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1.1 Vérité Services
For VRS Customers, "Event" has the meaning set forth in Exhibit A to this Agreement.
For VMS Customers, "Web Site" has the meaning set forth in Exhibit A to this Agreement.
For VCS Customers, "Shopping Cart" has the meaning set forth in Exhibit A to this Agreement.
For VTS Customers, "Testing System" has the meaning set forth in Exhibit A to this Agreement.
For CertManager Customers, "Certificate" has the meaning set forth in Exhibit A to this Agreement.
1.2 “Intellectual Property Rights” are patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.3 “Services” are the Vérité hosting services, training services, support services, and other consulting services, provided by Vérité to Customer under this Agreement
1.4 “Vérité System” is Vérité’s Internet-based system for scheduling and managing events, managing online content and assets, purchasing products and services online, testing and certifying candidates online managing online certificates as more fully described in Exhibit A to this Agreement.
2. SERVICES PROVIDED BY Vérité
2.1 Maintenance and Customer Support. Vérité will provide periodic software releases, which typically include feature upgrades to existing Vérité System functionality and/or product repairs at no extra charge. Significant feature upgrades or new functionality will be offered at additional charges, except to the extent such new features are offered generally to Vérité’s other customers at no charge.
Vérité will provide standard technical support services to assist in use of the Vérité System pursuant to the terms of service. To utilize such services, Customer must have paid any current amounts due Vérité under this Agreement including amounts due, if any, for Vérité’s maintenance and support services per Exhibit A.
2.2 Exclusions to Support Services. Vérité will have no obligation to provide support services to correct problems in the operation or performance of the Vérité System caused by Customer's failure to properly maintain its equipment that is used to interface to the Vérité System. If such problems are identified, then to the extent authorized by Customer, Vérité will provide consulting services to assist Customer in rectifying such problems at Vérité's then current published rates.
2.3 Hosting Services. If specified, Vérité will perform for Customer the hosting services set forth, subject to the additional terms and conditions set forth.
3. LICENSE TO USE SOFTWARE
3.1 Grant of License. Subject to the terms and conditions of this Agreement during the term of this Agreement, Vérité grants to Customer a nonexclusive, nontransferable, license to access and use the Vérité System, solely for the purpose ofÂ the following uses:Â scheduling and managing events, managing online content and assets, purchasing products and services online, testing and certifying candidates online, managing certificates.
3.2 License Restrictions. The Customer has no right to provide access to the Vérité System to any third party. Unless expressly set forth in custom agreement, Customer has no right to schedule and manage events that are hosted by, concerning the products and services of, or otherwise offered by or on behalf of any third party, manage online content and assets that are hosted by, concerning the products and services of, or otherwise offered by or on behalf of any third party, allow purchasing products and services that are hosted by, concerning the products and services of, or otherwise offered by or on behalf of any third party online, offer tests or certifications that are hosted by, concerning the products and services of, or otherwise offered by or on behalf of any third party, to manage certificates that are hosted by, concerning the products and services of, or otherwise offered by or on behalf of any third party.
Customer may not: (a) modify, disassemble, decompile or reverse engineer the object code of the Vérité System nor permit any third party to do so, except to the extent permitted by law notwithstanding this limitation; (b) copy any portion of the Vérité System; or (c) unless expressly authorized hereunder, access the Vérité System in any manner to provide service bureau, time-sharing or other computer services to third parties.
3.3 Limited Rights. Customer's rights to access and use the Vérité System will be limited to those expressly granted in this section. Vérité reserves all rights and licenses in and to the Vérité System not expressly granted to Customer under this Agreement.
3.4 Ownership of the Vérité System. Vérité is and shall remain the sole and exclusive owner of all of the proprietary features and functionality of the Vérité System and Intellectual Property Rights in and to the design, architecture, and software implementation of the Vérité System.
Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Vérité and its licensors appearing on the Vérité System as delivered to or used by Customer.
3.5 Intellectual Property. Except for those licenses expressly granted hereunder, neither party shall gain by virtue of this Agreement any rights of ownership of copyrights, patents, trade secrets, trademarks, or any other intellectual property rights owned by the other. Vérité shall solely own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques that it or its representatives develop or provide under this Agreement. Customer shall retain sole ownership of its proprietary techniques, trade secrets or processes that it has developed. Vérité product attribution shall appear on both the front-end and the backend of the application.
4. CUSTOMER OBLIGATIONS
4.1 Integration; Customer Equipment and Software. Customer agrees to provide any and all technical information and assistance reasonably required by Vérité to implement the Vérité System for access and use by Customer. Customer will provide PCs or other terminals equipped with web browser software that supports its employees using the Vérité System.
5. USAGE DATA
5.1 Data License. Customer hereby grants a non-exclusive, royalty-free, perpetual, irrevocable fully paid-up license to use, reproduce, display, modify, create derivative works and disclose in any manner the data derived by Vérité from Customer’s use of the Vérité System (“Usage Data”) for various purposes of including, but not limited to, operating, maintaining, supporting, enhancing and marketing the Vérité System, provided that any Usage Data is used or disclosed only in an aggregate form and does not, directly or indirectly, (i) identify Customer or any party affiliated with Customer, or (ii) identify, or contain any personally identifying information about, any Customer employee, consultant or any other individual affiliated with Customer.
6. ACCOUNT MANAGERS
6.1 Appointment and Change of Account Managers.Â Each party shall appoint an Account Manager, as set forth. The Account Managers shall be responsible for addressing and resolving issues relating to the delivery and use of the Vérité System. Either party may change the name of its Account Manager upon written notice to the other party.
7. PAYMENT OBLIGATIONS
7.1 Payment. Vérité will invoice Customer for access to the Vérité System and for other services as specified. If applicable, monthly hosting fees shall be due by the first (1st) day of each month in which services are provided. Invoices are due thirty (30) days from the date of the invoice and are deemed past due if not paid within fifteen (15) days of the due date. Late charges will be added to past due invoices at a rate of 1% per month, or the maximum rate allowed under law, whichever is lower, from the date such payment was due until the date paid. The Customer is responsible for providing complete and accurate billing and contact information to Vérité as well as notification of any changes to such information.
7.2 Late Charges. Late charges will be added to past due invoices at a rate of 1½% per month, or the maximum rate allowed under law, whichever is lower, from the date such payment was due until the date paid.
7.3 Taxes. Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding only U.S. taxes based solely upon Vérité’s income.
7.4 Suspension of Service and Acceleration. If any amount owing by the Customer under this or any other agreement for Vérité services is 30 or more days overdue, Vérité may, without limiting Our other rights and remedies, accelerate the Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Vérité services to You until such amounts are paid in full. Vérité will give at least 7 days’ prior notice that Your account is overdue before suspending services.
8. CONFIDENTIAL INFORMATION
8.1 Confidential Information. “Confidential Information” means any information disclosed previously or in the future by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation. Vérité's Confidential Information shall include without limitation information regarding the Vérité System. Each party agrees not to use or disclose any Confidential Information of the other party for any purpose except as necessary to affect the intent of the Agreement. Each party agrees that it shall take appropriate measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.
8.2 Exclusions. “Confidential Information” does not include any information that the receiving party can demonstrate is: (1) rightfully known prior to disclosure, (2) rightfully obtained from a third-party authorized to make such a disclosure, (3) independently developed by the receiving party; (4) available to the public without restrictions, (5) approved for disclosure with the prior written approval of the disclosing party or (6) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
8.3 Term of Confidentiality. Each party will have a duty to protect Confidential Information of the other party for a period of five (5) years from the date of receipt thereof, or until such time as that Confidential Information is no longer confidential pursuant to Section 8.2.
8.4 Injunctive Relief. Each party agrees that money damages would not be a sufficient remedy for any breach of the obligations herein and that the disclosing party shall be entitled to specific injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of obligations herein but shall be in addition to all other available legal or equitable remedies.
9. REPRESENTATION AND WARRANTIES
9.1 Vérité Representations and Warranties. Vérité represents and warrants that (i) it has the power and authority to enter into this Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which Vérité is bound, and (ii) it will comply with the laws, rules and regulations that apply to Vérité in connection with the conduct of its business and its provision of the Vérité System.
9.2 Customer Representations and Warranties. Customer represents and warrants that (i) it has the power and authority to enter into this Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which Customer is bound, (ii) it will comply with the laws, rules and regulations that apply to Customer in connection with the conduct of its business and its use of the Vérité System, and (iii) it will not utilize (or allow utilization of) the Vérité System in any manner prohibited by this Agreement or written Vérité policies provided to Customer, or violate or tamper with the security of any Vérité computer software or equipment.
9.3 Warranty Disclaimer. THE Vérité SYSTEM IS PROVIDED “AS IS” AND “AS-AVAILABLE,” AND SUBJECT TO SECTION 10.1, CUSTOMER’S USE OF THE Vérité SYSTEM IS AT ITS OWN RISK. NEITHER PARTY MAKES, AND BOTH PARTIES DISCLAIM, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Vérité DOES NOT WARRANT THAT THE Vérité SYSTEM WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
10. TERM AND TERMINATION
10.1 Term. This Agreement will be effective commencing on the Effective Date, and will self renew. This Agreement will automatically renew for successive one-year terms at such rates unless Customer notifies Vérité in writing thirty (30) days prior to the date the Customer wishes to end the agreement and by doing so, Customer will intend to terminate its use of the Vérité System on the expiration date or unless Vérité and Customer agree to other terms and conditions for renewal.
10.2 Termination. This Agreement may be terminated as follows:
10.2.1 If Customer fails to make any payment due hereunder, and fails to cure such breach within ten (10) days after receiving written notice from Vérité, then Vérité may immediately and without further notice, terminate this Agreement and declare all sums due hereunder, immediately payable;
10.2.2 Except as set forth in subsection 11.2(a) above, if either party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period. If this Agreement is terminated for cause other than for non-payment by Customer, the parties agree that this Agreement shall nevertheless remain in force for an additional period of time of not less than forty-five (45) days nor more than one hundred and eighty (180) days. The parties agree to negotiate reasonably and in good faith in order to agree in writing upon the length of such time period. If the parties are unable to agree, the non-breaching party’s decision as to the length of the time period shall control;
10.2.3 This Agreement may be terminated immediately in either party’s sole discretion upon notice of appointment of a receiver, or an assignee for the benefit of creditors of the other party, or in the event of any insolvency of the other party, except as may be prohibited by applicable bankruptcy laws.
10.3 Early Termination. At any time during the Initial Term or subsequent renewal terms Customer may terminate this Agreement with forty-five (45) days written notice to Vérité. If Customer terminates under this Section 11.3, Customer shall pay an early termination fee equal to 35% of all remaining monthly fees due and to become due to Vérité during the then-current term (the “Early Termination Fee”). The Early Termination Fee is due and payable within thirty (30) days of the termination.
10.4 Effect of Termination. Upon termination or expiration of this Agreement, all rights to the Vérité System, including but not limited to use and access, will automatically terminate. Customer will discontinue its use of the Vérité System and each party will return or destroy any Confidential Information of the other party it may possess. Customer shall pay to Vérité all outstanding amounts and fees incurred prior to termination or otherwise owed to Vérité within thirty (30) days of the date of termination. The respective rights and obligations under Sections 3.2 3.4, 3.5, 5.1, 7, 8, 9, 10, 11.4, 12, 13 survive the termination or expiration of this Agreement.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL Vérité LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID OVER THE IMMEDIATELY PRECEEDING TWELVE (12) MONTHS BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY.
IN NO EVENT SHALL Vérité, ITS LICENSORS, OR ITS SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT VÃ©ritÃ© HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PARTIES AGREE THAT THIS SECTION 12 REPRESENTS A REASONABLE ALLOCATION OF RISK.
12.1 Public Announcements. Neither party shall release any press release or other public statement regarding this Agreement without the prior consent of the other party, which shall not be unreasonably withheld. However, Vérité is permitted to include Customer on customer lists or references that may be provided to potential customers and other third parties.
12.2 Assignment. Neither party may assign this Agreement or its rights hereunder to any third party without the prior written consent of the other party, which shall not be unreasonably withheld.
12.3 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
12.4 Force Majeure. Except with respect to Customer’s payment obligations under this Agreement, neither party shall be liable for any loss or damage or be deemed to be in breach of the Agreement to the extent that performance of such party’s obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of any event or circumstance beyond its reasonable control, provided that the other party may terminate this Agreement upon thirty (30) days written notice if the circumstances causing non-performance can reasonably be expected to continue more than three (3) months.
12.5 Choice of Law and Jurisdiction. This Agreement will be governed by the laws of the U.S. and the State of Utah. If a dispute arises concerning this Agreement where the Customer is the plaintiff in such action, the substantive and procedural law of the state of Utah, without reference to rules governing choice of laws, will apply, and the venue shall be laid exclusively in Salt Lake County, Utah, and Utah state and federal courts shall have exclusive jurisdiction over such action. In the event of any such dispute, the prevailing party shall be entitled to recover from the non-prevailing party all attorneys’ fees and costs incurred by the prevailing party in connection with such dispute, regardless of whether such dispute results in the filing of a lawsuit.
Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersede all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended, except by a writing signed by authorized representatives of both parties.
12.6 Severability. In case of any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable, such provision(s) shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained herein shall not in any way be affected or impaired.
12.7 Waiver. Neither party’s failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such a provision. No modification, extension or waiver of this Agreement shall be valid unless made in writing and signed by an authorized representative of the party to be charged. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.
12.8 Notices. All legal notices between the parties shall be in writing and shall be sent by certified or registered mail or commercial overnight delivery service, with provisions for a receipt, to the address of the other party listed above (or to such other address as a party may furnish to the other in writing).
For individual exhibits, please consult your company's custom Vérité agreement. To receive a copy of the exhibits associated with your software services agreement, email email@example.com.