Last Updated: August 11, 2025
This Customer Terms of Service (this “Agreement”) is between the customer identified on the Order (“Customer”) and Vizit Labs, Inc. (“Vizit”) as of the Effective Date (as defined herein). This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer. Vizit provides the products and services listed on an Order on a subscription basis (each, a “Subscription”). The term of each Subscription is designated in the applicable Order (each, a “Subscription Term”)
BY ACCESSING THE SERVICES OR EXECUTING AN ORDER INCORPORATING THESE TERMS, CUSTOMER IS EXPRESSLY ACCEPTING AND AGREEING TO THIS AGREEMENT. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS CUSTOMER’S EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES EITHER YOURSELF OR ON BEHALF OF THE ENTITY. VIZIT MAY MODIFY THESE TERMS FROM TIME TO TIME WITH NOTICE TO CUSTOMER OR BY POSTING THE MODIFIED TERMS ON THE VIZIT WEBSITE. TOGETHER WITH SUCH MODIFIED TERMS, VIZIT WILL IDENTIFY THE EFFECTIVE DATE OF THE MODIFICATIONS BY INDICATING WHEN THE AGREEMENT WAS LAST UPDATED.
1. Definitions
“Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally, or by inspection of tangible objects, which is designated as confidential, proprietary, or similar designation, or learned by the Recipient when such information would reasonably be understood to be confidential. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain through no act or omission of Recipient; (b) known to the Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) rightfully obtained by the Recipient on a non-confidential basis from a third party; or (d) independently developed by the Recipient without any use of Discloser’s Confidential Information.
“Content” means all information, data, and other content that is submitted or otherwise transmitted by Customer in the course of using the Services, including but not limited to names, logos, product and service names, designs, and slogans, or any photos, images, videos, text or other information or intellectual property. For avoidance of doubt, Content does not include data and information related to Customer’s use of the Services that is used by Vizit in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Services, or any other information reflecting Customer’s access and use of the Services (“Usage Data”).
“Deliverables” means all patterns, audience behavior trends, and other visual information, insights, advice, analyses, recommendations and information arising from the performance of the Professional Services or generated through the access and use of the Service under the Agreement to the extent they (i) are unique to the Customer or (ii) contain Customer Confidential Information.
“Documentation” means the Services specifications, user guides, and other related documentation relating to the Services made available to Customer by Vizit.
“Effective Date” means the date that Customer executes the Order, accepts this Agreement or accesses the Services, whichever is earlier.
“Harmful Code” means any (i) virus, trojan horse, worm, backdoor, malicious computer code, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or (ii) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity
“Non-Subscription Fees” means the fees for any Professional Services, Add-Ons and/or Support and Maintenance Services as set forth in an Order.
“Order” means the digital or physical ordering document or webpage identifying the Services and related fees, as applicable, for Customer’s purchases from Vizit.
“Privacy Policy” means the privacy policy found at https://www.vizit.com/privacy-policy and incorporated herein by reference.
“Services” means the services provided or made available by Vizit to Customer under this Agreement pursuant to an applicable Order. Services includes licensed access to the Vizit Platform, Professional Services, and Support and Maintenance Services.
“Subscription Fee” means the license fee set forth in an Order which enables Customer to access the Vizit Platform.
“Third-Party Products” means materials and information, in any form or medium, including any software, open-source software, artificial intelligence tools, content, products, or components of or relating to the Services that are not proprietary to Vizit.
“Vizit Data” means any and all data or information provided or otherwise made available by Vizit to Customer under this Agreement in performing the Services and includes any data generated, collected by or through the Vizit Platform in the course of providing or otherwise related to the performance of the Services.
“Vizit Platform” means Vizit’s web-based technology platform for Vizit’s merchant-side customers, consisting of the functionalities described in the applicable Order, which functionalities may be updated from time to time.
II. Fees; Payment
All Subscription Fees and Non-Subscription Fees are as set forth in the applicable Order or through the Services and shall be paid by Customer in accordance with the payment terms therein. Customer shall make all payments in US dollars. All Subscription Fees are due annually in advance, net thirty (30) days from receipt of invoice and are non-refundable. All Non-Subscription fees will be invoiced and payable as set forth in the applicable Order or through the Services (or, if no such invoicing schedule is specified, then on a monthly basis, in arrears, payable net 30 days). Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by Vizit (or other related entities) will be included in the amount owed by Customer. Except as may be expressly set forth in an applicable Order, all fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Payments will be made without right of set-off or chargeback. If payment of any fee is overdue, Vizit may suspend Customer’s use of the Services and any support until such delinquency is corrected. Non-payment or late payment of undisputed fees is a material breach of this Agreement. To the extent permitted by applicable law, Customer shall pay interest on any overdue balance at the rate of 1.5% per month or the maximum permitted by law, whichever is less.
III. License
3.1 As between the parties, all Intellectual Property Rights in and to the Services and Deliverables (except for any Customer Confidential Information or Customer Content) and any modification thereto shall be owned exclusively by Vizit. During the term of this Agreement and subject to the terms and conditions contained herein, Vizit grants Customer a non-transferable, non-sublicensable, non-exclusive, limited license for Customer to access and use the Services, but only in accordance with (a) this Agreement, (b) the Documentation, (c) an applicable Order, and (c) any other restrictions communicated to Customer in writing by Vizit. Vizit reserves the right, in its sole discretion, to modify or update the Services and Documentation.
3.2 Vizit hereby grants Customer a limited, non-exclusive, perpetual, worldwide license to use, display, and reproduce Deliverables solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and in accordance with the terms and conditions of the Agreement.
3.3 Customer acknowledges and agrees that this Agreement does not transfer to Customer any Vizit or third-party intellectual property rights. Customer acknowledges and agrees that, as between Vizit and Customer, Vizit owns all right, title, and interest in and to the Vizit Data, Vizit Platform, Services and Documentation, including, without limitation, all source code, object code, operating instructions, and all interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works thereof, and Vizit shall, notwithstanding any other term of this Agreement, remain the owner of the Vizit Data, Vizit Platform, Services and Documentation. Vizit owns the Usage Data. Nothing herein will be construed as restricting or prohibiting Vizit from utilizing the Usage Data in any way, including to optimize and improve the Services so long as the Usage Data remains aggregated and de-identified, or to enforce this Agreement. With respect to Third-Party Products, the applicable third-party provider owns all right, title, and interest in the Third-Party Products, and any part of the Services that contains or utilizes Third-Party Products is distributed and made available under the terms of their applicable license agreements. Unless otherwise expressly provided in this Agreement, Customer shall not acquire any proprietary right, title or interest in or to any intellectual property rights in the Vizit Data, Vizit Platform, Services, Documentation, or Third-Party Products. All rights not expressly granted by Vizit are reserved.
IV. Customer Account.
Upon execution of an Order by the Parties, Vizit will provide Customer with account access information for the Vizit Platform and the Service, which includes a temporary password that Customer may update (“Password”). Customer may be required to provide additional information that will assist in authenticating Customer’s identity when Customer logs into Customer’s account in the future (“Unique Identifiers”). Customer is solely responsible for the confidentiality and use of Customer’s (and its authorized user’s) Password and Unique Identifiers, as well as for any use, misuse, or communications relating to Customer’s account or the Services. Vizit will not be liable for any loss or damage caused by any deletion, change, or unauthorized use of Customer’s account caused by a third party unaffiliated with Vizit.
V. Use of Services
5.1 Customer agrees that Customer is responsible for its conduct while accessing or using the Services and for any consequences thereof. Customer agrees to use the Services only for purposes that are legal, proper and in accordance with this Agreement, applicable Order, and any applicable laws or regulations.
5.2 Customer shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Vizit or its licensors or suppliers contained on or within any copies of the Services; (e) use the Services for the purpose of creating a product or service competitive with the Services; (f) remove, minimize, block or modify any notices of Vizit or its licensors or suppliers in the Services; (g) upload any Harmful Code, or (h) use the Services other than as described in the applicable Documentation or for any unlawful purpose. Customer is responsible for: (i) ensuring that its usage of the Services does not exceed any limits set forth in the Documentation; (ii) maintaining the security of Customer’s account and passwords. Vizit reserves the right to suspend Customer’s access to the Services in the event Vizit determines Customer is in violation of any of these restrictions or other terms contained in this Agreement.
5.3 Customer further represents and warrants that: (a) it has all necessary rights and permissions to provide Content to Vizit and doing so will not violate any applicable laws; (b) Content does not contain any personal identifiable information; and (c) to the extent applicable, Content is in compliance with all applicable laws and regulations, true and accurate.
5.4 Customer may not: (a) allow any other third party to use Customer’s account, or share passwords or account credentials with any other third party; (b) use the Services to transmit fake or fictitious information; (c) impersonate any person or entity or otherwise misrepresent Customer’s affiliation with a third party or use the Services to defraud, deceive, or mislead; (d) access the Services in a manner that exceeds Customer’s authority, such as logging in to a service, account, or email network without proper authorization; (e) access the Services in an automated manner; (f) extract data from the Services in a way that exceeds Vizit’s authorization or violates these terms or other restrictions implemented by Vizit; (g) use the Services to advertise or promote any illegal goods or services, adult services, tobacco products, illegal gambling, counterfeit or pirated goods or services; or violate any securities or commodities regulations; (h) communicate or transfer defamatory, obscene, sexually explicit, vulgar, or offensive; or (i) promote or engage in discrimination, racism, harassment, or hate speech, or threaten or promote violence.
5.5 Customer may submit to Vizit bug reports, comments, feedback or ideas about the Services, including without limitation about how to improve the Services. By submitting any such feedback, Customer hereby assigns Vizit all right, title, and interest in and to the feedback, if any.
5.6 Customer acknowledges and agrees that it shall not use or permit Users to use the Deliverables (i) with a second brand, service or product except as authorized via an applicable Order, (ii) for competitive analysis; or (iii) to create, or assist in the creation of, directly or indirectly, any product or service that reasonably competes with the Services, or provides similar functionality or purpose, in whole or in part, a the Services.
VI. Content
Vizit acknowledges that, as between Vizit and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Content. Customer hereby grants to Vizit a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Content solely as may be necessary for Vizit to provide the Services including updates and upgrades thereto. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and completeness of Content. Vizit will not be responsible for any loss, destruction, alteration, or disclosure of Content.
VII. Third-Party Products
Certain third-party providers offer Third-Party Products and services that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services through use of the Services’ application programming interface. No purchase of such Third-Party Products or services is required to use the Services. Except as expressly set forth in this Section, Vizit does not warrant any such third-party providers or any of their services or Third-Party Products, whether or not such products or services are designated by Vizit as "certified," "validated" or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any service or Third-Party Products offered by such third-party provider, is solely between Customer and such third-party provider. Vizit has no responsibility for maintaining any integrations with Third-Party Products or services and will not be liable in the event of any failure to maintain any such integration. Certain third-party providers offer Third-Party Products and services that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services through use of the Services’ application programming interface. No purchase of such Third-Party Products or services is required to use the Services. Except as expressly set forth in this Section, Vizit does not warrant any such third-party providers or any of their services or Third-Party Products, whether or not such products or services are designated by Vizit as "certified," "validated" or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any service or Third-Party Products offered by such third-party provider, is solely between Customer and such third-party provider. Vizit has no responsibility for maintaining any integrations with Third-Party Products or services and will not be liable in the event of any failure to maintain any such integration.
VIII.
ConfidentialityRecipient shall not disclose the Discloser's Confidential Information to any person or entity, except to the Recipient 's employees or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall, to the extent permitted by applicable law, give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a protective order. Recipient shall not be in breach of its obligations in this Section it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements. On the expiration or termination of the Agreement, upon Discloser’s request, Recipient shall promptly return to Discloser all copies, whether in written, electronic, or other form or media, of the Discloser's Confidential Information, or destroy all such copies and certify in writing to Discloser that such Confidential Information has been destroyed.Recipient shall not disclose the Discloser's Confidential Information to any person or entity, except to the Recipient 's employees or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall, to the extent permitted by applicable law, give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a protective order. Recipient shall not be in breach of its obligations in this Section it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements. On the expiration or termination of the Agreement, Recipient shall promptly return to Discloser all copies, whether in written, electronic, or other form or media, of the Discloser's Confidential Information, or destroy all such copies and certify in writing to Discloser that such Confidential Information has been destroyed.
IX. Representations and Warranties
9.1 Each Party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into this Agreement and perform its obligations hereunder without the need for any consents or approvals not yet obtained and (ii) its performance of this Agreement, and the other Party’s exercise of its rights under this Agreement, will not breach or violate any other obligation to which it may be bound.
9.2 Customer represents, warrants and covenants to Vizit that: (i) it will comply with all applicable laws and governmental regulations applicable Customer and Customer’s use of the Services; (ii) Customer is the owner of the Content or is legally authorized to act on behalf of the owner of the Content; and (iii) Customer will not take any action or encourage any third party to generate impressions or clicks through deceptive, fraudulent or other unlawful means. Customer represents, warrants and covenants to Vizit that: (i) it will comply with all applicable laws and governmental regulations applicable Customer and Customer’s use of the Services; (ii) Customer is the owner of the Content or is legally authorized to act on behalf of the owner of the Content; and (iii) Customer will not take any action or encourage any third party to generate impressions or clicks through deceptive, fraudulent or other unlawful means.
9.3 Vizit represents, warrants and covenants to Customer that: (i) it will comply with all applicable laws and governmental regulations applicable to its operation and maintenance of the Services; (ii) to Vizit’s knowledge, the Vizit Platform and Services provided by Vizit do not infringe upon the Intellectual Property Rights of any third party and (iii) it will use commercially reasonable efforts to ensure that the Services and Vizit Technology do not contain any Harmful Code.
X. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.” VIZIT DOES NOT WARRANT THAT THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE SERVICES WILL MEET CUSTOMER’S NEEDS. VIZIT DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VIZIT SHALL HAVE NO LIABILITY FOR ANY CLAIMS, DAMAGES OR LOSSES ARISING FROM CUSTOMER’S FAILURE TO INSTALL THE LATEST UPDATES, PATCHES, VERSIONS OF THE SERVICES PROVIDED TO CUSTOMER BY VIZIT. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE (“AI”) THE AI GENERATED OUTPUT MAY NOT BE UNIQUE OR EXCLUSIVE TO CUSTOMER OR ITS USERS, THE SAME OR SIMILAR INPUT MAY YEILD A DIFFERING OUTPUT. CUSTOMER ACCEPTS AND AGREES THAT ANY USE OF VIZIT SERVICES IS AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL NOT RELY ON THE SERVICES AS A SOLE SOURCE OF TRUTH OR FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE. CUSTOMER AGREES AND ACKNOWLEDGES THAT VIZIT IS NOT CUSTOMER’S LEGAL OR BUSINESS ADVISOR AND CANNOT GUARANTEE THAT THE USE OF THE SERVICES OR THE DELIVERABLES WILL RESULT IN INCREASED SALES BY CUSTOMER. VIZIT IS NOT RESPONSIBLE FOR ANY OF CUSTOMER’S MARKETING OR BUSINESS DECISIONS MADE IN RELIANCE UPON THE SERVICES OR THE DELIVERABLES OR LACK OF RESULTS ARISING FROM SUCH DECISIONS. ALL THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY PRODUCTS.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.” VIZIT DOES NOT WARRANT THAT THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE SERVICES WILL MEET CUSTOMER’S NEEDS. VIZIT DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VIZIT SHALL HAVE NO LIABILITY FOR ANY CLAIMS, DAMAGES OR LOSSES ARISING FROM CUSTOMER’S FAILURE TO INSTALL THE LATEST UPDATES, PATCHES, VERSIONS OF THE SERVICES PROVIDED TO CUSTOMER BY VIZIT. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE (“AI”) THE AI GENERATED OUTPUT MAY NOT BE UNIQUE OR EXCLUSIVE TO CUSTOMER OR ITS USERS, THE SAME OR SIMILAR INPUT MAY YEILD A DIFFERING OUTPUT. CUSTOMER ACCEPTS AND AGREES THAT ANY USE OF VIZIT SERVICES IS AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL NOT RELY ON THE SERVICES AS A SOLE SOURCE OF TRUTH OR FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE. CUSTOMER AGREES AND ACKNOWLEDGES THAT VIZIT IS NOT CUSTOMER’S LEGAL OR BUSINESS ADVISOR AND CANNOT GUARANTEE THAT THE USE OF THE SERVICES OR THE DELIVERABLES WILL RESULT IN INCREASED SALES BY CUSTOMER. VIZIT IS NOT RESPONSIBLE FOR ANY OF CUSTOMER’S MARKETING OR BUSINESS DECISIONS MADE IN RELIANCE UPON THE SERVICES OR THE DELIVERABLES OR LACK OF RESULTS ARISING FROM SUCH DECISIONS. ALL THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY PRODUCTS.
XI. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT VIZIT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL IN NO EVENT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE TOTAL LIABILITY OF VIZIT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT VIZIT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL IN NO EVENT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE TOTAL LIABILITY OF VIZIT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
XII. Defense and Indemnification.12.1 Vizit Indemnity. Subject to the limitation on liability set forth in Section 11, Vizit shall defend Customer against any third-party claim or allegation to the extent that it is based on Customer’s use of any component of the Services (excluding Third-Party Products) in accordance with this Agreement infringes the U.S. patent or copyright of any third party, and Vizit shall indemnify Customer against any damages actually awarded to such third party by a court of competent jurisdiction as a result of such claim. Notwithstanding the foregoing, Vizit will not have any obligations to Customer to the extent a claim arises from: (a) modification of any Vizit Services by any party other than Vizit without Vizit’s express written consent; (b) the combination, operation, or use of any Services with other product(s), data or services where such Services would not by itself be infringing; (c) Customer’s failure to use an updated version of the Services; or (d) use of any Services in violation of this Agreement or applicable laws or regulations. If Customer’s use of any Services has become, or in Vizit’s opinion is likely to become, the subject of any infringement claim, Vizit may at its sole option and expense: (i) procure the right for Customer to continue using such Services; (ii) modify such Services to make it non-infringing so long as the Services have materially equivalent functionality; (iii) provide a substitute product with materially equivalent functionality; or (iv) terminate this Agreement. This Section 12.1 states Vizit’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
12.2 Customer’s Indemnity. Customer shall defend and hold Vizit and its affiliates, officers, directors, agents, and employees (“
Vizit Indemnitees”) harmless against any third party claims and actions arising from (a) an allegation that Customer’s Content infringes the intellectual property rights of any third party, (b) any use by Customer of the Services in violation of the license restrictions or violation of applicable laws, rules or regulations in connection with the Services, and (c) a breach or alleged breach of any provision of this Agreement by Customer, and Customer shall indemnify the Vizit Indemnitees against any damages, judgments, litigation costs including any reasonable attorneys’ fees.
12.3 Procedure. The party seeking indemnification will notify the indemnifying party promptly of any claim or action covered by this Section. The parties agree to reasonably cooperate during such proceedings. The indemnifying party will have the right to defend any such claim and will have control over the litigation, negotiation, and settlement of any such claim, provided it will not make any settlement of a claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of such party, which will not be unreasonably withheld. The indemnified party may, at its sole expense, participate in the defense of any claim.
XIII. Terms of TerminationThis Agreement commences on the Effective Date and shall continue until terminated in accordance with the terms of this Agreement. The term of each Order shall be as set forth in such Order. The Order will automatically renew for additional 12-month periods unless a party provides at least 30 days’ written notice prior to the end of the then-current term that such party does not wish to renew for the upcoming term. This Agreement may be terminated:(i) upon thirty (30) days prior written notice to the other Party in the event the other Party materially breaches this Agreement and fails to cure such breach within the notice period; or (ii) for convenience upon ten (10) days’ prior written notice to the other Party only if all Orders have expired or been terminated such that there are no then-active Orders. All licenses will terminate immediately upon termination of this Agreement, and Customer shall immediately cease use of all such Services and Documentation, including its access to any Services. Promptly return to Vizit or destroy, any and all copies of the Documentation, or any other information relating to the intellectual property of Vizit in Customer’s possession or control. Vizit has no obligation to maintain Customer’s Content and may delete any and all Content in its possession. This Section and the provisions and any other right or obligation of the parties that, by its nature, should survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement.This Agreement commences on the Effective Date and shall continue until terminated in accordance with the terms of this Agreement. The term of each Order shall be as set forth in such Order. The Order will automatically renew for additional 12-month periods unless a party provides at least 30 days’ written notice prior to the end of the then-current term that such party does not wish to renew for the upcoming term. This Agreement may terminate:(i) If all Orders have expired or been terminated, for convenience upon ten (10) days’ prior written notice to the other Party; or (ii) upon thirty (30) days prior written notice to the other Party in the event the other Party materially breaches this Agreement and fails to cure such breach within the notice period. All licenses will terminate immediately upon termination of this Agreement, and Customer shall immediately cease use of all such Services and Documentation, including its access to any Services. Promptly return to Vizit or destroy, any and all copies of the Vizit technology, or any other information relating to the intellectual property of Vizit in Customer’s possession or control. Vizit has no obligation to maintain Customer’s Content and may delete any and all Content in its possession. This Section and the provisions and any other right or obligation of the parties that, by its nature, should survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement.
XIV. GeneralThis Agreement shall be governed by the laws of the State of New York without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved exclusively by the state or federal courts located in New York City, New York. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the Services. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Any notices hereunder must be in writing. Vizit may provide notice to Customer through Customer’s signup email address, Customer’s account, or in-product notifications. Customer agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to Customer will be deemed given upon the first business day after Vizit sends it. Customer will provide notice to Vizit by mail to: 6 Liberty Square, #2450, Boston, MA 02109, attn: Chief Financial Officer with a copy emailed to howard.greene@vizit.com. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the Vizit intellectual property or any Content outside the US. Customer shall not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise without the prior written consent of Vizit. Vizit expressly reserves the right to assign this Agreement and delegate any of its obligations. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. This Agreement benefits solely Customer and Vizit, and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person or party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
