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Vyakar Software Subscription Agreement
Vyakar Inc. (doing business as "Vyakar Inc." referred as "Vyakar" hereafter) with principle place of business at 4701 Patrick Henry Drive, Bldg 25, Santa Clara, CA 95054 and Customer hereby agree as follows:
1. Scope; Procurement and Provisioning by Affiliates; Subscription Services Users.
1.1 Scope. This End User Subscription Agreement applies to Customer’s use of the online subscription services and related online training and packaged professional services offered by Vyakar (collectively, the “Subscription Services”) that are listed in one or more Vyakar subscription-based ordering documents signed by the Parties (each an “Order”). This End User Subscription Agreement and all executed Orders, including any incorporated attachments, addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order
1.2 Procurement and Provisioning by Affiliates. Customer may procure Subscription Services under this Agreement for its own account and on behalf of one or more Customer Affiliates (defined below). Customer is responsible for the acts and omissions of Customer Affiliates under any Order pursuant to which the Customer Affiliate receives the benefit of the Subscription Services but is not a signatory. Additionally, Customer Affiliates may procure Subscription Services directly under this Agreement pursuant to an Order executed by such Customer Affiliate and either Vyakar or a Vyakar Affiliate. Customer Affiliates who sign an Order will be deemed to be the Customer hereunder and solely responsible for its performance or non-performance thereunder. The Vyakar Affiliate who signs an Order will be deemed to be Vyakar hereunder and solely responsible for its performance or nonperformance thereunder. “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership of a majority share of the stock, equity or voting interests of such entity.
1.3 Subscription Services Users. During the Subscription Term set forth in each Order, Vyakar will make the Subscription Services available to Customer and its authorized Affiliates, employees, agents or contractors (“Users”), for access and use by such Users solely for Customer’s internal business purposes in accordance with the terms of the Agreement. Customer is responsible for use of the Subscription Services by Users and any party who accesses the Subscription Services with Customer’s or a User’s account credentials.
2. Restrictions; Vyakar Fair Use Policy; Usage Rights; Suspension.
2.1 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Subscription Services available to anyone other than Users or use the Subscription Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (iv) modify, translate or create derivative works based on the Subscription Services or remove any proprietary notices or labels from the Subscription Services; (v) use or access the Subscription Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
2.2 Vyakar Fair Use Policy. Customer will, and will ensure that its Users, use the Subscription Services only in compliance with the Vyakar’s Fair Use Policy. As a goodwill gesture, Vyakar allows customer’s lead database to grow beyond the prescribed lead record limit, Vyakar reserves the right to review customers system usage and enforce the licensing limits if required. If Vyakar determines Customer is in violation of Fair Usage, Vyakar will notify Customer in writing (email notification sufficient) specifying such violations. Customer will have 15 days from the date of notice in which to bring its usage within the fair usage limits. If Customer fails to do so within 15 days, Vyakar has the right to charge Customer, and Customer agrees to pay, for the applicable usage tier, which will be co-termed with the Subscription Term in the applicable Order.
2.3 Suspension. Vyakar may immediately suspend Customer's account and access to the Subscription Services if (i) Customer fails to make payment due within 10 business days after Vyakar has provided Customer with written notice of such failure; or (ii) Customer violates Section 2.1 (Restrictions), Section 2.2 (Vyakar Fair Use Policy), or Section 9 (Confidential Information). Any suspension by Vyakar of the Subscription Services under the preceding sentence will not relieve Customer of its payment obligations hereunder. Vyakar will promptly lift the suspension upon Customer’s payment or remedy of the triggering violation, as applicable.
3. Ownership: Subscription Services; Customer Data; Statistical Information.
3.1 Subscription Services. Customer acknowledges that the Subscription Services are offered online on a subscription basis. Vyakar reserves all rights, title and interest in and to the Subscription Services, including any software or documents related to or provided with the Subscription Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto. From time to time, Customer or its Users may submit to Vyakar comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Subscription Services (“Feedback”). Customer agrees that Vyakar has all rights to use and incorporate Feedback into the Subscription Services without restriction or payment to Customer. No rights are granted to Customer other than as expressly set forth herein.
3.2 Customer Data. Customer owns any data, information or material originated by Customer or that Customer provides in the course of using the Subscription Services, including information regarding Customer’s social networking connections, followers or other contacts activated through use of the Subscription Services (“Customer Data”). Customer will be solely responsible for (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users outside of the Subscription Services; and (ii) all applicable social networking terms and conditions related to procurement and use of Customer Data. Customer Data is Customer’s Confidential Information.
3.3 Statistical Information. Vyakar may monitor Customer’s use of the Subscription Services and compile Customer Data with other data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Subscription Services and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer or Customer Data, or the disclosure of Customer Confidential Information. Vyakar retains all rights, title and interest in and to such statistical and performance information.
4. Fees; Taxes and Currency; Invoices.
4.1 Fees. Customer will pay all fees set forth in the checkout subscription. All fees are noncancelable and nonrefundable, except as expressly specified in the Agreement. Any fees paid pursuant to a checkout will not offset any fees due under any other plan or checkout.
4.2 Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Subscription Services. Customer is not responsible for any taxes based on Vyakar’s net income or property. Except as otherwise specified in an Order, all fees due hereunder will be paid in U.S. Dollars.
4.3 Invoices. All amounts are due and payable as specified in the subscription plan.
5. Agreement Term; Termination for Cause, Effect of Termination; Survival.
5.1 Agreement Term. The Agreement will commence on the Subscription Start Date of the first Order (the “Effective Date”) and will remain in effect until the Subscription Term in all Orders has expired or has otherwise been terminated (the “Agreement Term”). Notwithstanding the foregoing, if immediately following the expiration of the Subscription Term in any Order, the Parties are negotiating a renewal of such Order, the Agreement Term will remain in effect for a reasonable period of time to allow the parties to effect such renewal. Nothing contained herein will extend the Subscription Term set forth in any Order.
5.2 Termination for Cause. In the event of a material breach by either Party, the non-breaching Party will have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days after written notice from the non-breaching Party specifying the breach.
5.3 Effect of Termination. If Vyakar terminates an Order for Customer's uncured material breach (i) all fees set forth in the terminated Order will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such terminated Order includes fees for usage of the Subscription Services in excess of the Usage Rights, such fees are also immediately due and payable. If Customer terminates an Order for Vyakar’s uncured material breach, Customer will be entitled to a pro-rata refund for prepaid fees for the Subscription Services not performed as of the date of termination. Upon completion of the Agreement Term, all rights to access and use the Subscription Services will terminate and Vyakar will irretrievably delete and destroy Customer Data and, if requested in writing, Vyakar will certify to such destruction in writing.
5.4 Survival. The following Sections of the Agreement will survive termination of the Agreement: Section 2.1 (Restrictions), Section 3 (Ownership: Subscription Services; Customer Data; Statistical Information), Section 4 (Fees; Taxes and Currency; Invoices), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidential Information) and Section 11 (General Terms).
6. Product Changes.
6.1 General. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
6.2 Product Changes. Vyakar reserves the right to change or discontinue individual features within the Subscription Services upon prior written notice via the Subscription Services portal.
7.1 Vyakar. Vyakar will defend Customer against any claim brought against Customer by a third party alleging the Subscription Services as provided by Vyakar directly infringe the intellectual property rights of the claimant and will pay Customer for finally-awarded damages and costs and Vyakar-approved settlements of the claim. Vyakar’s obligations to defend or indemnify will not apply to the extent that a claim is based on (i) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (ii) a combination of the Subscription Services with non-Vyakar products or services; or (iii) any use of the Subscription Services not in compliance with this Agreement. Vyakar may, in its discretion and at no cost to Customer, (a) modify the Subscription Services to avoid infringement; or (b) terminate Customer’s subscriptions for the affected Subscription Services and refund Customer any related prepaid fees for the remainder of the Subscription Term.
7.2 Customer. Customer will defend Vyakar against any claim brought against Vyakar by a third party alleging (i) Customer Data infringes the intellectual property, privacy or other rights of the claimant; or (ii) Customer's use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay Vyakar for finally-awarded damages and costs and Customer-approved settlements of the claim.
7.3 Procedure. As a condition to the indemnifying Party’s obligations under this Section 7, the Party seeking indemnification must (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS SECTION STATES THE INDEMNIFIED PARTY'S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY'S TOTAL LIABILITY, REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 7.
8. Limitation of Liability.
NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR CUSTOMER PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. VYAKAR UNDERTAKES NO LIABILITY FOR ANY CUSTOMER DATA ELEMENTS PROHIBITED BY THE VYAKAR USE POLICY OR ANY THIRD PARTY TECHNOLOGY ACQUIRED BY CUSTOMER TO INTERACT WITH THE SUBSCRIPTION SERVICES. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. Confidential Information.
Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may, during the Agreement Term and in connection with the Subscription Services, disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”). The Recipient agrees (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as set forth herein and to those of its employees and contractors who need access for purposes consistent with this Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information after 5 years following the termination of the Agreement or any Confidential Information the Recipient can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Discloser. If the Recipient is required by law or court order to disclose Confidential Information, it will give prior written notice to the Discloser (to the extent legally permitted) and reasonable assistance at the Discloser’s cost to contest the disclosure.
10. Data Security
Vyakar shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Subscription Services and Customer Data. Customer agrees Vyakar may engage Vyakar Affiliates and the third party sub-processors (such as cloud database and compute providers) to process personal data on Vyakar's behalf in order to provide the Subscription Services.
11. General Terms.
11.1 Notice. Vyakar may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Vyakar's account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Vyakar US head quarter address with attention Legal Department, and if to Customer, to Customer's account representative and address on record in Vyakar's account information or such other addresses as either Party may designate in writing from time to time.
11.2 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either Party may cancel unperformed Subscription Services upon written notice.
11.3 Governing Law. Unless specifically set forth in the applicable Order (i) any action, claim, or dispute between the Parties will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts in Santa Clara County and San Francisco, respectively. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than 2 years after the cause of action has accrued.
11.4 Entire Agreement. This Agreement represents the Parties' entire understanding relating to the Subscription Services and supersedes any prior or contemporaneous agreements or understandings regarding the Subscription Services. In the event of a conflict between this Agreement and a contemporaneous or later-dated Order, the terms of the contemporaneous or later-dated Order will control.
11.5 Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form Customer may use in connection with the acquisition of Subscription Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of Vyakar to object to such terms, provisions or conditions.
11.6 Amendment / No Waiver. The Agreement may be amended only by written agreement signed by the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
11.7 Assignment. No joint venture, partnership, employment, or agency relationship exists between Vyakar and Customer as a result of the Agreement or use of the Subscription Services. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party, except that either Party may assign or transfer this Agreement in connection with a merger or acquisition of all or substantially all of the assets of the assigning company (other than to a direct competitor of the non-assigning Party and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning Party with prompt written notice of assignment. Any purported assignment in violation of this section will be void.
11.8 Compliance with Laws. Each Party agrees to abide by all laws, ordinances and regulations (whether international, federal, state, local or provincial) applicable to its performance under this Agreement.