TERMS OF SERVICE FOR VIP NET SERVICES (VNS)
THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON CUSTOMER AND ARE CONDITIONS PRECEDENT TO FULL AND COMPLETE PERFORMANCE BY VNS. UPON EXECUTION OF THE VNS STANDARD SUBSCRIPTION SERVICES AGREEMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
- Affiliatesmeans any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party.
“Confidential Information” means: (a) Customer Data; (b) the terms of this Agreement and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (15) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information and (5) aggregate data collected or generated by VNS or on behalf of VNS regarding VNS’s products and services (for purposes of providing or improving VNS products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Customer-specific information.
- Customer Data means all electronic data or information submitted to and stored in the Service by Users.
- Electronic Communications means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
- Estimate/Order Form means a VNS estimate, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by VNS which specifies the Service, and any Support Services and/or Professional Services to be provided by VNS subject to the terms of this Agreement.
- Help Documentation means the online English language help center documentation describing the Service features, including User Guides which may be updated from time to time.
- Professional Services means the general consulting, implementation and/or training services to be provided to Customer.
- Servicemeans, collectively, VNS’s online business application suite, web sites and related application and related services and support offered by VNS. (the “VNS Services”)
- Third Party Applications means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than VNS.
- Usersmeans individuals who are authorized by Customer to use the Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Estimate/Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by VNS at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.
- User Guides mean the online English language user guides for the Service, accessible via login, as updated from time to time.
- URL Terms means the terms with which Customer must comply, which are located at a URL, referenced in this Agreement and are hereby incorporated by reference.
- Miscellaneous terms. All other terms shall be given their ordinary meanings without any construction or ambiguity being held against VNS.
- Terms of Service. Customer acknowledges and agrees to the following terms of service, which together with the terms of the VNS Services Agreement entered into between Customer and VNS, shall govern Customer’s access and use of the Service (collectively, the “Agreement”). Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Agreement.
2.1. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2.2. Users: Passwords, Access, and Notification. Customer shall authorize access to and assign unique passwords and user names to the number of Users procured by Customer on the Estimate/Order Form. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be permanently reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. VNS will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify VNS of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
2.3. General Restrictions/Disputes.
- General. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sub-licensing, concurrent use of a single User login, or time-sharing of the Service. Customer shall not and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed in the Help Documentation; (b) access or use the Service to circumvent or exceed Service account limitations or requirements; (c) use the Service for the purpose of building a similar or competitive product or service, (d) obtain unauthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (e) use the Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (f) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall not store credit card and social security data in the Service except in the designated encrypted fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by VNS. Customer shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by VNS. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User shall be deemed an action or breach by Customer.
- HIPAA. Customer agrees that: (i) VNS is not acting on Customer’s 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 VNS or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected” health information” or “PHI” shall have the meanings described in HIPAA.
2.5. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service. Customer expressly consents to VNS’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by VNS. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. VNS is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by VNS, including, but not limited to, the Internet and Customer’s local network.
2.6. Service Level. During the Term, the Service will meet the service level of a server uptime of 99.95% (Excluding Regular Pre-Announced Scheduled Maintenance), meaning that the VNS services are accessible to Customer via the internet. If the Service fails to achieve the service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the Service in accordance with the terms set forth in the Service Level Commitment.
2.7. VNS’s Support Services and Professional Services. As part of the Service, VNS will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. VNS also offers optional Professional Services.
2.8. Security. VNS shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data.
2.9. Confidentiality. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Additionally, Customer must input credit card information and social security numbers only in the fields designated for such data in the Service. Nothing in this Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. Should customer breach any confidentiality, it hereby agrees that upon demonstrating said breach by a preponderance of the evidence, it shall be entitled to Five Hundred Thousand Dollars. The parties agree this is fair given the sensitivity of work and software involved.
2.10. Ownership of Customer Data. As between VNS and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, VNS as part of its standard Service offering makes daily backup copies of the Customer Data in Customer’s “live” account and stores and maintains such data for a period of time consistent with VNS standard business processes.
2.11. VNS’s Intellectual Property Rights. All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by VNS) are owned exclusively by VNS. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Customer grants VNS a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service. Any rights in the Service or VNS ’s intellectual property not expressly granted herein by VNS are reserved by VNS. VNS service marks, logos and product and service names are marks of VNS (the “VNS Marks”). Customer agrees not to display or use the VNS Marks in any manner without VNS’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
2.12. U.S. Government Rights. The Service is a “commercial item” as that term is defined at FAR 2.101. If Customer or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), VNS provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with VNS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
2.13. Dispute Resolution.
- The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. Except as provided in 2.14(b), any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to Judicate West for mediation before arbitration or any other form of legal relief may be instituted. The parties will cooperate with Judicate West in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in Los Angeles.
- Should mediation as set forth above be unsuccessful, the parties hereby agree to submit the matter to binding arbitration with Judicate West. The rules for the arbitration shall adhere to California Code of Civil Procedure Section 1280, et seq. The prevailing party is any such arbitration shall be entitled to reasonable attorneys fees. It is expressly a condition precedent that mediation is required prior to the prevailing party being awarded reasonable attorneys fees.
- The dispute resolution procedures in this Agreement shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
3.1. Warranty of Functionality. VNS warrants that: (i) the Service will achieve in all material respects the functionality described in the User Guides applicable to the Service procured by Customer, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Customer’s sole and exclusive remedy for VNS’s breach of this warranty shall be that VNS shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and if VNS is unable to restore such functionality, Customer shall be entitled to terminate the Agreement. VNS shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to firstname.lastname@example.org. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.
3.2. Warranty of No Malicious Code. Each party warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service.
- Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3.1 AND 3.2 ABOVE, VNS DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VNS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.6, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. VNS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION HIPAA OR THE GRAMM-LEACH-BLILEY ACT OF 1999. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
- Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF TWELVE (12) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT, AND IN THE EVENT OF A BREACH OF SECTION 2.9 (CONFIDENTIALITY) OF THESE TERMS OF SERVICE, SUCH MAXIMUM LIABILITY OF EITHER PARTY SHALL BE AN AMOUNT EQUAL TO TWO (2) TIMES THE EQUIVALENT OF 12 MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 2.3 OF THESE TERMS OF SERVICE; OR (C) EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW.
6.1. Infringement. VNS will have no liability for Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after VNS notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by VNS or made by VNS based on Customer specifications or requirements, (d) use of the Service in combination with any non-VNS software, application or service, or (e) services offered by Customer or revenue earned by Customer for such services.
6.2. Customer’s Indemnity. Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend VNS from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.3 (General Restrictions) above and shall indemnify VNSfrom and against liability for any Losses to the extent based upon such Claims.
6.3. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension for Delinquent Account. VNS reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service and/or Support Services if any payment is due but unpaid, after VNS has provided Customer one (1) delinquency notices, and at least seven (7) days have passed since the transmission of the first notice. Customer agrees that VNS shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.
The Customer with a delinquent account with VNS ’s ERP and Easy Ordering System (EOS) will be warned of the impending suspension via on-screen messages within ERP and EOS as well as email warnings transmitted to the Customer designated administrators. If the account is not paid in full, it will be suspended 3 days after the due date. A penalty equal to the monthly license fee (per EOS license) or/and ERP system will be incurred in order to restore EOS and / or ERP services.
7.2. Suspension for Ongoing Harm. VNS may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if VNS reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to VNS or others. In the extraordinary event that VNS suspends access to the Service, VNS will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Customer to resolve the issues causing the suspension of Service. Customer agrees that VNS shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section.
7.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then VNS shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of VNS ’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to VNS under this Agreement for the terminated portion of the Term
7.4. Handling of Customer Data Upon Termination/Expiration. Following expiration or termination of the Agreement or a Customer account, if applicable, VNS may immediately deactivate the applicable Customer account(s) and shall be entitled to delete such Customer account(s) from VNS’s systems following a fourteen (14) day period. Customer further agrees that VNS shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that VNS is in compliance with the terms of this Section.
- Modifications; Discontinuation of Service.
8.1 To the Service. VNS may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications.
8.2 To Applicable Terms. If VNS makes a material change to any applicable URL Terms, then VNS will notify Customer by either sending an email to the notification email address or posting a notice to the administrator in Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify VNS via email@example.com within thirty days after receiving notice of the change. If Customer notifies VNS as required, then Customer will remain governed by the URL Terms in effect immediately prior to the change until the end of the then current subscription term for the affected Service. If the affected Service is renewed, it will be renewed under VNS’s then current URL Terms. Customer shall make no other modification unless VNS agrees in a signed writing consenting to said modification. Electronic correspondence shall not be deemed signed writing for purposes of this section.
- BILLING AND PAYMENT TERMS.
- Billing . One time implementation charges are due as specified on the order. Recurring service charges are billed monthly in advance, effective upon VNS’ delivery of the Services. Usage and consumption charges are billed in arrears. Billing will commence when VNS has prepared Services for Customer’s use whether or not Customer is ready to use the Services. Further, if set up requires Customer’s acts and/or omissions or information from Customer, in the event Customer fails to timely provide same, billing will likewise commence.
- Payment.Payment of amounts billed to Customer is due in accordance with the invoice, without set off or deduction. The unpaid balance of the amounts of any invoice shall bear interest at the rate of 1.5% per month (prorated on a daily basis) commencing on the date the invoice is due and Customer shall pay all collection costs including, but not limited to, reasonable attorney’s fees, court costs and/or collection fees.
- Disputed Bills .Customer may dispute an invoice or any portion thereof only by (i) submitting a written, detailed, request for invoice review (c/o VNS Accounting Dept.) describing such dispute within fifteen (15) days of the invoice date and (ii) making full and timely payment of all undisputed amounts.
- Taxes and Fees.Customer must pay all fees that are due as specified within each order upon receipt of an invoice, plus all applicable sales, use, value-add or similar taxes.
- Failure to make timely payments. Customer hereby understands and acknowledges that failure to make timely payments shall be subject to interest. Specifically, client shall be responsible for interest at a rate of ten percent (10%) annum for failure to render timely payments. Said interest shall commence upon the first occurrence of late payment.
- Full Payment is condition precedent. Customer agrees that full and final payment is a condition precedent prior to VNS’ duties and obligations under these terms. Consequently, any payment due and owing at different stages/phases prior to the final date shall become accelerated and will become due and owing, in full, prior to VNS’ obligations. This is a key and material term of this agreement.
- Force Majeure.Except with respect to accrued payment obligations, neither party shall be liable for any failure of performance due to causes beyond such party’s reasonable control, including, but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, or governmental action; national emergencies, insurrections, riots, acts of terrorism or wars.
- Non-Solicitation.Neither party shall knowingly solicit for employment, offer employment to or employ the other party’s employees during and for a period of two (2) years following termination of this Agreement. In the event of a breach of this provision the parties agree that appropriate liquidated damages shall be payment by the breaching party of one hundred (100%) percent of the new annual compensation of the employed individual.
- Marketing. Customer agrees that VNS may refer to Customer and may briefly describe Customer’s business in VNS’ website. Customer hereby grants VNS a limited license to use any Customer trade name and trademarks only for this purpose.
- Governing Law and Arbitration.Customer agrees to be bound by California Law and Jurisdiction. Customer shall not claim forum non-convenience regardless of location. Customer acknowledges that it has maintained minimum contacts with the State of California and shall be subject to California Jurisdiction. This Agreement is governed by the substantive laws of the State of CALIFORNIA, without regard to conflict of laws principles. Any dispute arising out of, or relating to, this Agreement must be determined by binding arbitration conducted privately and confidentially in the Los Angeles, California area under the then current commercial rules of the American Arbitration Association. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any litigation or arbitration is entitled to recover its attorney’s fees and costs from the other party.
- Assignment or Transfer.Neither party may assign or transfer this Agreement or an order to a third party, except that the Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. F. Relationship of Parties. The parties are independent contractors with respect to each other.
- Illegality. If any provision of this Agreement becomes or is found to be illegal or unenforceable for any reason, such clause or provision must first be modified to the extent necessary to make this
Agreement legal and enforceable and then if necessary, second, severed from the remainder of the Agreement to allow the remainder of the Agreement to remain in full force and effect.
- Entire Understanding.This Agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it. VNS rejects additional or conflicting terms of a Customer form-purchasing document. If there is an inconsistency between this Agreement and an order, the order prevails. Any terms that by their nature survive termination or expiration of this agreement, will survive.
- Advice of Independent Counsel. The parties acknowledge they had the opportunity to seek the advice of independent counsel prior to entering into this agreement.
- Counterparts; Electronic Signatures. For the convenience of the parties, any number of counterparts of this Agreement may be executed by any one or more parties hereto, and each such executed counterpart shall be, and shall be deemed to be, an original, but all of which shall constitute, and shall be deemed to constitute, in the aggregate but one and the same instrument. The Agreement may be circulated for signature through facsimile and email transmission and all signatures so obtained and transmitted shall be deemed for all purposes under this Agreement to be original signatures until such time, if ever, as original counterparts are exchanged by the parties.