TERMS AND CONDITIONS FOR USE OF VVP SOLUTION (“SUBSCRIPTION TERMS”)

READ THIS CONTRACT CAREFULLY. BY CLICKING THE “ACCEPT” BOX YOU ARE AGREEING TO ENTER INTO THIS SUBSCRIPTION LICENSE AGREEMENT FOR THE VALUE VIEWPOINT (“VVP”) SAAS PLATFORM (THE “VVP SOLUTION”) IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE SUBSCRIPTION TERMS, TO THE EXCLUSION OF ALL OTHER TERMS. THIS IS A LEGAL AGREEMENT BETWEEN VALUE VIEWPOINT AND YOU, THE END CUSTOMER, (“YOU,” “LICENSEE”) FOR THE LICENSE OF A LIMITED RIGHT TO USE THE VVP SOLUTION, TOGETHER WITH THE ACCOMPANYING DOCUMENTATION AS SET FORTH HEREIN. IF THESE SUBSCRIPTION TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. VALUE VIEWPOINT DOES NOT AUTHORIZE THE USE AND ACCESS OF THE VVP SOLUTION UNTIL LICENSEE HAS AGREED TO BE BOUND BY THESE SUBSCRIPTION TERMS BY CLICKING ON THE "I ACCEPT THESE SUBSCRIPTION TERMS” RADIO BUTTON BELOW. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON BELOW.  

  1. DEFINITIONS.
  1. “Affiliate” means any entity under the control of Customer where "control" means ownership of or the right to control greater than fifty percent (50%) of the voting securities of such entity.  
  2. “Documentation” means any documentation in printed, machine readable or other form, provided by VVP for use by Customer with the VVP Solution, as periodically updated, that describes the operation and/or use of the VVP Solution.
  3. “Feedback” means comments, questions, suggestions, or other feedback relating to any VVP product or service.
  4. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  5. “Laws” means all applicable local, state, federal and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
  6. “Customer Content” means responses submitted, uploaded, or imported to the VVP Solution by Customer.
  7. “Customer Properties" means Customer's websites, mobile applications, or other systems owned and operated by (or for the benefit of) Customer through which Customer uses the VVP Solution to communicate with Users or, if applicable, Customer backend systems accessed through APIs.
  8. “The VVP Solution” means VVP’s SaaS platform as well as any modifications, improvements, extensions and/or updates thereto.
  9. “User(s)” mean(s):  (i) an employee, Contractor of Customer or its Affiliate or customer/potential customer of Customer who is authorized to access the VVP Solution and (ii) any person or legal entity who accesses the VVP Solution without express authorization via the Customer Properties.

  1. LICENSE.

  1. VVP Grant to Customer. Subject to Customer’s compliance with the terms and conditions of these Subscription Terms, VVP hereby grants to Customer, during the term of these Subscription Terms, a non-sublicensable, non-transferable, non-exclusive license: (i) to access and use the VVP Solution for Customer’s internal business purposes;  and (ii) to enable Users access and use of the VVP Solution from supported delivery channels, including but not limited to the Customer Properties.
  2. Customer Responsibilities. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Hosted Service, including, without limitation, hardware, servers, software, operating systems, network access, and web servers (collectively, “Equipment”). Customer shall be responsible for maintaining the security of the Equipment, Customer’s account(s), passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account(s) or the Equipment with or without Customer’s knowledge or consent.
  3. Limitations.  VVP will not be responsible nor liable for any failure in the Hosted Service resulting from or attributable to: (a) excess service usage: (b) failure to use the Hosted Service in accordance with the VVP’s requirements, including without limitation with instructions included in the Documentation; (c) any Customer Content or Customer Data; (d) failures in any telecommunications, network or other service or equipment that are not within VVP’s reasonable control; (e) any causes beyond VVP's reasonable control; (f) scheduled Maintenance;  (g) unauthorized access, breach of firewalls or other hacking by third parties; or (h) any failure to perform the Hosted Service that is caused by Customer’s delay in or failure to take any actions on which VVP’s performance is dependent.
  4. Data Protection. For any Customer Content or Customer Data made available or accessible to VP, its employees, agents or contractors, pertaining to Customer’s business or financial affairs, or to Customer’s projects, transactions, clients or customers, VVP will not store, copy, analyze, monitor or otherwise use that Customer Content or Customer Data except for the purposes set forth in this Agreement for the benefit of Customer. VVP shall comply with all applicable data privacy and protection laws, including the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the California Consumer Privacy Act ("CCPA"), and any other data protection regulations applicable in jurisdictions where Customer or its data subjects are located (“PII”) and data privacy with respect to any such data that VVP receives or has access to under this Agreement or in connection with the performance of any services for Customer. VVP will otherwise protect PII and will not use, disclose, or transfer across borders such PII except as necessary to perform under this Agreement or as authorized by the data subject or in accordance with applicable law. To the extent that VVP receives PII related to the performance of this Agreement, VVP will protect the privacy and legal rights of Customer’s personnel, clients, customers and contractors. VVP shall ensure that all cross-border data transfers comply with applicable legal mechanisms, including standard contractual clauses or other appropriate safeguards where required by law.
  5. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the VVP Solution to a third-party, except as explicitly permitted by this Section 3 (License); (b) use the VVP Solution in connection with any other product, service, or for the development, enhancement or population of any other model, algorithm, content base, or reference library; (c) use the VVP Solution to provide, or incorporate the VVP Solution into, any product or service provided to a third party; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the VVP Solution, except to the extent expressly permitted by applicable law (and then only upon advance notice to VVP); (e) copy or modify the VVP Solution or any Documentation, or create any derivative work from any of the foregoing; (f) remove or obscure any proprietary or other notices contained in the VVP Solution or on any reports or data printed from the VVP Solution); or (g) publicly disseminate information regarding the performance of the VVP Solution.
  6. Customer Grant to VVP.  Customer hereby grants to VVP a non-exclusive, royalty-free right to, during the term of these Subscription Terms, use, copy, store, transmit and display the Customer Content to the extent necessary to provide the VVP Solution.

  1. OWNERSHIP.

  1. Rights in the VVP Solution.  Customer acknowledges that VVP owns all right, title, and interest in and to the VVP Solution, including the Tooling Components.  Customer further acknowledges the VVP Solution is protected by Intellectual Property Rights owned by or licensed to VVP. Other than as expressly set forth in these License Terms, no license, or other rights in  the VVP Solution is granted to Customer.  
  2. Rights in Customer Content.  As between the parties, Customer owns all right, title, and interest (including any and all Intellectual Property Rights) in and to the Customer Content as provided to VVP.  

  1. FEES & PAYMENT.

  1. Fees and Payment. All fees for use of the VVP Solution will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. VVP Solution subscription rates are valid for each initial term, after which VVP may increase the rates for each successive renewal period by up to five percent (5%). Customer is responsible for paying all sales and use taxes, and sales and use taxes may be excluded from any fees set forth in the Order Form.
  2. Payment of Outstanding Fees.  Upon any termination or expiration of these Subscription Terms, VVP will invoice Customer directly for outstanding fees, if any, for Customer's use of the VVP Solution during the subscription term.
  3. Suspension of the VVP Solution.  If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), VVP reserves the right to suspend Customer's access to the VVP Solution until such amounts are paid in full. VVP also reserves the right to suspend Customer's access to the VVP Solution if Customer's use of the VVP Solution is in violation of the rights set forth in these License Terms
  1. LICENSEE CONTENT. 
  1. Obligations.  Customer is solely responsible for the accuracy, content, and legality of all Customer Content. Customer represents and warrants to VVP that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in these License Terms (including granting VVP the rights in Section 3.2, (Rights in Customer Content)) and that Customer will not knowingly submit Customer Content that violates or infringes (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Content complies with the VVP Solution Terms of Service, incorporated herein by reference.    
  2. Customer Content Retention. VVP shall retain Customer Content as required to comply with Laws. VVP agrees not to intentionally delete any Customer Content from the VVP Solution prior to termination of Customer's applicable Order Form Term. VVP expressly disclaims all other obligations with respect to Customer Content retention and/or storage.
  3. Security. VVP agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the VVP Solution or Customer Content; however, VVP will have no responsibility for errors in transmission or that result from unauthorized third-party access, or other causes beyond VVP's reasonable control.
  4. Feedback. Customer, from time to time, may submit Feedback to VVP. VVP may freely use or exploit Feedback in connection with any of its products or services.

  1. REPRESENTATIONS WARRANTIES AND DISCLAIMERS.

  1. VVP warrants that the VVP Solution will function substantially as described in the Documentation; (ii) that VVP owns or otherwise has the right to provide the VVP Solution to Customer under these License Terms; and (iii) the VVP Solution will not contain, cause, or implement any virus, “time bomb,” contaminant or other software routine designed to erase, disable, or otherwise harm Customer’s equipment, data, Customer Content, Customer Properties, software or other Customer property, or property of any User.  
  2. If the VVP Solution does not function substantially in accordance with the Documentation, VVP shall, at its sole option, modify the VVP Solution to reasonably conform to the Documentation. This remedy is Customer’s exclusive remedy for breach of VVP’s warranty. 
  3. Notwithstanding the foregoing, VVP shall have no warranty obligation for: (i) modifications to the VVP Solution made by any person other than VVP and/or without VVP’s prior authorization; (ii) problems in the VVP Solution caused by any Customer owned or licensed third party hardware or software; or (iii) errors in transmission or caused by unauthorized third-party access, or other causes beyond VVP's control. 
  4. Disclaimer.  THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF LICENSEE AND ITS END USERS ONLY.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KAAS IS PROVIDED “AS IS,” AND VVP MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE KAAS, (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO LICENSEE BY VVP. VVP DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF KAAS SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.    

  1. INDEMNITY.

  1. Customer Indemnity. Customer shall indemnify, defend and hold VVP harmless from and against any and all claims, losses, liabilities, costs and expenses (including reasonable attorneys' fees) incurred by VVP as a result of a third party claim (“Claims”): (i) arising from Customer’s breach of any applicable laws, rules, regulations, policies or procedures governing Customer Content or use of the VVP Solution; (ii) arising from an infringement by Customer of a third party intellectual property right; (iii) arising from Customer’s failure to notify VVP that Customer Content or data transmission requires VVP to obtain licenses, permits or approvals; and (iv) as a result of a third-party Claim that a negligent or willful act or omission of Customer results in bodily injury, death or tangible property damage; provided that, in each case, VVP shall promptly notify Customer in writing of such Claim and promptly tenders control of the defense and settlement of any such Claim to Customer at Customer's expense and with Customer's choice of counsel. VVP shall cooperate with, and provide reasonable assistance to, Customer (at Customer's expense), in the defense and/or settlement of such Claim. 
  2. VVP Indemnity.  VVP shall indemnify, defend and hold Customer harmless from and against any and all claims, losses, liabilities, costs and expenses (including reasonable attorneys' fees) incurred by Customer (“Customer Claims”) (i) as a result of a third party claim that the VVP Solution, when used within the scope of these License Terms, infringes or misappropriates any patent, copyright or trade secret; (ii) arising from VVP’s breach of any material term of these License Terms or any applicable laws, rules, regulations, policies or procedures applicable to the VVP Solution, and (iii) as a result of a third-party claim that a negligent or willful act or omission of VVP results in bodily injury, death or tangible property damage.  If the VVP Solution is, or in the opinion of VVP may become, the subject of any claim for infringement, then VVP may, at its option and expense: (i) procure for Customer the right to lawfully continue using the VVP Solution; (ii) replace the VVP Solution or infringing portions of the VVP Solution, with functionally equivalent, non-infringing technology and/or services; (iii) modify the VVP Solution so that it no longer infringes, provided that the material function of the VVP Solution is not decreased by such modification; or (iv) terminate these License Terms and refund the license fees paid by Customer during the immediate six (6) month period prior to the infringement notification. 
  3. Exclusions. VVP shall have no liability for any Customer Claim arising from or caused by Customer’s: (i) use or provision of the VVP Solution not in accordance with or in violation of these License Terms; (ii) provision or generation of Customer Content that contains offensive, inappropriate, unlawful, infringing or otherwise objectionable content; (iii) use or provision of the VVP Solution in combination with any software, programs or equipment not supported by VVP where the infringement would have been avoided but for such use with the other software, programs and/or equipment; or (iv) modifications to the VVP Solution made by Customer or its agent without VVP’s prior authorization. This Section 11.3 states VVP’s, its licensors’ and third-party service providers’ entire liability to Customer and Customer’s exclusive remedy with respect to any and all claims of actual or alleged infringement regarding the intellectual property rights of any third party.

  1. LIMITATION OF LIABILITY.

  1. VVP AND CUSTOMER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR CONTENT), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VVP’S AND LICENSEE’S MAXIMUM LIABILITY ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, ITS NEGOTIATION OR TERMINATION, THE RELATIONSHIP OF THE PARTIES OR THE PROVISION OR NONPROVISION OF, OR THE INABILITY TO USE, THE LICENSEE CONTENT, SOFTWARE OR SERVICES HEREUNDER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED THE PAYMENTS ACTUALLY RECEIVED BY VVP FROM LICENSEE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY.  
  2. VVP SHALL NOT BE LIABLE WITH RESPECT TO ANY INACCURACY, ILLEGALITY, MISINFORMATION OR ANY VIOLATION OF A THIRD-PARTY RIGHT ARISING OUT OF LICENSEE CONTENT. THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS SET FORTH ABOVE SHALL NOT APPLY TO: (i) DAMAGES RESULTING FROM AN INDEMNITY CLAIM PURSUANT TO SECTION 9; (ii) ANY CLAIM FOR PROPERTY DAMAGE, PERSONAL INJURY OR DEATH; (iii) ANY CLAIM BASED ON A VIOLATION OF EITHER PARTY’S OR THEIR AFFILIATES’ INTELLECTUAL PROPERTY RIGHTS; (iv) ANY CLAIM BASED UPON A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OR THAT OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. 
  1.  TERM AND TERMINATION.
  1. Term. These License Terms shall run for a period of twelve (12) months and automatically renew unless written notice is provided thirty (30) days prior to the end of the 12-month term or terminated pursuant to Section 9.2.  
  2. Termination for Cause. Either party may terminate this  (including all related Order Forms) if the other party (a) fails to cure any material breach of these License Terms (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
  3. Effect of Termination. Upon any expiration or termination of these License Terms, Customer will immediately cease any and all use of and access to the VVP Solution (including any and all related technologies) and delete (or, at VVP's request, return) any and all copies of the Documentation, any VVP passwords or access codes and any other VVP Confidential Information in its possession. Customer acknowledges that following termination, Customer will have no further access to any Customer Content input into the VVP Solution, and that VVP may delete any such data as may have been stored by VVP at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under these License Terms, including termination, will be without prejudice to any other remedies it may have under these License Terms, by law or otherwise.
  4. Survival. The following Sections will survive any expiration or termination of these License Terms: 4, 5, 6, 8, 9 and 10.

End of License Terms