VIANAI SYSTEMS, INC.
MASTER SUBSCRIPTION AGREEMENT
Last updated: May 10, 2024
This Master Subscription Agreement (together with incorporated Addenda and Order Forms or other agreements that explicitly incorporate these terms by reference, this “Agreement”) is entered into as of the Effective Date (as defined below) between Vianai Systems, Inc. (“Vianai” or “us”) and Customer (as defined below) and governs Customer’s use of Vianai Services (as defined below), on each deployment where we provide access to such Platform. Each order form, online order or similar agreement, for the provisioning of the Services (“Order Form”) you enter into directly with us or with a Vianai-authorized reseller (a “Reseller Order”) may include specific terms governing the Services you have ordered, which may include one or more of the following: (a) the Conversational Finance Application and related applications (“Application Services”), built on top of and using (b) the hila Enterprise Platform (“Platform Services”), (c) support services (“Support Services”), or (d) professional services (the “Professional Services,” and together with Application Services, Support Services, Platform Services and any other services provided by us, the “Services”).
If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you are authorized to legally bind that entity to this Agreement, in which case “Customer,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind your entity or do not agree with any provision of this Agreement, you must not accept this Agreement and may not use the Services.
1. SERVICES.
(a) Application Services Use Authorization. Vianai shall make available to Customer and its Authorized Users the Application Services specified on an Order Form, during the term specified on such Order Form, pursuant to this Agreement and the additional terms contained in the Application Services Supplemental Terms located at https://docs.vianops.ai/legal/app-terms.html, on any permitted Cloud Service Provider or Deployment Method solely for Customer’s internal business purposes, in accordance with the additional terms applicable to specific Services deployments located at https://docs.vianops.ai/legal/deploy-spec-terms.html. Vianai shall also make available to Customer and its Authorized Users the Platform Services solely as necessary for Customer to use the Application Services subscribed for. “Authorized User” means employees or agents of Customer (or Affiliates or other individuals solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Services.
(b) Authorized Users. You must obtain separate credentials (e.g., user IDs and passwords) via the Services for each Authorized User and may not permit the sharing of Authorized User credentials. You are responsible for and expressly assume the risks associated with all use of the Services under an Authorized User’s account (including for the payment of Fees related to such use). You are responsible for deprovisioning or removing an Authorized User’s account when such user is no longer authorized by you.
(d) Support. During the Term, we will provide you with the level of Support Services specified on an Order Form; if no Support Services are specified, your support is limited to public forums and the Documentation.
(e) Acceptable Use; Restrictions. You will not (and will not permit your Authorized Users to):(i) violate the acceptable use policy governing the Services located at https://docs.vianops.ai/legal/aup.html (“Acceptable Use Policy”) or use the Services other than in accordance with the Documentation; (ii) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition; (iii) sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Services to any third party except to the extent explicitly authorized in a signed writing by Vianai; (iv) use the Services, or permit it to be used, for purposes of evaluation, benchmarking or other comparative analysis without Vianai’s prior written consent; or (v) use the Services to develop or offer or sell a potentially competitive product or service to any Vianai product or service; or (vi) during any free trial period granted by Vianai, use the Services for any purpose other than to evaluate whether to purchase the Services.
(f) Limits on what Customer Content may Contain. You agree that you may not include in Customer Data, or generate in Customer Results (together, “Customer Content”) any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement or any data that is prohibited by the Acceptable Use Policy. You are solely responsible for entering your Customer Data into the Services and for determining the suitability of the Services for your business and complying with any regulations and laws, (including, without limitation, export, data protection and privacy laws) applicable to Customer Content and your (and your Authorized Users’) use of the Services.
(g) Security. Vianai maintains technical, administrative, and physical safeguards to protect Customer Content that Vianai processes on your behalf in providing the Services, as described in the Data Security Addendum located at https://docs.vianops.ai/legal/data-security.html. You understand and acknowledge that we do not host the cloud environment into which certain parts of the Services are deployed or the other related systems in which your Customer Data may be stored (e.g., an AWS S3 bucket), and that the Services are designed merely to provide an environment to facilitate your processing of Customer Data within the Customer-chosen environment by permitting you to generate and execute inputs and view Customer Results.
(h) Business Continuity. Vianai shall maintain an appropriate business continuity and disaster recovery plan, which will be reviewed and tested by Vianai in commercially reasonable intervals. Vianai shall notify Customer as soon as reasonably practicable in the event that Vianai becomes aware of any development which adversely impacts (i) the availability of the Services, (ii) Vianai’s ability to provide the Services in accordance with this Agreement, or (iii) Vianai’s ability to comply with its obligation to implement and maintain a business continuity plan.
2. PROPRIETARY RIGHTS.
(a) General. Vianai retains all right, title and interest, including all Intellectual Property Rights, in and to the Services including any modifications. As between you and us, you retain all ownership or license rights in Customer Content, which shall be deemed your Confidential Information (as defined below).
(b) Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Services (“Feedback”). If you choose to offer Feedback to us, you hereby grant Vianai a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to use, disclose, reproduce, license, sell or otherwise distribute, and exploit the Feedback we receive as we see fit, entirely without any obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. You also irrevocably waive in favor of Vianai any moral rights which you may have in such Feedback pursuant to applicable law. We acknowledge that any Feedback is provided on an “as-is” basis with no warranties of any kind.
3. COMPLIANCE WITH LAWS; DATA PROTECTION.
(a) Vianai Compliance; Processing. Vianai will provide the Services in accordance with its obligations under laws and government regulations applicable to Vianai’s provision of the Services to its customers generally, including, without limitation those related to data protection and data privacy, without regard to Customer’s particular use of the services and subject to Customer’s use of the Services in accordance with this Agreement. The terms of the Data Processing Addendum located at https://docs.vianops.ai/legal/data-proc.html (the “DPA”) are hereby incorporated by reference and shall apply to the extent Customer Content that is processed by Vianai includes Personal Data (as defined in the DPA).
(b) Customer Compliance. You represent and warrant to us that your use of the Services will comply with all applicable laws, including without limitation any privacy or data protection laws applicable to your use of the Services to process Personal Data.
(c) Relationship Data. We collect and process Relationship Data to (i) provide services and associated support to you; (ii) manage your account with us; (iii) obtain and process payments for our services; (iv) communicate with you about our services and provide you with recommendations on additional Vianai products and services; (v) enforce the terms of this Agreement or other contractual terms; and (vii) as otherwise described in this Agreement. We may share Relationship Data with our affiliates and third party service providers for these purposes or as otherwise required or permitted by applicable law.
(d) Usage Data. We collect and process Usage Data to (i) provide services and associated support to you; (ii) manage and secure our technical infrastructure; (iii) develop and improve our products and services; (iv) provide customer and technical support to you; (v) communicate with you about your use of our services and provide you with recommendations on additional Vianai products and services; (vi) enforce the terms of this Agreement or other contractual terms; and (vii) as otherwise described in this Agreement. We may share Usage Data with our affiliates and third party service providers for these purposes or as otherwise required or permitted by applicable law.
(e) Cooperation With Authorities. Subject to applicable law, Vianai may disclose Customer Content if required by applicable law or regulation, including laws and regulations of the United States and other countries, or in the good faith belief that such action is necessary to: (i) comply with a legal obligation or in response to a request from law enforcement or other public authorities; (ii) avoid material liability for Vianai; or (iii) act in urgent circumstances to protect the personal safety of any persons.
(f) Export. The Services may be subject to export laws of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party or debarment list. You will not permit your users to access or use any Services in a U.S. embargoed country (as of the Effective Date: Crimea, Cuba, Iran, North Korea, Russia, Sudan, Syria) or in violation of any U.S. export law.
4. PAYMENT.
You will pay all Fees specified in the applicable Order Form. With respect to an Order Form, except as otherwise specified therein: (a) all Fees owed to Vianai will be paid in U.S. Dollars; (b) invoiced payments will be due within thirty (30) days of the date of your receipt of each invoice; and (c) Fees for all committed Services will be invoiced in full upon execution of the applicable Order Form and all excess usage will be invoiced monthly in arrears. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable laws but in no event more than one percent (1.0%) per month. You will be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes.
All Fees required for renewal of the Term will be reflected in a quotation issued by Vianai in advance of the expiration of the current Term specified in the applicable Order Form. Fees for any subsequent renewals shall be set at the then-current Vianai list price, unless otherwise stated on the Order Form.
5. RESELLER ORDERS AND EXTERNAL USERS.
(a) External Users. If you have been invited to use a Platform Services Workbench that was set up by another Vianai Customer, the terms for External Users located at https://docs.vianops.ai/legal/EULA.html. govern your access to and use of such Services Workbench.
(a) Reseller Orders. Any Reseller Order is subject to our prior approval, and you agree that no term in any Reseller Order will be deemed to modify this Agreement unless authorized in writing by us. With respect to a Reseller Order, payment terms will be specified on such Reseller Order, provided that should you fail to pay Fees when due to a Vianai-authorized reseller, Vianai may seek payment directly from you.
(a) Reseller-Hosted SaaS Orders. If you have acceded to this Agreement in connection with a Reseller Order where Vianai Application Services or Platform Services are provided to you as a service hosted or made available by a Vianai-authorized reseller then, notwithstanding anything to the contrary herein, only the following sections of this Agreement apply: Section 1(d) and (e), Section 2, Section 3(b) and (f), Section 6, Section 7(b), Section 8(b) and (d), Section 9, Section 10(a), (b) and (e), and Sections 11 and 12. The Application Services Supplemental Terms located at https://docs.vianops.ai/legal/app-terms.html also apply to the extent applicable with regard to your Reseller Order. Furthermore, notwithstanding anything to the contrary herein, VIANAI EXPRESSLY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. CONFIDENTIALITY.
(a) Scope. “Confidential Information” means information that one party provides to the other party during the term of this Agreement that is identified at the time of disclosure as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, for the sake of clarity excluding information governed by the Vianai Privacy Policy.
(b) Confidentiality. The receiving party will: (i) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care); (ii) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement; and (iii) limit access to any Confidential Information of the disclosing party, except (A) for those employees, representatives, or contractors of the receiving party who require access to the Confidential Information to enable receiving party to exercise its rights and obligations under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party; or (B) as disclosure may be required by law or governmental regulation, subject to the receiving party providing to the disclosing party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the receiving party’s use of information: (1) previously known to it without obligation of confidence, (2) independently developed by or for it without use of or access to the disclosing party’s Confidential Information, (3) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (4) that is or becomes publicly available through no breach of this Agreement. The receiving party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party shall be entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction(s), in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Services source code, and information pertaining to Beta Services are Confidential Information of Vianai or its licensors.
(c) Destruction. Within 60 days after a disclosing party’s request, the receiving party shall return or destroy the disclosing party’s Confidential Information; provided, however, that the receiving party shall be entitled to retain archival copies of the Confidential Information of the disclosing party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
7. WARRANTIES; DISCLAIMER.
(a) Vianai Warranties. Vianai warrants that the Services shall perform materially in accordance with the Documentation. If the Service does not conform to the warranty specified above and before Customer pursues any other remedies, Customer must notify Vianai in writing no later than thirty (30) days after the breach of warranty. Vianai agrees to use commercially reasonable efforts to cure such non-conforming portions of the Service. Vianai is not responsible for any non-compliance resulting from or caused by any (i) modifications made by anyone other than Vianai or its agents or (ii) software not supplied by Vianai. Customer’s sole and exclusive remedy for a breach of any warranties contained in this Section is to terminate this Agreement for cause and, notwithstanding anything to the contrary in this Agreement, have Vianai refund to Customer the pro rata unused portion of any prepaid Fees.
(b) Reciprocal Warranty. Each party warrants to the other party that it has the legal power and authority to enter into this Agreement.
(c) Disclaimer of Warranties.
(i) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. VIANAI IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE.
(ii) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: BETA SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT THE WARRANTY STATED IN SECTION 7(a)(i). CUSTOMER BEARS THE RISK OF USING THE BETA SERVICES. VIANAI GIVES NO EXPRESS OR IMPLIED WARRANTIES, GUARANTEES OR CONDITIONS RELATED TO THE BETA SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, VIANAI EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. THIRD-PARTY CLAIMS.
(a) Indemnification by Vianai. Vianai shall, at its expense: (i) defend or settle any third-party claims, actions and demands brought against Customer and its officers, directors, employees or agents, where the third-party claimant expressly asserts that (A) the Service or the use of Service by Customer in accordance with this Agreement infringes such third party’s trademarks, copyrights or U.S. patents, or (B) Vianai misappropriated such third party’s trade secrets in the provision of the Services hereunder ((A) and (B) together, an “IP Claim”); and (ii) pay damages, if any, finally awarded by a court of competent jurisdiction against Customer indemnified parties or agreed upon in settlement by Vianai (including other reasonable out-of-pocket costs incurred by Customer, including reasonable attorneys’ fees, in connection with enforcing this Section 8(a)), subject to the exclusions (1)‑(4) set forth below. Vianai has no obligation to Customer under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) Customer Content; (2) modifications to the Services that are made by Customer or a third party; (3) combination of the Service with other software, processes, devices, data (including Customer’s Confidential Information) or materials (unless such combination is approved by Vianai in writing, in the Documentation, or is provided by Vianai) where the Service would not infringe except for such combination; or (4) Customer’s or an Authorized User’s use of the Service not in accordance with this Agreement or the Documentation.
(b) Indemnification by Customer. Subject to Section 8(d) (Conditions of Indemnification), Customer will defend Vianai and its Affiliates and its and each of their officers, employees, directors, and agents (each, a “Vianai Indemnitee”) against any claim, demand, suit or proceeding made or brought against a Vianai Indemnitee by a third party (i) arising from or related to Customer’s or an Authorized User’s use of the Services that is allegedly in breach, violation of or infringes upon any applicable laws, this Agreement or any such third party’s rights; (ii) arising from any Customer Content or its use with the Services, including any claim that such Customer Content or use thereof infringes, misappropriates or violates any such third party’s rights; or (iii) arising from any matter specified to be the subject of an indemnity in an applicable Addendum, and will indemnify each Vianai Indemnitee from and against any damages, attorneys’ fees and costs finally awarded against a Vianai Indemnitee as a result of, or for amounts paid by a Vianai Indemnitee under a settlement approved by Customer in writing of a claim against Vianai.
(c) Sole Remedy for Infringement of Intellectual Property Rights. In the event that Vianai believes the Service, or any part thereof, may be the subject of an infringement or a misappropriation claim (including as to a particular territory) as to which this Section applies, then Vianai may, in its discretion and at its sole expense: (i) procure for Customer the right to continue using such Service or any applicable part thereof; (ii) replace such Service, or infringing part thereof, with a non-infringing version (or part thereof); (iii) modify such Service, or infringing part thereof, so as to make it non-infringing; or (iv) in the event that (i)‑(iii) are not commercially feasible (as determined by Vianai in its sole discretion), then Customer shall have the right to terminate this Agreement solely with respect to the infringing Service, and, notwithstanding anything to the contrary in this Agreement, have Vianai refund to Customer the pro rata unused portion of any pre-paid service Fees. THIS SECTION 8 STATES THE ENTIRE OBLIGATION OF VIANAI AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
(d) Conditions of Indemnification. The party entitled to seek coverage pursuant to this Section (the “Indemnified Party”) shall: (i) promptly notify the other party obligated to provide such indemnification (the “Indemnifying Party”) in writing of any such claim; (ii) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent); and (iii) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense.
9. LIMITATION OF LIABILITY.
(a) NEITHER PARTY WILL HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR REVENUE, OR LOSS FROM DAMAGE TO BUSINESS OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
(b) EXCEPT FOR BREACH OF EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL THE AGGREGATE LIABILITY OF SUCH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES FOR THE SERVICES (OR PORTIONS THEREOF) GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (the “Default Cap”); provided, however, that the Default Cap will not apply to VIANAI’S liability with respect to any breach of its obligations under Section 1(G) or Section 3(A) where such breach results in unauthorized disclosure of Customer Data or Personal Data, but instead its liability will not exceed two times (2X) the Default Cap (the “Data Protection Cap”). In no event shall VIANAI be liable for the same event under both the Default Cap and the Data Protection Cap. Similarly, those caps shall not be cumulative; if there are one or more claims subject to each of those caps, the maximum total liability for all claims in the aggregate shall not exceed the Data Protection Cap.
(c) NOTHING IN THIS SECTION WILL BE CONSTRUED TO LIMIT CUSTOMER’S OBLIGATIONS TO PAY FEES HEREUNDER.
10. TERM.
(a) Term of Agreement. This Agreement will become effective on the Effective Date and will continue in full force and effect until terminated by either party pursuant to this Section 10 (“Term”).
(b) Termination. This Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice if (A) there are no operative Order Forms outstanding or (B) the other party is in material breach of this Agreement and the breaching party fails to cure the breach prior to the end of the notice period or if such material breach is incapable of cure; or (ii) by Vianai upon thirty (30) days’ prior written notice following your receipt of a notice that you are delinquent in the payment of undisputed Fees. If this Agreement terminates pursuant to the prior sentence due to Vianai’s material breach, Vianai will refund to you that portion of any prepayments made to Vianai related to Services not yet provided. Either party can immediately terminate this Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within thirty (30) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
(c) Suspension. Vianai may temporarily suspend any or all Services or Workbenches at any time: (i) immediately without notice if Vianai determines in good faith that you have violated your obligations under Section 1(d) (Acceptable Use; Restrictions), Section 1(e) (Limits on what Customer Content may Contain), or Section 3(b) (Customer Compliance) in a manner that may cause material harm or material risk of harm to Vianai or to any other party; or (ii) upon ten (10) business days’ notice if you fail to pay undisputed Fees after receiving notice that you are delinquent in payment.
(d) Workbench Cancellation. If this Agreement is terminated for any reason or upon your written request, Vianai may cancel your Workbenches. Vianai will delete all Customer Content contained within a Workbench within thirty (30) days following the cancellation of such Workbench. Upon termination of this Agreement for any reason, you will delete all stored elements of the Services from your Systems.
(e) Month‑to‑Month Services. Notwithstanding anything in this Agreement to the contrary, Vianai may suspend or terminate any Month‑to‑Month Services Workbench, and delete any Customer Content relating to such Workbench that may be stored within the Platform Services or other Vianai Systems, upon thirty (30) day’s prior written notice if Vianai reasonably determines the account is inactive, including if: (i) no Authorized User has logged into Customer’s account for at least six (6) months; (ii) at least three (3) months have passed since the account was established; or if your account is set up to be paid by credit card, and you (A) did not provide a valid credit card number, or (B) you failed to update an expired or invalid credit card number and (iii) at least three (3) months have passed without a valid credit card number being on file; provided that for the avoidance of doubt this provision does not limit our right to terminate your account for non-payment relating to actual usage.
(f) Free Trials. Unless otherwise stated in an Order Form, free trial periods shall last 90 days and be terminable immediately without prior notice by Vianai.
(g) Survival. All provisions of this Agreement that by their nature should survive termination will so survive.
11. GENERAL.
(a) Governing Law and Venue. This Agreement is governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Customer and Vianai agree to submit to the personal and non-exclusive jurisdiction of the courts located in Santa Clara County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(b) Entire Agreement, Construction, Amendment and Execution. This Agreement (including any referenced Addendum and all Order Forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. To the extent any provision in an Order Form clearly conflicts with a provision of this Agreement, an Addendum, or a provision of an earlier Order Form, the provision in the new Order Form will be binding and the conflicting provision in this Agreement or in the earlier Order Form will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order Form. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement may not be modified or amended except by mutual written agreement of the parties. Without limiting the foregoing, no Customer purchase order will be deemed to modify an Order Form or this Agreement or any Addendum unless expressly authorized in writing by Vianai. We reserve the right to improve or otherwise modify the Services subject to maintaining appropriate industry standards of practice relating to the provision and security of the Services, and provided that any such modification does not materially diminish the core functionality or security of the Services.
(c) Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void.
(d) Notice. Notices regarding this Agreement or the Service in general may be given by electronic mail to Customer’s e-mail address on record with Vianai or within the Services. Unless notified in writing of a change of address, you will send any required notice to Vianai Systems, Inc., 1661 Page Mill Road, Suite B, Palo Alto, CA 94304, Attention: VP of Legal Operations. Any required notice under this Agreement will be deemed given when sent by electronic mail or when delivered by nationally recognized overnight delivery service or recorded prepaid mail.
(e) Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God; pandemic; Internet backbone outages; acts of government; flood; fire; earthquakes; civil unrest; acts of terror, strikes or other labor problems (excluding those involving such party’s employees); service disruptions involving hardware, software, third-party cloud service providers, or power systems not within such party’s reasonable control; and denial of service attacks.
12. DEFINITIONS.
Certain terms are defined below.
(a) “Addendum” means any of the addenda referenced herein or otherwise set forth on an Order Form.
(b) “Affiliate” of a party means an entity that controls, is controlled by, or is under common control with such party.
(c) “Beta Service” means any Service (or feature of a Service) that is designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that we in our sole discretion offer to Customer, and Customer in its sole discretion elects to use.
(d) “Cloud Service Provider” means a cloud service provider on whose platform we provide the Services.
(e) “Customer Data” means the data made available by Customer and its Authorized Users for processing within the Services, excluding any aggregated and de-identified data that may be generated from Customer Data in connection with the Services.
(f) “Customer Results” means any output Customer or its Authorized Users generate from their use of the Services, excluding any aggregated and de-identified data that may be generated from Customer Results in connection with the Services.
(g) “Documentation” means the written documentation related to the Services made available by Company to Customer.
(h) “Effective Date” means the earlier of the effective date of the initial Order Form or other agreement that references this Agreement, or the date you first access or use any of the Services.
(i) “Fees” means all amounts payable for the Services under an applicable Order Form.
(j) “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, and databases.
(k) “Month-to-Month Service” means the Platform Services provided on a month-to-month basis with payment based only on Customer’s usage (or other basis) of the Platform Services during the billing month.
(l) “Relationship Data” means any data that Vianai receives about you in connection with creating and managing your account with us, such as contracting and licensing details and name and work contact details of company representatives who manage your account or business relationship with us.
(m) “System” means any application, computing or storage device, or network.
(n) ”Usage Data” means any data (other than Customer Content) relating to use of the Services by you or your Authorized Users, such as user name, activity records, date and time stamps, type of browser and systems that are used and/or accessed, IP address, licensing, system and service performance data, and queries or other information you or your Authorized Users input into the Services to direct how the Services process Customer Data, including the code and any libraries (including third-party libraries) utilized within the Services.
(o) “Workbench” means a Services environment in a Vianai-Managed Cloud Deployment. A Customer may have multiple Workbenches.