THIS SUBSCRIPTION SERVICES AGREEMENT (the “Agreement”), is entered into by and between Vityl, Inc., a Delaware corporation (“Company”), and you (“Customer”).  Company and Customer are each a “Party” to this Agreement and are together referred to in this Agreement as “Parties.” 

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

“Authorization” means a writing reflecting terms that have been accepted by Customer (electronically or otherwise) and that specifies the goods and services to be provided by Company to Customer, the fees associated  therewith, and any other transaction-specific terms and conditions. 

“Authorized User” means a named individual that: (a) is an employee, representative, consultant, contractor, or agent of Customer; (b) is authorized to use the SaaS Service pursuant to this Agreement; and (c) has been supplied or authorized by Customer to receive information provided by Company that enables use of the SaaS Service.  

“Customer Data” means any data or other information which is provided by (or on behalf of) Customer directly or indirectly to Company in connection with the Services.

“Documentation” means the end user technical documentation provided with the Services, as such documentation may be modified from time to time. 

“Statement of Work” means a statement of work or other such executed document that references this Agreement, whereby Customer engages Company to perform certain training, consulting, technical account management, professional, or similar services related thereto.

“SaaS Service” means Company’s hosted service solution that Company has authorized Customer to use and is made available at www.vityl.io. The SaaS Service may include the use of certain software, as applicable and as identified in a Purchase Order.

“Services” means the SaaS Service, Support Services, and any of the training services, technical account management services, or consulting or other professional services, offered or performed by Company.

“Service Analytics” means all information and data that the Services generate or otherwise obtain from Customer’s use of the Services.  

“Subscription Term” means the subscription period authorized by the Company during which Authorized Users may use the SaaS Service, subject to the terms of this Agreement.

“Support Services” means the maintenance and support services provided by Company to Customer during the Subscription Term, if any.

2. PROVISION AND USE OF THE SERVICES

1.   Provision of the SaaS Service.  Subject to Customer’s payment of all fees due hereunder, Company grants Customer a limited, non-exclusive, non-sublicensable, nontransferable (except as specifically permitted in this Agreement) license to access and use the SaaS Service during the applicable Subscription Term, pursuant to the terms of this Agreement, solely for Customer’s internal business purposes.  The terms of each Authorization and Statement of Work are incorporated herein such that this Agreement and each Authorization and Statement of Work will be construed as a single agreement.  Customer may permit its Authorized Users to use and access the SaaS Service and Documentation in accordance with this Agreement, but Customer will be responsible for the compliance of all Authorized Users with this Agreement, Documentation, and the End User License Agreement available at https://vityl.io/EULA (the “End User License Agreement”).  Company reserves the right to update, upgrade, or otherwise modify the SaaS Service at any time with or without notice – provided that Company will provide advance notice of any associated downtime when possible and further provided that such modifications will not result in a material decrease in the functionality of the SaaS Service.  Company may also suspend provision of Services at any time upon reasonable notice for security or maintenance purposes or as required by applicable law.

2.   Use Restrictions.  Customer will not (and will not permit any third party to) take any action prohibited pursuant to the terms of the End User License Agreement.

3. CUSTOMER OBLIGATIONS

1.   Customer Data.  Customer has exclusive control and responsibility for determining what Customer Data is submitted using the SaaS Service and any third-party that Customer authorizes to provide Customer Data to Company, and Customer for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to Company.  Customer is solely responsible for the accuracy, content, and legality of all Customer Data.  Customer represents and warrants that Customer has all necessary rights, consents, and permissions to collect, share, and use Customer Data as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights, or any laws and regulations.  Without limiting Company’s obligations hereunder, Customer acknowledges that Customer is responsible for properly configuring and using the SaaS Service and otherwise taking reasonable action to secure and protect Customer accounts and Customer Data.

2.   Third-Party Software.  Customer acknowledges and agrees that certain third-party software not owned or developed by Company is embedded in the SaaS Service.  CUSTOMER HEREBY ACKNOWLEDGES THAT COMPANY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE, OR ANY PORTION THEREOF, AND NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY HEREIN ASSUMES NO LIABILITY FOR ANY CLAIM THAT MAY ARISE WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE OR CUSTOMER’S USE OR INABILITY TO USE THE SAME.

4. PROPRIETARY RIGHTS.

1.   Ownership.  As between the Parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data.  Subject to the terms of this Agreement, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Services to Customer during the Subscription Term, and may disclose the same to third parties for the purpose of marketing or improving the Services or providing information relating thereto – expressly provided that Company excludes any personally identifiable information or information sufficient to enable a third party to determine the source of such data prior to its use.

2.   Company Technology.  The SaaS Service, Documentation, including all copies and portions thereof, and  all intellectual property rights therein and thereto (collectively, “Company Technology”), will remain the sole and exclusive property of Company.  

3.   Service Analytics.  Company may process Service Analytics, as that term is hereafter defined, for purposes of delivering, enhancing, securing, and supporting the Services.  Company may disclose the results of its analysis of the Service Analytics publicly or to third parties in connection with its marketing and promotion efforts – provided that such results do not contain any personally identifiable information, or enable a third party to determine the source of such information.

5. FEES & PAYMENT

1.   Fees and Payment.  All fees are as set forth on the schedule of pricing located at https://vityl.io/pricing/ or in an Authorization and are immediately due and payable unless otherwise stated in an Authorization.  Except as expressly stated herein, payment obligations are non-cancelable and fees are non-refundable.

2.   Effect of Nonpayment.  This Agreement or Customer’s access to Services may be suspended or terminated if Customer’s account falls into arrears.  Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law, plus all collection costs, including reasonable attorneys’ fees.

3.   Taxes.  All fees are exclusive of any taxes, levies, or duties (“Taxes”), and Customer will be responsible for payment of all such Taxes excluding taxes based solely on Company income.  Customer will pay and be solely responsible for all Taxes.  Company may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. Company reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other information provided by Customer on the location of Customer’s use of the SaaS Service.  Customer will be responsible for any Taxes, penalties or interests that might apply based on Company’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. 

6.   TERM AND TERMINATION

1.   Term.  This Agreement will continue for so long as Customer is lawfully authorized by the Company to use the Services, unless earlier terminated pursuant to the terms of this Agreement.

2.   Termination for Cause.  Either Party may terminate this Agreement or any Statement of Work (a) upon the other Party’s material breach that (if capable of cure) remains uncured for thirty days following written notice of such breach; or (b) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty days.

3.   Termination for Convenience.  Either Party may terminate this Agreement or any Statement of Work, for any reason or for no reason, by providing the other Party at least thirty days’ prior written notice.  However, in the event of a Customer termination for convenience, Customer will not be entitled to any refund or relief from payment of any fees paid or payable to Company, irrespective of whether Customer receives or uses the associated Services.

4.   Customer Data Following Expiration or Termination.  Customer agrees that, following termination of this Agreement or termination or expiration of any Statement of Work, Company may immediately deactivate Customer’s accounts associated therewith.  

5.   Effect of Termination. Upon early termination of this Agreement by Customer for Company’s uncured material breach or by Company for convenience, Customer is entitled to a prorated refund of prepaid fees relating to the Services applicable to the remaining period in the applicable Subscription Term.  Upon expiration or termination of this Agreement by Company for Customer’s uncured material breach by Customer for convenience, unpaid fees relating to the Services applicable to the duration of any applicable Subscription Term will be immediately due and payable.  In addition, upon expiration or termination of this Agreement for any reason all rights granted to Customer under this Agreement, and Company’s obligation to provide the SaaS Service will terminate.

7. LIMITED WARRANTY

1.   Limited Warranty.  Company warrants that, during the Subscription Term, the Services made available for Customer’s use will operate in substantial conformity with the applicable Documentation. In the event of a material breach of the foregoing warranty, Customer’s exclusive remedy and Company’s entire liability, will be for Company to use commercially reasonable efforts to correct the reported non-conformity within thirty days, or if Company determines such remedy to be impracticable, Company may, at its discretion, terminate this Agreement for convenience.  The warranty set forth in this Section 7.1 will not apply if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or any use provided on a no-charge or evaluation basis.

2.   Warranty Disclaimer.  EXCEPT FOR THE WARRANTY IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS.” NEITHER COMPANY NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, COMPANY DOES NOT WARRANT THE SAAS SERVICE WILL BE ERROR-FREE OR THAT USE OF THE SAAS SERVICE WILL BE UNINTERRUPTED. COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY ERROR WILL BE LIMITED TO PROVISION OF SUPPORT SERVICES.

8. LIMITATION OF REMEDIES AND DAMAGES

1.   Liability Cap.  EXCEPT WITH RESPECT TO: (A) EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (“INDEMNIFICATION”) (FOR WHICH THE LIABILITY LIMITATION WILL BE ONE MILLION DOLLARS IN THE CUMULATIVE AND AGGREGATE FOR ALL CLAIMS); AND (B) CUSTOMER’S INFRINGEMENT OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO COMPANY WITHIN THE TWELVE MONTHS IMMEDIATELY PRECEDING ARISAL OF THE APPLICABLE CLAIM.

2.   Other Damages.  EXCEPT FOR CUSTOMER’S INFRINGEMENT OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR COMPANY’S AGENTS OR LICENSORS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. INDEMNIFICATION

1.   By Company.  Company will defend Customer from and against any claim by a third party alleging that the SaaS Service when used as authorized under this Agreement infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the SaaS Service, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Company (including reasonable attorneys’ fees) resulting from such Infringement Claim.  Company will have no obligation and assumes no liability under this Section 9 or otherwise with respect to any claim based on: (a) the SaaS Services’ having been modified by any party other than Company, but solely to the extent the alleged infringement is caused by such modification; (2) the SaaS Service’s having been combined, operated or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by Company where there would be no Infringement Claim but for such combination; (3) any action arising as a result of Customer Data or any third-party deliverables or components contained within the SaaS Service; (4) if Customer settles or makes any admissions with respect to a claim without Company’s prior written consent; or (5) to any use provided on a no-charge or evaluation basis.  THIS SECTION 9 SETS FORTH COMPANY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

2.   Remedies.  If Customer’s use of the SaaS Service is (or in Company’s opinion is likely to be) enjoined, if required by settlement or if Company determines such actions are reasonably necessary to avoid material liability, Company may, at its option: (i) procure for Customer the right to use the SaaS Service in accordance with this Agreement; (ii) replace or modify, the SaaS Service to make it non-infringing; or (iii) terminate Customer’s right to use the SaaS Service and discontinue the related Support Services, refund prorated pre-paid fees for the remainder of the applicable Subscription Term for the SaaS Service.

3.   By Customer.  Customer will defend, indemnify and hold Company harmless from and against any third-party claims, damages, and costs (including reasonable attorneys’ fees and costs incurred by Company) arising out of or relating to Company’s actions or failures to act under this Agreement.

4.   Indemnity Process.  Each Party’s indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense.  The indemnified Party may participate in the defense of the claim, at the indemnified Party’s sole expense (not subject to reimbursement).  Neither Party may admit liability for or consent to any judgment or concede or settle or compromise any claim unless such admission, concession, settlement, or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim.

10. CONFIDENTIAL INFORMATION

1.   Obligations.  Each Party (as “Receiving Party”) agrees that all information not generally available to the public that should reasonably be recognized as the confidential and proprietary information of the Receiving Party – including, but not limited to, code, inventions, know-how, business, personal data, technical and financial information – (collectively, “Confidential Information”) it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party.  Except as expressly authorized herein, the Receiving Party will (a) hold in confidence and not disclose any Confidential Information to third parties during the pendency of this Agreement and for a period of five years thereafter (except with respect to Confidential Information that qualifies for trade secret protection under applicable law, which will be held in confidence and not disclosed for so long as it remains entitled to such protection) and (b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than those contained herein and that the Receiving Party remains responsible for compliance by any such representative.  The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (w) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (x) is or has become public knowledge through no fault of the Receiving Party; (y) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (z) is independently developed by employees of the Receiving Party without use of or reference to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party promptly notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

2.   Service Analytics.  For the avoidance of doubt and subject to the terms hereof, Company processes Service Analytics in its role as an independent controller and in accordance with applicable laws.

11. GENERAL TERMS

1.   References.  Company may refer to Customer as one of Company’s customers and use Customer’s logo as part of such reference, provided that Company complies with any Customer trademark usage requirements provided by Customer.  Upon reasonable request, Customer will serve as a reference account for Company, provided, however, that Company will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference activity.  

2.   Compliance With Laws.  Company and Customer will comply with all applicable laws and regulations with respect to performance under this Agreement.  

3.   Assignment.  Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition, or sale of all or substantially of the assigning Party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other Party are paid in full.  Notwithstanding the foregoing, Company may use the services of subcontractors and permit them to exercise the rights granted to Company in order to provide the Services under this Agreement.

4.   Severability.  If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

5.   Governing Law; Dispute Resolution.  This Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Maryland without regard to choice of law rules.  Any claim or dispute arising hereunder or relating hereto will be resolved exclusively by a state court having jurisdiction in Montgomery County, Maryland, or, optionally, by the United States District Court for the District of Maryland ‒ Greenbelt Division, where federal jurisdiction exists.  The Parties agree to submit to the personal jurisdiction of the aforementioned courts for the purpose of litigating all such disputes, and the Parties waive any objection to the laying of venue for any suit, action, or proceeding in such courts.  The substantially prevailing Party in any action arising hereunder or relating hereto will be entitled to recover its costs and fees, including reasonable attorneys’ fees.  IN NO EVENT WILL EITHER PARTY SEEK TO HAVE ANY SUCH MATTER TRIED TO A JURY.

6.   Notice.  Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the Party’s last known address and will be deemed given seventy-two hours after mailing or upon confirmed delivery or receipt, whichever is sooner.

7.   Amendments; Waivers.  No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement.  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 claiming such waiver.  

8.   Entire Agreement; Interpretation.  This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.  Any preprinted terms on any Customer ordering documents or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Company.

9.   Feedback.  Company will be free to use, worldwide, irrevocably, in perpetuity, without cost and for any purpose, all suggestions, ideas and feedback relating to the SaaS Service provided by Customer or its agents and users to Company, and incorporate the same into any product or service developed or provided by Company.

10.   Independent Contractors.  The Parties to this Agreement are independent contractors. There is no partnership, joint venture, employment, franchise, or agency relationship created hereby between the Parties.  Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

11.   Government End-Users.  Elements of the SaaS Service are commercial computer software.  If the user or licensee hereunder is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense.  All other use is prohibited.