This ViLogics Master Services Agreement (“Agreement”) is between ViLogics, Inc. (“Service Provider”) and the customer (“Customer”) who accepts this Agreement, or accesses and/or uses the Solutions (as defined below). This Agreement governs Customer’s subscription to the Solutions and constitutes a binding contract in connection with any paid or Evaluation use of the Solutions.
This is a legal, enforceable contract between Customer and ViLogics, and by executing this MSA or otherwise indicating Customer’s consent to the MSA electronically, reviewing this MSA online at https://vilogics.com/msa or through access or use of the Solutions (and such time “Effective Date”), Customer expressly agree to be bound by this MSA. If Customer is entering this MSA on behalf of another entity or person, Customer hereby represents to ViLogics that Customer has the authority to bind Customer and its affiliates to this MSA through such consent or use of the Solutions. If Customer does not have such authority, or if Customer does not agree to this MSA, Customer may not subscribe to or use the Solutions. ViLogics may amend this MSA from time to time in its sole discretion, in which case the new MSA will supersede prior versions. Customer’s continued use of the Solutions following the posting of updated terms of the MSA means that Customer accepts and agrees to the changes.
Capitalized terms will have the meaning assigned to such terms where defined throughout this Agreement. Each of ViLogics or Customer is sometimes described in this Agreement as a “Party” and together, “Parties,” which the Parties agree as follows:
The parties agree as follows:
- Definitions.
A. “Affiliate(s)” means any entity that directly, or indirectly through intermediaries, controls, is controlled by, or is under common control with a Party; provided, however, that Customer’s Affiliates shall not include any entity that directly, or indirectly through intermediaries, competes with ViLogics. The platform granted to Customer herein includes the right to use the Solutions as stated in the applicable TSO Addendum for Customer’s Affiliates, provided that Customer agrees to remain fully responsible and liable under this Agreement for Customer’s Affiliates’ use of the Solutions.
B. “ViLogics” means ViLogics, Inc. and its Affiliates.
C. “Site” means ViLogics’s website at www.viLogics.com or as defined in the relevant Solutions Addendum.
D. “Solution(s)” means the products and services offered by ViLogics.
E. “Solutions Addendum” means the addendum specific to the Solutions that Customer subscribes to under a Purchase Order, and, where applicable, the U.S. Public Sector Addendum.
F. “Subscription Term” means the service term of the Solutions as specified in a Quote or Purchase Order.
G. “Restrictions” means the restrictions to Customer’s license to use Solutions as stated in the End User Restrictions section in the applicable Solutions Addendums.
H. “Customer Data” means data ingested from Customer endpoints, or otherwise provided, by or on behalf of Customer to ViLogics via Customer’s use of the Solutions, excluding System Data.
I. “Documentation” means ViLogics’ s then-current published documentation such as technical user guides, installation instructions, articles or similar documentation specifying the functionalities of the Solutions and made available by ViLogics to Customer as specified in the applicable Solutions Addendum.
J. “Endpoint(s)” means physical or virtual computing devices and/or computing environments (such as containers) that can process data.
K.“Enhancements” means any product changes, updates, patches, bug fixes, and versions to the Solutions made by ViLogics and provided to Customer.
L. “Partner” means an authorized ViLogics partner, such as a reseller.
M. “Personal Data” means any information relating to an identified or identifiable natural person.
N. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
O. “Purchase Order” means a document agreed to in writing and executed among Customer and a Partner that references a Quote covering Customer’s services or subscription to the specified Solutions or offering.
P. “Quote” means a quote from ViLogics for the Solutions, ViLogics Services, and/or other ViLogics Services.
Q. “Evaluation” means for the limited purpose of accessing and installing the Solutions for internal evaluation by Customer who is considering purchase of Solutions but without any obligation to enter into any further agreement.
R. “System Data” means information compiled by ViLogics in connection with Customer’s use of a Solution, including but not limited to threat data, contextual data, detections, and indicators of compromise, that ViLogics may use for security, product, and operations management, and/or for research and development. For the avoidance of doubt, any improvements made to the Solutions will not incorporate Customer Personal Data or reference or mention Customer.
S. “Third-Party Products” means third-party products, applications, services, software, networks, or other systems or information sources that link to the Solutions through ViLogics’s open APIs.
T. “Third-Party Service” means a third party that manages the installation, onboarding, or operation of, or access to, the Solutions on Customer’s behalf.
U. “U.S. Public Sector Addendum” means the Solutions Addendum that applies to U.S. Public Sector Customers (as defined in the U.S. Public Sector Addendum). The U.S. Public Sector Addendum.
2. USE OF THE SOLUTIONS.
A. License. Customer’s right to use Solutions is limited to the specific Solutions it subscribed to under a Purchase Order or Quote and subject to the applicable license section of the applicable Solutions Addendum. Subject to the terms of this Agreement, Customer hereby grants to ViLogics a non-exclusive, non-transferable, worldwide, royalty-free right during an active Subscription Term to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the applicable Solutions to Customer.
B. Documentation. Customer shall use the Solutions in accordance with the then-current Documentation.
C. Third-Party Products. If Customer decides to send any Customer Data to any third party or otherwise enable, access or use Third-Party Products, including Third-Party Products that integrate directly to Customer’s instance of the Solutions, be advised that ViLogics does not warrant, and this Agreement does not cover, such Third-Party Products even if ViLogics resells them or designates them as certified, approved, or recommended, or if they are otherwise provided by a third party that is a member of a ViLogics partner program. Customer’s access to and use of such Third-Party Products is governed by the terms of such Third-Party Products, and ViLogics does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Products, including, without limitation, their content or the manner in which they handle data or any interaction between Customer and the provider of such Third-Party Products, or any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any such Third-Party Products. Customer may be required to register for or log into such Third-Party Products on their respective websites. By enabling any Third-Party Products, Customer expressly permits ViLogics to disclose Customer’s login and Customer Data to such Third-Party Products as necessary to facilitate Customer’s enablement and use of such Third-Party Products.
D. Third-Party Service. If Customer enters into an agreement with a third party for a Third-Party Service then Customer may allow such Third-Party Service to use the Solutions provided that (i) as between the Parties, Customer remains responsible for compliance with this Agreement; (ii) such Third-Party Service only uses the Solutions for Customer’s purposes that do not violate the License Restrictions and not for the benefit any third party, and agrees to this Agreement in providing services to Customer; and (iii) Customer remains liable to ViLogics for the Third-Party Service’s use of and access to the Solutions on Customer’s behalf.
3. Services. Service Provider agrees to provide Customer the services described in all directly associated Quotes, Scopes of Work/Project Scopes of Work (SOW/PSOW). The Service Provider may, from time to time, alter the Services provided to Customer under this Agreement based on market or vendor modifications. In the event such a change materially alters or decreases the Services, Service Provider will provide written notice of such change to Customer, and Customer may terminate this Agreement, in writing, within thirty (30) days of Service Provider’s notice of said change. Customer’s termination will take effect sixty (60) days following Customer’s written notification of termination. Service Provider may agree to provide Customer with any additional services not covered by this agreement at rates set forth in the applicable SOW/PSOW Fee Schedule.
4. Term and Termination.
A. Term. The Initial Term is defined in Customer’s Quote commencing on that Effective Date. Thereafter, this Agreement will automatically renew on each anniversary date, for an additional one (1) year term unless terminated in accordance with the terms of this Agreement.
B. Termination. This Agreement may be terminated as follows:
i. Either party may terminate this Agreement at the end of a contract term with ninty (90) days written notice to the other party prior to the end of the initial or additional term.
ii. Upon Customer’s written notice to Service Provider of a material defect in the Services, Service Provider must correct said defect within thirty (30) days. Should the failure not be corrected within this time period, the Customer may provide thirty (30) days’ written notice of termination.
iii. Upon Customer’s failure to pay any outstanding charges within ten (10) days of receipt of written notice from the Service Provider of delinquency. The Service Provider may terminate this Agreement immediately.
iv. becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority
v. Additionally, ViLogics may terminate this Agreement and all Solutions Addendums or a specific Solutions Addendum and its corresponding Subscription Term immediately for cause by providing concurrent notice to Customer if ViLogics believes that Customer is using the Solutions in any unauthorized manner likely to cause harm to ViLogics, the Solutions or a third party.
vi. ViLogics’s has rights to terminate this Agreement and all Solutions Addendums or the applicable Solutions Addendum and its corresponding Subscription Term pursuant to Section 11(A). (Infringement Indemnity)
C. Effect of Termination. Upon any termination or expiration of this Agreement and/or Solutions Addendum: (i) all rights and licenses granted to Customer under this Agreement and any applicable Solutions Addendum(s) will immediately terminate; (ii) all of ViLogics’s obligations under this Agreement and any applicable Solutions Addendum(s) (including, ViLogics’s performance of the TSO Platform) will immediately cease; (iii) there will be no refund for any pre-paid and unused Fees as of the termination date (except where Customer terminates this Agreement under Section 4.(B) (Termination) due to ViLogics’s material breach or where ViLogics terminates this Agreement under Sections 2(B) (Documentation) or 11(A) (Infringement Indemnity) herein, in which case any refunds shall be on a pro-rata basis for any remaining unused portion of a subscription left after such termination), and Customer will immediately pay ViLogics any Fees due and payable under this Agreement as of the termination date; (iv) upon receiving a written request from the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party all Confidential Information of the Disclosing Party then in its possession or destroy all copies of such Confidential Information, at the Disclosing Party’s sole discretion and direction; (v) Customer will immediately cease all use of the Solutions and destroy and/or permanently delete all copies of any components of the Solutions in Customer’s possession; and (vi) Customer will uninstall the Solutions within thirty (30) days after termination of this Agreement or any applicable Solutions Addendum(s) and, upon ViLogics’s request, provide written confirmation of such uninstallation. ViLogics reserves the right to investigate suspected violations of Customer’s obligations under Sections 10(D) herein. Customer will immediately confirm, in writing, that it has complied with these Sections 2(A) and 10(D)) at ViLogics’s request. Notwithstanding any terms to the contrary in this Agreement, the Restrictions and Sections 9 (Ownership and Reservation of Rights), 20 (Privacy and Security), 8 (Confidentiality), 11 (Indemnification Obligations), 16 (Limitation of Liability), 4(C) (Effects of Termination) and 24 (General Provisions) will survive any termination of this Agreement.
D. Termination Fees.If Customer does terminate this Agreement based on section 4(B) prior to the expiration of this Agreement, then Customer will pay Service Provider 100% of any outstanding term and invoices. If Customer terminates this Agreement for reasons outside of section 4(B), the termination shall be for ‘no cause’, and Customer will be responsible for all remaining payments listed in the SOW/PSOW Fee Schedule.
5. Eligibility. Customer Equipment must meet minimum eligibility requirements in order to qualify for a maintenance program. All equipment must be recognized on Vendor Support Lists and cannot exceed Vendor End of Life dates. If equipment does not meet the minimum eligibility requirements, Service Provider may provide a separate proposal for the legacy services necessary to achieve the eligibility requirements.
6. Payment.
A. Fees. Service Provider will charge Customer for services set forth in the applicable SOW/PSOW Fee Schedule.
B. Taxes. Amounts payable by Customer hereunder do not include local, state, or federal sales, use, value-added, or other taxes or tariffs of the United States of America or other countries based on the licenses or services provided under this Agreement and the Customer’s use thereof. Customer will pay such taxes or tariffs as may be imposed upon Service Provider or Customer, except income taxes imposed on Service Provider by the United States of America or any state or local government therein. Customer will be invoiced for, and Customer will pay, any such taxes or tariffs if Service Provider is required to pay them on the Customer’s behalf.
C. Failure to Pay. Customer acknowledges that its failure to pay, in a timely manner, any of the fees payable hereunder, or any portion thereof, will be a material breach of the Agreement for which Service Provider may, in addition to pursing all other remedies, withhold Services and/or terminate this Agreement.
D. Monthly Fees. All monthly fees are due on the first of the month for that month’s services.
7. Customer Responsibilities.
A. Customer Authorized Contact. Customer will identify an individual to be Service Provider’s primary Customer contact and another individual to be the secondary contact as noted in the SOW/PSOW. Customer represents that these people have authorization to make decisions on behalf of Customer and may be relied on by Service Provider when providing the Services.
B. Provision of Materials and Services to Service Provider. Customer agrees to timely furnish, at its own expense, all necessary personnel, hardware, software, related materials, and appropriate and safe workspaces. Customer will also provide Service Provider with access to all pertinent information, passwords, and facilities as requested and required for services to be performed. Access may be denied for any reason at any time. However, if access to information, passwords, or facilities is denied, Customer understands that Service Provider may be unable to perform its duties adequately. If such a situation should exist, the Service Provider will not be responsible for failure to provide the Services.
C. Customer Responsibility for Equipment. Customer shall provide a suitable working environment for any Equipment located at a Customer’s facility. Such environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.
D. Customer Responsibility for Equipment or System Change. Customer acknowledges Service Provider may identify additional items to be purchased by Customer, and/or required changes to Customer’s system to meet the terms of this agreement. In connection therewith, Customer agrees to work in good faith with Service Provider to effectuate such purchases or changes. In the event that Service Provider is required to purchase any assets including hardware and/or software, in connection with Services rendered, all such assets will remain sole property of Service Provider unless specifically stated otherwise in writing. Customer will be responsible for the quality, integrity, and workmanship of any purchased technology product or service and for ensuring that the materials provided to Service Provider do not infringe or violate the rights of any third party.
E. Timeliness. Any timetable for Services is dependent upon timely receipt of all necessary items and authorizations from Customer. In the event of a delay in delivery of such items, any estimated completion date will be deferred for a period equal to the time lost because of the delay.
F. Software Installation or Replication. If Service Provider is required to install or replicate Customer software as part of the Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to Service Provider will be deemed Customer’s affirmative acknowledgement to Service Provider that Customer has a valid license permitting Service Provider to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless Service Provider, in a written SOW/PSOW, expressly agrees to conduct such monitoring. Customer will bear sole responsibility for all damages and expenses it may incur (including reasonable attorney fees and disbursements) related to the provision of infringing materials or any Customer breach of this Section 7(F).
8. Confidentiality.
A. Obligations. The Receiving Party will maintain in confidence, during the term of this Agreement and for three (3) years following the expiration or earlier termination of this Agreement, all Confidential Information, and will not use such Confidential Information except as expressly permitted in this Agreement; provided that trade secrets shall be kept confidential unless and until they no longer qualify as trade secrets under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement, and the Receiving Party will only disclose Confidential Information to its directors, officers, employees, Affiliates, and/or contractors who have a need to know such Confidential Information in order to assist the Receiving Party in performing its duties under this Agreement, and if such directors, officers, employees, Affiliates, and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than those contained in this Agreement. However, each Party may disclose the terms and conditions of this Agreement: (i) to legal counsel of such Party; (ii) to such Party’s accountants, banks, financing sources and their advisors; (iii) in connection with the enforcement of its rights under this Agreement; or (iv) in connection with an actual or proposed merger, acquisition, or similar transaction.
B. Exceptions. Confidential Information will not include information that: (i) is in or enters the public domain through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Confidential Information; or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of such third party’s nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to disclose by law, or by a subpoena or order issued by a court of competent jurisdiction (each, an “Court Order”), provided that the Receiving Party shall: (a) give the Disclosing Party written notice of the Court Order promptly after receiving it; and (b) cooperate fully with the Disclosing Party to provide the Disclosing Party with the opportunity to interpose any objections it may have to disclosure of the information required by the Court Order and to seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Sections 9(A), 10(C), Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
9. OWNERSHIP AND RESERVATION OF RIGHTS.
A. Customer. As between the Parties, Customer reserves all right, title, and interest in and to Customer Data and all Intellectual Property Rights embodied in Customer Data.
B. viLogics. As between the Parties, ViLogics reserves all right, title, and interest in and to the Solutions (and any and all modifications to or derivative works of the Solutions), Documentation, System Data, and any and all Intellectual Property Rights embodied in such.
10. Proprietary Rights.
A. Service Provider and Intellectual Property. The parties acknowledge and agree that Service Provider may use pre-existing proprietary computer software, techniques, or other intellectual property (Service Provider Intellectual Property). Service Provider may also create additional intellectual property based upon services rendered. Customer agrees that any and all proprietary rights to the Service Provider Intellectual Property, as it exists or is modified in the course of providing Services, including patent, copyright, trademark, and trade secret rights are the sole and exclusive property of Service Provider.
B. Customer Rights to Deliverables. Service Provider hereby grants to Customer a perpetual, worldwide, royalty-free, non-exclusive, non-transferable right and license to use, execute, reproduce, transmit, display, perform, and create derivative works from, make, have made, sell and import the deliverables provided hereunder including such Service Provider Intellectual Property solely as it may be incorporated therein, only for its own internal business purposes and to provide services to its customers consistent with the purposes of the Services.
C. Customer Data Ownership and Responsibility. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information, or material proprietary to Customer and provided or submitted by Customer to the Service Provider in the course of using the Services (collectively, “Customer Data”). Service Provider shall not be liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event that this Agreement is terminated, Service Provider shall make a secure Customer data file available at Customer’s written request and in a mutually agreed upon time frame.
D. Restrictions. Customer will not copy, use, modify, or distribute any Service Provider Intellectual Property, except as expressly licensed in this Agreement. Service Provider’s Intellectual Property may not be removed from any deliverables, modified, distributed, reverse engineered, decompilated, disassembled or otherwise translated by Customer. Any identification, including copyright and trademark notices, shall remain on all copied materials.
11. Indemnity.
A. Infringement Indemnity. ViLogics will indemnify and defend Customer and Customer’s directors, officers, employees, contractors, agents, or other authorized representatives (“Customer Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are awarded against such Customer Indemnitees in a final, non-appealable judgment (collectively, “Losses”), arising out of any third-party claim alleging that Customer’s use of the Solutions infringes or misappropriates a third party’s valid Intellectual Property Right (each, a “Claim”). In the event of a Claim pursuant to this Section 11(A), ViLogics may, at ViLogics’s option and at ViLogics’s expense: (i) obtain for Customer, the right to continue to exercise the license granted to Customer under this Agreement; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Solutions to make them non-infringing. If the options set forth in (i), (ii), or (iii) are not obtainable on commercially reasonable terms, ViLogics may terminate this Agreement after providing Customer a reasonable time (no less than 30 days) to transition to an alternative solution, unless ViLogics determines in its reasonable discretion that such use of the Solutions will likely result in infringement and in such case may terminate this Agreement effective immediately with concurrent written notice to Customer. In the event of a termination of this Agreement pursuant to this Section 4(B) (iii), (iv), or (v), all rights and licenses with respect to the Solutions will immediately cease and ViLogics will refund to Customer all prepaid Fees for the Solutions attributable to the Subscription Term (as outlined in the applicable Purchase Order) following the termination of this Agreement. ViLogics’s indemnification obligations do not extend to Claims or Losses arising from or relating to: (a) any act or omission of any Customer Indemnitees in breach of the Agreement; (b) any combination of the Solutions (or any portion thereof) by any Customer Indemnitees or any third party with any equipment, software, data, or any other materials where the infringement would not have occurred but for such combination, unless such combination is the customary, ordinary, and intended use of the Solutions; (c) any modification to the Solutions by any Customer Indemnitees or any third party where the infringement would not have occurred but for such modification; (d) the use of the Solutions by any Customer Indemnitees or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (e) the continued use of the Solutions after ViLogics has provided a substantially equivalent non-infringing software or service.
B. Customer Indemnity. Customer, at its sole expense, will indemnify and defend ViLogics and its directors, officers, employees and agents or other authorized representatives (“ViLogics Indemnitees”) from and against any damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, awards, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements), arising out of or related to any claim alleging: (i) Customer’s use of the Solutions in breach of this Agreement; (ii) Customer’s unauthorized use of any third party intellectual property; (iii) breach or alleged breach of Customer’s obligations under Sections 2(C) (Third-Party Products), 2(D) (Third-Party Service), or the Restrictions; or (iv) Customer’s failure to maintain commercially reasonable technical and organizational measures to secure their login information to such account.
C. Procedures. The indemnifying Party’s indemnification obligations under this Section 11 are conditioned upon the indemnified Party: (i) giving prompt written notice of the claim to the indemnifying Party once the indemnified Party becomes aware of the claim (provided that failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section 11 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (ii) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (iii) providing
12. Relationship of Parties; No Solicitation of Employees. Service Provider is an independent contractor. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other party. This Agreement shall not be construed to create a joint venture or partnership between the parties. During the term of this Agreement and for a period of one (1) year thereafter, each party shall not directly or indirectly induce any such employee, affiliate, or third-party vendor to terminate his or her employment with the other party.
13. Services Warranty. Service Provider warrants that it will perform the Services in accordance with the specifications set forth in the SOW/PSOW. For any breach of the foregoing warranty, Service Provider will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of the Customer’s written notice to Service Provider specifying, in complete detail, the non-conforming Services.
14. DISCLAIMERS.
A. The express remedies set forth in Section 15 will constitute Customer’s exclusive remedies, and Service Provider’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
B. Service Provider shall not be responsible for impairments to the Services or Customer applications caused by acts within the control of Customer or its employees, agents, or vendors.
C. EXCEPT FOR THE WARRANTIES MADE BY SERVICE PROVIDER IN SECTION 15, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS IS”. NEITHER SERVICE PROVIDER NOR CUSTOMER MAKES ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
D. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET CUSTOMER REQUIREMENTS NOT SET FORTH IN ANY ACCOMPANYING SOW/PSOW, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT THE CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
E. Except as may be done in accordance with Section 14(C), no statement by any Service Provider employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or otherwise modify this Agreement in any way whatsoever.
15. REPRESENTATIONS, WARRANTIES AND REMEDIES.
A. General Representations and Warranties. Each Party represents and warrants that: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate or organizational power and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the person signing or reviewing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; (iv) this Agreement is valid, binding, and enforceable against it in accordance with its terms; (v) it shall deliver (as to ViLogics) and operate (as to Customer) the Solutions in material conformity with the Documentation and the terms herein; and (vi) it will perform its obligations under this Agreement in accordance with applicable federal or state laws or regulations.
B. Conformity with Documentation. ViLogics warrants that at any point in time during Customer’s Subscription Term, the Current Release will substantially conform in all material respects with the Documentation. ViLogics’s sole obligation for material non-conformity with this warranty shall be, in ViLogics’s sole discretion, to use commercially reasonable efforts: (i) to provide Customer with an error-correction or workaround to the reported non-conformity; (ii) to replace the non-conforming portions of the Solutions with conforming items; or (iii) if ViLogics reasonably determines it cannot provide such remedies within a reasonable period of time, to terminate this Agreement and refund applicable Fees pursuant to Section 4.C. (Effects of Termination). The above warranty will not apply: (a) if the Solutions are not used in compliance with the Documentation; (b) if any unauthorized modifications are made to the Solutions by Customer or any third party; (c) to the use of versions of the Solutions that are not the Current Release or the Solutions released immediately preceding the Current Release; (d) to defects due to accident, abuse, or improper use by Customer; or (e) to Evaluation or Early Adoption use of the Solutions.
C. Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party that would not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, to prove the inadequacy of its legal remedies, or to post any bond or
16. LIMITATION OF LIABILITY.
A. SUBJECT TO ANY SPECIFIC LIMITATIONS ON LIABILITY STATED IN THIS SECTION 16, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO VILOGICS (OR THE APPLICABLE PARTNER) IN THE 6-MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME OF THE EVENT OR EVENTS LEADING TO THE ALLEGED DAMAGES OR GIVING RISE TO THE CLAIM.
B. VILOGICS’S TOTAL AGGREGATE LIABILITY FOR VILOGICS’S BREACH OF SECTION 20 (PRIVACY AND SECURITY) OR OF ANY OTHER OBLIGATION RELATING TO CUSTOMER DATA SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO VILOGICS (OR THE APPLICABLE PARTNER) IN THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME OF THE EVENT OR EVENTS LEADING TO THE ALLEGED DAMAGES OR GIVING RISE TO THE CLAIM.
C. THE LIMITATIONS SET FORTH IN SECTIONS 16.A AND 16.B SHALL NOT APPLY TO: (i) ANY BREACHES OF THE RESTRICTIONS; (ii) ANY BREACHES OF SECTION 8 (CONFIDENTIALITY) (EXCLUDING ANY BREACHES OF VILOGICS’S OBLIGATIONS RELATING TO CUSTOMER DATA); OR (iii) TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.
D. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE LIMITATIONS SET FORTH IN THIS SECTION 14 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
17. Essential Basis of Bargain. Customer acknowledges and agrees that the fees charged by Service Provider in this Agreement reflect the overall allocation of risk between the parties, including the limitation of liability and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the parties and a modification of such provisions would substantially affect the fees charged by Service Provider hereunder. In consideration of such fees, Customer agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.
18. Force Majeure. With the exception of Customer payment for services rendered, neither party shall be responsible for any failure to perform, nor delay caused where such failure or delay is due to circumstances reasonably beyond the Service Provider’s control. If and to the extent a Service Provider’s performance of any of its obligations under this Contract is prevented, hindered or delayed directly or indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, strikes or outbreak of communicable disease; pandemics; quarantines; national or regional emergencies or other causes of a similar nature beyond the reasonable control of such Service Provider (each, a “Force Majeure Event”), and such non-performance, hindrance or delay occurs notwithstanding the taking of reasonable precautions by the non-performing, hindered or delayed Service Provider, then the non-performing, hindered or delayed Service Provider will be excused for such nonperformance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Service Provider continues to use commercially reasonably efforts to promptly recommence performance, including through the use of alternate sources, workaround plans or other means.
19. Confidentiality. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party that is marked as confidential or proprietary, or that the Receiving Party knows or reasonably should know is confidential information of the Disclosing Party given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party. Confidential Information includes, but is not limited to, this Agreement, proprietary and/or non-public technical, business, commercial, financial and/or legal information, such as, without limitation, any and all Solutions information generally shared with Customer and as specifically related to Customer, Solutions information gained by Customer through use of the Solutions, business plans, product information, pricing, financial plans, know how, Customer information, strategies, and other similar information. The receiving party shall hold such information in confidence for seven (7) years after termination of this Agreement, restrict disclosure of such information solely to its employees with a business need to know, and use the same degree of care as used for its own proprietary information to prevent the unauthorized disclosure, use or publication of such proprietary information.
20.PRIVACY AND SECURITY.
A. Processing and Security Obligation. In providing Customer the Solutions, ViLogics will (i) store, process and access Customer Data only to the extent reasonably necessary to provide Customer the Solutions and to create System Data to improve the Solutions; and (ii) implement and maintain commercially reasonable technical and organizational measures designed to protect the security, confidentiality and integrity of Customer Data hosted by ViLogics or ViLogics’s authorized third party service providers from unauthorized access, use, alteration or disclosure.
B. Data Privacy. To the extent Customer Data includes Personal Data, ViLogics will process Personal Data in accordance with the DPA in compliance with applicable laws. The Parties agree that the terms of the Data Protection Addendum (“DPA”) found at https://www.viLogics.com/legal/data-protection-addendum/ shall apply to ViLogics’s processing of such Personal Data.
21. Independent Contractors. Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
22. Export Compliance. The Solutions, Related Services and Products (as defined in the TSO Terms), and all other components of the Solutions that ViLogics may provide or make available to Customer for use by Customer’s users are subject to U.S. export control and economic sanctions laws, including the Export Administration Regulations and trade and economic sanctions imposed by Office of Foreign Asset Control (“OFAC”). Customer agrees not to violate such laws and regulations as they relate to Customer’s access to and use of the Solutions. Customer shall not access or use the Solutions if Customer is located in any jurisdiction in which the provision of the Solutions is prohibited under U.S. or other applicable laws or regulations, (each, a “Prohibited Jurisdiction”), and Customer agrees not to permit access to the Solutions to any government, entity, or individual located in any Prohibited Jurisdiction, or to any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by OFAC (“Prohibited Person”), or to any other person or entity in violation of any U.S. or other applicable export laws, regulations, embargoes, prohibitions, or restrictions. Customer agrees to comply with all applicable laws regarding the export or re-export of technology from the U.S. and the country in which Customer and users are located. Customer represents and warrants that neither Customer nor any of Customer’s Affiliates is an entity that (i) is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by OFAC, or (ii) is located in, or is directly or indirectly owned or controlled by any entity or individual located in, any Prohibited Jurisdiction.
23. Severability. If any provision of this Agreement is deemed invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
24. General.
A. Amendments. ViLogics may amend this MSA from time to time in its sole discretion, in which case the new MSA will supersede prior versions all modification, addition, deletion, or waiver of any rights under this Agreement will be binding to all Party unless objections made in a written by customer authorized representative. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy, and no waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
B. Jurisdiction. This Agreement shall be explicitly governed by the laws of the State of Pennsylvania without regard to its choice of law provisions.
C. Interpretation. Any provisions of this Agreement held to be void, illegal, or unenforceable shall be restated to lawfully reflect the parties’ original intents to the fullest extent possible. All other provisions shall remain in full force and effect.
D. No Third-Party Beneficiaries. This Agreement is an agreement between Customer and Service Provider, and thus confers no rights upon any of the Parties’ employees, agents, contractors, or customers, or upon any other person or entity.
E. Notices. Any notice required under this Agreement shall be sent by secure email, registered mail, facsimile, overnight express mail, or personal delivery to the address of the party set forth at the beginning of this Agreement. Notices sent by registered mail shall be deemed effective five (5) business days following mailing. Notices sent otherwise shall be deemed effective upon receipt. A party may change its address for notices upon thirty (30) days prior written notice.
F. Assigments. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by a Party, by operation of law or otherwise, without the prior written consent of the other Party and such consent shall not be unreasonably delayed or withheld. Any attempted transfer, assignment, or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each Party may assign this Agreement to a successor of substantially all of its business or assets, whether by merger, sale of assets, sale of stock, sale of control, reorganization, or otherwise, with written notice to the other Party, provided that such successor-in-interest agrees in writing to assume all of the assigning Party’s obligations under this Agreement, and provided further that any such successor-in-interest to Customer does not directly or indirectly compete with ViLogics. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors, and permitted assigns.
G. Purchase Orders. Customer may, for purposes of administrative convenience, use Customer’s standard form of purchase order to order Services. Both Parties understand and agree that any terms or conditions on any such purchase order in any way different from or in addition to the terms and conditions set forth will have no effect whatsoever on this Master Services Agreement and/or SOW/PSOW. Service Provider hereby rejects all such terms and conditions.
H. Customer’s Review of Agreement. Client by signing any quotes or purchase orders hear by agree to this Agreement in detail, either electronically or in print, and hereby approves all of the material terms, conditions, and warranties associated with this Agreement.
I. Customer agrees that ViLogics may reference and use Customer’s name and trademarks in ViLogics marketing and promotional materials, including, but not limited to, the Site, solely for the purpose of identifying Customer as ViLogics’s customer. Otherwise, neither Party may use the trade names, trademarks, service marks, or logos of the other Party without the express written consent of the other Party.
J. Disputes: This agreement is governed by and shall be construed in accordance with the laws of the State of Pennsylvania, without regard to any conflict-of-law principles. Any claim, suit, action, or proceeding arising out of or related to this Agreement, any Purchase Order, or the Parties’ relationship shall be instituted only in the federal or state courts located in Cambria County, Pennsylvania, and the Parties irrevocably consent to the exclusive jurisdiction of such courts in any such claim, suit, action, or proceeding. Prior to the filing or initiation of any action or proceeding relating to this Agreement, the Parties must participate in good faith mediation in Cambria County, Pennsylvania (except an action or proceeding required to protect or enforce a Party’s Intellectual Property Rights). In any such claim, suit, action, or proceeding, the prevailing Party is entitled to reimbursement of its reasonable attorneys’ fees and costs.
K. Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement, and no licenses are granted by one Party to the other Party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
L. Entire Agreement. This Agreement, together with all terms attached or referenced herein (all of which are incorporated herein by reference), set forth the entire agreement and understanding of the Parties relating to Customer’s subscription to the Solutions, and the Parties herein expressly agree that this Agreement supersedes all prior or contemporaneous potentially or actually conflicting terms in agreements, proposals, negotiations, conversations, discussions and/or understandings, whether written or oral, with respect to such subject matter and all past dealing or industry customs (including without limitation any nondisclosure agreement among the Parties relating to any prior use of the Solutions, any Quote or Purchase Order and/or another agreement among the Parties in connection with Customer’s consideration and/or evaluation of the Solutions), excluding only any written agreement executed by ViLogics, expressly referencing this Agreement and only to the extent expressly superseding specific terms in this Agreement. In the event of conflict, the terms in the applicable Solutions Addendum(s) shall supersede and take precedence over the terms in this Agreement.
