This Subscription Agreement (“Agreement”) is entered into as of the Effective Date by and between Old Street Labs Limited (“Vizibl’), and Customer and describes the terms and conditions pursuant to which Vizibl will provide products and services to Customer.
In consideration of the mutual consideration, representations, covenants and obligations set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ThisAgreement, and the term “Agreement” as used herein, includes this signature page and Schedules A-E as listed below and any Order Forms, SOWs, amendments or addendums referencing this Agreement that are mutually executed by the parties:
1.1. Schedule A: Definitions
1.2. Schedule B: SoftwareRights and Restrictions
1.3. Schedule C: Software and Data Hosting Services and Hosting Performance Metrics
1.4. Schedule D: SoftwareSupport and Maintenance
1.5. Schedule E: GeneralTerms
2. The parties hereby agree to comply with the terms and conditions set forth in theAgreement.
3. Term. This Agreement commences upon the EffectiveDate and, unless earlier terminated, continues for the Initial Term plus subsequent Renewal Term periods defined in an Order Form.
Customer and Vizibl agree to the below terms and conditions of this Agreement:
1. DEFINITIONS.
1.1. “Authorized User” means an employee of Customer, or an employee of a Supplier or Third-Party Contractor, who has been given the necessary access rights (e.g., a Password assigned by Customer) in order to use the Software in accordance with this Agreement.
1.2. “Customer” means the party identified in the section above and on the corresponding Order Form.
1.3. “Supplier” means a commercial entity and its wholly owned subsidiaries which the Customer has a contractual relationship to purchase goods and or services.
1.4. “Confidential Information” shall have the meaning set forth in Section 5 of Schedule F.
1.5. “Customer Contact Person” means the Authorized User designated by Customer who will serve as the primary contact person between Vizibl and Customer.
1.6. “Customer Data” means any and all information provided, inputted or uploaded to the Software by an Authorized User, Customer, or by Vizibl on Customer’s behalf.
1.7. “Deliverable” has the meaning set forth in Section 3.1 of Schedule E.
1.8. “Documentation” means any user instructions, manuals, technical requirements documents, or other materials that are generally provided by Vizibl in connection with the Software.
1.9. “Maintenance and Support” means the services described in Schedule D.
1.10. “Order Form” means a document referencing this Agreement and signed by the parties that specifies the Software and optional services for which Customer has agreed to pay use fees during the term of this Agreement.
1.11. “Password” means a unique password which permits access to the Software and is assigned to each Authorized User by Customer in conjunction with Vizibl.
1.12. “Relationship” means a package of services within the Vizibl solution consisting of a single performance scorecard, risk log and spend matrix and logs of activities (including events, tasks, reviews and projects). For the avoidance of doubt, depending upon the scope scale and complexity of a Supplier the Customer may choose to have multiple regional or business unit Relationships. These may roll up to a higher order relationship, for example several country relationships may roll up to a European Relationship and that to a Global Relationship.
1.13. “Software” means Vizibl’s Web based Software as a Service application as specified in an Order Form.
1.14. “Third-Party Contractor” shall have the meaning set forth in Section 4 of Schedule B
1.15. "Intellectual Property Right" means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefor, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first created before or after the Order Form Effective Date.
In consideration of the fees set forth in an Order Form, Vizibl shall provide Software to Customer pursuant to the terms and conditions set forth below:
1. Usage Rights. Subject to each term and condition of this Agreement, Vizibl hereby grants to Customer a limited, world-wide, nonexclusive, non-transferable right, during the term of the Agreement, to (a) access and use the Software and Documentation and provide Authorized Users with access to the Software and Documentation, at all times in accordance with the terms of this Agreement, (b) input Customer Data into the Software and upload and download Customer Data available through the Software; and (c) allow Suppliers to access and use the functions of the Software. No other rights, express or implied, are granted to Customer in the Software or Documentation, other than the limited right to use the Software and Documentation set forth in this Agreement.
Unless expressly agreed otherwise, Vizibl will host and retain physical control over the Software and make such computer programs and code available only through the Internet for access, use and operation by Customer through a Web-browser (e.g., Google Chrome). Except as provided in the preceding sentence, no provision under this Agreement shall obligate Vizibl to deliver or otherwise make available any copies of computer programs or code from the Software to Customer, whether in object code or source code form.
2. Ownership Rights. Customer will retain all right, title and interest to Customer Data. Vizibl has no right, title or interest in any personally identifiable information related to Customer’s Suppliers and Customer hereby retains all such rights. Customer acknowledges that Vizibl will retain all right, title and interest to the Software and Documentation, all technology, inventions and pre-existing content incorporated therein, all derivative works, modifications, enhancements, or Upgrades thereto (including database structures), and all intellectual property rights in any of the foregoing. If during the performance of this Agreement, Customer suggests to Vizibl any new features, concepts, improvements or other feedback related to or based upon the Software or other Vizibl products/services (“Suggestions”), and Vizibl subsequently incorporates such Suggestions into the Software or other Vizibl products/services, the Software or other Vizibl products/services incorporating such Suggestions will be the sole and exclusive property of Vizibl. Customer acknowledges that Vizibl will retain all right, title and interest to transactional and performance data related to use of the Software which Vizibl may collect and use for its business purposes (including Software use optimization and product marketing) provided that such use does not reveal the identity of Customer or specific Software use characteristics that may be identified to Customer.
3. Use by Authorized Users. Customer agrees to procure that Authorized Users comply with all the terms and conditions of this Agreement to the same extent as Customer, and any violation of the terms and/or conditions of this Agreement by an Authorized Users shall be deemed to be a violation by Customer of such terms and conditions.
4.USE BY THIRD-PARTY CONTRACTORS. CUSTOMER MAY MAKE THE SOFTWARE AVAILABLE, VIA A PASSWORD, TO THIRD-PARTY CONTRACTORS USED BY CUSTOMER TO ASSIST IN CUSTOMER’S STAFFING EFFORTS (“THIRD-PARTY CONTRACTOR”). SUCH THIRD-PARTY CONTRACTORS ARE ENTITLED TO USE THE SOFTWARE ONLY FOR CUSTOMER’S APPROVED PURPOSES AND SUBJECT TO ALL OF THE RESTRICTIONS FOR USE OF THE SOFTWARE APPLICABLE TO CUSTOMER, AS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES THAT ANY SUCH THIRD-PARTY CONTRACTOR HAS BEEN INFORMED OF THIS AGREEMENT AND WILL COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE TERMS GOVERNING CONFIDENTIAL INFORMATION, TO THE SAME EXTENT AS IF THE THIRD-PARTY CONTRACTOR WERE AN EMPLOYEE OF CUSTOMER. CUSTOMER WILL NOT MAKE THE SOFTWARE AVAILABLE, VIA A PASSWORD, TO ANY THIRD-PARTY CONTRACTOR THAT IS ONE OF VIZIBL' COMPETITORS.
5. No Use by Unauthorized Third Parties. Customer agrees to take all reasonable steps to protect the Software and the Documentation from being accessed, demonstrated, viewed, made available to or used by any unauthorized third party.
6. Software Use Restrictions. Customer shall abide by the following applicable restrictions:
6.1 Approved Purpose. Customer shall not use the Software, or allow use of the Software, other than for the Approved Purpose.
6.2 Specific Restrictions. Customer shall not:
6.2.1 transfer, sell, lease, distribute, license or sublicense the Software or the Documentation, except as expressly set forth herein;
6.2.2 use the Software as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution;
6.2.3 modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software or Documentation or access the Software or Documentation in order to build a similar or competitive product or service, except as expressly permitted by applicable law; or
6.2.4 except as otherwise expressly set forth in the Documentation, obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
7. Use of Performance and Security Testing Data. Customer agrees not to demonstrate or disclose the results of any performance or security testing the Software to any third party without Vizibl’s prior written consent.
8. Use of Passwords. Customer acknowledges and agrees that the Software may not be accessed except by entry of a user specific Password. Customer shall be solely responsible for the security of Passwords issued to each Authorized User. Customer shall inform Vizibl promptly of any actual or imminent unauthorized access to a Password or to the Software.
In consideration of the fees set forth in an Order Form, Vizibl shall provide Software and data hosting services to Customer pursuant to the terms and conditions set forth below. The metrics set forth below shall apply only to Customer’s live, production instance of the Software and shall not apply to any user acceptance, training or sandbox zones provided to Customer.
1. Hosting Services. Subject to each term of this Agreement, Vizibl shall:
1.1. (i) host the Software and permit access to the Software by Authorized Users via a secure password protected site(s) hosted by Vizibl on the Google Cloud Platform, (ii) permit access to the customers suppliers (iii) host all data inputted into the Software by Authorized Users, Suppliers, or other authorized persons, and (iv) install Upgrades to the Software as they become available.
1.2. The services described above are collectively referred to hereafter as “Hosting Services”.
2. Maintenance Period. Vizibl reserves the right to perform regularly scheduled maintenance at times deemed to cause the absolute minimum of inconvenience to users. This maintenance may prevent the Hosting Services from being accessed or used by Suppliers and/or Authorized Users during this time period. Scheduled maintenance will be announced not less than 24 hours in advance to a Customer contact person via email. During each period of regularly scheduled maintenance, any Supplier or Authorized User attempting to access the Software will be notified via the Software that the Software is unavailable due to maintenance.
3. Backups, Disaster Recovery and Monitoring.
3.1. Backups. Vizibl uses a redundant database setup with automatic failover. Databases backup every hour to redundant cloud storage, providing multiple backup locations. Backups are tested regularly. Backups do not cause system downtime.
Disaster Recovery. The Vizibl architecture is fully redundant with no single point of failure. All functions are duplicated in two physically separate data centres, with automatic failover in place between them. Vizibl regularly reviews its high availability strategy for compatibility with additional features and technological advances.
3.2. Monitoring and Security. Vizibl stores transaction information on secure computers located in a physically secure data centre. Vizibl employs technology that is consistent with industry standards for firewalls and other security technology to help prevent Vizibl computers from being accessed by unauthorized persons. In order to protect data integrity during transfers, Vizibl enforces the use of HTTPS standard. In addition, Vizibl provides the following security measures: SSL 128-bit encryption, two factor authentication, strong password policies and audit logging. The Software and all Vizibl equipment are continuously monitored (24 hours per day; 7 days per week) for health and performance, and Vizibl engineers receive automated alert messages in the event of any system issues.
4. Supported Browsers.
4.1. Browsers Supported For Authorized Users: Vizibl supports all major browsers but always advises that an up to date version of the chosen browser is used.
5. General. Vizibl reserves the right to change existing infrastructure, hardware and underlying software used to provide the Software as expansion and new technology deem necessary. Vizibl assumes no responsibility for delays or problems that result from Customer’s third party vendors and/or Customer’s local or long distance telephone carriers or ISPs. Vizibl reserves the right to conduct non-essential, high volume tasks during off-peak hours. Upon reasonable notice, Vizibl reserves the right to modify support terms periodically.
In consideration of the fees set forth in an Order Form, Vizibl shall provide Maintenance and Support services to Customer pursuant to the terms and conditions set forth below:
1. Technical Support.
1.1. For Authorized Users:
1.1.1. Email Support and Web Support Tool. Authorized Users may request technical support via email to support@vizibl.com or via Vizibl' online technical support portal that is provided as part of the Software.
1.1.2. Live Phone Support. Vizibl live technical support business hours are 9.00 – 17.00 GMT. Live technical support is closed on Christmas Day (25 December) and New Year’s Day (1 January), and, upon prior notification to Customer, may operate in a limited capacity during select Vizibl holidays.
2. Technical Support Issue Escalation, Severity Levels, Response Times and Issue Resolution.
Vizibl will address technical support issues that can be reproduced by Vizibl in accordance with priority. The severity level assigned to technical support issues will be jointly determined by Vizibl and Authorized User. Customer-requested enhancements, customization, and modifications are not considered technical support issues.
3. Excluded Services.
3.1. The following services are outside the scope of Maintenance and Support services:
3.1.1. Service for Software that has been subject to unauthorised modification by an Authorized User.
3.1.2. Service which becomes necessary due to: (i) failure of computer hardware or equipment or programs not under Vizibl' control; or (ii) negligent or intentional misuse of the Software or Hosting Services by an Authorized User.
3.1.3. Services performed at the Customer's site unless the parties mutually agree otherwise in writing.
3.1.4. Custom integration script maintenance.
4. Customer Contact Person. Customer will appoint a customer contact person(s) for purposes of contacting Vizibl regarding Maintenance and Support issues.
5. User Manuals. Vizibl user manuals will be provided to Customer via download from Vizibl' online technical support portal.
Customer and Vizibl agree to the following terms and conditions:
1. Customer Data.
1.1. Data uploaded to the Software by Customer shall not: (i) violate any foreign, federal, state or local law or regulation; (ii) infringe any copyright, trademark or other proprietary right of any third party; (iii) in any way violate or infringe upon any party’s privacy right, right of publicity or any other right of any person or entity; or (iv) contain any material which is unlawful, hateful, obscene, libellous, threatening or defamatory (“Unlawful Acts”). In the event that either party becomes aware that any item of Customer Data constitutes or may constitute an Unlawful Act, the parties agree to notify each other of, and to work together promptly and in good faith to remedy any such Customer Data issues; provided, however, that Vizibl shall have the right to remove such item until the parties agree on a resolution.
2. Fees and Payment.
2.1. Usage and Hosting Fees. During the term of the Agreement, Customer agrees to pay to Vizibl the fees associated with use of the Software as identified on and in accordance with an Order Form.
2.2. Payment Terms. Unless otherwise specified in an Order Form, all fees associated with this Agreement shall be paid in the nominated currency of the Order Form within thirty (30) days of receipt of invoice. If the payment by Customer of any undisputed sum is overdue for a period in excess of 7 days, then Vizibl may, without prejudice to any remedies available to Vizibl, notify Customer of its intention to suspend Customer's access to the Software. If payment is not received by Vizibl within 7 days of the date of such notice, Vizibl may suspend Customer's access to the Software until payment is made.
2.3. Taxes. In addition to any other payments due under this Agreement, Customer shall pay, and indemnify and hold Vizibl harmless from, any sales, use, excise, import or export, value-added or similar tax or duty not based on Vizibl' net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, and all government permit fees, license fees and customs and similar fees levied on the delivery of any services or the Software by Vizibl to Customer. If Customer is required by any applicable law to deduct or withhold amounts otherwise payable to Vizibl hereunder, Customer will pay the required amount to the relevant governmental authority, provide Vizibl with an official receipt or certified copy or other documentation acceptable to Vizibl evidencing the payment, and in the event Vizibl is not entitled to an exactly corresponding tax credit, pay to Vizibl, in addition to the payment to which Vizibl is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Vizibl free and clear of all taxes equals the full amount Vizibl would have received had no such deduction or withholding been required.
2.4. Late Payments. Any amount due hereunder which is not paid when due shall bear a late fee at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less. In the event any amount is not paid when due, Vizibl shall have the further right, at its sole option, to cease its performance of any services hereunder and to exercise any termination rights it may have under this Agreement.
3. Limited Warranty and Limitation.
3.1. Vizibl Warranties. Vizibl represents, warrants, and covenants as follows:
3.1.1. Authority. Vizibl possesses all rights necessary to grant to Customer the rights set forth in this Agreement without violating any rights of any third party.
3.1.2. Software. Vizibl warrants to Customer that the Software will perform substantially in accordance with the Documentation. In the event of a breach of the foregoing warrant, Vizibl' sole obligations, and Company’s sole remedy, shall be, at Vizibl' option, to use commercially reasonable efforts to correct the Software.
3.1.3. Consulting Services. Consulting Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
3.2. Disclaimer. Except as set forth above, Vizibl makes no warranties to Customer or to any third party, whether express, implied, or statutory regarding or relating to the Software, the Documentation, any Deliverable or any materials or services furnished or provided to Customer under this Agreement, including Maintenance and Support. VIZIBL HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. VIZIBL DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED AND HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF.
3.3. Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, IN NO EVENT (i) SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFIT, LOSS OF REVENUE OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); NOR (ii) SHALL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF SERVICE FEES PAID BY CUSTOMER TO VIZIBL HEREUNDER FOR SERVICES RENDERED BY VIZIBL (BUT NOT INCLUDING ANY AMOUNTS PASSED THROUGH TO SUPPLIERS, IF ANY) OVER THE TWELVE (12) MONTH PERIOD PRECEDING THE IMPOSITION OF LIABILITY. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY TO ANY BREACH BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER REGARDING CONFIDENTIALITY, LIABILITY ARISING FOR BODILY INJURY OF A PERSON, LIABILITY FOR THE TORT OF DECEIT; OR LIABILITY UNDER SECTION 12 OF THE SALES OF GOODS ACT 1979 AND SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT (1982).
3.4. Customer Warranty. Customer represents, warrants, and covenants that it has the right to enter into this Agreement and the execution, delivery, and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or otherwise violate the terms of any agreement to which Customer is a party.
3.5. Control Disclaimer. Customer acknowledges and agrees that Vizibl exercises no control over Customer or any Authorized User, or Supplier in their specific use of the Software. Vizibl hereby disclaims all liability and damage arising from such activities by Customer or any Authorized User, or Supplier. Customer assumes all responsibility for use of the Software by any Authorized User and assumes all responsibility for ensuring the accuracy of Information.
4. Indemnification.
4.1. Infringement Indemnity. Vizibl shall, at its expense, defend or at its option, settle any claim, action or allegation brought against Customer that the Software, Documentation, or any Deliverable infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer gives prompt written notice to Vizibl of any such claim, action or allegation of infringement and gives Vizibl the authority to proceed as contemplated herein. Vizibl will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of Vizibl. Customer shall give such assistance and information as Vizibl may reasonably require, to settle or oppose, such claims.
4.2. Options. In the event any infringement claim, action or allegation is brought or threatened, Vizibl may, at its sole option and expense:
(a) Procure for Customer the right to continue use of the Software or infringing part thereof; or
(b) Modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable,
(c) Terminate this Agreement and refund to Customer the prorated amount of the fees prepaid by Customer that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.
4.4 Exclusions. The foregoing obligations will not apply to the extent the infringement arises as a result of (a) any use of the Software in a manner other than as specified in this Agreement; (b) any use of the Software in combination with other products, equipment, devices, software, systems or data not supplied by Vizibl to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Software made by any party other than Vizibl or Vizibl' authorized representative if such infringement would not have occurred without such modification or combination.
4.5 Limitation. This Section 4 above states the entire liability of Vizibl with respect to infringement of any patent, copyright, trade secret or other intellectual property right.
4.6 Indemnification by Customer. Customer shall indemnify and hold harmless Vizibl from and against all claims, charges, costs, liability, judgments, damages, losses or expenses (including attorney’s fees and other professional fees arising out of or in connection with any claim), brought against Vizibl by any third party which arises out of Customer’s discretionary use of the Software, including any claims threatened or brought by third parties relating to Customer’s discretionary staffing decisions, but excluding any staffing actions from automated features of the Software.
5. Confidential Information. Customer and Vizibl each acknowledges that by reason of its relationship hereunder it will have access to certain information and materials concerning the other party’s technology business, plans, customers and suppliers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Confidential Information of Vizibl shall include, without limitation, information specifically designated as confidential, the features and functions of the Software and Optional Services that are not available to the general public via the public internet (including screen shots of the same), future product plans, any Documentation or specifications provided to Customer, the terms (including pricing and performance metrics) of this Agreement but not the mere existence of this Agreement, any Order Forms, SOWs, Schedules, addenda or amendments to this Agreement, performance and security test results (whether conducted by Vizibl or Customer), and any other proprietary, financial or business information supplied to Customer by Vizibl. Confidential Information of Customer shall include information specifically designated as confidential and the proprietary, financial or business information supplied to Vizibl by Customer. Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Authorized Purpose), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Upon request by Customer or Vizibl, the other party shall advise whether or not it considers any particular information or materials to be confidential.
6. Exclusions. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement, or (vi) information disclosed to the auditors, accountants or bankers working on behalf of the receiving party.
7. Renewal and Termination.
Renewal. At the expiration of the Initial Term or any Renewal Term, this Agreement will automatically renew for subsequent one (1) year period (“Renewal Terms”) unless one party provides the other party with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term.
7.1. Termination by Customer. Customer may, by written notice to Vizibl, terminate this Agreement (i) in the event that Vizibl is found to be in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured with thirty (30) days after Customer gives Vizibl written notice of such breach, or if such breach is not capable of being cured, then if Vizibl fails within such thirty (30) day period to commence to use commercially responsible efforts to prevent such breach from recurring and (ii) immediately if Vizibl terminates or suspends its business as a result of bankruptcy, insolvency or similar event. Notwithstanding any other provision of this Agreement, upon termination of the Agreement pursuant to this Section 7.1, Vizibl shall refund the prorated portion of the fees prepaid by Customer that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.
7.2. Termination by Vizibl. Vizibl may, by written notice to Customer, terminate this Agreement if any of the following events (“Termination Events”) occur:
7.2.1. Customer fails to pay any amount due Vizibl within thirty (30) days after Vizibl gives Customer written notice of such non-payment; or
7.2.2. Customer is found to be in material breach of any non-monetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured with thirty (30) days after Vizibl gives Customer written notice of such breach, or if such breach is not capable of being cured, then if Customer fails within such thirty (30) day period to commence to use commercially responsible efforts to prevent such breach from recurring; or
7.2.3. Customer terminates or suspends its business as a result of bankruptcy, insolvency or similar event.
7.3. Effective. If any Termination Event occurs, termination will become effective on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Customer’s or Vizibl' treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming liability, which provisions will survive termination of this Agreement.
7.4. Obligations upon Termination. Upon the expiration or termination of the Agreement for any reason, (i) Customer will disable any hypertext link between the Customer site on the World Wide Web to the Software. (ii) Customer and each Authorized User will no longer be provided access to the Software; and (iii) each party will return to the other party any Confidential Information that is in tangible form. Upon request, either party shall furnish the other with a certificate signed by an executive officer verifying that the same has been done. In addition, Vizibl will, upon request, provide Customer with a copy of the most recent back up of the Customer Data in a mutually agreed upon format.
8. GENERAL.
8.1. Survival. Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.
8.2. Merger and Amendments. This Agreement may not in any way be modified, changed or amended except by a written instrument duly executed by the parties hereto. This Agreement, when executed, and the exhibits attached hereto, constitutes the entire, final, complete and exclusive agreement between the parties and supersedes any prior negotiations, understanding or agreements whether oral or in writing, concerning the subject matter, hereof.
8.3. Legal Advice. Vizibl shall not provide Customer with any legal advice regarding compliance with employment or other relevant laws, rules or regulations. Customer hereby acknowledges that it is Customer’s sole responsibility to monitor Customer’s compliance with all relevant laws, rules or regulations regarding use of the Software and Customer’s internal staffing processes.
8.4. Construction. All references in this Agreement to “Sections” and “Exhibits” refer to the Sections and exhibits to this Agreement. The words “hereof,” “herein” and “hereunder” and other words of similar import refer to this Agreement as a whole, including the exhibits and schedules hereto.
8.5. Governing Law. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE UNITED KINGDOM, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT SHALL THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
8.6. Assignments. Neither party may assign this Agreement nor any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, except with the other party’s prior written consent, and any attempt to do so shall be void and of no force or effect. Any change of control of Customer shall be considered an assignment. This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of each party.
8.7. Severability. If any provision of this Agreement is held to be illegal, unenforceable or invalid, no other provision of this Agreement shall be affected thereby, and the remaining provisions of this Agreement shall be construed and reformed and shall continue with the same effect as if such illegal, unenforceable or invalid provision was not a part hereof; provided that, notwithstanding any other provision of this Agreement, if any limitation on the grant of any right or license to Company hereunder is found to be illegal, or if use of the Vizibl services is found to be illegal or violate third party rights, unenforceable, or invalid, such right or license shall immediately terminate.
8.8. Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
8.9. Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given or made if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by express overnight courier service at the addresses first written above or to such other address as any such party may have designated by like notice forwarded to the other party hereto. All notices shall be deemed given when received.
8.10. Headings. The headings and captions contained in this Agreement shall not be considered to be a part hereof for purposes of interpreting or applying this Agreement, but are for convenience only.
8.11. Counterparts. This Agreement may be executed in two or more counterparts and may be exchanged by facsimile or electronically scanned copy. Each such counterpart will be deemed an original and all such counterparts together will constitute one and the same agreement.
8.12. Force Majeure. Vizibl shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labour dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, internet outages, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond Vizibl' control (“Force Majeure Events”). If any such contingency shall occur, this Agreement shall be deemed extended by the length of time such contingency continues.
8.13. Independent Contractors. The relationship of Vizibl and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give the other party the power to direct and control the day-to-day activities of the other.
8.14. Publicity. Vizibl shall not issue any public press release describing this Agreement or the relationship of the parties without the prior written consent of customer; nor express any endorsement of Vizibl products or services by Customer without Customer's consent. Notwithstanding the above, during the term of the Agreement, Vizibl may include Customer's name and logo in Vizibl customer lists, including on Vizibl' public website and may discuss the existence of this Agreement without expressing a view to Customer's satisfaction with the Vizibl products and services. Any sales reference calls proposed by Vizibl shall be pre-approved by Customer.
8.15. Compliance with Laws. Both parties hereby agree to not knowingly, directly or indirectly, violate any of the laws of England and Wales or any other applicable jurisdiction.
8.16. Remedies. The parties agree that any breach of Sections 5 or 6 of this Schedule would cause irreparable injury for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of this Agreement, in addition to other remedies available to the parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and shall not be deemed exclusive except as expressly otherwise provided herein. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
8.17. No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and Vizibl any rights, remedies or other benefits under or by reason of this Agreement.
8.18. Disputes. In the event of any dispute or claim arising from or relating to this agreement, or the breach or termination thereof (“Dispute”), the parties shall use their best efforts to negotiate in a good faith attempt to settle the Dispute. Any Dispute that the parties fail to resolve by negotiation shall be resolved by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules in the United Kingdom, before a sole impartial arbitrator. Either party may commence arbitration by serving a written demand for arbitration on the other party. The parties shall attempt to agree on an arbitrator, but if the parties fail to reach such agreement within 20 days after the demand for arbitration is served, either party may request appointment of the arbitrator. Each party shall bear its own costs and expense, including attorneys’ fees, but the arbitrator may, in the award, allocate all of the administrative costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and mediator, against the party who did not prevail. Judgment on the arbitration award may be entered in any court having jurisdiction.
8.23 Purchase Orders. The terms and conditions appearing on any purchase order issued by Customer for this Agreement, if any, shall not change, add to, or modify the terms or conditions of the parties’ agreement, as reflected in this Agreement, in any way.
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