use of the Service. You are solely responsible for any and all use of your user accounts and all activities that occur under or in connection with your passwords and protocols. Each user must provide his or her full legal name, a valid email address, and any other information requested during the account signup process in order to obtain an account.
1.3. Availability. We will use commercially reasonable efforts to make the Service available at least 99.8% of the time during any calendar month (excluding planned maintenance and force majeure events). If such availability drops below 99.8% in two (2) consecutive calendar months (excluding planned maintenance or force majeure events), you may, as your sole and exclusive remedy for such unavailability, terminate the Service upon 10 days prior written notice with no penalty. If you choose to terminate the Service due to unavailability, you will receive a prorated refund for any unused portion of the Term for which you have prepaid. We consider our Service to be available if you can log into our Service and access Usage Data (as defined in Section 2.1 below).
1.4. Restrictions. Unless otherwise agreed in writing by us, you will not: (a) assign, sublicense, market, sell, lease, rent, distribute, convey or otherwise transfer the Software to any third party; (b) use the Software for any purposes other than accessing and using the Service; (c) adapt, alter, modify, translate or create derivative works of the Software; (d) use the Software in any manner not in compliance with applicable laws; (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which the Software or any software component of the Service are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such code; (f) allow third parties other than users you authorize to gain access to the Service or use the Service as a service bureau; (g) interfere with or disrupt the integrity or performance of the Service or the data contained therein, (h) use the Service for volume, stress, security, or performance testing activities without prior written permission from VividCortex, (i) use the Service or Software to develop a similar or competitive product or service, or (j) use the Service or Software in order to permit or enable third parties to circumvent or exceed Service account limitations or requirements. You will only use the Software and Service for your internal purposes, and you agree that you will not use the Software or Service in the provision of services to any third party.
1.5. Open Source Software. The Software may contain certain components that are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 1.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, VividCortex makes such Open Source Software, and its modifications to that Open Source Software, available by submitting a request to firstname.lastname@example.org.
1.6. Retained Rights; Professional Services. Except for the rights granted you in this Agreement, VividCortex retains all right, title and interest in and to the Software and Service, and you acknowledge that you neither own nor acquire any additional rights in and to the Software or the Service not expressly granted by this Agreement. You further acknowledge that VividCortex retains the right to use the Software and Service for any purpose in VividCortex’s sole discretion. In the event that VividCortex provides you with training or professional or consultative services, as set forth on an Order, such professional services and any associated deliverables are (i) provided for your internal business purposes only, (ii) deemed accepted upon delivery, and (iii) subject to the additional limitations set forth in an Order.
2.1. Data. The Software will collect data about your computers and networks including metadata metrics of query performance (“Usage Data”) and you hereby authorize such collection. The Software enables you, and VividCortex provides you with configuration settings and best practices information, in order to prevent collection of personally identifiable information by VividCortex. VividCortex will have no liability to you or any third party for the transfer or provision of such personally identifiable information to the Service. You are the sole and exclusive owner of Usage Data, and grant VividCortex the right to make use of such Usage Data in order to provide the Service and other reasonable business purposes in Aggregated Format. “Aggregated Format” means the Usage Data is anonymized, aggregated format and will not allow a third party to identify Customer.
2.2. Feedback. We may send you questionnaires or surveys on a periodic basis in written or electronic form. You acknowledge and agree that any comments, ideas and/or reports you provide to VividCortex regarding installation, product experience, functionality, performance, accuracy, consistency and ease of use of the Software or Service (“Feedback”) will be considered VividCortex’s proprietary and confidential information, and you hereby irrevocably transfer and assign to VividCortex all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback. VividCortex, in its sole discretion, may freely utilize all Feedback, whether written or oral, furnished by you to VividCortex, without attribution or compensation of any kind.
2.3. Excluded Countries We refuse to conduct trials with, conduct sales with or export services to individuals, corporations or any other entities that conduct business with, have a presence in, or have any sales or export business in the following countries: Cuba, Iran, Somalia, Libya, Sudan, or North Korea. We forbid you to register accounts if you meet these criteria. If you are found using the product from these countries, your account will be subject to immediate termination. In addition, we respectfully decline service to companies or other entities headquartered in Uruguay.
2.4. Regulated Data. You agree that: (i) VividCortex is not acting on your behalf as a Business Associate or subcontractor; (ii) the Service may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Service will not be used in any manner that would require VividCortex or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”), payment card industry data security standards (“PCI DSS”) requirements, or other law or regulations governing personal information or sensitive data. In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” have the meanings described in HIPAA. The Service is not directed to children under 13 years of age and VividCortex does not knowingly collect data from individuals under the age of 13.
2.5. Security. VividCortex will maintain reasonable administrative, physical, and technical measures designed to maintain the security, confidentiality and integrity of the Usage Data stored in the Service. VividCortex comply with laws and regulations applicable to VividCortex in connection with, and will promptly notify Customers in the event VividCortex becomes aware of unauthorized third party access to Customer’s user accounts, and will take necessary measures to determine the scope and cause of the breach in order to restore the security of the Usage Data.
3. DISCLAIMERS; EXCLUSION OF LIABILITIES
3.1. General Disclaimer. YOU AGREE THAT THE SOFTWARE AND SERVICE ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL DEFECTS.” VIVIDCORTEX DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT. THE SOFTWARE AND SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VIVIDCORTEX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. We may use, and you hereby consent to our use of, third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service provided that the use of a third party will in no way mitigate our obligations herein, and we will be fully liable for any acts or omissions of any third party service provider.
3.2. Exclusions of Remedies; Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM SECTION 5 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ANY ORDER. IN NO EVENT WILL VIVIDCORTEX BE LIABLE FOR THE LOSS OF DATA OR THE PROCUREMENT OF SUBSTITUTE SERVICES. EXCEPT FOR LIABILITY ARISING FROM SECTION 5 (CONFIDENTIALITY), THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF: (A) FIFTY DOLLARS ($50.00) AND (B) THE FEES PAID TO VIVIDCORTEX BY YOU UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
3.3. No Professional Advice. All information, materials, content and/or advice in the Service is for informational purposes only and is not intended to replace or substitute for any professional advice. VividCortex expressly disclaims, and you expressly release VividCortex from, any and all liability concerning any diagnosis, treatment, or action arising or learned from the information offered or provided within or through the Service.
3.4. Essential Basis of Agreement. You acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 3 form an essential basis of this Agreement, and that, absent any of such disclaimers, exclusions or limitations of liability, the terms of this Agreement, including, without limitation, the economic terms, would be substantially different.
4. TERM; SUSPENSION; TERMINATION.
4.1. Term. The Agreement will commence on the Effective Date and remain in effect until all outstanding Orders have expired to been terminated in accordance with this Agreement. Unless otherwise set forth on an Order or in connection with your trial use of the Service, each Order will be in effect for a period of one (1) year from the Effective Date (the “Initial Term”) and will automatically renew for successive one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Term”). During the Term, Customer may purchase subscriptions for additional instances pursuant to an Order. Such additional instances will extend the then-current Term of the pre-existing subscriptions such that they will be co-terminus with the last added instances. Either party may elect not to renew an Order by providing the other party with no less than sixty (60) days’ notice prior to the commencement of a Renewal Term. The expiration or termination of an Order will not terminate any other Order in effect.
4.2. Suspension. We reserve the right to suspend Service at any time at our discretion and without notice if you are not complying with this Agreement, or use the Service in a manner that would cause legal liability to VividCortex or otherwise disrupt the Service. For the avoidance of doubt, your payment obligation will not be suspended if we suspend the Service pursuant to this Section 4.2
4.3. Termination. In addition to any other remedies it may have, if either party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific Order upon ten (10) days’ written notice.
4.4. Effect of Termination. Upon the expiration or any termination of this Agreement, the license and all rights granted to you under this Agreement will immediately terminate, and you will promptly purge and destroy all copies of the Software in your possession. Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. The provisions of Sections 1.6, 2.1, 2.2, 3, 4.4, 5 – 7, and 9 will survive termination or expiration of this Agreement. We reserve the right to delete all Usage Data from our systems following expiration or termination of this Agreement, and we will have no liability to you for such deletion.
5. CONFIDENTIALITY. We and you acknowledge that, in the course of performance of this Agreement, either may obtain information from the other party which it knows or has reason to know is of a confidential and/or proprietary nature (“Confidential Information”). Without limiting the above, the Software, Service, the documentation, the Feedback and any product roadmap is our Confidential Information and Usage Data is your Confidential Information. Except as expressly stated in this Agreement, during the Term and at all times thereafter, neither party may disclose any such Confidential Information to any third party, nor may either party use such Confidential Information of the other party for any purpose, other than as permitted herein. Confidential Information will not include any information which: (i) are or become readily available to the trade or public through no fault of the recipient of the Confidential Information; (ii) is subsequently lawfully and in good faith obtained by a party from an independent third party without breach of this Agreement; (iii) the recipient can establish that the information was in its possession prior to the date of disclosure of such Confidential Information; or (iv) is developed independently by the recipient without reference to any Confidential Information of the other party. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent such disclosure is required by applicable law, a court of competent jurisdiction, or a governmental agency.
6. FEES; TAXES. In consideration for the Service and license to the Software, Customer will pay VividCortex the fees (“Fees”) set forth in the Order. All Fees will be billed at the frequency specified in the Order and are due within thirty (30) days of receipt of invoice by Customer. Any unpaid and uncontested balance due and owing will incur a penalty charge of 1% per month. Fees are non-refundable and non-cancelable. VividCortex’s 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”). Customer is responsible for paying all Taxes associated with the purchases hereunder. If VividCortex has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 6, VividCortex will invoice the Customer for that amount unless the Customer provides VividCortex with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, VividCortex is solely responsible for taxes assessable against it based on its income, property and employees.
7.1. By Customer. You will defend VividCortex, its officers, directors, employees and agents from and against any allegation or claim by any third party arising from i) our use of Usage Data as permitted herein and ii) a breach by you of your obligations under this Agreement.
7.2. By VividCortex. VividCortex will defend Customer from and against any allegation or claim by any third party, arising from our gross negligence, willful misconduct or fraud. However, the foregoing does not apply to the extent such claim results from Customer’s negligence or willful misconduct. In addition, VividCortex will defend Customer from any claim brought by a third party that any use of, or access to, the Service or Software by Customer violates, infringes or misappropriates, as applicable, any third-party intellectual property right. Notwithstanding the foregoing, VividCortex will have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (a) use of the Service or Software other than in accordance with this Agreement (b) your use of the Service or Software with any product or service not developed and supplied by VividCortex, or (c) Open Source Software. Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that VividCortex believes that such a claim is likely, VividCortex may, at its option (i) modify the Service or Software so that it becomes non-infringing but functionally similar, or substitute a functionally similar alternative; (ii) obtain a license to the applicable third-party intellectual property at no cost to Customer; or (iii) terminate the applicable Order on written notice to Customer and refund any unused, pre-paid fees.
7.3. Procedures. The indemnifying party will pay all damages finally awarded or paid in settlement of any such Claims. The indemnified party must notify the indemnifying party promptly in writing of any claim for indemnification hereunder, and provide, at the indemnifying party’s expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow the indemnifying party to control the defense and settlement of such Claim; provided that the failure of the indemnified party to promptly inform the indemnifying party of any Claim will not excuse the indemnifying party of its obligations hereunder except to the extent such failure materially prejudices the indemnifying party. Notwithstanding the foregoing, the indemnifying party will not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without the Indemnified party’s prior written consent, which consent will not be unreasonably withheld or delayed. The indemnified party may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense.
8. FORCE MAJEURE. Except for the obligation to pay money, neither party will be liable for any delays or failures in performance to the extent such delays are caused by labor strikes, war, civil unrest, natural disasters, or other similar circumstances beyond its control.
9. GENERAL. This Agreement and each Order constitute the complete and exclusive agreement between you and VividCortex. Except as expressly set forth herein, this Agreement will not be modified unless both you and a VividCortex authorized representative execute a separate written instrument. Any notice required to be given under this Agreement will be sent to the address indicated in the Order, or such other address provided by the party in writing. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances and in other jurisdictions, or of the remaining provisions under all circumstances. Any delay or failure by either party to this Agreement to exercise any of its rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. You will not assign this Agreement, whether voluntarily or by operation of law, nor will you delegate your duties hereunder and any attempt to do so will be null and void. VividCortex may assign this Agreement and all Orders in connection with a merger, acquisition, asset sale, or corporate reorganization. This Agreement will be construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of laws rules that would cause the laws of any other jurisdiction to apply. Any dispute with VividCortex or its affiliates relating in any way hereto or your use of the Service will be adjudicated in the courts located in Delaware, and you consent to such exclusive jurisdiction and venue. The Software and any software components of the Service are a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and Service with only those rights set forth therein. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us.
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