Cloud Subscription Services Agreement

This agreement is between Virtual Hold Technology Solutions, LLC a Delaware limited liability company (VHT), and the customer agreeing to these terms (Customer). It is dated as of the date VHT signs below.

Updated 08/2019

1. SOFTWARE SERVICE. This agreement provides Customer access and usage of an Internet based software service as specified on an order (Service). Implementation services may also be performed under the terms of this agreement.

2. USE OF SERVICE.

A. Customer Owned Content. All data, files, content and other information uploaded by Customer or its customer within the Service remain the sole property of Customer, as between VHT and Customer (Customer Content). Customer grants VHT the right to use the Customer Content solely for purposes of performing under this agreement.

B. Access and Usage. Customer may allow its employees and contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.

C. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for accuracy and legality of the Customer Content and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify VHT promptly of any such unauthorized access; and (iv) may use the Service only in accordance with applicable law and the technical documentation within the Service’s dashboard.

D. VHT Support. VHT must provide customer support for the Service under the terms of VHT’s Customer Support Policy (Support), which is located at https://www.vhtcx.com/contact/contact-center-technical-support/. Support may change but VHT will not materially degrade Support during a paid term.

3. SERVICE LEVEL AGREEMENT/WARRANTY.

A. Warrant. VHT warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages, events beyond VHT’s reasonable control, and outages that result from any Customer or its customer’s technology issues); and (ii) the functionality or features of the Service may change but will not materially decrease during a paid term.

B. LIMITED REMEDY. THE SERVICE MAY BE INTERRUPTED OR CONTAIN AN ERROR. CUSTOMER’S EXCLUSIVE REMEDY AND VHT’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THE WARRANTY IN A(I) ABOVE WILL BE FOR VHT TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND), FOR THE MONTH; PROVIDED THAT CUSTOMER NOTIFIES VHT OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.

 

C. DISCLAIMER VHT DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE VHT TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, VHT DOES NOT GUARANTY THAT THE SERVICE CANNOT BE COMPROMISED.

 

4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

 

5. MUTUAL CONFIDENTIALITY AND DATA SECURITY.

A. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). VHT’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).

B. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

 

C. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

 

D. DATA SECURITY.

• • • Security Measures. In order to protect Customer’s Confidential Information, VHT will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Confidential Information; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its  security measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Customer’s Confidential Information  that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.
    • Notice of Data Breach. If VHT knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, VHT will alert Customer of any such data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. VHT will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. VHT will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach.  To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, VHT will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. VHT will provide Customer with information about what VHT has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.

6. VHT PROPERTY.

A. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by VHT as part of the Service are the proprietary property of VHT and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with VHT. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. VHT reserves all rights unless expressly granted in this agreement.

B. Restrictions. Customer may not(i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer or decompile the Service or attempt to do so; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

C. Aggregate and Anonymized Information. VHT may compile aggregate and anonymized data related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer or any user’s Confidential Information or Customer Content, and there is no means to re-identify the Confidential Information or Customer Content. VHT retains all intellectual property rights in such information.

 

7. TERM AND TERMINATION.

A. Term. This agreement continues until all orders have expired, unless earlier terminated as provided below.

B. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

 C. Return of Customer Content.

• • • Within 30-days after termination, upon request VHT will make the Service available for Customer to export the Customer Content as described in Section 2(a).
    • After such 30-day period,VHT has no obligation to maintain the Customer Content and may destroy it.

 D. Return or Destroy VHT Property Upon Termination. Upon termination of this agreement for any reason,Customer must pay VHT for any unpaid amounts, and destroy or return all property of VHT. Upon VHT’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

E. Suspension of Service for Violations of Law. VHT may temporarily suspend the Service or remove the applicable Customer Content, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. VHT will attempt to contact Customer in advance.

 

8. LIABILITY LIMIT.

A. EXCLUSION OF INDIRECT DAMAGES. VHT IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR IF THE DAMAGE IS FORESEEABLE.

B. TOTAL LIMIT ON LIABILITY. VHT’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

 

9. DEFENSE OF THIRD PARTY CLAIMS. VHT will defend or settle any third party claim against Customer to the extent that such claim alleges that VHT technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer: Promptly notifies VHT of the claim in writing; Cooperates with VHT in the defense; and Allows VHT to solely control the defense or settlement of the claim.  Costs. VHT will pay infringement claim defense costs incurred as part of its obligations above, and VHT negotiated settlement amounts, and court awarded damages. Process.If such a claim appears likely, then VHT may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If VHT determines that none of these are reasonable available, then VHT may terminate the Service and refund any prepaid and unused fees. Exclusions.VHT has no obligation for any claim arising from:  VHT’s compliance with Customer’s designs, specification, instructions, or technical information; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Use of Customer Content; or technology or aspects not provided by VHT. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND VHT’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

 

10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Delaware, without regard to conflict of law principles. Any dispute arising out of or related to this agreement must be exclusively brought in the state and federal courts for the State of Delaware. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

 

11. OTHER TERMS.

A. Entire Agreement and Changes.This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.

B. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

C. Independent Contractors. The parties are independent contractors with respect to each other.

D. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including without limitation force majeure events.

E. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

F. No Additional Terms. VHT rejects additional or conflicting terms of any Customer form-purchasing document.

G. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

H. Survival of Terms and no CISG. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive.The UN Convention on Contracts for the International Sale of Goods does not apply.