Master Subscription and Services Agreement
This Master Subscription and Services Agreement (“Agreement”) is made on the date set forth in the Order Form (the “Effective Date”) by and between VC Digital Lab, Inc., a Delaware corporation (the “Company”), and the entity identified in the Order Form (“Customer”), individually a “Party “ and collectively the “Parties”. The Parties agree as follows:
Capitalized terms shall have the meanings provided in this section or as specified in the body of the Agreement.
“ Agreement” means this Master Subscription and Services Agreement, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of the Company, Inc. include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under this Agreement or any Order Form, addendum, exhibit, attachment or any amendment.
“Customer Data” means any data, information or other materials submitted by Customer to the SmartData Platform.
“Documentation” means any proprietary information or documentation made available to Customer by the Company for use with the SmartData Platform, including any documentation available online through the SmartData Platform dashboard or otherwise.
“ Malicious Code ” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“ Order Form ” means each the Company ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from the Company, sets forth the prices for the Services, and contains other applicable information terms and conditions. All Order Forms shall be deemed incorporated herein. The initial Order Form is attached hereto as Exhibit A.
“ Services” means the provision of the SmartData Platform and any other additional services specified in one or more Order Form(s).
“ SmartData Platform ” means, collectively, the online, web-based applications and platform provided by the Company and ordered by Customer pursuant to this Agreement and as specified in one or more Order Form(s).
“Term” means the time period for the provision of the Services, as specified in an Order Form. This Agreement will terminate as specified below. The access to the SmartData Platform may automatically deactivate and become non-operational at the end of the Term, and Customer shall not be entitled to access the SmartData Platform or use the Services unless the Term is renewed.
“User” means an individual who is authorized by Customer to use the SmartData Platform in accordance with the Agreement. Users may include but are not limited to employees, consultants, contractors and agents of Customer (such as lawyers or accountants), or third parties with which Customer transacts business.
2.1. Provision of Services. Company will provide to Customer the Services pursuant to this Agreement and the relevant Order Form during the applicable Term. Services will be provided pursuant to this Agreement and the specifications set forth in the applicable Order Form.
2.2 Third Party Applications. Company may offer Customer the ability to use third-party applications in combination with the SmartData Platform. Any such third-party application will be subject to acceptance by Customer. In connection with any such third -party application agreed to by Customer, Customer acknowledges and agrees that the Company may allow the third-party providers access to Customer Data as required for the interoperation of such third-party application with the SmartData Platform. The use of a third-party application with the SmartData Platform may also require Customer to agree to a separate agreement or terms and conditions with the provider of the third-party application, which will govern Customer’s use of such third-party application. Company shall have no liability or obligation for, and does not endorse or accept any responsibility for any third-party application.
3. RESPONSIBILITIES AND RESTRICTIONS
3.1 Company Responsibilities. Company will provide the SmartData Platform to Customer during the Term in accordance with this Agreement.
3.2. Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer. Customer agrees to (a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the Company obligations set forth in the Agreement) (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify the Company promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations.
3.3 Restrictions. Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the SmartData Platform or any third-party application or third-party data or content contained therein, (c) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the SmartData Platform for any purpose, (d) access or use Services in order to build a similar or competitive product, (e) disrupt or disable the Services, or (d) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services, and notify the Company promptly of any such unauthorized access or use.
3.4 Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
4. FEES AND PAYMENT
4.1. Fees. Customer shall pay all fees specified in all Order Forms hereunder (“Fees”) for the Services. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are non-refundable.
4.2. Invoicing and Payment. If a purchase order is required by Customer, Customer will provide the Company with a valid purchase order within five (5) days from the execution of the applicable Order Form. Any terms and conditions on any purchase order shall not be deemed a part of this Agreement or otherwise binding on the Company. Company will invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net thirty (30) days from Customer’s receipt of the invoice. Customer is responsible for providing the Company with complete, accurate and up to date billing and contact information.
4.3. Overdue Fees. If any Fees are not received from Customer by the due date, then at the Company’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer shall reimburse Company for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Company in the collection of overdue amounts.
4.4. Suspension of Services. If any Fees for the SmartData Platform are overdue, the Company may, without limiting the Company’s other rights and remedies, suspend Customer’s use of the SmartData Platform until such amounts are paid in full.
4.5. Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify the Company in writing and provide sufficiently detailed support of any invoice dispute within ten business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 4.2.
4.6. Taxes. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by the Company.
5. PROPRIETARY RIGHTS
5.1. Company Ownership. Subject to any rights expressly granted to Customer in the Agreement, the Company and its licensors, as applicable, reserve all right, title and interest in and to the Services including information presented in any form and intellectual property rights (the “Company Intellectual Property”).
5.2. Customer Ownership and Licenses. As between the Company and Customer, Customer owns all rights, title and interest in and to all Customer Data. Customer grants the Company a non-exclusive, non -transferable, royalty free, non-sublicenseable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Data to provide the Services to Customer at Customer’s request and to improve or enhance the Services. This license includes use of Customer Data to compile, use and disclose anonymous, aggregated statistics that include Customer Data, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer’s Users. No other rights or implied licenses in Customer Data are granted to the Company other than as expressly set forth herein.
5.3. Feedback and Derivative Works. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer grants the Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, or incorporate into any of its services, any Feedback.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data; the Company Confidential Information includes, but is not limited to, the SmartData Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
6.3. Protection of Customer Data. Without limiting the above, the Company will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) in order to provide the Services, (b) to prevent or address service or technical problems in connection with support matters, or (c) as expressly permitted in writing by Customer, the Company will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 6.4. Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where other customers or users are located.
6.4. Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1. Company Warranties. Company warrants that: (a) the SmartData Platform will perform substantially in accordance with the Documentation made available to Customer, (b) the functionality of the SmartData Platform will not be materially decreased during the Term and (c) will provide the Services in a manner consistent with generally accepted industry standards. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided in Sections 9.3 and 9.5. Notwithstanding the foregoing, in the event the Company or any of its licensors determine to materially change or cease offering any material element of the Services, the Company may effect such change or cessation following reasonable notice thereof to Customer and the relevant Order Form shall be amended to reflect such change.
7.2. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Malicious Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.
7.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT ORFITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. LIMITATION OF LIABILITY
8.1. Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF THE COMPANY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY (A) TO A VIOLATION OF CONFIDENTIALITY OBLIGATIONS OR (B) TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. TERM AND TERMINATION
9.1. Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under this Agreement or (b) the termination of this Agreement in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any Order Form, the Services provided pursuant to such Order form shall cease and Customer shall stop using such Services.
9.2. Automatic Renewal. Subscriptions for the SmartData Platform commence on the Order Date specified in the applicable Order Form and continue for the subscription Term specified therein, unless otherwise terminated. Except as otherwise specified herein or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one year (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
9.3. Termination for Cause. A Party may terminate this Agreement or any applicable Order Form for cause: (a) upon 30 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such 30 days’ period, (b) immediately for material violations of confidentiality obligations, or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. 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.
9.5. Refund or Payment upon Termination. Upon any termination by Customer pursuant to Section 9.3, the Company will refund Customer a pro-rata portion of any prepaid SmartData Platform Fees that cover the remainder of the Term after the effective date of termination. Upon any termination for cause by the Company, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable Order Forms after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to the Company for the period prior to the effective date of termination.
9.6. Retention of Customer Data. Company will retain Customer Data for a period of 30 days after the termination of this Agreement and will make the Customer Data available for Customer to download during such period. After expiration of such 30-day period, the Company will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in the Company systems or otherwise in the Company possession or under the Company control.
10. DISPUTE RESOLUTION, GOVERNING LAW
10.1 Dispute Resolution, Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the state or federal courts located in San Francisco, California and the Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of California, excluding choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
10.2. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11. GENERAL PROVISIONS
11.1. No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in an Order Form.
11.2 Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction.
11.2. Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions.
11.3. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
11.5. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.8. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by an internationally recognized overnight courier or (b) e-mail. Notices to the Company will be addressed to VC Digital Lab, Inc., 541 Jefferson Ave, Ste 100, Redwood City, CA 94063, USA, with a mandatory copy (which shall not constitute notice) to Leonard Grayver, Esq., Grayver Law Group, P.C., 111 Pier Avenue, Suite 100, Hermosa Beach, CA 90254, email@example.com, or in the case of Customer, sent to the address and contact set forth on the Order Form, or as designated from time to time in writing by the Parties.
11.9. General. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic transmission), shall be deemed an original, and both of which shall constitute one and the same agreement.
The Parties agree to the terms and conditions of this Agreement by their signature on the Order Form.