THESE SUBSCRIPTION TERMS OF SERVICE set forth the terms and conditions pursuant to which Veracity Protocol (“Veracity”) provides the Customer with access to and the use of its proprietary system (the “Veracity System”). These Subscription Terms of Service together with the applicable Sales Order(s) and other Exhibits (if any) form the Agreement by and between Veracity and the Customer. This Agreement shall be effective on the Effective Date of Customer’s first Sales Order.
1. Provision of the Service
1.1 Provision Generally. During the Term, as defined in Section 5.1, Veracity will provide Customer with access to the Veracity System and related support services (collectively the “Service”). In order to access and use the Service, Customer must at its own expense obtain its own Internet access and software required therefor. Customer is also responsible for and any hardware required to use the Service, and the proper installation thereof, pursuant to all documentation provided to Customer by Veracity and updated from time to time (the “Documentation”).
1.2 Grant of Rights. Subject to the terms and conditions of this Agreement, Veracity grants to Customer a limited, non-exclusive, non-transferable right to access and use the Service, solely for Customer’s internal business purposes during the Term. All rights not expressly granted to Customer are reserved by Veracity and its licensors.
1.3 Restrictions. Customer shall not: (a) use the Service for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (b) permit any third party to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble the Veracity System, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; or (e) use any unauthorized robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service. Customer shall keep all passwords and access codes provided to it secure, and shall be responsible for all use of the Service using passwords or access codes issued to Customer. Customer shall notify Veracity immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, Veracity reserves the right to suspend access to the Service if Veracity reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement.
1.4 Customer Cooperation. Customer shall: (a) reasonably cooperate with Veracity in all matters relating to the Service; (b) respond promptly to any Veracity request to provide information, approvals, authorizations or decisions that are reasonably necessary for Veracity to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as Veracity may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
2. Veracity Technology
In connection with providing the Service, Veracity and its licensors shall operate and support the hosted environment used by Veracity to provide the Service, including the Veracity Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information used by Veracity. “Veracity Technology” means all of Veracity’s proprietary technology related to the Veracity System (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information therein).
As between Veracity and Customer, all right, title and interest in and to the Veracity System (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Service, other than Customer Data), the Veracity Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Veracity or its licensors. This Agreement in no way conveys any right, title or interest in the Veracity System, Service or the Veracity Technology other than a limited right to use the Service in accordance with this Agreement. As between Customer and Veracity, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data to Veracity other than a limited right to use the Customer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer or Veracity under any trademarks, service marks, trade names or logos. Customer shall not remove any Veracity trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.
4. Fees; Payments; Taxes
4.1 Fees and Payment. In consideration of the provision of the Services, Customer shall pay Veracity the fees listed on and in the manner specified in the Sales Order. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Veracity for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder. 4.2 Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Veracity’s income), which may be invoiced by Veracity from time to time.
5. Term; Termination
5.1 Term, Termination and Automatic Renewal. The term of this Agreement shall commence upon the Effective Date set forth in the Sales Order and, unless earlier terminated as set forth herein, shall continue for the period of the initial subscription set forth on the Sales Order (the “Initial Term”). At the end of the Initial Term and Renewal Term, if any, this Agreement shall automatically renew for the length of the Initial Term (each such renewed term, a “Renewal Term”), unless either party notifies the other party of its intent not to renew at least 90 days prior to the expiration of the then current Initial or Renewal Term. The Initial Term and each, if any, Renewal Term are referred to collectively as the “Term.”
5.2 Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
5.3 Effects of Termination; Survival. Upon any termination or expiration of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Veracity shall no longer provide access to the Service, and (b) Customer shall cease using the Service and if applicable, return any Veracity proprietary information. Any obligations that have accrued prior to termination or expiration shall survive termination or expiration of this Agreement. In addition, the following Sections, as well as any other provisions which by their nature should survive, shall survive termination or expiration of this Agreement: Sections 3 through 11.
6. Customer Data
6.1 Data Generally. All data and information which the Customer inputs into the Service (the “Customer Data”) will be used by Veracity solely as permitted herein. Customer hereby grants to Veracity a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data solely in connection with providing the Service to Customer, and improving and marketing the Service. Veracity may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual user of the Service and Veracity may during and after the Term use and disclose such statistics or data at its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating and maintaining all Customer Data. Veracity shall provide reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
6.2 Additional Customer Responsibilities. Customer is solely responsible for the accuracy and completeness of all Customer Data. Veracity does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) use, upload, transmit or otherwise make available to Veracity any Customer Data that is unlawful or that violates the intellectual property or other rights of any third parties; (b) upload or otherwise make available to Veracity any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) upload or otherwise make available to Veracity any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Service or servers or networks connected to the Service; or (e) violate any applicable law, rule or regulation regarding the export of technical data.
7. Representations and Warranties; Disclaimer
1.1 General Representations and Warranties. Each Party represents and warrants that: (a) it has validly entered into this Agreement and has the power and authority to do so; (b) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party; (c) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party; and (d) each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
1.2 Veracity Limited Warranty. Veracity represents and warrants that (a) it will provide the Service in a competent and workmanlike manner; and (b) it owns or otherwise has sufficient rights to grant the licenses to Customer under this Agreement. Veracity does not warrant that it will be able to correct all reported defects or that use of the Service or Trackers will be uninterrupted or error free. Veracity makes no warranty regarding features or services provided by any third parties. Veracity retains the right to modify the Service and the Veracity Technology in its sole discretion. Customer’s sole remedy for Veracity’s breach of the warranty in this paragraph shall be that Veracity shall remedy the applicable error, or if Veracity is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Service for the period during which the breach of warranty occurred.
1.3 Representations and Warranties of Customer. Customer represents and warrants that Customer has and will have at all times during the Term all necessary rights to provide all information which Customer provides to Veracity pursuant to this Agreement and all such information is and shall be maintained by Customer to remain accurate, complete and current.
1.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.2 ABOVE, VERACITY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (IN EACH CASE WHETHER EXPRESS OR IMPLIED), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, OR (C) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE. THE SERVICE USES THIRD PARTY PROVIDERS FOR HOSTING, SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS AND PAYMENT PROCESSING. VERACITY MAY CHANGE ITS SERVICE PROVIDERS AT ANY TIME. CUSTOMER’S USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY VERACITY’ S SERVICE PROVIDERS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VERACITY SHALL NOT BE LIABLE FOR ANY PROBLEMS WITH THE SERVICE TO THE EXTENT CAUSED BY VERACITY’S SERVICE PROVIDERS.
8. Limitation of Liability
8.1 Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VERACITY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO VERACITY UNDER THIS AGREEMENT WITH RESPECT TO THE THEN-CURRENT TERM.
8.2 Disclaimer of Indirect Damages. EXCEPT FOR (A) ITS INDEMNIFICATION OBLIGATIONS; AND (B) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR OTHERWISE.
9.1 Veracity Indemnification. Veracity shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent the Service or Veracity Technology infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9.2 Customer Indemnification. Customer shall defend, indemnify and hold harmless Veracity and its directors, officers, employees, agents and providers (“Veracity Indemnified Parties”) from and against any Claims based on the Customer Data and to the extent that such Claim does not arise out of any action of Veracity in the manipulating and transmitting the Customer Data in a manner not related to the provision of the Services.
9.3 Indemnification Process. As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or Veracity Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld, conditioned or delayed).
9.4 Exclusions. Veracity’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) use of the Service not strictly in accordance with the Documentation, Veracity’s instructions, and this Agreement; (b) any modification or conversion of the Service not created or approved in writing by Veracity; (c) any combination of the Service with any computer, hardware, software or service not provided by Veracity; (d) Veracity’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data (subject to Section 9.2). If the Service or Veracity Technology is or may be subject to a Claim of Infringement described in Section 9.1 above, Veracity may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service or Veracity Technology as contemplated herein; (ii) replace or modify the Service or Veracity Technology so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Term. Veracity’s obligations in this Section 9 shall be Veracity’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10.1 Definition. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) during the Term that is labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information regarding a Party’s technology, intellectual property, source codes, software, hardware configurations, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and Veracity Technology shall be deemed Confidential Information of Veracity; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2 General Obligations. Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party; (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10.
10.3 Return or Destruction. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information for its records, and (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards.
10.4 Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer provides Veracity with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Veracity may use, disclose and exploit the Feedback in any manner it chooses.
11.1 Assignment. Neither Party may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of the other Party. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, Veracity may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11.2 Entire Agreement; Amendment. This Agreement contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. In the event that any term in these Subscription Terms of Service conflicts with the terms set forth on the Sales Order, the Sales Order shall govern with respect to such term in so much as the Sales Order specifically states as such.
11.3 Notices. Veracity may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11.4 Force Majeure. Veracity shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Veracity, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
11.5 Publicity. Veracity shall have the right to use Customer’s name and logo on client lists published on Veracity’s website and in marketing materials. Veracity may announce the relationship hereunder in a press release provided that Veracity obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
11.6 Governing Law and Disputes. This Agreement, the interpretation hereof and all disputes arising out of or relating to this Agreement, shall be governed by the laws of the State of Delaware, without regard to any conflicts of laws principles that would apply another law. Customer hereby consents to the non-exclusive jurisdiction and venue in any federal or state court located within the State of New York, and shall not bring any suit, claim or other cause of action except in a court located within the State of New York.
11.7 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.8 Waiver. No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.9 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
11.10 Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement.