VenaResources, Inc.
SUBSCRIPTION TERMS AND CONDITIONS
1.SERVICES AND SUPPORT
1.1 The Services. Subject to the terms of this Agreement, VenaResources will use commercially reasonable efforts to provide Customer (a) the Services solely for Customer’s internal business operations in accordance with the terms and limitations of each Order Form, (b) reasonable support services, through electronic mail or another online mechanism, in accordance with VenaResources’ standard practice, and (c) Professional Services in accordance with each applicable SOW. Capitalized terms not defined herein shall be given the meaning set forth in the applicable Order Form.
1.2 Ownership of Devices. VenaResources shall retain full title to and ownership of each Devices unit, and Customer shall
(a) keep the Devices units free and clear from any legal process, liens or encumbrances whatsoever; and (b) maintain the Devices units in good condition and be responsible for any damage to or loss of such Devices units that occurs while in Customer’s possession (reasonable wear and tear excepted) because of Customer’s actions or interaction with the Devices in ways which were not intended or agreed. On termination (by expiration or otherwise), Customer, at Customer’s sole cost and expense, shall de-install the Devices and prepare the Devices for return to VenaResources. Customer, pursuant to VenaResources’ instructions and at Customer’s sole cost and expense (including, but not limited to, expenses of transportation and in-transit insurance), shall return the Devices to VenaResources in the same operating order, repair, condition, and appearance as when received, except for normal depreciation and wear and tear.
1.3 Grant of License. With respect to any software in any form (including software embedded in Devices) that is provided to Customer or deployed on Customer premises (“Software”), VenaResources hereby grants Customer, during the Term (as defined below), a non-exclusive, non-transferable, non- sublicensable license to use such Software solely internally in connection with the Services and for no other purpose. All Software is Confidential Information of VenaResources and subject to the terms of Section 3.
1.4 Installation. Customer shall fully cooperate with and assist VenaResources in connection with all Professional Services and shall perform all responsibilities assigned to Customer in each applicable SOW. Without limiting the foregoing, Customer shall ensure that a safe and suitable place is available, easily accessible and prepared for installation of all Devices within the continental United States in accordance with the schedule and other requirements set forth in the applicable SOW. Any dates or time periods relevant to Professional Services performance by VenaResources hereunder shall be appropriately and equitably extended to account for any delays due to the Customer.
2.RESTRICTIONS AND RESPONSIBILITIES
2.1 Use Restrictions. Customer will only use the Services as expressly permitted herein and in the applicable Order Form and agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the Services, Devices or any Software related to the Services; modify, translate, or create derivative works based on the Services, Devices or any Software, documentation or data relevant to the Services (except to the extent expressly permitted by VenaResources or authorized within the Services); use the Services, Devices or any Software for timesharing or service bureau purposes or otherwise for the benefit of any third party; use or access the Services, Devices or the Software (or any related information or documentation) to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking; remove any proprietary notices or labels; or modify, adapt or hack the Services, Software or Devices, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
2.2 Customer Obligations. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with VenaResources’ standard published policies and codes of conduct then in effect and all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property and the like). Customer hereby agrees to indemnify and hold harmless VenaResources against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any of the foregoing or otherwise from Customer’s use of Services. Although VenaResources has no obligation to monitor Customer’s use of the Services, VenaResources may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.
2.3 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, inventory tags, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of VenaResources includes all Software and other non-public information regarding features, functionality and performance of the Service and Devices. Proprietary Information of Customer includes data uploaded to the Service by Customer or that is collected or produced for Customer by VenaResources in the provision of the Service (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Proprietary Rights. Customer shall own and retain all right, title and interest in and to all Customer Data. VenaResources shall own and retain all right, title and interest in and to (a) the Services, Devices and Software, and all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Analytics Data. Notwithstanding anything to the contrary, VenaResources shall have the right collect and analyze data and information relating to the use and performance of various aspects of the Services, Devices and related technologies, and VenaResources will be free (during and after the term hereof) to (i) use such information and data to provide, improve and enhance the Services and other VenaResources offerings, and (ii) disclose such data solely in aggregate or other de- identified form in connection with its business. Further, VenaResources shall have the right to use Customer’s name in a factual manner for marketing or promotional purposes on VenaResources’ website and in other communication with existing or potential VenaResources customers. No rights or licenses are granted except as expressly set forth herein.
4.PAYMENT OF FEES
4.1 Services Fees. Customer will pay VenaResources the then applicable fees described in each applicable Order Form (and each SOW) for the Services and Professional Services in accordance with the terms therein (the “Fees”). If Customer’s
use of the Services exceeds the Service Zones set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. VenaResources reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that VenaResources has billed Customer incorrectly, Customer must contact VenaResources no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to VenaResources’ customer support department.
4.2 Payment Terms. VenaResources may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by VenaResources thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on VenaResources’ net income.
5.TERM AND TERMINATION
5.1 Term. This Agreement is for the test as specified in the Agreement and may renewed for additional periods on terms to be agreed between the parties.
5.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty(30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. VenaResources may also reasonably suspend Customer’s and/or any users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise place VenaResources (or its customers or other interests) at risk of harm, damage, loss or liability. Upon termination, Customer’s right to use the Services shall immediately terminate, all outstanding Fees due for the Services for the entire Term (regardless of any early termination) shall immediately become due and payable, Customer shall return the Devices to VenaResources and shall return (or at VenaResources’ option destroy) all Software, and each party shall return to the other all Proprietary Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.WARRANTY AND DISCLAIMER
VenaResources shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VenaResources or by third-party providers, or because of other causes beyond VenaResources’ reasonable control, but VenaResources shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, VENARESOURCES DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND VENARESOURCES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
7.LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON AND EXCEPT IN CONNECTION WITH A BREACH OF SECTION 2.1, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL DEVICES AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VENARESOURCES FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (PLUS, IN THE CASE OF CUSTOMER, ANY AMOUNTS DUE HEREUNDER), IN EACH CASE, WHETHER OR NOT VENARESOURCES OR THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.GOVERNMENT MATTERS
8.1 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
9.MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with VenaResources’ prior written consent. VenaResources may transfer and assign any of its rights and obligations under this Agreement without consent. VenaResources may also use subcontractors in performance of certain aspects of the Services, but VenaResources shall remain responsible for the performance of the Services in accordance with the terms hereof. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind VenaResources in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
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