MASTER SERVICES AND SUBSCRIPTION AGREEMENT
THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT (“Agreement”), is entered into by and between Vation Ventures, LLC, a Colorado limited liability company (“Vation”), and the person or entity identified on an Order Form and/or Statement of Work (“Client”), as applicable. Vation and Client may be referred to herein singularly as a "party" or together as the "parties".
1. DEFINITIONS. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement will have the meaning set forth in this Section 1.
a. "Agreement" includes this Master Services and Subscription Agreement, and unless the context requires otherwise, includes all Order Forms, Statements of Work (each, a "SOW"), and any addendums, exhibits or attachments to the foregoing.
b. "Affiliate" means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a party. For the purposes of this definition, "control" means the power to direct or cause the direction of the management and policies of the organization, directly or indirectly, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise.
c. "Fees" means the amount paid by Client for access to and/or use of the Services as specifically set forth in one or more Order Forms and/or SOW.
d. "User Content" means all electronic data, text, messages, communications or other materials submitted to and stored within the Vation Platform by Client and Client's Users in connection with Client's and Client's Users' use of the Services, which may include, without limitation, personally identifiable information.
e. “Intellectual Property Rights” means all worldwide intellectual property rights including, without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
f. "Member" means a company which, pursuant to a Membership Order Form, as purchased a Vation membership in connection with this Agreement.
g. "Membership Order Form" means a Vation-generated order form for a Vation membership.
h. "Membership Services" are defined in Section 2.b.
i. "Membership Term"" means the one-year period during which Client is a Member, as specified in the Membership Order Form.
j. "Order Form" means collectively one or more Subscription Order Forms or Membership Order Forms.
k. "Professional Services" are defined in Section 2.c.
l. "Services" includes collectively (i) Vation's provision of the web-based and/or mobile application based Vation Platform and Support to which Client and its Users subscribe as specified in one or more Subscription Order Forms ("Subscription Services"), (ii) Membership Services as specified in one or more Membership Order Forms, and (iii) Professional Services as specified in one or more Statements of Work.
m. "Subscription Order Form" means a Vation-generated order form for a Vation Innovation Platform (VIP) subscription order executed by Vation and Client with respect to Client's Subscription Services, which form may detail, among other things, the number of Users authorized to use the Subscription Services and access the Vation Platform.
n. "Subscription Term" means the one-year period during which Client has agreed to subscribe to the Service, and Vation has agreed to provide the Service, for use by Client's Users, as specified in the Subscription Order Form.
o. "Support" is defined in Section 4.
p. "Vation Content" means all electronic data, text, messages, communications or other materials submitted to and stored within the Vation Platform by Vation.
q. "Vation Platform" means collectively, the online, digital web-based applications and platform provided by Vation and ordered by Client pursuant to this Agreement, including Vation's servers, software applications, portal and all underlying technology that stores, delivers, and makes accessible the Subscription Services, and excludes Membership Services and Professional Services.
r. "User" means an individual who is authorized by Client to use the Subscription Services and/or access the Vation Platform subject to the terms of this Agreement.
s. "User ID" means a non-transferable unique user name and password issued by Vation to a User to enable that User's access to the Vation Platform.
2. Types of Services.
a. Subscription Services.
i. Vation will provide to Client a non-transferable, non-exclusive and revocable subscription right, without the right to grant sublicenses, to use and access the Subscription Services subject to the terms and conditions of this Agreement and applicable Subscription Order Forms during the Subscription Term.
ii. Client acknowledges that Vation may modify the features and functionality of the Subscription Services during the Subscription Term.
iii. Client may not access or use the Subscription Services if Client is a direct competitor of Vation, except with Vation's prior written consent.
iv. Vation will provide commercially available updates to the Subscription Services, as deemed necessary by Vation for the functioning of the Subscription Services, provided that Client is current in all payment obligations and not otherwise notified of or in breach of this Agreement. Any update provided shall be included within the definition of the Subscription Services and subject to the terms and conditions of this Agreement.
b. Membership Services. A Member enjoys access to ad hoc consultation with Vation Partners, to other Vation Members, and to Vation-sponsored events, including VC visits and the Vation Annual Forum of Members.
c. Professional Services.
i. If and as requested by Client, Vation will provide professional services to Client which shall be set forth in a mutually executed SOW for such professional services ("Professional Services"). Fees for Professional Services shall be as specifically set forth on an applicable SOW. Professional Services are those consulting services addressing unique Client needs. Each SOW, once executed by the authorized representatives of the parties, shall become a part of the Agreement. Either party may propose a change order to add to, reduce or change the Professional Services set forth the SOW, and each such change order shall specify the change(s) to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to Vation, due to the change. Once executed by both parties, a change order shall become a part of the SOW.
ii. All intellectual property rights in the results of the Professional Services including (without limitation) all deliverables, contents, documentation, training materials, modifications and all intellectual property embodied herein (collectively, the "Deliverables") shall vest solely and absolutely in Vation. Vation grants Client, subject to timely payment of applicable Fees and charges, and subject to the restrictions set forth in Sections 14 and 15 hereof, a personal, nonexclusive, non-transferable right to use the Deliverables provided under Professional Services.
3. Client Access to and Use of Subscription Services.
a. Unless otherwise provided in an applicable Subscription Order Form, the Subscription Services, including access to the Vation Platform, are purchased as subscriptions on a per User basis. After commencement of the Initial Subscription Term (as defined below) or during a Renewal Subscription Term, if Client desires to add Users, such Users may be added at the same pricing as the underlying subscription pricing without proration for partial months.
c. Vation shall assign each User an applicable User ID for access to the Vation Platform. User IDs are for designated Users only and cannot be shared or used by more than one individual. Client shall notify Vation in writing of the names of persons or entities no longer authorized by Client as Users of the Vation Platform under this Agreement.
d. Through its Subscription Services, Vation will provide Client online access to and use of the Vation Platform via the internet by use of a Client-provided browser. The Vation Platform will be hosted on a server that is maintained by Vation or its designated third party supplier or data center. Client is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Vation Platform, including but not limited to Internet access and adequate bandwidth.
4. Support. Support services provided by Vation include (i) technical support, and (ii) the provision of updates thereto, if and when available, all of which are provided under Vation's policies (as may be amended by Vation from time to time) in effect at the time the Support services are provided ("Support"). Updates may include bug fixes, patches, minor and major releases, non-new platform changes, error corrections, or modifications or revisions that enhance existing performance. Client agrees to pay a separate Fee for Support as set forth in an applicable Subscription Order Form. For the avoidance of doubt, Support excludes Professional Services and updates exclude new products, modules or functionality for which Vation generally charges a separate fee. Vation is under no obligation to provide Support with respect to: (i) Services that have been altered or modified by anyone other than Vation; (ii) discrepancies that do not significantly impair or affect the operation of the Service; or (iii) errors or malfunction caused by Client's failure to comply with the minimum system requirements as provided by Vation, or by Client's use of non-conforming data.
5. Fees, Invoicing and Payment.
a. Fees. Client shall pay all Fees specified in all Order Forms and Statements of Work hereunder for the Services. Client also shall reimburse Vation for all reasonable travel and living expenses incurred in the performance of Professional Services, which are specified in a SOW or otherwise approved by Client.
b. Invoicing and Payment. Vation will invoice Client in advance and otherwise in accordance with the applicable Order Form or SOW. Any terms and conditions on any purchase order issued by Client shall not be deemed a part of this Agreement, an Order Form or a SOW, and shall not be binding on Vation unless expressly agreed in writing by Vation. All Vation invoices are due thirty (30) days after the invoice date and considered past due if not paid by the thirtieth (30th) day from the invoice date. All pricing is exclusive of applicable taxes. Client shall pay for any sales, use, or other tax, however designated (except taxes based on Vation's net income) and such taxes shall be itemized on Vation's invoices. Payment shall be made by check or other means satisfactory to Vation to the address set forth on the invoice. Vation may change the Fees for any or all of the Services, effective upon a Renewal Subscription Term, Membership Term, or renewal of a Professional Services engagement. Except as otherwise stated herein or in an Order Form or SOW, Fees will be paid in U.S. Dollars, and all payment obligations are non-cancelable and Fees paid are non-refundable.
c. Non-Payment. Failure to make timely payment of Fees shall be a material breach of the Agreement and Vation will be entitled to suspend any or all of its performance obligations hereunder, including but not limited to the provision of the Services to Client or Professional Services, in accordance with the provisions of Section 7 and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Vation. If Client fails to pay the Fees when due, then Client shall also be liable for all fees due during the then current Subscription Term set forth in the applicable Order Form, or in the case of Professional Services Fees set forth in the applicable SOW, as applicable, and any additional expenses (including but not limited to reasonable attorneys' fees and accrued interest) Vation incurs in collecting such delinquent fees. Client acknowledges such payment as liquidated damages (reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate yearly (or monthly as the case may be) recurring fees (as set forth in the Order Form or in the case of Professional Services, as set forth in a SOW) that will become due during the canceled portion of such Subscription Term or during the term of a SOW.
6. Term and Termination.
a. Term of Master Services and Subscription Agreement. Unless terminated earlier in accordance with the terms of this Agreement, this Master Services and Subscription Agreement commences on the Effective Date (as defined below) and continues until the termination or expiration of all Subscription Terms or Membership Terms or Professional Services, as specified in all Order Forms and/or SOWs.
b. Subscription Services Term. The initial term of Subscription Services commences on the Commencement Date as specified in the Subscription Order Form and will continue for one (1) year ("Initial Subscription Term"), unless terminated earlier in accordance with the terms of this Agreement. At the conclusion of the Initial Subscription Term, this Subscription Services will automatically renew for successive twelve (12) month periods (each, a "Renewal Subscription Term"), unless a party notifies the other party in writing of its intent not to renew at least sixty (60) days prior to the end of the Initial Subscription Term or the then-current Renewal Subscription Term, or unless terminated earlier in accordance with the terms of this Agreement.
c. Membership Services Term. The Membership Services Term commences on the Commencement Date as specified in the Membership Order Form and will continue for one (1) year ("Initial Membership Term"), unless terminated earlier in accordance with the terms of this Agreement. At the conclusion of the Initial Membership Term, this Membership Services will automatically renew for successive twelve (12) month periods (each, a "Renewal Membership Term"), unless a party notifies the other party in writing of its intent not to renew at least sixty (60) days prior to the end of the Initial Membership Term or the then-current Renewal Membership Term, or unless terminated earlier in accordance with the terms of this Agreement.
d. Term of Professional Services. Unless terminated earlier in accordance with the terms of this Agreement, Professional Services shall commence and terminate as set forth in the applicable SOW.
e. Effect of Termination or Expiration. Upon termination or expiration of Subscription Services and Membership Services, Client shall cease all use of the Subscription and Membership Services and shall require all Users to immediately cease their use of the Subscription Services as of the termination or expiration date. Upon termination or expiration of this Agreement, all Order Forms, SOWs and any addendums, exhibits or attachments to the foregoing then in effect related to this Agreement shall terminate.
a. Events of Default. Except as otherwise provided in this Agreement, if Client (i) fails to timely pay any Fees or other payments due under this Agreement, an applicable Order Form or SOW, and/or a related agreement; (ii) materially fails to perform any of its other obligations hereunder; (iii) fails to maintain adequate User records and/or fails to report and pay for all Users; and any of the foregoing failures are not cured within ten (10) days following written notice thereof, or (iv) files for bankruptcy or becomes the subject of any bankruptcy, receivership, or liquidation proceeding or becomes insolvent, then Vation may, at its option and in its sole discretion (a) immediately terminate this Agreement and/or any outstanding Order Form or SOW; (b) declare all amounts due to become immediately due and payable; (c) suspend or restrict all Client's and its Users' access to all or any portion of the Services; and/or (d) require Client to deposit an amount equal to its average periodic Fees or to prepay its Fees. Client agrees that such suspension or restriction as contemplated by any portion of this Section 7 or by Sections 5 and 9 do not modify the amounts due under this Agreement or any Order Form or SOW.
b. Suspension Without Notice. Vation is not required to provide said 10-day notice if Client is in default of its payment obligations under this Agreement. Further, Vation may suspend Client's access and use of the Services if, and so long as, in Vation's sole judgment, there is a security risk created by Client that may interfere with the proper continued provision of the Services or the operation of Vation's network or systems. Vation reserves the right to impose an additional charge to reinstate the Services following suspension.
8. Inspection Rights. Client will maintain relevant records to substantiate the number of Users, payments made under this Agreement, and its compliance with its obligations in this Agreement. Such records will be retained during the Initial Subscription Term and any Renewal Subscription and for one year after the expiration or termination of this Agreement. Upon Vation's written request issued at least thirty (30) days in advance and no more than once per calendar year, Client will make its records available to Vation or its designee for an inspection. The inspection will be conducted during normal business hours and will not unreasonably interfere with Client's business. If the inspection reveals an underpayment or overpayment, any underpayment amount shall be payable within thirty (30) days of the date of an invoice for such amount and any overpayment amount shall be credited against future amounts due or refunded in a timely manner, as agreed by the parties.
a. cause Users to comply with this Agreement;
b. be solely responsible for User Content;
c. obtain and maintain during the Term all necessary consents, agreements and approvals from any other third parties for all actual or intended uses of information, data or other content that Client will use in connection with the Services, making sure that the disclosure of such information, data or other content dos not violate any applicable law or infringe upon the Intellectual Property Rights of any third party;
d. use commercially reasonable efforts to prevent unauthorized access to, or use of the Subscription Services and notify Vation promptly of any known unauthorized access or use;
e. use the Services only in accordance with applicable law and regulations; and
f. not post or upload any content or data which (i) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (ii) violates the rights of others, such as data which infringes on any Intellectual Property Rights or violates any right of privacy or publicity; (iii) to impersonate any person or entity or engage in any fraudulent business practice including generating invalid impressions, or other actions; or (iv) otherwise violates any applicable law.
10. Restrictions on Use. Client is responsible for all activities that occur by it and its Users under this Agreement. Client shall not itself, or through any Affiliate, User, employee, consultant, contractor, agent or other third party engage in any the following activities and shall use commercially reasonable efforts to prevent the following activities:
a. renting, leasing, lending, selling, redistributing, sublicensing, or transferring the Subscription Services or an individual User's access to any aspect of the Subscription Services;
b. copying, decompiling, reverse engineering, disassembling, translating, attempting to discover, deriving, causing or allowing the discovery of the source code, underlying ideas, algorithms, or programming of the Subscription Services;
c. modifying, or creating derivative works of the Services, the Vation Platform, any updates, or any part thereof or attempting to do any of the foregoing;
d. removing, obscuring, or altering the copyright, trademark or other proprietary notices affixed to or contained in the Services, or encouraging or allowing others to do so;
e. reproducing in any form or by any means any portion of the Services, except as otherwise authorized in this Agreement;
f. exploiting the Services in any unauthorized way whatsoever, including but not limited to, by any commercial use, by trespassing, or by burdening network capacity;
g. using, distributing, or copying the Services or Vation Platform in violation of this Agreement;
h. using the Services or any materials downloaded or printed from the Services, or permitting any third party to use the Services or any materials downloaded or printed from the Services, to develop competing products or services;
i. accessing or using the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes;
j. interfering with or disrupting the integrity or performance of any component of the Services, Vation Content, or content posted by third parties to the Vation Platform;
k. using the Services for illegal activities or junk mail, chain letters, pyramid schemes, “spam” or distribution to any person who has not given specific permission to be included in such a process; or
l. using use any automated means, including but not limited to agents, robots, scripts, spiders, and screen scraping tools, to access, monitor, download or copy any part of Services or its Vation Content, unless Vation has provided prior written consent.
11. Vation Ownership and Intellectual Property.
a. Ownership and Proprietary Rights. The Services and all infrastructure, websites and other materials provided or used by Vation in the performance of Services will at all times remain the exclusive, sole and absolute property of Vation. Client does not acquire any right, title, or interest in or to such Services, infrastructure, websites and materials except the limited and temporary right to use them as necessary for Client's use of the Services under this Agreement. All rights, title and interest in or to any Intellectual Property Rights and other proprietary right relating to the Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Vation. Client may not obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices. Client shall not take any action that jeopardizes Vation's intellectual Property Rights in the Services, nor assume or acquire any right in the Services except the limited-use rights specified in this Agreement. All rights not expressly licensed to Client by Vation are reserved exclusively to Vation. Nothing in this Agreement will directly or indirectly be construed to assign or grant Client any right of ownership, title or interest in the Services, any component of the Services, the Vation Platform, or any intellectual property rights relating thereto. Client is prohibited from providing any of Vation competitors with access to the Service without the prior written consent of Vation in each instance, and such consent may be withheld in Vation’s sole discretion.
b. Vation Indemnity. Vation shall indemnify Client in any suit or cause of action, and indemnify and hold Client harmless against any damages payable to any third party in any such suit or cause of action, if it is determined by the trier of fact that all or a part of the Services as used in accordance with this Agreement infringes the U.S. patent or copyright of any third party. If the Services or any portion thereof is held to infringe on a U.S. patent or copyright of a third party, Vation may, in its sole discretion, at any time (a) modify the Services to be non-infringing, (b) obtain for Client a license to continue using the affected Services, or (c) if neither (a) nor (b) are practical in Vation's sole judgment, terminate the affected Services. The foregoing obligations of Vation do not apply (i) to the extent that the allegedly infringing Services or portions or components thereof or modifications thereto result from any change made by Client or any third party for the Client, (ii) if the infringement claim could have been avoided by using an unaltered current version of the Services which was provided by Vation, (iii) to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by Vation, or any material from a third party portal or other external source that is accessible to Client within or from the Services (e.g., a third party Web page accessed via a hyperlink), or (iv) to the extent that an infringement claim is based upon the combination of any material with any products or services not provided by Vation, or (v) to the extent that an infringement claim is caused by the provision by Client to Vation of User Content, materials, designs, know-how, software or other intellectual property with instructions to Vation to use the same in connection with the Services.
12. User Content and Client Data.
a. Client hereby grants to Vation (and on a confidential basis to Vation's third party service providers including by way of example server collocation facility and Internet connectivity providers), solely for the purposes described hereunder or expressly authorized by Client, a perpetual, non-cancelable, worldwide, non-exclusive right to access, use, display, and redistribute any (a) User Content, and (b) data or other information that Client collects (or which Vation collects on behalf of Client) from Client, publically available resources, Client's use of the Services, including but not limited to Client's logos or trademarks to identify Client as a client of Vation or in Vation's posted information about Client, or as a part of a general list of Vation's customers for use and reference in Vation's corporate and marketing literature (the "Client Data").
b. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the User Content or Client Data it or its Users submit to the Service.
c. Client represents and warrants that all User Content and Client Data is owned by Client or that Client and its Users has the right to solicit, collect, and provide such User Content and Client Data to Vation for use with the Services. Client also represents and warrants that any use or transmission of User Content and Client Data does not and shall not violate or infringe the intellectual property, privacy or publicity rights of any third party.
d. As between Vation and Client, except for the limited license granted to Vation under this Agreement, Client retains all right, title, and interest in and to the User Content and Client Data.
e. Client acknowledges and agrees that if it or its Users send or otherwise provides User Content or Client Data to others using the Services, any recipients may copy or redistribute such content or data, for instance by using standard interfaces to transfer data into external systems, by exporting data electronically into files or reports, by printing or other means.
13. Client Indemnity.
a. Client shall indemnify, defend and hold Vation harmless from and against any action, suit or proceeding for (i) infringement and/or misappropriation of Intellectual Property Rights from any User Data or other material, data or content from Client (ii) relating to or arising from Client's use of the Services, and (iii) relating to or arising from Client's breach or violation of any obligation or covenant of Client in this Agreement. Further and to the extent allowed by statute or law, Client shall indemnify and hold Vation harmless from and against any third party claim, action, suit or proceeding arising from any breach of Section 18 by Client, including any violations of the U.S. State Department or U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") statutory requirements.
b. The indemnification obligations set forth in Sections 11.b. and 13.a are subject to the following requirements: the indemnified party shall (i) take all reasonable steps to mitigate any potential damages which may result; (ii) promptly notify the other party of any and all such suits and causes of action; (iii) the indemnifying party controls any negotiations or defense of such suits and causes of action, and the indemnified party assists as reasonably required by the indemnifying party.
14. DISCLAIMERS. EXCEPT AS PROVIDED EXPRESSLY HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. VATION, AND ITS AFFILIATES EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, (I) ANY WARRANTY THAT THE SERVICES ARE FREE OF ERRORS, OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED, (II) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM VIRUSES OR ANY OTHER MALICIOUS CODE. CLIENT ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND USER CONTENT. ACCORDINGLY, VATION CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. CLIENT ACKNOWLEDGES THAT THE SERVICES AVAILABILITY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VATION IS NOT RESPONSIBLE OR DEEMED TO BE IN DEFAULT FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, OR UNAVAILABILITY RELATED TO CLIENT'S APPLICATIONS, USER CONTENT OR DATA, OR CLIENT'S EQUIPMENT, OR THE ACTS OR OMISSIONS OF ANY USER OF THE SERVICES. IN ADDITION, VATION SHALL NOT BE RESPONSIBLE FOR, AND CLIENT HEREBY FULLY RELEASES, WAIVES, AND DISCHARGES VATION OR ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, EMPLOYEES, OR INSURERS FROM ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, LOSSES, OR DAMAGES THAT ARE BASED ON, ARISE OR RESULT FROM, IN WHOLE OR IN PART, VATION CONTENT.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL VATION, ITS OWNERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, THE VATION PLATFORM, VATION CONTENT, OR USER CONTENT, OR MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, OR DESTRUCTION. WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VATION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED THE AMOUNT CLIENT PAID FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES OR VATION PLATFORM TO TRANSMIT, PROCESS OR STORE “HIGH RISK PERSONAL INFORMATION” (AS DEFINED BELOW) IS UNNECESSARY FOR USE OF THE SERVICES AND THEREFORE VATION SHALL HAVE NO INDEMNIFICATION OBLIGATION OR OTHER LIABILITY UNDER THIS AGREEMENT FOR ANY SUCH USE OF THE SERVICES BY CLIENT, ITS AFFILIATES OR REPRESENTATIVES. “HIGH RISK PERSONAL INFORMATION” SHALL BE DEFINED AS (A) SOCIAL SECURITY NUMBERS, PASSPORT NUMBERS OR OTHER GOVERNMENT ISSUED ID NUMBERS, AND DATE OF BIRTH; (B) HEALTH OR MEDICAL INFORMATION (OTHER THAN DIETARY PREFERENCES OR MEDICAL CONTACT INFORMATION, WHICH SHALL NOT BE DEEMED HIGH RISK PERSONAL INFORMATION); (C) FINANCIAL ACCOUNT INFORMATION (OTHER THAN PAYMENT INFORMATION ENTERED SECURELY USING VATION'S THIRD PARTY ONLINE PAYMENT SYSTEM, WHICH SHALL NOT BE DEEMED HIGH RISK PERSONAL INFORMATION); AND (D) OTHER INFORMATION WHICH A REASONABLE PERSON WOULD RECOGNIZE AS BEING HIGHLY SENSITIVE (BUT EXCLUDING, FOR AVOIDANCE OF DOUBT, CONTACT INFORMATION SUCH AS NAME, TITLE, COMPANY NAME, MAILING ADDRESS, EMAIL ADDRESS, AND PHONE NUMBER, NONE OF WHICH SHALL BE DEEMED HIGH RISK PERSONAL INFORMATION).
THESE LIMITATIONS OF LIABILITY WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT.
a. Nondisclosure of Confidential Information. For purposes of this Section, "Confidential Information" shall mean information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing party (the "Discloser"). The party receiving the Confidential Information is hereinafter referred to as the "Recipient". Recipient will not use Confidential Information of Discloser for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Discloser only to the employees or agents of Recipient who have a need to know such information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding the foregoing, Vation may use Client's Confidential Information for purposes other than the provision of Services only in an aggregated, anonymized form, such that Client is not identified.
b. Exceptions. Recipient’s confidentiality obligations hereunder with respect to any of Discloser's Confidential Information do not apply for any information that (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party without any restrictions on disclosure; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to or use of Discloser’s Confidential Information. In addition, it is not a breach of this section to disclose Discloser’s Confidential Information to the extent that such disclosure is (i) approved in writing by Discloser, (ii) necessary for Recipient to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body or in connection with a financing or similar transaction ("Legal Procedure"), provided that Recipient notifies promptly Discloser of the required disclosure, if allowed by Legal Procedure, and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
c. Return of Information. Except as otherwise expressly provided in this Agreement, Recipient will return to Discloser or destroy all Confidential Information of Discloser in Recipient's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of Discloser. Upon request, Recipient will certify in writing signed by an officer of Recipient that it has fully complied with the destruction and return obligations.
d. Remedy. Any unauthorized copying, transfer, or use of any Confidential Information of the other party shall cause irreparable injury to the Discloser that cannot be adequately compensated by monetary damages and the Discloser shall be entitled to seek equitable relief, including injunctive relief, with bond waived, against the Recipient as a remedy for any material breach of this Section. The Discloser may in addition to equitable relief, pursue any and all legal and contractual remedies available to the Discloser.
e. This confidentiality obligations set forth in this Section 16 survive the termination or expiration of this Agreement.
17. Force Majeure. Any party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, utility or communication failures, or other cause beyond the party's reasonable control. Both parties will use reasonable efforts to mitigate the effect of a force majeure event.
18. OFAC. Client represents and warrants that it is not and will not provide access to the Services to an entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a "Specially Designated National," a "Specially Designated Global Terrorist," a "Blocked Person," or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and Vation may immediately terminate this Agreement.
19. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
20. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.
21. Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Client and Vation shall be construed and enforced accordingly.
22. Assignment. Vation may assign the Agreement to an Affiliate, a successor in connection with a merger, acquisition or consolidation, or to the purchaser in connection with the sale of all or substantially all of its assets. Client may not assign the Agreement or any of the rights or obligations under the Agreement, without the prior written consent of Vation. Any purported assignment or transfer in violation of this Section 22 will be void.
23. Relationship of the Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of the Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.
24. Federal Government End Use. If Client is a department or agency of the U.S. federal government or contracting on behalf of such department or agency, the Services is a "Commercial Item" as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such term are used in 48 C.F.R. §12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
25. Governing Law. This Agreement is governed by the laws of the State of Colorado without giving effect to its conflict of law provisions. Any dispute shall be litigated in the state or federal courts located in the State of Colorado to whose exclusive jurisdiction the parties hereby consent. For purposes of establishing jurisdiction in Colorado under this Agreement, each party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any such suit, action or proceeding is brought in an inconvenient forum.
26. Entire Agreement; Counterparts. This agreement of the parties with respect to its subject matter and supersedes and overrides all prior agreements on the same subject matter, and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. This Agreement shall not be modified except by a writing signed by Vation and Client. The language of this Agreement is English, and only the English-language version shall be deemed to represent the Agreement's terms. This Agreement and any Order Form or SOW may be signed in any number of counterparts all of which together shall constitute one and the same document. A signed copy of this Agreement or any Order Form or SOW transmitted via facsimile, email or other electronic means shall constitute an originally signed Agreement or Order Form or SOW, as applicable, and, when together with all other required signed copies of this same Agreement or Order Form or SOW, as applicable, shall constitute one and the same instrument.
27. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) delivered by electronic mail to the address listed on the applicable Order Form or SOW, (iii) sent by first class registered mail, or air mail, as appropriate, or (iv) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person set forth in the Order Form or SOW. Notices shall be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
28. Public Announcements. The parties shall cooperate to create any and all appropriate public announcements relating to the relationship set forth in this Agreement.
29. Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of an Order Form or SOW, the terms and conditions of the Master Agreement shall control, except where the Order Form or SOW expressly states the intent to supersede a specific portion of the Master Agreement (provided, however, that the fact that a provision appears in one of those documents but not in another shall not be deemed to be a conflict for purposes of this sentence).
30. Survival. Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
VATION VENTURES, LLC