Valente Sherman, Inc.
Valente Sherman, Inc. DBA VISO TRUST, a Delaware corporation, with offices at 635 San Geronimo Valley Drive, San Geronimo, California 94963 (“VISO TRUST“) provides its customers with a Software-as-a-Service cloud-hosted cyber due diligence software platform (the “SaaS Software“), which permits VISO TRUST’s customers to assess thesecurity practices of their vendors and service providers. This Vendor Agreement (this ” Agreement“) sets forth the terms and conditions under which VISO TRUST agrees to make a limited, vendor-only portion of the SaaS Software available to the vendor or other service provider receiving access hereunder (such vendor or service provider, ” Vendor“), which may be used by Vendor for the sole purpose of making its content and data (such content and data, the ” Vendor Content“) available to VISO TRUST for use with and disclosure to its customers as a part of the SaaS Software. VISO TRUST and Vendor are individually referred to herein a “Party” and collectively as the “Parties”. This Agreement constitutes the sole and exclusive agreement between the Parties with respect to the subject matter hereof. Without limiting the foregoing, any additional or different terms provided in any purchase order, statement of work, or other document issued by Vendor regarding the subject matter hereof will not become part of this Agreement, are null and void, and will not be binding upon VISO TRUST. THE UPLOADING OF ANY VENDOR CONTENT TO VISO TRUST OR ANY OTHER USE BY VENDOR OF ANY SAAS SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Limited License
1.1 SaaS Software
VISO TRUST hereby grants to Vendor, subject to the terms and on the conditions of this Agreement, a limited, royaltyfree, non-transferable, non-sublicensable, nonexclusive right to access and use the SaaS Software solely to upload Vendor Content to VISO TRUST for use by VISO TRUST and its customers. For clarity, no copy of the SaaS Software is or will be made available to Vendor or any third party pursuant to this Section 1.1.
1.2 No Updates or Support
Vendor acknowledges and agrees that VISO TRUST has no obligation to make any updates to the SaaS Software or to provide Vendor with any support or maintenance with respect to the SaaS Software.
Vendor acknowledges that the SaaS Software contains valuable trade secrets of VISO TRUST and its licensors and suppliers and contains confidential and proprietary information of VISO TRUST. Accordingly, Vendor agrees that it may not, nor shall permit any third party to: (i) modify, adapt, alter, translate, or create derivative works of the SaaS Software; (ii) create Internet “links” to the SaaS Software or “mirror” any data, information, content, or other material of VISO TRUST that is provided to it through the use of the SaaS Software; (iii) build a commercial product or service using similar ideas, features, functions, or graphics of the SaaS Software or that is otherwise competitive with the SaaS Software; (iv) sublicense, resell, rent, lease, transfer, or assign SaaS Software or its use, or offer the SaaS Software on a time share basis to any third party; (v) reverse engineer, decompile, decode, or disassemble the SaaS Software; (vi) otherwise attempt to derive the source code for the SaaS Software or any underlying software or attempt to gain access to any underlying code used to implement or deploy the SaaS Software; or (vii) disable, disrupt, circumvent, or otherwise interfere with any feature, functionality, or control that prevents, restricts, or otherwise governs access to, or use of, the SaaS Software. For clarity, Vendor receives no right or license to any source code to the SaaS Software under this Agreement.
2.1 Vendor Content
As between VISO TRUST and Vendor, all Vendor Content is owned by Vendor, and Vendor represents and warrants it has the right to provide all Vendor Content to VISO TRUST for further use and disclosure by VISO TRUST as contemplated hereunder. Except as provided herein, VISO TRUST will not disclose any Vendor Content to any third party other than: (i) employees, vendors, service providers, and other contractors of VISO TRUST who have a need to know the Vendor Content for purposes of enabling VISO TRUST to provide its products and services; and (ii) those customers of VISO TRUST that are expressly authorized by Vendor. Except as provided herein, VISO TRUST will not use the Vendor Content in a manner that publicly discloses, or discloses to any other customers of VISO TRUST, any confidential relationship between Vendor and any actual or prospective customer of Vendor without Vendor’s or the applicable customer’s prior consent.
2.2 IP Ownership
Subject to the license expressly granted to Vendor hereunder, all right, title, and interest in and to the SaaS Software and any intellectual property rights therein are and shall be owned solely and exclusively by VISO TRUST
2.3 Usage Data
VISO TRUST may monitor the usage of the SaaS Software and may collect and/or generate data and information relating to Vendor’s, customers’, and any end user’s use of the SaaS Software, including information VISO TRUST collects or licenses from third parties (such data and information, including all Vendor Content, LEGAL_US_W # 108562802.2 collectively, “Usage Data”). Both during and after the term of this Agreement, VISO TRUST may use the Usage Data to modify, enhance, train, and optimize VISO TRUST’s algorithms and other software used to provide the SaaS Software. All Usage Data (other than Vendor Content) will be owned by VISO TRUST and, subject to Section 2.1, all Usage Data may be used and disclosed by VISO TRUST for any lawful purpose. VISO TRUST may provide notices, alerts, or other messages to Vendor, customers, and end users based on the Usage Data
To the extent Vendor, its employees, or any end users of the SaaS Software provide VISO TRUST with any suggestions, ideas, enhancement requests, recommendations or feedback regarding the SaaS Software, or VISO TRUST otherwise conceives of or creates any ideas, enhancements, improvements, or modifications to the SaaS Software (collectively, Feedback and Improvements), VISO TRUST will be free to use, disclose, commercialize, license, and exploit such Feedback and Improvements without any restriction. Feedback and Improvements may also be used to improve the SaaS Software for other customers and vendors of VISO TRUST.
2.5 Permitted Disclosures
In addition to any other rights of VISO TRUST hereunder, VISO TRUST may disclose Vendor Content to the extent required by applicable law or pursuant to a valid order issued by a court or government agency, provided that VISO TRUST provides Vendor, without delay, written notice of such disclosure requirement and cooperates with Vendor if Vendor seeks to limit or oppose such disclosure.
3. Compliance with Law
Each Party shall comply with all applicable laws in relation to its obligations or performance under this Agreement. Vendor specifically agrees to comply with all export control, embargo, and sanctions laws and regulations of the United States and any other applicable jurisdiction, and each Party specifically agrees to comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act.
The SaaS Software may contain errors, bugs, and other problems that could cause unavailability or failure of the SaaS Software. In addition, the SaaS Software may not have any documentation and any documentation that is in existence may be inaccurate or incomplete. EXCEPT AS SET FORTH HEREIN, VISO TRUST PROVIDES THE SAAS SOFTWARE AND ANY RELATED DOCUMENTATION TO VENDOR ON AN “AS-IS” BASIS WITHOUT WARRANTY OF ANY KIND, AND VISO TRUST MAKES NO WARRANTY REGARDING THE SAAS SOFTWARE, ANY RELATED DOCUMENTATION, OR THE USE OR OPERATION OF THE SAAS SOFTWARE, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND NON-INFRINGEMENT. EXCEPT AS SET FORTH HEREIN, VENDOR MAKES NO WARRANTY REGARDING ANY VENDOR CONTENT OR ANY FEEDBACK PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE
5. Indemnification; Consequential Damages Waiver; Limitation of Liability.
5.1 Indemnification by Vendor
Vendor will indemnify, defend, and hold harmless VISO TRUST and its officers, directors, employees, contractors, and customers from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) resulting from any claim or suit arising out of or related to (i) Vendor’s breach of this Agreement; or (ii) any Vendor Content.
5.2 Limitation of Liability
IN NO EVENT WILL VISO TRUST BE LIABLE TO VENDOR OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER INCURRED, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF VISO TRUST IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE BY VENDOR. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF VISO TRUST ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED $100.
6. Term and Termination
This Agreement will remain in force unless and until terminated by either Party. Either Party may terminate this Agreement at any time by providing written notice of termination to the other Party, which termination will be effective immediately upon such notice. Upon the termination of this Agreement for any reason: (i) the license granted pursuant to Article 1 shall simultaneously terminate; (ii) Vendor and all end users thereof shall immediately cease all use of the SaaS Software; and (iii) Articles 2, 4, 5, 6, and 7 shall survive the termination of this Agreement. Notwithstanding the foregoing, the termination or expiration of this Agreement will not relieve either Party of any liability or obligation that accrued prior to such termination or expiration.
The Parties are each independent contractors, and neither Party shall be, nor represent itself to be, the franchiser, joint venturer, franchisee, partner, broker, employee, servant, agent, or legal representative, of the other Party for any purpose whatsoever. Neither Party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party, or bind the other Party in any manner whatsoever.
7.2 Amendment; Waiver
This Agreement may not be modified, amended, or supplemented, except by a writing signed by both Parties. No failure to exercise, and no delay in exercising, any right, power, or privilege under this Agreement shall, in either case, operate as a waiver, nor shall any single exercise, any single failure to exercise, or a partial exercise of a right, power, or privilege hereunder, in any case, preclude the exercise of any other right, power, or privilege. No waiver of any right, power, or privilege hereunder shall be valid unless made in writing and signed by the waiving Party.
If any provision of this Agreement or the application of such provision to any person or circumstance shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement or the application of such provisions as applied to other persons, places, and circumstances shall remain in full force and effect.
Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be personally delivered, sent by a facsimile transmission, sent by certified or registered mail, or sent by a nation-wide courier service, to the other Party at its address set forth in this Agreement or such new address as may from time to time be supplied by the Parties hereto in accordance with this Section 7.4. If personally delivered, notices will be deemed delivered and effective on the date of personal delivery. If sent by facsimile machine, then notices will be deemed delivered and effective upon the date of confirmation of receipt by answer-back from the recipient. If delivered by a nation-wide courier service, then notices will be deemed delivered and effective on the date of receipt.
7.5 Captions and Headings
All captions and headings are for reference only and shall not be considered in interpreting or construing this Agreement.
7.6 Assignment; Subcontracting
This Agreement may not be assigned or delegated by Vendor without the prior written approval of VISO TRUST. VISO TRUST may freely assign this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. VISO TRUST may subcontract any or all of its obligations under this Agreement without Vendor’s consent, provided that VISO TRUST will remain responsible for such subcontractor’s performance hereunder.
7.7 Injunctive Relief
The Parties acknowledge that any breach of any of the provisions of this Agreement may cause irreparable harm and significant injury to VISO TRUST, the extent of which may be extremely difficult to ascertain. Accordingly, Vendor agrees that VISO TRUST will have, in addition to any other rights or remedies it may have available at law or in equity, the right to seek injunctive relief, without posting bond, to enjoin any breach or violation of such provisions.
7.7 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the state of California, without reference to conflicts of law principles. The application of the United Nations Convention on the International Sale of Goods is specifically disclaimed. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the Parties’ relationship with each other and/or Vendor’s use of the SaaS Software shall be finally settled by binding arbitration administered by the American Arbitration Association (AAA) on a confidential basis in LEGAL_US_W # 108562802.2 accordance with the provisions of AAA’s Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. The arbitrator’s award shall be final and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction, subject to review in accordance with applicable statutes governing arbitration awards. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act. Notwithstanding the above, neither Party will be required to arbitrate a dispute relating to the misuse or misappropriation or any confidential or proprietary information or the infringement of intellectual property rights, which dispute shall be brought in the federal and state courts in Alameda County, California, and each Party hereby consents to the jurisdiction and venue of such courts for such disputes. The Parties agree that any and all process directly to any of them in any such litigation may be served outside the State of California with the same force and effect as if the service had been made within the State of California and that service of process may be effected in accordance with Section 7.4 hereof.