a. Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with Client. For the purposes of this definition, “control” means direct or indirect ownership of more than 50% of the stock or shares in the subject entity.
b. Aggregated Data means statistical and other aggregated data, programs, mathematical models, techniques, patterns, user behavior data, preference data, trends, and other visual information and systems derived, directly or indirectly, from Client Data and Client’s use of the Service (the “
c. Authorized User means any Client’s employee, any Affiliate’s employee, and third party
providers authorized by Client to access the Service but excluding any third-party consultants who are competitors of VIZIT unless Client has obtained VIZIT’s prior written consent.
d. Client Data means information, data, and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Service.
e. Order Form means the separate ordering document referencing this Agreement and fully executed by both parties under which Client subscribes to the VIZIT Service.
f. Output Deliverables means all data and other content or work product resulting from the provision of the Services using any such Client Data processed through the VIZIT/VIZIT Platform
g. Service means access to and use of VIZIT’s artificial intelligence software platform, including any add-on audiences and/or analysis reports.
h. License Period means the duration identified in the Order Form.
i. Work Product means without limitation any and all technical data, know-how, works of authorship, firmware, software, software specifications, code, documentation, programming tools, user interfaces, designs, inventions, improvements, material, work or product, developed, prepared, conceived, created, written or first reduced to practice by VIZIT or jointly with others in the performance of the Services and/or resulting from use of Confidential Information.
a. License. VIZIT grants to Client a non-exclusive, non-sublicenseable, revocable, non-transferable limited license to allow its Authorized Users access and use the Service) for the License Period in accordance with the terms and conditions set forth in this Agreement. .
b. Client Data. Subject to Section 5(c), Client grants to VIZIT a non-exclusive, limited license to use the Client Data solely for the purposes of providing the Service to Client during the License Period.
c. Restrictions. Client shall use the Service solely during the License Period and in accordance with this Agreement. Client shall not: modify, adapt, translate, create derivative works of the Service; rent, lease, lend, sell, assign, publish, loan, distribute, sublicense or otherwise transfer the Service, in whole or in part; transfer, loan or otherwise provide the Service, or access to the Service, to any third party that is not an Authorized User \; modify, translate, reverse engineer, decompile, disassemble, decode or otherwise attempt to derive or gain access to the source code or object code form of the Service or attempt to discover underlying algorithms or techniques except to the extent that such activities may not be prohibited under applicable law; remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Service, including any copy thereof; or access or use the Service for purposes of competitive analysis of the Service, or the development, provision or use of a competing software service or product.
e. Deliverables. VIZIT grants to Client a non-exclusive, perpetual, worldwide, fully paid-up, royalty-free, transferable, sublicenseable (through multiple tiers) license to allow its Authorized Users to use the Output Deliverables for Client’s internal business use only and not to create or assist in creating, directly or indirectly, any product or service that reasonably competes with the Service, or provides similar functionality or purpose as the Service.
3. MAINTENANCE AND SUPPORT SERVICES.
a. VIZIT will provide ongoing updates and enhancements to Client promptly upon general release to VIZIT’s customer base. VIZIT may develop and provide updates and upgrades in its sole discretion, and Client agrees that VIZIT has no obligation to develop any updates at all or for particular issues.
b. VIZIT shall: (i) promptly work to correct any failure of the Service to perform in accordance with the requirements of this Agreement, including without limitation, defect repair, programming corrections, and remedial programming, and provide such services and repairs required to maintain the Service so that it operates properly and in accordance with the requirements of this Agreement; (ii) provide telephone support to Client and its users relating to use and operation of the Service and error resolution Monday through Friday 9:00 a.m. to 5:00 p.m. Eastern Time; (iii) provide email support to Client and its users relating to use and operation of the Service and error resolution Monday through Friday 9:00 a.m. to 5:00 p.m. Eastern Time; and (iv) provide online access to technical support bulletins and other user support information and forums.
Identified support issues will be addressed within twenty-four (24) hours during the hours specified above.
The resolution time for identified support issues will be on a case-by-case basis.
a. Fees. In consideration for the right to use the Service during the License Period, Client shall pay to VIZIT the License fees identified on the applicable Order Form. VIZIT will invoice Client for all fees upfront, and Client shall pay all invoices within thirty (30) days of the invoice date.
b. Taxes; USD. All amounts payable are exclusive of applicable taxes, unless otherwise stated, and Client is solely responsible for the payment of any such taxes that may be imposed on its use of the Service or in making any payments to VIZIT, other than taxes attributable to the income of VIZIT. All payments under this Agreement must be made in United States Dollars.
a. Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or until the Agreement has otherwise been terminated in accordance with this Agreement.
License Period. Upon expiration of the initial License Period, this Agreement automatically renews for additional successive one (1) year terms (each a “Renewal License Period” unless and until either Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable law.
b. Termination. Either Party may terminate this Agreement upon sixty (60) days’ prior written notice to the other Party for any reason or no reason.,. Either Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party for such other Party’s material breach of this Agreement where such breach remains uncured following the notice period.
c. Effect of Termination. Upon termination or expiration of this Agreement: Client shall immediately cease all use of the Service, and Client’s license to and right to access the Service and the VIZIT Platform shall immediately terminate. Expiration or termination of this Agreement does not relieve Client of its obligation to pay all fees owed by Client, and Client shall not be entitled to any refund or credit for early cancellation or termination of the Service for convenience. If Client terminates the Service for a material breach, VIZIT will reimburse Client for any paid but unused recurring fees as of the date of terminate. This refund represents VIZIT’s sole liability and Client’s sole remedy for VIZIT’s failure to provide the Service.
6. LIMITATION OF LIABILITY; NO CONSEQUENTIAL DAMAGES; WARRANTY; DISCLAIMER; INDEMNIFICATION.
a. Limitation of Liability; No Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, VIZIT’S MAXIMUM LIABILITY WITH RESPECT TO THE SERVICE AND BREACHES OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO VIZIT FOR THE SERVICE OVER THE TWELVE (12) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY. VIZIT SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONTINGENT DAMAGES WHATSOEVER, OR ANY LOST PROFITS OR LOST REVENUES, ARISING OUT OF THE SERVICE, THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, CONTRIBUTION, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, EVEN IF VIZIT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
b. No Warranty; Disclaimer. VIZIT MAKES NO WARRANTY TO CLIENT HEREUNDER. VIZIT MAKES NO REPRESENTATION AS TO THE NATURE OR TIMING OF THE DELIVERY OF THE SERVICE. THE SERVICE MAY CONTAIN DEFECTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VIZIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Client agrees and acknowledges that VIZIT is not Client’s business advisor, is not responsible for any of Client’s marketing or business decisions made in reliance on the Service.
c. Client Warranty. Client represents and warrants to VIZIT that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by VIZIT and processed in accordance with this Agreement, Client does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party or violate any applicable law.
d. Indemnification by Client. Client shall indemnify, defend and hold harmless VIZIT and its employees, agents and affiliates (collectively, the “Indemnified Parties“) from and against any and all damages, losses, liabilities, costs, claims and expenses (including but not limited to reasonable attorneys’ fees and other costs of defense) (“Losses”) suffered or incurred by VIZIT and its Indemnified Parties that arise out of or result from (i) Client’s use of the data, analytics and other information provided by the Service, including but not limited to any losses, liabilities, costs, claims and expenses from business or marketing campaign decisions made by Client based on the data, analytics and other information provided to Client by VIZIT, (ii) Client’s negligence, error, omission or willful misconduct, (iii) a claim that any Client Data infringes, misappropriates or otherwise violates a third party’s intellectual property rights, (iv) any breach by Client of this Agreement, and (v) any claim or legal action filed by a third party against VIZIT arising out of or relating to the Services provided to Client.
e. Indemnification by VIZIT. VIZIT shall indemnify, defend and hold harmless Client and its Indemnified Parties from and against any third party claims that the Service infringes a copyright or patent in the United States and all Losses suffered or incurred by Client and its Indemnified Parties that arise out of or result from such claims.
f. Indemnification Procedure. The indemnified Party shall give the indemnifying Party prompt notice of any indemnified claims, permit the indemnifying Party to control the defense and settlement of such claims, and reasonably cooperate with the indemnifying Party in connection with the defense and settlement of such claims.
a. Confidential Information. “Confidential Information” means any information disclosed by one Party (the “Disclosing Party”), either directly or indirectly, in writing or orally, to the other Party (the “Receiving Party”), including, without limitation, trade secrets, pricing, marketing plans, customer lists, customers, performance data, designs, features, layouts, algorithms, configurations, processes, formulae, platform specifications, programs, test results, technical know-how, methods and procedures of operation, and methods for producing and delivering recommendations. Confidential Information includes the terms and conditions of this Agreement. Client’s Confidential Information includes the Client Data, Deliverables and any recommendations VIZIT provide to Client, solely to the extent the recommendations are created specifically for Client.
b. Information Excluded. Confidential Information does not, however, include information which the Receiving Party can prove: (i) the Receiving Party knew at the time of disclosure by the Disclosing Party, free of any obligation to keep it confidential, as evidenced by contemporaneous written records, (ii) is or becomes generally publicly known through authorized disclosure by the Disclosing Party, or (iii) is independently developed by individuals who have not had access to such Confidential Information and without the use of or reference to any Confidential Information as evidenced by contemporaneous written records.
c. Protection of Confidential Information. Each Party acknowledges that the other Party claims the Confidential Information as a special, valuable and unique asset. The Confidential Information is provided to each Party solely for the express purpose set forth herein, and a Party shall not use the other Party’s Confidential Information in any other manner, without the Disclosing Party’s prior written consent. Each Party agrees that it will not disclose the Confidential Information to any third party. Each Party shall use the same degree of care to protect the Confidential Information as it would use with respect to its own information of like importance which it does not desire to have published or disseminated but in any event no less than reasonable care.
8. PROPRIETARY INTERESTS.
a. General. Client acknowledges that VIZIT owns all copyrights, patents, trademarks, and other proprietary rights in and to the Service, including any modifications, developments, or improvements to the Service, and any recommendations, insights, data sets, artificial intelligence algorithms, artificial vision applications (AVA) software, analytical models, techniques, or other information generated by the Service. Client shall not, by virtue of this Agreement, or by virtue of its access to any information contained in the Service, obtain any copyright, patent or other proprietary right or interest in or to such information contained in the Service except the rights specifically granted to Client herein.
b. Feedback. Client may provide suggestions, data, comments or other feedback (collectively, “Feedback”) to VIZIT with respect to its products and services, including the Service. Feedback is voluntary. VIZIT may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants VIZIT an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free, worldwide license to use the Feedback in connection with VIZIT’s business, including the enhancement of the Service.
c. Aggregated Data. Client grants VIZIT a non-exclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to use, copy, distribute, and otherwise exploit Aggregated Data for VIZIT’s business purposes, including the provision of products and services to VIZIT’s clients; provided the Aggregated Data shall be combined with similar data from VIZIT’s proprietary data and systems combined with similar or complementary data from VIZIT’s proprietary data and systems or combined with similar or complementary data from VIZIT’s other clients, and in any case, does not include (directly or indirectly) any information identifying Client or any identifiable individual. Any novel artificial intelligence software algorithms, data sets, systems and software, including artificial vision applications (AVAs), developed using the Aggregated Data will remain the exclusive property of VIZIT. The Aggregated Data shall not be considered Client’s Confidential Information.
a. Governing Law; Exclusive Venue. This Agreement shall be governed by and interpreted under the laws of the Commonwealth of Massachusetts, excluding Massachusetts choice of law rules. Any suit, action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. Both Parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Boston, Massachusetts, for purposes of any suit, action or proceeding arising out of or relating to this Agreement.
b. Assignment. Client may not assign, including any transfer by operation of law or change of control, this Agreement without the prior written consent of VIZIT. Any permitted assignee or successor of Client’s rights and obligations under this Agreement shall be bound by all terms and conditions of this Agreement.
c. No Joint Venture Created. The relationship between the Parties is that of independent contractors. Nothing in this Agreement and its performance shall be construed as creating a joint venture, partnership or agency between Client and VIZIT, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
d. Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the Parties with respect to the subject matter hereof, and any other written or oral agreements relating to the subject matter hereof existing between the Parties are expressly canceled.
e. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. If any provision of this Agreement is deemed invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
f. Amendment. Any term of this Agreement may be amended, terminated or waived only with the written consent of VIZIT and Client. Any amendment or waiver effected in accordance with this Subsection shall be binding upon Client and VIZIT.
g. Waiver. Neither the failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or the failure, delay or omission by either Party in exercising any right with respect to any term of this Agreement, will be construed as a waiver or relinquishment to any extent of either Party’s right to assert or rely upon any such provision or right in that or any other instance. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Any such waiver shall be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given and shall not apply with respect to any repeated or continued violation of the same provision or any other provision.
h. Titles. The titles, headings, and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
i. Force Majeure. Neither Party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power or Internet failures.
j. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
k. Survival. Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior to such expiration or termination, nor affect in any way the survival of any other right, duty or obligation of the Parties that is expressly stated elsewhere in this Agreement to survive such expiration or termination. Without limiting the foregoing, Sections 1(e), 3(c), and 4-7 shall survive expiration or termination of this Agreement.
l. Notice. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement in writing and addressed to the other Party at the addresses set forth on the signature page of this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Subsection). Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission), e-mail or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only upon receipt by the receiving Party, and if the Party giving the notice has complied with the requirements of this Section.
m. Export. Export to Client of Services is subject to all applicable export and re-export laws and regulations. VIZIT shall have no liability towards Client if necessary authorizations, licenses or approvals are not obtained. Client shall not export or re-export the Service when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.