Terms of Service
Last Updated: April 16, 2018
These Terms of Service are entered into by and between the customer (“Customer” or “you”) identified in an ordering document (an “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 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 “Service”).
If VividCortex makes a material change to this Agreement, then VividCortex will post the updated Agreement to its website. You are responsible for checking for any change to this Agreement. Continued use of the Service after a change has been posted constitutes your acceptance of any new or modified Agreement.
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 non-exclusive and non-transferable right and license during the Term to access the features and functions of the applicable Service for your internal business purposes, solely in accordance with VividCortex’ user documentation (or other written instructions that may be provided by VividCortex, collectively, the “Documentation”) and the limits set forth in your Order. To the extent VividCortex makes any updates or upgrades to Service, such updates and upgrades will be deemed to constitute part of the 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 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). 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. 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 must ensure your users keep these passwords 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.
1.3. Availability; Maintenance. 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. The Service is available if you can log into our Service and access Usage Data (as defined in Section 2.1 below). We, on average, provide maintenance on the Service approximately once every 2 weeks, for a period that is generally up to two hours. We will provide notice of upcoming maintenance, including the day and time, on our website.
1.4. Restrictions. Unless otherwise agreed in writing by us, you will not: (a) assign, sublicense, market, sell, lease, rent, distribute, convey or otherwise make the Service available to any third party; (b) use the Service for any purposes other as set forth herein; (c) adapt, alter, modify, translate or create derivative works of the Service or any part thereof; (d) use the Service 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 Service or any software component is 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 otherwise 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 any component thereof) to develop a similar or competitive product or service, or (j) use the Service (or any component thereof) to permit or enable third parties to circumvent or exceed Service account limitations or requirements.
1.5. Open Source Software. The Service may contain or utilize 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 at https://docs.vividcortex.com/general-reference/open-source-licenses/.
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 Service and all components, and you acknowledge that you neither own nor acquire any additional rights in and to the Service not expressly granted by this Agreement. 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, and (ii) subject to the additional limitations set forth in an Order.
2.1. Data. The Service will collect data about your computers and networks including metadata metrics of query performance (“Usage Data”) and you hereby authorize such collection. The Service enables you, and VividCortex provides you with configuration settings and best practices information, 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 Aggregated Form in order to provide and improve the Service. “Aggregated Format” means the Usage Data is anonymized, aggregated format and will not allow a third party to identify Customer.
2.2. Feedback. You acknowledge and agree that any comments, ideas and/or reports you provide or otherwise make available to VividCortex regarding installation, product experience, functionality, performance, accuracy, consistency and ease of use of the 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 violation of applicable export laws and regulations, or which otherwise are detrimental to the business interests of VividCortex (which for purposes of this provision includes Uruguay). You are prohibited from, and you will not, 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.
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 will comply with all laws and regulations applicable to VividCortex and the Service, and will promptly notify You in the event VividCortex becomes aware of unauthorized third party access to Your 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.
- DISCLAIMERS; EXCLUSION OF LIABILITIES
3.1. General Disclaimer. VividCortex represents and warrants that during the term of use of the Service for which VividCortex received payment from you, the Service will perform substantially in accordance with the Documentation, provided that your exclusive remedy for a breach of such warranty shall be, in VividCortex’s discretion, to either correct the nonconformity or terminate this Agreement and provide you with a pro rata refund of any prepaid fees for the Service. YOU AGREE THAT SERVICE IS OTHERWISE 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 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.
3.2. Exclusions of Remedies; Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM SECTION 5 (CONFIDENTIALITY), OR YOUR BREACH OF SECTION 1.4, 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), OR YOUR BREACH OF SECTION 1.4, 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 or associated Documentation, as well as any professional services or support services provided by VividCortex, 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.
- TERM; SUSPENSION; TERMINATION.
4.1. Term. The Agreement will commence on the Effective Date and remain in effect until all outstanding Orders have expired or 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 be co-terminus with the existing Term, unless otherwise agreed by the parties in writing. 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. 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.
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 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.
- FEES; TAXES.
In consideration for your use of the Service, 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 (the “VividCortex Indemnified Parties”) 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, and shall indemnify and hold the VividCortex Indemnified Parties harmless from any damages, judgments, liabilities, fines, penalties, assessments, costs, and expenses including reasonable attorneys’ fees and court costs (collectively, “Losses”), awarded against the VividCortex Indemnified Parties either in judgment or settlement.
7.2. By VividCortex. VividCortex will defend Customer from any claim brought by a third party that any use of, or access to, the by Customer violates or infringes any third party copyright, and shall indemnify and hold the Customer harmless from any Losses awarded against the Customer, either in judgment or settlement, agreed to by VividCortex in writing. 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 other than in accordance with this Agreement (b) your use of the Service 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 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 for the Service.
7.3. Procedures. 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. 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.
- 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.
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 Service and its components is 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. If you have any questions or comments about these Terms of Service, please contact us at email@example.com.