VNTG Service Agreement

Effective date: January 19, 2024

VNTG, INC. (“VNTG”) PROVIDES THE SERVICES (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS VNTG MASTER SERVICES AGREEMENT (THIS “AGREEMENT” OR THE “TERMS”) AND ON THE CONDITION THAT CUSTOMER (“YOU” OR “CUSTOMER”) ACCEPTS AND COMPLIES WITH THEM. PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT”, BY EXECUTING OR SUBMITTING ANY ORDER FORM (AS DEFINED BELOW), OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE; (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION.

1. 1. SERVICES
   1. 1.1 Access to the Services. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on an Order Form, if applicable) VNTG grants Customer a nonexclusive, limited, personal, non-sublicensable, nontransferable right and license to internally access and use the VNTG product(s) and/or Services(s) provided hereunder and/or specified in an applicable Order Form (collectively, the “Services”) during the applicable Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with VNTG’s applicable official user documentation for such Services (the “Documentation”). This Agreement may be implemented through one or more written order forms that reference this Agreement (each, an “Order Form”). Upon mutual execution, each Order Form shall be incorporated into and form a part of this Agreement.
   2. 1.2 Customer Account. VNTG will provide Customer with access privileges that permit Customer to access and manage its account through the Services (“Customer Account”). Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer.
   3. 1.3 Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any VNTG product or Services; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures VNTG may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
   4. 1.4 Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not VNTG, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and Customer acknowledges and agrees that VNTG shall have no liability with respect to the foregoing. Customer represents and warrants that it has all rights necessary to provide the Customer Data to VNTG as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). VNTG shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. VNTG is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to VNTG’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that VNTG may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for VNTG’s business purposes (including without limitation, for purposes of improving, testing, operating, conducting benchmarking tests, promoting and marketing VNTG’s products and Services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by VNTG in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
2. 2. OWNERSHIP
   1. 2.1 Ownership. As between the parties, VNTG retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by VNTG for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.
   2. 2.2 Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to VNTG with respect to the Services (“Feedback”). Customer shall, and hereby does, grant to VNTG a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair VNTG’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
3. 3. FEES
   1. 3.1 Fees. Customer shall pay VNTG fees as set forth in the Customer Account or in an Order Form (if applicable) (“Fees”).
   2. 3.2 Payment. Unless otherwise specified in an Order Form, all Fees under this Agreement are payable in U.S. dollars and shall be due within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on VNTG’s net income). All Fees paid are non-refundable and are not subject to set-off.
4. 4. CONFIDENTIALITY
   1. 4.1 Each party agrees that the business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
5. 5. TERM AND TERMINATION
   1. 5.1 Term. This Agreement shall commence upon the date that Customer first accesses the Services, unless otherwise set forth in an Order Form, and, unless earlier terminated in accordance herewith, shall continue for one (1) year from the Effective Date, which term shall automatically renew for successive terms of one (1) year each, unless Customer notifies VNTG of its intent not to renew this Agreement at least thirty (30) days prior to the end of the applicable term (the “Term”).
   2. 5.2 Termination. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, VNTG may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with VNTG’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) VNTG shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, VNTG shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) VNTG shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
   3. 5.3 Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any Services provided by VNTG to Customer, including any assistance in exporting the Customer Data, shall be billable at VNTG’s standard rates then in effect.
6. 6. WARRANTY
   1. 6.1 Mutual. Each party represents and warrants that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
   2. 6.2 Customer. Customer represents and warrants to VNTG that (i) Customer owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data for VNTG to perform the Services; and (ii) Customer and all users granted access to the Services under this Agreement will not use the Services in violation of any laws or regulations. VNTG warrants to Customer that (A) the Services will be provided in a professional and workmanlike manner; and (B) the Services will perform in accordance with the Documentation in all material respects. In the event that the Services fail to satisfy this warranty, VNTG will, at its own expense, as Customer’s sole and exclusive remedy, either: (1) promptly replace the Services with a solution that materially conforms to the Documentation; or (2) promptly repair the Services so that they materially conform to the Documentation.
   3. 6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. VNTG DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. 7. INDEMNIFICATION.
   1. 7.1 Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Services (in the case of Customer as Indemnitor), or , or (ii) the Services (in the case of VNTG as Indemnitor), infringe, violate, or misappropriate any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of VNTG do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (a) not created or provided by VNTG (including without limitation any Customer Data), (b) made in whole or in part in accordance to Customer specifications, (c) modified after delivery by VNTG, (d) combined with other products, processes or materials not provided by VNTG (where the alleged Losses arise from or relate to such combination), (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) Customer’s use of the Services is not strictly in accordance herewith.
8. 8. LIMITATION OF LIABILITY
   1. 8.1 EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 1.3 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO VNTG HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
9. 9. MISCELLANEOUS
   1. 9.1 Entire Agreement. This Agreement (including all Order Forms, if applicable) represents the entire agreement between Customer and VNTG with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and VNTG with respect thereto. In the event of any conflict between this Agreement and an Order Form, this Agreement shall control unless expressly stated otherwise in the applicable Order Form. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties.
   2. 9.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York.
   3. 9.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery Services. Notices must be sent to the contacts for each party at their respective addresses stated herein or at such other address designated by written notice.
   4. 9.4 Publicity. Customer hereby grants VNTG a non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing VNTG’s services, both on VNTG’s public-facing website and in marketing and promotional materials.
   5. 9.5 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; pandemic; vandalism; accidents; sabotage; power failure; denial of Services attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
   6. 9.6 Assignment. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) VNTG may utilize subcontractors in the performance of its obligations hereunder.
   7. 9.7 Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
   8. 9.8 Relief. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
   9. 9.9 Severability. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
   10. 9.10 No Waiver. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.