This Services Agreement (this “Services Agreement”) contains the terms under which Vette, Inc., a Delaware corporation (“Vette”) agrees to provide the Services to Client. By executing an Order Form that references this Services Agreement, Client agrees to be bound by this Services Agreement.
1.1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2. “Agreement” means the Order Form and this Services Agreement.
1.3. “Applicant Data” means data and information provided by job applicants or collected by Vette from job applicants in the course of providing the Services to Client.
1.4. “Authorized Users” means individuals who are employees or contractors of Client or its Affiliates and who will use the Services in order to perform their obligations to Client or its Affiliates.
1.5. “Client” means the entity indicated as such on the Order Form.
1.6. “Client Content” means (a) all job information, applicant screening, scripts and qualification requirements and other data, information and materials submitted by Client to Vette for the Services, (b) all Applicant Data, and (c) the output of Client’s processing of the foregoing data and information in the Services, but excluding the Services and Documentation.
1.7. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding a party’s product plans, security practices and policies, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates (“Disclosing Party”) to the other party or its Affiliates (“Receiving Party”), directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date. Confidential Information includes this Agreement and its terms, and the Services and Documentation, and all software and infrastructure used to provide the Services. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (b) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; or (c) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality.
1.8. “Documentation” means operation manuals and other user manuals relating to the Vette Platform and Services made available by Vette to Client.
1.9. “Order Form” means the Vette Order Form executed by Vette and Client referencing this Services Agreement.
1.10. “Services” means the job applicant vetting and additional services provided to Client as described on the Order Form, including access to the Vette Platform.
1.11. “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Vette Platform or Documentation that is not expressly authorized under this Agreement.
1.12. “Vette Credit” means Client’s right to have Vette provide screening of job applicants. Each Vette Credit entitles Client to phone screening of one (1) job applicant.
1.13. “Vette Platform” means Vette’s online platform for managing the services provided hereunder.
2.1. Services. Client orders the Services described on the Order Form. The Services are limited to the number of Vette Credits and other services specified on the Order Form. If there is a conflict between the terms of this Services Agreement and the terms of the Order Form, the terms of the Order Form will prevail.
2.2. Use of the Vette Platform. Subject to the terms and conditions of this Agreement, Vette grants to Client a limited, nontransferable (except in connection with the transfer of this Agreement pursuant to Section 13.10), nonexclusive license, without the right to sublicense, to the Vette Platform, solely for Client’s internal business use by Authorized Users to order and manage Client’s use of the Services. Vette will use reasonable efforts to improve and enhance its offerings, and will from time-to-time provide Client those upgrades and updates to the Vette Platform as and when made generally available.
2.3. Use of the Documentation. Subject to the terms and conditions of this Agreement, Vette grants to Client a limited, nontransferable (except in connection with the transfer of this Agreement pursuant to Section 13.10), nonexclusive license, without right of sublicense, to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Client’s use of the Services in accordance with this Agreement.
2.4. Restrictions. Authorized User accounts cannot be used by more than one individual. Client is responsible for the accuracy, quality and legality of the Client Content, as well as for determining access privileges and rights for Authorized Users. Except as otherwise explicitly provided in this Agreement, Client will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Vette Platform or Documentation, unless expressly permitted by applicable law; (b) rent, lease, or sublicense the Vette Platform or Documentation or otherwise provide unauthorized access thereto; (c) circumvent or disable any technological or security features or measures in the Vette Platform, or (d) use the Vette Platform: (i) in a way prohibited by law, regulation, governmental order or decree; (ii) to violate the rights of others; (iii) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (iv) to spam or distribute malware; (v) in a way that could harm the Vette Platform or impair anyone else’s use of it. Client will only use the Vette Platform and Documentation in compliance with all applicable laws and regulations.
2.5. Protection against Unauthorized Use. Client will use its best efforts to prevent any Unauthorized Use of the Vette Platform and Documentation and will immediately notify Vette in writing of any Unauthorized Use that comes to Client’s attention, at email@example.com, followed by contacting Client’s customer relationship manager. If there is Unauthorized Use by anyone who obtained access to the Vette Platform or Documentation through Client, Client will take all steps reasonably necessary to terminate the Unauthorized Use. Client will reasonably cooperate and assist with any actions that Vette takes to prevent or terminate Unauthorized Use of the Vette Platform or Documentation. Client is directly responsible to Vette for the conduct of its Authorized Users, and all orders of Services made through the Vette Platform.
3.1. Fees. Other than amounts disputed in good faith, Client will pay the fees and any other amounts owing under this Agreement as set out on the Order Form, plus any applicable VAT, sales, use, excise or other taxes (the “Fees”). Unused Vette Credits expire twelve (12) months after the date of purchase.
3.2. Payment. Client will pay all undisputed amounts according to the terms set forth on the Order Form. Client understands that Vette Credits will not be available for use in Client’s account until they are paid in full. If Client disputes any invoiced amount, Client will notify Vette in detail in writing as to the nature of the disputed charges and the reason for Client’s disagreement prior to the due date of the payment, but Client will pay all undisputed charges on the applicable invoice by their due date. Vette will respond by providing documentation in reasonable detail for the disputed charges. The parties will make all reasonable attempts to resolve the dispute in good faith and as amicably as possible within thirty (30) days. Any undisputed amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Client will also reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Vette to collect any undisputed amount that is not paid when due.
3.3. Taxes. Other than net income and gross receipt taxes imposed on Vette, Client will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Client will pay any additional taxes as are necessary to ensure that the net amounts received by Vette after all such taxes are paid are equal to the amounts that Vette would have been entitled to in accordance with this Agreement as if the taxes did not exist.
4.1. Specific Terms for Resellers and Service Providers. The terms of this Section 4 will apply if Client is specifically authorized on the Order Form to resell the Services to a third party or to use the Services to provide services to a third party (any such third party, a “Client Customer”).
4.2. Use of Services. Client may resell the Services to a Client Customer or use the Services for the benefit of a Client Customer, and in such event the terms Applicant Data and Client Content include data and information of the Client Customer. Client may provide employees and contractors of a Client Customer with access to the Services, and such employees and contractors will be considered to be “Authorized Users” hereunder. If a specific Client Customer is named on the Order Form, then such resale or beneficial use is limited to the named Client Customer.
4.3. Payment for Services. Client’s obligation to pay the Fees is not contingent on Client’s receipt of payment from a Client Customer. Client will remain fully responsible for payment of the Fees to Vette under this Agreement whether or not Client receives payment from a Client Customer.
4.4. Responsibility. Client is responsible for the acts and omissions of the Client Customer and its employees and contractors in relation to this Agreement, and for their compliance with the terms of this Agreement. Before reselling the Services to a Client Customer or using the Services to provide services to a Client Customer, Client shall enter into a written contract with such Client Customer that requires such Client Customer to comply with all of the applicable obligations in this Agreement and granting Vette all applicable rights under this Agreement, including without limitation Sections 2.2, 2.3, 2.4, 2.5 and 6.
4.5. Conflicts. In the event of a conflict between this Section 4 and the other terms of this Agreement, this Section 4 will prevail.
5.1. Term. This Agreement will commence on the Effective Date specified on the Order Form and will expire if Client’s account does not have any available Vette Credits for a period of six (6) months, unless otherwise agreed in writing by the parties or unless earlier terminated in accordance with the terms of this Agreement.
5.2. Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within thirty (30) days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the thirty (30)-day cure period. Without limitation, any failure by Client to timely pay to Vette any undisputed amounts when due will constitute a material breach of this Agreement, and Vette may, without limitation of any of Vette’s other rights and remedies available, suspend performance of any or all Services during any time that Client is in default of such amounts owed to Vette.
5.3. Effects of Termination. Upon the date of expiration or termination of this Agreement for any reason, the following will apply: (a) Client will pay to Vette any Fees or other amounts that have accrued prior to the date of the expiration or termination; (b) Client will immediately cease all use of, and Vette will cease providing, all Services and Documentation and any and all portions thereof; (c) Client will immediately return to Vette all Documentation and all copies and portions thereof and certify to Vette in writing that such return has been fully accomplished; (d) upon Client’s written request within thirty (30) days of the date of expiration or termination of this Agreement, Vette will make available to Client for download all Client Content in a format reasonably determined by Vette or a format otherwise agreed to by the parties; (e) after the thirty (30) day period following the date of expiration or termination, Vette will have no further responsibility to maintain or provide Client Content and Vette agrees to thereafter delete all Client Content in Vette’s possession or control; and (f) each party will promptly return all Confidential Information of the other party.
5.4. Survival. The parties’ respective rights and obligations under Sections 3, 4.3, 4.4, 4.5, 5.3, 5.4, 6.1, 6.3, 6.4, 6.5, 8, 9.3, 10, 11, 12 and of this Agreement, and any and all liabilities accrued prior to the effective date of expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
6.1. Vette Platform, Services and Documentation. Client acknowledges and agrees that Vette exclusively owns all right, title and interest in and to the Services (including the Vette Platform and all scripts, job descriptions and other data and information used for the Services or made available to Client in connection with the Services) and Documentation and all portions thereof, together with all intellectual property and other proprietary rights relating thereto, including all copyrights, patent and trade secret rights, as well as all updates, upgrades, improvements, enhancements, modifications, configurations, extensions, and derivative works of any of the foregoing (including all new features, functions and integrations) however and whenever made, notwithstanding any other provision in this Agreement. Vette reserves all rights to the Services (including the Vette Platform) and Documentation not expressly granted to Client under this Agreement.
6.2. Client Content. Vette acknowledges that, as between Vette and Client, Client owns all intellectual property and other proprietary rights in and to the Client Content, including all copyrights, patent and trade secret rights therein. Subject to the rights granted by Client under this Agreement, Vette acquires no right, title or interest from Client or Client’s licensors under this Agreement in or to Client Content, including any intellectual property rights therein. Client hereby grants to Vette a worldwide, nonexclusive, fully-paid up, royalty-free and non-transferable (except in connection with the transfer of this Agreement pursuant to Section 13.10) license (with right to sublicense) to use the Client Content to provide the Services. Client Content will not be shared with third parties except as necessary to provide the Services.
6.3. Use of Anonymous Data. Client agrees that Vette may de-identify or aggregate Client Content and other data related to the Services (including the Vette Platform) to render it Anonymous Data, which may then be used for the purposes of operating and improving Vette’s services and operations, and other research, analytics, marketing and related purposes. Vette may maintain Anonymous Data as part of its own records and information and such data shall no longer be subject to the terms of this Agreement. “Anonymous Data” means data that has been de-identified and/or aggregated with other data to such an extent that Client and job applicants are no longer identifiable, and individuals are no longer identified, identifiable, linked or linkable, or otherwise ascertainable by reference to or combination with other datasets.
6.4. Feedback. Vette welcomes any suggestions, proposals, ideas, recommendations or other feedback that Client may provide Vette concerning improvements, new features and new functions related to the Services (including the Vette Platform) (“Feedback”). Feedback excludes Client’s Confidential Information. By providing Feedback to Vette or otherwise participating in development of the Services (including the Vette Platform), Client agrees that all Feedback and any other contribution of Client related to the Services (including the Vette Platform) become Vette’s exclusive property. Additionally, Client irrevocably assigns to Vette its complete rights, titles, and interests in and to Feedback and any rights Client may have in the Services (including the Vette Platform and updates, upgrades, improvements, enhancements, modifications, configurations, extensions, and derivative works), including any and all intellectual property rights contained therein. Moreover, at Vette’s request and expense, Client agrees to execute documents and take such further action as Vette may reasonably request to assist it in acquiring, perfecting, or maintaining such intellectual property rights.
6.5. Trademarks. “Vette”, Vette’s logos and any other trade name or slogan contained in the Services (including the Vette Platform) are trademarks or service marks of Vette, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Vette or the applicable trademark holder. In addition, the look and feel of the Vette Platform is the service mark, trademark and/or trade dress of Vette and may not be copied, imitated or used, in whole or in part, without Vette’s prior written permission.
7.1. Security. Vette has implemented and will maintain reasonable administrative, physical and technical security measures consistent with current prevailing security practices in the United States software-as-a-service industry and intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Client Content. These measures include encryption of Client Content during transmission to the Vette Platform, and encryption of backups of Client Content and authentication credentials at rest. Vette will comply with all applicable law concerning privacy, data transfer and security of personal data in the Client Content. Vette will notify Client of any unauthorized access to, or use of, Client Content that comes to Vette’s attention.
7.2. Malicious Code. Vette will use measures consistent with prevailing practices in the United States software-as-a-service industry to screen the Services for the purpose of avoiding the introduction of any Malicious Code into Client Content or Client’s computer hardware and software systems or software. For the purposes of this Agreement, “Malicious Code” means software (including, without limitation, code, instructions, programs, routines and/or scripts) that is designed to (a) permit unauthorized access to and/or copying of Client’s data, hardware or software; or (b) damage, delete, delay, disable, erase, interfere with, modify, shut-down or otherwise harm Client’s data, hardware or software, including, but not limited to, components that are commonly referred to as “back doors,” “bots”, “drop dead devices”, “malware”, “time bombs,” “Trojan Horses,” “viruses”, and “worms”. In the event Vette introduces Malicious Code into Client Content or Client’s computer hardware or software systems or software, Vette will reasonably cooperate with and assist Client in removing such virus and/or Malicious Code at no additional charge.
7.3. Service Availability. Vette will perform and maintain regular database backups. Vette incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and to help improve system performance. Vette also uses an industry-leading hosting infrastructure to provide the Vette Platform and Services and has implemented and will maintain commercially reasonable business resumption and contingency plans intended to avoid unplanned services interruptions. Vette will use reasonable efforts to notify Client at least twenty-four (24) hours in advance of planned maintenance services. In the event of an unplanned Services interruption, Client may contact Vette for Support Services (defined below).
7.4. Support Services. For so long as Client is current with its payment of the fees payable hereunder, Vette will use reasonable efforts to provide Client with technical support services relating to the Vette Platform by email to firstname.lastname@example.org from 9am-5pm Eastern time, Monday through Friday, excluding holidays (“Support Services”).
8.1. Mutual Confidentiality. The Receiving Party agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees or agents who reasonably need to have access to such information to perform the Receiving Party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Vette may disclose this Agreement (but not any of Client’s other Confidential Information) to actual and potential investors and funding sources who agree to hold it in confidence.
8.2. Exceptions. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required by applicable law or regulation or as may be required to comply with a court order compelling such disclosure; provided that, unless legally prohibited from doing so, the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and reasonable assistance in limiting disclosure or obtaining an order protecting the information from public disclosures.
8.3. Publicity. Client agrees that upon request by Vette (a) Client will make one or more representatives reasonably available to participate in reference inquiries from Vette’s potential customers and partners; (b) provided that Vette agrees not to disclose any of Client’s Confidential Information in such case study, Vette may create and publish a case study regarding the nature of Client’s use of the Services and Client will reasonably assist in the created of the case study; and (c) Vette may identify Client – by name and logo – as a customer in Vette’s published customer lists. Lastly, upon request, Client will mutually agree with Vette on the text of a press release that will refer to and identify the parties and the existence of this Agreement.
9.1. Mutual Representations and Warranties. Each party represents and warrants to the other that:
a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms;
b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and
c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
9.2. Vette Representations and Warranties. Vette represents and warrants to Client that:Vette has sufficient right, title and interest in the Vette Platform to license the Vette Platform to Client in accordance with this Agreement, and that entering into and carrying out the terms and conditions of this Agreement will not violate or constitute a breach of any agreement binding upon Vette;the Services will be performed in a professional and workmanlike manner and will be of a grade, nature, and quality that meets prevailing standards in the industry; andto Vette’s knowledge as of the Effective Date, Client’s use of the Vette Platform in accordance with this Agreement will not infringe, misappropriate or otherwise violate any third party intellectual property or other proprietary rights.
9.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, VETTE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. VETTE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR ANY DELIVERABLES, OR AGAINST INFRINGEMENT, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT. VETTE DOES NOT WARRANT THAT THE VETTE PLATFORM, SERVICES OR ANY DELIVERABLES ARE ERROR-FREE OR THAT OPERATION OF THE VETTE PLATFORM, SERVICES OR DELIVERABLES WILL BE SECURE OR UNINTERRUPTED. VETTE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CLIENT’S USE OF THE VETTE PLATFORM, SERVICES AND DELIVERABLES.
10.1. Infringement Defense. Vette will, at its expense, defend Client and Client’s employees, directors, officers, agents, and representatives (collectively, “Client Indemnified Parties”) from any actual or threatened third party claim, proceeding or suit that alleges that the use of the Vette Platform by the Client Indemnified Parties infringes or misappropriates any copyright, patent, trademark, trade secret or other intellectual property right of any third party during the term of this Agreement, if: (a) the applicable Client Indemnified Party gives Vette prompt written notice of the claim; (b) Vette has full and complete control over the defense and settlement of the claim; (c) the applicable Client Indemnified Party provides assistance in connection with the defense and settlement of the claim as Vette may reasonably request; and (d) the applicable Client Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
10.2. Infringement Indemnification. Vette will indemnify each of the Client Indemnified Parties against and pay (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Vette’s consent after Vette has accepted defense of such claim); and (c) if any proceeding arising under Section 10.1 is settled, all amounts paid to any third party that Vette agrees to in settlement of any such claims.
10.3. Mitigation of Infringement Action. If Client’s use of the Vette Platform is, or in Vette’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 10.1, then Vette will either: (a) procure Client’s continuing right to use the Vette Platform; (b) replace or modify the Vette Platform in a functionally equivalent manner so that it no longer infringes; or (c) if, despite Vette’s commercially reasonable efforts, Vette is unable to do either (a) or (b), Vette will terminate this Agreement and refund to Client all Fees paid for unused Vette Credits.
10.4. Exclusions. Vette will have no obligation under this Section 10 for any infringement to the extent that it arises out of or is based upon (a) the combination, operation, or use of the Vette Platform with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by Vette or recommended in writing by Vette if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Vette Platform that Client required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Vette Platform outside of the scope of the license granted to Client; (d) any modification of the Vette Platform not made or authorized in writing by Vette where such infringement would not have occurred absent such modification; (e) the Client Content; or (f) Unauthorized Use of the Vette Platform. Client will reimburse Vette for any costs or damages that result from these actions.
10.5. Exclusive Remedy. This Section 10 states Vette’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Services (including the Vette Platform).
11.1. Defense. Except to the extent a claim arises from Vette’s gross negligence, willful misconduct or breach of this Agreement, Client will, at its expense, defend Vette, its Affiliates and their employees, directors, officers, agents, and representatives (collectively, “Vette Indemnified Parties”) from any actual or threatened third party claim, proceeding or suit arising out of or based upon Client’s use of the Services, a third party’s use of the Services authorized or facilitated by Client, the Client Content, or Client’s breach of any of the provisions of this Agreement, if: (a) the applicable Vette Indemnified Party gives Client prompt written notice of the claim; (b) Client has full and complete control over the defense and settlement of the claim; (c) the applicable Vette Indemnified Party provides assistance with the defense and settlement of the claim as Client may reasonably request and at Client’s expense; and (d) the applicable Vette Indemnified Party complies with any settlement or court order made in connection with the claim.
11.2. Indemnification. Client will indemnify each of the Vette Indemnified Parties against and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Vette in any proceeding under Section 11.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Client’s consent after Client has accepted defense of such claim); and (c) if any proceeding arising under Section 11.1 is settled, Client will pay any amounts to any third party that Client agrees to in settlement of any such claims.
12.1. Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR DAMAGE TO REPUTATION ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, WHETHER CAUSED BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, EVEN IF THE LIABLE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CLIENT TO VETTE UNDER THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTH PERIOD (DETERMINED AS OF THE DATE OF THE EVENT GIVING RISE TO THE CLAIM).
12.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY VETTE TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13.1. Independent Contractor. It is the express intention of the parties that Vette performs all of the services as an independent contractor. Without limiting the generality of the foregoing, Vette is not authorized to bind Client to any liability or obligation or to represent that Vette has any such authority.
13.2. Subcontractors. Vette may use a subcontractor or other third party in carrying out its obligations under this Agreement; however, Vette remains responsible for all of its obligations under this Agreement and for any breach of this Agreement by any such subcontractor or other third party.
13.3. Governing Law; Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, USA, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
13.4. Export Compliance. Each party shall comply with United States and foreign export control laws and regulations. Client acknowledges that the Services, Support Services and Documentation are subject to the U.S. Export Administration Regulations (the “EAR”) and that Client shall comply with the EAR. Without limiting the foregoing, (a) Vette and Client each respectively represent that: (i) it is not located in any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria) (“Restricted Countries”); and (ii) it is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; (b) Client represents that it shall not use the Services, Support Services and Documentation from any Restricted Country or in the design, development or production of nuclear, chemical or biological weapons, rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (c) Vette represents that it shall not provide the Services, Support Services and Documentation from any Restricted Country. In addition, Client is responsible for complying with any local laws which may impact Client’s right to import, export or use the Services, Support Services and Documentation.
13.5. Mitigation. Each party must mitigate the impact of any damage arising out of or related to this Agreement.
13.6. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: delivered in person or sent by overnight air courier with some form of tracking mechanism, in each case properly posted and fully prepaid to the appropriate address. The initial address for notices for each party is set forth on the Order Form, but either party may change its address for notices by notice to the other party given in accordance with this Section 13.6. Notices will be deemed given at the time of actual delivery in person or one day after delivery to an overnight air courier service.
13.7. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than payment of Fees) as a result of any cause or condition beyond such party’s reasonable control, so long as such party uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
13.8. Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
13.9. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
13.10. Assignment. Neither party will assign or otherwise transfer this Agreement, or such party’s rights and obligations hereunder, either voluntarily, by operation of law or otherwise, absent the other party's prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may, upon fifteen (15) days’ prior written notice to the other party, assign all of its rights and delegate all of its duties under this Agreement to: (a) the surviving entity in a merger, sale, consolidation, or combination; or (b) an entity that acquires all or substantially all of the assigning party's assets related to this Agreement.
13.11. Counterparts. The Order Form may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. The Order Form may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
13.12. Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
13.13. Integration. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions.
13.14. Changes to Services Agreement. From time to time Vette may modify the terms of this Services Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If Vette Updates this Services Agreement, it will make the Updated Services Agreement available www.vette.io/services-agreement, and the Updated Services Agreement will indicate the date of the latest revision. Vette encourages Client to review this Services Agreement periodically for changes. In the event that Updates to this Services Agreement materially alter Client’s rights or obligations hereunder, Vette will make reasonable efforts to notify Client of the Updates. For example, Vette may send a message to the email address that is currently associated with Client’s account or generate a pop-up or similar notification when Client accesses its account for the first time after such material changes are made. All Updated Services Agreements automatically take effect thirty (30) days after Client is notified of the Update as described above, except that (i) disputes between Client and Vette will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if Client does not agree with any changes to this Services Agreement that materially alter Client’s rights or obligations hereunder, Client agrees to give Vette written notice and the parties will use good faith efforts for a period of at least thirty (30) days to resolve the matter, failing which Client may terminate this Agreement upon thirty (30) days prior written notice to Vette. Client’s continued access to or use of the Services after an Updated Services Agreement has become effective indicates that Client has read, understood and agreed to the current version of this Services Agreement.