Virtex Subscription Terms

EFFECTIVE AS OF 6/4/19

THE FOLLOWING VIRTEX SUBSCRIPTION TERMS AND CONDITIONS (“VIRTEX SUBSCRIPTION TERMS”) WILL BE LEGALLY BINDING ON CLIENT UPON EXECUTION OF THE PURCHASE ORDER. CLIENT SHOULD CAREFULLY READ THE FOLLOWING VIRTEX SUBSCRIPTION TERMS BEFORE EXECUTING THE AGREEMENT.

 

SECTION HEADINGS AND NUMBERS.

Certain Sections may have been renamed and/or renumbered in this document for convenience only and such

renaming and/or renumbering shall not affect the validity, construction or interpretation of the Agreement. References in the Purchase Order to any Section names or numbers under this document shall be deemed to be

a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and

objectives of such provisions to the greatest extent possible under applicable law.

 

VIRTEX SUBSCRIPTION TERMS.

Client acknowledges and agrees to the following subscription terms, which together with the terms of the Purchase Order entered into between Client and You Are Here, LLC (“YAH”), shall govern YAH’s provision of the services and deliverables described in the Purchase Order (the terms of these Virtex Subscription Terms and the terms of the Purchase Order are collectively referred to as the “Agreement”). Capitalized terms not otherwise defined in these Virtex Subscription Terms shall have the meaning given to them in the Agreement.

 

  1. Terms of Services.

 

1.1. Virtex Services. Subject to Client’s ongoing compliance with the terms of this Agreement (including, but not limited to, any additional limitations or restrictions set forth in the Purchase Order, compliance with the Documentation, and timely payment of all applicable fees) and during the Term, YAH hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Virtex Service, solely for the business operations of Client. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by YAH to Client for the Virtex Service. YAH shall host the Virtex Service and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to, the Virtex Service from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Virtex Service and Client’s use of the Virtex Service.

 

For purposes of this Agreement, the term “Virtex Service” means, collectively, (A) the Virtex software and subscription services identified in the Purchase Order and its related documentation provided by YAH (such documentation to be referred to herein as the “Documentation”) and (B) any Virtex platform and systems (consisting of, among other things, certain proprietary services software) (the Virtex platform and systems are collectively referred to hereunder as the “Virtex Platform”). The term “Virtex Service” does not include general consulting, implementation, training or other professional services to be provided to Client pursuant to the Purchase Order (collectively, the “Professional Services”) and the technical support services to be provided to Client pursuant to the Purchase Order (collectively, the “Support Services”). The term “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists.

 

1.2. General Restrictions. Client shall not, directly or indirectly, and shall not authorize any third party to, (A) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Virtex Service provided in connection with the Agreement (except to the extent expressly permitted by applicable law notwithstanding this restriction); (B) copy, translate, adapt, modify or prepare derivative works of the Virtex Service provided in connection with the Agreement, or any portion of any of the foregoing; (C) write or develop any program based upon the Virtex Service, or any portion thereof, or otherwise use the Virtex Service in any manner for the purpose of developing products or services that compete with the Virtex Service; (D) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Virtex Service or any rights thereto; (E) use the Virtex Service for the benefit of, or allow access to the Virtex Service by, unauthorized persons; (F) transmit unlawful, infringing or harmful data or code to or from the Virtex Service; (G) alter or remove any trademarks or proprietary notices contained in or on the Virtex Service; (H) circumvent or otherwise interfere with any authentication or security measures of the Virtex Service, or otherwise interfere with or disrupt the integrity or performance thereof; (I) use the Virtex Service in a manner that is in violation of any third party rights of privacy or intellectual property rights; (J) issue or participate in any press release or other public statement related to this Agreement or the Virtex Service without prior written consent of YAH; (K) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark  the Virtex Service; or (L) otherwise use the Virtex Service or any technology constituting or used to provide the Virtex Service except as expressly permitted hereunder.

 

1.3. Third Party Components. Client is solely responsible for obtaining all third-party hardware, software, and connectivity necessary to operate, access and use the Virtex Service (“Third-Party Components”), and YAH shall have no maintenance, support, warranty, or other obligations or liability regarding such Third-Party Components, whether or not YAH has provided specifications for such Third-Party Components or assisted Client in procuring such Third-Party Components.

 

1.4. Transmission of Data. Client understands that the technical processing and transmission of

signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Virtex Service (collectively, the “Electronic Communications”) is fundamentally necessary to use of the Virtex Service. DSL, cable or another high speed Internet connection and up-to-date “browser” software is necessary in order to utilize the Virtex Service, and Client and its users (including, but not limited to, survey participants) may be required to obtain such in order to use the Virtex Service. Client  expressly  consents  to  YAH’s  interception  and  storage  of  Electronic  Communications  and/or any and all electronic data or information submitted to and stored in the Virtex Service by Client or any of its users (including, but not limited to, survey participants) as  needed  to  provide  the  services  hereunder,  and  Client  acknowledges  and understands  that  Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by YAH. Client further acknowledges and understands that Electronic Communications  may  be  accessed  by  unauthorized  parties  when  communicated  across  the  Internet,  network communications facilities, telephone or other electronic means. Without limiting YAH’s applicable obligations under Section 6 (Confidentiality), YAH is not responsible for any Electronic Communications which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by YAH, including, but not limited to, the Internet and Client’s local network.

 

1.5. Professional Services and Support Services.

 

(A) YAH offers option Support Services and Professional Services, and shall provide such pursuant to the Purchase Order.

 

(B) Professional Services may be provided by YAH on a (i) licensed-basis or (ii) a work-for-hire basis, such to be indicated on the Purchase Order.

 

(C) If Professional Services are provided on a licensed-basis, then YAH will own and retain all right, title and interest, including all intellectual property rights, in and to any work product and/or deliverables developed in connection with said Professional Services (collectively, “Licensed Work Product”). YAH shall grant to Client a limited, non-exclusive, non-transferable, non-sublicensable right during the period of time indicated on the Purchase Order to use such Licensed Work Product in connection with the Virtex Service.

 

(D) If Professional Services are provided on a work-for-hire basis, then (i) Client, and not YAH, shall be the sole and exclusive owner of the rights to the work product and/or deliverables developed in connection with said Professional Services (collectively, “Paid-For Work Product”), including, but not limited to, scripts, artwork, software programs, lay-outs, story boards, slogans, designs, flow-charts, etc.; (ii) the Paid-For Work Product constitutes “work made for hire” as such term is defined in Section 101 of the U.S. Copyright Act of 1976 (U.S.C. 17 § 101), as amended, such that all copyrights in such Paid-For Work Product, in any and all media and through all forms of communication or transmission, whether presently known or hereafter developed, are the exclusive property of Client; and (iii) if for any reason such Paid-For Work Product does not qualify as “work made for hire,” then YAH is deemed to have hereby irrevocably sold, assigned and transferred to Client all such copyrights.

 

(E) Nothing in this Agreement or any Purchase Order shall be understood to prevent YAH from developing similar work product or deliverables for other customers.

 

1.6. Additional Client Responsibilities. Unless otherwise specified in the applicable Purchase Order, Client is solely responsible for applying any updates to the Virtex Service that YAH makes available to Client and implementing appropriate safeguards to protect the confidentiality, integrity, and availability of Client Data. If Client does not install an update within 30 days of receipt, any warranty provided herein or in the applicable Purchase Order with respect to the affected Virtex Service shall be invalidated and YAH shall have no obligation to correct errors or to indemnify Client for infringement claims to the extent that any such error(s) or infringement claim(s) would otherwise have been avoided or addressed if Client were operating on the current version of the Virtex Service.  If Client is not operating on YAH’s most current update on or before 2 months after release of such update, then following 10 days’ prior written notice, YAH may cease to provide all associated Support Services, if any, without breach of this Agreement. Upon installation of the current update, such Support Services shall be reinstated, subject to payment of all applicable fees. Client is solely responsible for establishing backup and disaster recovery procedures for any necessary Third-Party Components and Client Data. Without limiting the foregoing, Client agrees that, in order to preserve a stable information systems environment for any Virtex Service licensed hereunder, Client will not, without YAH’s written authorization, tamper with, modify, add, or remove any other software on the server hosting the Virtex Service or any other software that may be integrated or bundled with the Virtex Service on other servers. Any Support Services required to repair Virtex Service errors resulting solely from Client’s actions shall be subject to payment by Client of YAH’s then-current applicable Support Services fees and/or Professional Services fees on a time and materials basis.

 

 

1.7. Ownership and Storage of Client Data; Client Analysis; Client Feedback.

 

(A) As between YAH and Client, all title and intellectual property rights in and to the Client Data is owned exclusively by Client. Client acknowledges and agrees that in connection with the provision of the Virtex Service, YAH may store and maintain Client Data for a period of time consistent with YAH’s standard business processes. Following expiration or termination of the Purchase Order, YAH may deactivate the applicable Client account(s) and delete any data therein. The term “Client Data” means any and all information and materials provided by Client to YAH for use in connection with this Agreement. Client Data does not include Electronic Communications  and any and all other electronic data or information that in each case are submitted to and/or stored in the Virtex Service by its users (such Electronic Communications and other electronic data and information are referred to hereunder as “User Submissions”).

 

(B) The Virtex Service does not include archiving services. Except as expressly set forth in this Agreement, YAH reserves the right to remove Client Data from its data storage platforms at any time, and YAH expressly disclaims any obligations with respect to the storage or transfer of Client Data.

 

(C) Client hereby grants to YAH and its Affiliates (i) a limited, worldwide, royalty-free license during the Term  to use all Client Data and other data made available to YAH by or on behalf of Client to perform YAH’s obligations hereunder, and (ii) a worldwide, irrevocable, perpetual, royalty-free license (a) to use any non-personally identifiable information related to Client’s use of the Virtex Service (“Usage Data”) to improve YAH’s products and services; (b) to compile and publish, if available in the Virtex Service, total sales and traffic information provided that any such use of Client Data will be reported in aggregate form and YAH shall not, at any time, disclose the identity of Client; and (c) to exploit without restriction all feedback provided by or on behalf of Client regarding the Virtex Service. Client otherwise represents and warrants that it has all required permissions or approvals to provide such Client Data to YAH in connection with this Agreement, and to comply with all laws applicable to Client’s performance under this Agreement.

 

(D) Subject to YAH’s and/or its licensors’ ownership of the Virtex Service, Client retains all rights, title and interest in and to Client’s analysis of information and data generated from queries employed by Client in its use of the Virtex Service.

 

 

1.8. YAH Intellectual Property Rights.

 

(A) All rights, title and interest in and to the Virtex Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts and other derivative works of the Virtex Service provided or developed by YAH), the Licensed Work Product and the User Submissions are owned exclusively by YAH or its licensors (the Virtex Service, Licensed Work Product and User Submissions are collectively referred to as the “YAH Property”). Except as provided in this Agreement, the rights granted to Client do not convey any rights in the YAH Property, express or implied, or ownership in the YAH Property or any intellectual property rights thereto. Any rights in the YAH Property or YAH’s intellectual property not expressly granted herein by YAH are reserved by YAH. YAH, Virtex service marks, logos and product and service names are marks of YAH (the “YAH Marks“). Client agrees not to display or use the YAH Marks in any manner without YAH’s express prior written permission.

 

(B) In the event that, in the course of the discussions of the parties and the parties carrying out their respective obligations under this Agreement, YAH and/or Client discovers or develops any enhancement or modification of any YAH Property, including, but not limited to, any software, source code, systems, or services, or the technology, business methods, or other plans or processes of YAH, then such enhancements and modifications shall be the exclusive property of YAH and shall be considered Confidential Information of YAH.  Client will assign the right to all such properties to YAH and cooperate in the proper execution of all assignment documents requested by YAH.  As requested by YAH and at YAH’s expense, Client shall reasonably assist YAH in obtaining and enforcing in YAH’s own name any patent or other protection that YAH elects to obtain or enforce with respect to any such enhancements or modifications.

 

1.9. Change to Virtex Service.  Client acknowledges that YAH may continuously improve, evolve, and enhance its products and services, including the collection and analyzation of data, usage patterns, user feedback, and other information, and that YAH may at any time change, discontinue, or terminate aspects of the Virtex Service or change or remove features or functionality of the Virtex Service.  In the event of any material change to, or discontinuance or termination of, any aspect of the Virtex Service, YAH will notify Client of such change, discontinuance, or termination with sufficient lead time in order for the parties to determine and mutually agree upon the most effective accommodation to Client.  Such accommodations may include a limited term continuation of existing services, features, or functionality, a full replacement or substitution, or other remedy, but any such accommodation will remain subject to this Agreement, the Documentation, and all other applicable contractual obligations between the parties.

 

  1. Term. Unless otherwise terminated as specified elsewhere in this Agreement, the Term of this Agreement shall commence and conclude as stated in the Purchase Order. Notwithstanding the foregoing, the terms and conditions of this Agreement will continue in effect after expiration of the Term until all obligations under the Purchase Order are fully performed.

 

  1. Fees and Taxes. Client shall pay YAH for the services and deliverables provided under this Agreement pursuant to the terms outlined in the Purchase Order.

 

YAH fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes“). Client is responsible for paying all Taxes, excluding only taxes based on YAH’s net income. If YAH has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client unless Client provides YAH with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

  1. Notices. Any notice required under this Agreement shall be provided to the other party in writing to the representative addresses listed in the Purchase Order. If Client has a legal dispute with YAH or if Client wishes to provide a notice under the Termination Section, Indemnification Section, or Warranty Section of this Agreement, or if Client becomes subject to insolvency or other similar legal proceedings, then Client will promptly send a copy of the written notice to: You Are Here, LLC, 150 Interstate North Parkway, Atlanta, GA 30339, Attention: General Counsel, Legal Department.

 

YAH may rely and act on all information, authorizations and instructions provided to YAH from the Client representative(s) listed in an applicable Purchase Order and/or other representatives that Client authorizes from time to time and notifies YAH thereof.

 

  1. Suspension; Termination.

 

5.1. Suspension for Delinquent Account; for Breach. YAH reserves the right to suspend Client’s and any of its Affiliate’s access to and/or use of the Virtex Service, Licensed Work Product and/or Support Services if any payment is due but unpaid but only after YAH has provided Client with a delinquency notice, and at least thirty (30) days have passed since the transmission of said notice. Client agrees that YAH shall not be liable to Client or to any of Client’s Affiliates or other third party for any suspension pursuant to this Section.

 

Additionally, YAH may immediately suspend Client’s and any of its Affiliate’s access to and/or use of the Virtex Service, Licensed Work Product and/or Support Services if Client is in breach of this Agreement (other than for delinquent payment). In such event, no notice shall be required by YAH to effect such suspension. Client agrees that YAH shall not be liable to Client or to any of Client’s Affiliates or other third party for any suspension pursuant to this Section.

 

Any suspension under this Section shall not excuse Client from Client’s obligation to make payments under this Agreement.

 

5.2. Suspension for Ongoing Harm.   YAH  may  with  reasonably  contemporaneous  telephonic 

notice to Client suspend access to the Virtex Service or Licensed Work Product if YAH reasonably concludes that Client’s Virtex Service or Licensed Work Product is being used to engage  in  denial  of  service  attacks,  spamming,  or  illegal  activity,  and/or  use  of  Client’s  Virtex Service or Licensed Work Product  is  causing immediate, material and ongoing harm to YAH or others. In the event YAH suspends access to the Virtex Service or Licensed Work Product, YAH will use commercially reasonable efforts to limit the suspension to the offending portion of the Virtex Service or Licensed Work Product and work with Client to resolve the issues causing the suspension. Client agrees that YAH shall not be liable to Client nor to any third party for any suspension of the Virtex Service or Licensed Work Product under such circumstances as described in this Section.  Any suspension under this Section shall not excuse Client from Client’s obligation to make payments under this Agreement.

 

5.3 Termination for Cause, Expiration.

 

(A) Either  party  may  immediately  terminate  this  Agreement  for Cause provided that such party has given the other party written notice of the Cause, identified the nature of the Cause, and the other party has failed to cure the asserted Cause, if curable, within thirty (30) days of receipt of written notice. Such notice by the complaining party shall expressly state all of the reasons for the Cause in sufficient detail so as to provide the other party a meaningful opportunity to cure such alleged Cause, if curable. Cause shall be limited to YAH’s or Client’s material breach of this Agreement; if YAH or Client shall be or become insolvent, shall call any meeting of creditors or have appointed a receiver or trustee over itself or its assets; if any petition, proceeding or other action under any bankruptcy laws shall be filed by or instituted against YAH or Client; Client’s failure to pay YAH’s fees as required by this Agreement; if Client develops, markets, sells or offers for sale a product or service that is competitive with the Virtex Service; or if Client becomes under the control of, or substantially sells all of its assets to which this Agreement relates to, any entity controlling, controlled by or under common control with a competitor of YAH (each, a “Cause”).

 

(B) Upon termination or expiration of this Agreement, Client shall have no rights to continue the use of the Virtex Service and Licensed Work Product. If this  Agreement  is  terminated  by  Client  for  any  reason  other  than  a  termination  expressly  permitted  by  this Agreement,  then  YAH  shall  be  entitled  to  all  of  the  Virtex Service fees  due  under  this  Agreement  for  the  entire  Term and any Licensed Work Product fees earned prior to the effective date of termination.  If this Agreement is terminated for Cause as a result of YAH’s material breach of this Agreement, then Client shall be entitled to a refund of the pro rata portion of any pre-paid Virtex Service fees paid by Client to YAH under this Agreement for the terminated portion of the Term and the unearned portion of any pre-paid Licensed Work Product fees.

 

  1. Confidentiality. (A) For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; (iii) with respect to information and documentation of Client, whether marked “Confidential” or not, consists of Client information and documentation included within any of the following categories: (a) policyholder, payroll account, agent, customer, supplier, or contractor lists; (b) information regarding business plans (strategic and tactical) and operations (including performance); (c) information regarding administrative, financial, or marketing activities; (d) pricing information; (e) personnel information; (f) products and/or and services offerings (including specifications and designs); (g) processes (e.g., technical, logistical, and engineering); or (h) Client Data; (iv) the terms of the Purchase Order; or, (v) any Confidential Information derived from information of a party.

 

(B) Notwithstanding the foregoing, the following shall not be Confidential Information: (i) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (ii) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (iii) information that was rightfully disclosed to the receiving party by a third party without restriction; (iv) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (v) aggregate data collected or generated by YAH or on behalf of YAH regarding YAH’s products and services (for purposes of providing or improving YAH’s products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Client-specific information.

 

(C) Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement. Either party may disclose Confidential Information on a need to know basis to its Affiliates, employees, agents, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation, however each party agrees that the disclosing party will cooperate with the non-disclosing party, at the non-disclosing party’s cost, in the event that the non-disclosing party seeks to obtain an ex parte restraining order, preliminary injunction or permanent injunction preventing such disclosure or threatened disclosure.

 

  1. Warranties.

 

7.1. Client Warranty. Client represents and warrants that (A) if Client delivers any materials to YAH for use in connection with any services and deliverables provided by YAH under this Agreement, then all applicable releases, clearances and permissions shall have been secured by Client for the applicable use of the materials or that Client is the exclusive and unencumbered owner of all intellectual property rights in and to such materials and (B) Client shall not introduce viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Virtex Service and Licensed Work Product.

 

7.2. YAH Warranty of Functionality. YAH warrants that: (A) the Virtex Service will achieve in all material respects the functionality described in the Purchase Order and Documentation applicable to the Virtex Service procured by Client, and (B) such functionality of the Virtex Service will not be materially decreased during the Term. Client’s sole and exclusive remedy for YAH’s breach of this warranty shall be that YAH shall be required to use commercially reasonable efforts to modify the Virtex Service to achieve in all material respects the functionality described in the Purchase Order and Documentation and if YAH is unable to restore such functionality, then Client shall be entitled to terminate the Agreement and receive a pro- rata refund of the pre-paid subscription fees paid under the Agreement for its use of the Virtex Service for the terminated portion of the Term. YAH shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent in accordance with the terms of Section 4 (Notices) above. The warranties set forth in this Section are made to and for the benefit of Client only.  Such warranties  shall  only  apply  if  the  applicable  Virtex Service  has  been  utilized  in  accordance  with  the  Documentation,  this Agreement and applicable law.

 

7.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE STATED HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED BY YAH ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND  YAH AND ITS LICENSORS HEREBY EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE FOREGOING, YAH AND ITS LICENSORS DO NOT GUARANTEE THAT THE SERVICE AND DELIVERABLES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED. YAH EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CLIENT’S USE OF THE SERVICES AND/OR DELIVERABLES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND DELIVERABLES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES. FURTHER, YAH DOES NOT WARRANT THAT ALL ERRORS IN THE SERVICES AND DELIVERABLES CAN OR WILL BE CORRECTED.

 

  1. Limitations of Liability.

 

(A) Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL,CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 8(B) BELOW.

 

(B) Limitations on Liability. THE MAXIMUM AGGREGATE LIABILITY OF YAH AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE, AND PROVIDED, FURTHER, THAT (1) THE FOREGOING LIMITATION SHALL NOT APPLY TO YAH’S INDEMNITY OBLIGATIONS AS FURTHER DESCRIBED IN THIS AGREEMENT AND (2) IN THE EVENT OF YAH’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY AS FURTHER DESCRIBED IN THIS AGREEMENT SUCH MAXIMUM AGGREGATE LIABILITY SHALL BE INCREASED TO TWO TIMES (2X) THE TOTAL FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE.

 

(C) Acknowledgement. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE

ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.

 

  1. Indemnification.

 

(A) Subject to the terms and conditions set forth in this Section 9, YAH shall, at its own expense, defend Client from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Virtex Service, as used by Client in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify Client from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.

 

YAH will have no liability for Claims or Losses to the extent arising from (i) use of the Virtex Service in violation of this Agreement or applicable law, (ii) use of the Virtex Service after YAH notifies Client to discontinue use because of an infringement claim, (iii) modifications to the Virtex Service not made by YAH or made by YAH based on Client specifications or requirements, (iv) use of the Virtex Service in combination with any non-YAH software, application or service, or (v) services offered by Client or revenue earned by Client for such services.

 

If a Claim of infringement as set forth above is brought or threatened, YAH shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Client against such Claim without cost to Client; (b) to modify or replace all or portions of the Virtex Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to the Client the pro-rata portion of any pre-paid Virtex Service fees paid by Client to YAH under this Agreement for the terminated portion of the Term. THE RIGHTS AND REMEDIES GRANTED CLIENT UNDER THIS SECTION 9 STATE YAH’S ENTIRE LIABILITY, AND CLIENT’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

 

(B) Subject to the terms and conditions set forth in this Section 9, Client shall, at its own expense, defend and indemnify YAH from and against any Losses to the extent based upon Claims (i) alleging that the Client Data or any materials provided by Client or any of Client’s trademarks or service marks, or any use thereof (to the extent permitted by Client), infringes the copyright or trademark or misappropriates the trade secrets of a third party, or violates applicable law; (ii) arising from any personnel of Client regarding Client’s or such personnel’s use of the Virtex Service (except to the extent covered by YAH’s indemnification obligations); or (iii) arising from Client’s procurement or use of Third-Party Components.

 

(C) In the event of a potential indemnity obligation under this Section 9, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 9 are expressly conditioned upon the indemnified party’s compliance with this Section 9(C) except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 9 but such obligations shall be reduced to the extent of any damages attributable to such failure.

 

  1. Law; Forum. Regardless of the place of execution hereof, this Agreement, all amendments hereto, and any and all issues or controversies arising here from or related hereto, shall be governed by and construed exclusively in accordance with the laws and decisions of the State of Georgia. The parties agree that the U.S. District Court for the Northern District of Georgia, the Superior Court of Cobb County, the State Court of Cobb County, or any other forum in Cobb County shall have personal jurisdiction over the parties and that such courts shall be the exclusive venue with respect to any claims or disputes related to this Agreement.

 

  1. General Provisions. This Agreement shall inure to benefit and bind the parties hereto, their successors and

assigns, but neither party may assign this Agreement without written consent of the other, except that YAH may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although YAH reserves the right to name Client as a client on press releases, YAH’s website (e.g.,http://www.yahagency.com/) and other publicity materials, including the use of Client’s name and the descriptions of services performed for Client by YAH. This Agreement is intended to create an independent contractor relationship between the parties for purposes of federal, state and local law. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for loss, delay, nonperformance (but excluding payment obligations, financial distress, insolvency, bankruptcy or other similar condition) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving YAH employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly. If any action is necessary to enforce the provisions of this Agreement, including any claims or demands, or to interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which it may otherwise be entitled. The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way. Sections 1.2, 1.3, 1.4, 1.5, 1.6, 1.7.,1.8, 2, 3, 4, 5.3, 6, 7.1, 7.3, 8, 9, 10, and 11 of these Virtex Subscription Terms and the “Section Headings and Numbers” provision of these Virtex Subscription Terms and Section 5 (Integration) of the Purchase Order entered into between Client and YAH shall survive the termination or expiration of this Agreement. Original signatures transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.