MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CLIENT AND VERSE.IO, INC. (“VERSE”) AND GOVERNS CLIENT’S USE OF THE VERSE SOLUTION. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CLIENT REGISTERS FOR AN EVALUATION OF THE VERSE SOLUTION, THE APPLICABLE PROVISIONS OF THE APPLICABLE ORDER FORM WILL ALSO GOVERN THAT EVALUATION.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING OR INDICATING ACCEPTANCE OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) EVALUATING THE VERSE SOLUTION, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE VERSE SOLUTION.
Verse’s direct competitors are prohibited from accessing the Verse Solution, except with Verse’s prior written consent. In addition, the Verse Solution may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
We may update this Agreement from time to time. We will provide You with prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided, however, We may not be able to provide at least thirty (30) days prior written notice of material updates to this Agreement that result from changes in laws, regulations, or requirements from telecommunications providers. The updated version of this Agreement will be available at https://www.verse.io/termsandconditions.
Notices for material updates to this Agreement will be given in accordance with Section 12.14 (Notices). Except as otherwise specified by Us, updates will be effective and binding upon the date indicated in the paragraph above the Terms and Conditions heading. The updated version of this Agreement will supersede all prior versions.
Following such notice, Your continued use of the Verse Solution on or after the date the updated version of this Agreement is effective and binding and constitutes Your acceptance of such updated Agreement. If you do not agree to the updated version of this Agreement, you must stop using the Verse Solution immediately.
This Agreement was last updated on April 28, 2022. It is effective between Client and Verse as of the date of Client’s accepting this Agreement.
TERMS AND CONDITIONS
“Affiliate(s)” means any person, firm, trust, partnership, corporation, company or other entity or combination thereof, which directly or indirectly, Controls the subject entity, is Controlled by the subject entity, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of more than 50% of the voting interests of the subject entity. The use of the word “You” or “Your” in this Agreement is inclusive of Your Affiliates, provided You have the authority to bind such Affiliate(s) to the terms and conditions of this Agreement.
“Aggregate Data” means all anonymous, aggregated content, data, statistics, and other information generated by the Verse Platform which may include Your Content, provided that no such information will directly identify and cannot reasonably be used to identify You or Your Users.
“Documentation” means Verse’s generally available usage guides and policies, as updated from time to time by Verse.
“Lead” means an individual or entity with whom Client communicates, transacts business or wishes to communicate or transact business, sent by Client to Verse (via electronic delivery or otherwise) with the express intent for Verse to engage with that individual or entity via text (SMS), phone or email.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, malware, and other harmful or malicious code, files, scripts, agents or programs.
“Non-Verse Application” means a Web-based, mobile, offline or other software application functionality that interoperates with the Verse Platform, that is provided by You or a third party and/or listed in the Documentation or under similar designation. Non-Verse Applications, other than those obtained or provided by You, will be identifiable as such. Non-Verse Applications include but are not limited to Client’s CRM systems and Lead sources, including but not limited to those entities described at https://Verse.io/supported-sources/.
“Order Form” means the ordering documents for Your purchases from Verse that are executed hereunder by You and Verse from time to time. Order Forms shall be deemed incorporated herein.
“Professional Services” means implementation and configuration of the Verse Platform.
“Start Date” means the date of the applicable Order Form.
“Subscription Term” means the period of time that You may use and access the Verse Solution beginning on the Start Date and as set forth in the applicable Order Form.
“User” means individuals who are authorized by You to use the Verse Solution including Leads, Your employees, consultants, contractors and agents, Affiliates, or other third parties with whom You communicate or wish to communicate.
“Verse Materials” means any materials We provide to You in the course of providing support, implementation, consulting, training, or other Professional Services. Verse Materials does not include any of Your Content or Your Confidential Information.
“Verse Platform” means the generally available Web-based, on-line, hosted software including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Us, but excluding Your Content and Non-Verse Application.
“Verse Terms of Service” means the terms of service available at https://verse.io/terms-of-service/ and may be amended from time to time.
“Verse Services” means communication services provided by Verse using the Verse Platform, as such services may be updated or modified by Verse in its sole discretion from time to time.
“Verse Solution” means the Verse Services and Verse Platform listed on an Order Form.
“Your Content” means all electronic data or information submitted by You or Your Users to the Verse Platform directly or through a third-party system.
2.1. Provision. Subject to the terms and conditions of this Agreement, We hereby grant to You a worldwide, non-exclusive and nontransferable license to, during any Subscription Term, (1) access and use the Verse Platform via the internet, and (2) use the Documentation. Your purchase of subscriptions to the Verse Solution is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Verse with respect to future functionality or features.
2.2. Restrictions. The rights granted in Section 2.1 are conditioned upon Your compliance with the terms and conditions of this Agreement. You may use the Verse Platform solely for Your own internal business purposes, in compliance with applicable law, including but not limited to the US Telephone Consumer Protection Act, the US CAN-SPAM Act, and the Canada Anti-Spam Law and shall not: (1) permit any third party to access the Verse Platform except as permitted herein or in an Order Form, (2) license, sublicense, sell, resell, rent, lease, transfer, distribute, or use the Verse Platform for commercial time sharing, outsourcing or otherwise commercially exploit the Verse Platform, (3) create derivative works based on the Verse Platform, (4) modify, reverse engineer, translate, disassemble, or decompile the Verse Platform, or cause or permit others to do so, (5) copy, frame or mirror any content forming part of the Verse Platform, other than on Your own intranets or otherwise for Your own internal business purposes, (6) access the Verse Platform in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Verse Platform, and (7) remove any title, trademark, copyright and/or restricted rights notices or labels from the Verse Platform or Documentation. You shall not use or access the Verse Solution: (y) if You are a direct competitor of Verse or operating on behalf of such a direct competitor; or (z) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.3. Reserved Rights. We hereby reserve all rights in and to the Verse Platform not expressly granted in this Agreement. Nothing in this Agreement shall limit in any way Our right to develop, use, license, create derivative works of, or otherwise exploit the Verse Platform or to permit third parties to do so. We may change or discontinue any or all of the Verse Platform or change or remove functionality of any or all of the Verse Platform from time to time but any such modifications or discontinuations shall not alter the basic functionality or business purpose of the Verse Platform or materially degrade the current functionality.
2.4. Professional Services. We will provide Professional Services as specified in the applicable Order Form, in accordance with Our Professional Services price list in effect at the time such services are ordered unless otherwise set forth in such Order Form.
2.5. Non-Verse Products and Services. Verse or third parties may make available third-party products or services, including, for example, Non-Verse Applications, implementation, and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any non-Verse provider, product, or service is solely between You and the applicable non-Verse provider. We do not warrant or support Non-Verse Applications or other non-Verse products or services, whether or not they are designated by Verse as “certified” or otherwise, unless expressly provided otherwise in an Order Form. We are not responsible for any disclosure, modification, or deletion of Your Content resulting from access by such Non-Verse Application or its provider.
2.6. Integration with Non-Verse Application. The Verse Platform may contain features designed to interoperate with Non-Verse Application. We cannot guarantee the continued availability of such Verse Platform features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Verse Application ceases to make the Non-Verse Application available for interoperation with the corresponding Verse Platform features in a manner acceptable to Us.
3. Use of Services.
3.1. Our Responsibilities. We will (1) make the Verse Solution available to You pursuant to this Agreement, and the applicable Order Forms and Documentation, (2) provide Our standard support for the Verse Solution to You at no additional charge, and/or upgraded support if purchased, (3) use commercially reasonable efforts to make the Verse Platform available 24 hours a day, 7 days a week, except for: (A) planned downtime (of which We shall give advance electronic notice), and (B) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, epidemic, pandemic, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Verse Application, or denial of service attack, and (4) provide the Verse Platform in accordance with laws and government regulations applicable to Our provision of the Verse Platform to Our customers generally without regard for a customer’s particular use of the Verse Platform, and subject to Your use of the Verse Platform in accordance with this Agreement, the Documentation, and the applicable Order Form.
3.2. Protection of Your Content. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content, as described in the Documentation.
3.3. Your Responsibilities. You shall comply with Our Acceptable Use Policy set forth at http://verse.io/aup/ (“AUP”). You shall be responsible for Users’ compliance with this Agreement and the AUP, and for the quality, accuracy, legality, and substance of Your Content. You shall not: (1) use the Verse Platform or Non-Verse Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (2) use the Verse Platform or a Non-Verse Application to store or transmit Malicious Code, (3) interfere with or disrupt the integrity or performance of the Verse Platform, or (4) attempt to gain unauthorized access to the Verse Platform or its related systems or networks. Any conduct by You that in Our discretion restricts or inhibits any of Our other customers from using or enjoying the Verse Platform is expressly prohibited. You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Verse Platform, and notify Verse promptly of any such unauthorized access or use. Subject to the terms of this Agreement, including without limitation the AUP, You control the “scripts” used to communicate with Your Leads. It is Your responsibility to be familiar with laws, regulations, and best practices related to these scripts and all other communications with Leads.
3.4. Channels of Communication. The Verse Solution may be provided by phone, text (SMS), messaging application, web, web chat interface, email and other channels of communication. You represent and warrant that You have obtained and documented all consents required from third parties to permit them (or their agent) to contact Leads for any purpose, including via phone, text (SMS) and email, and through the use of automated processes or technology as required by all applicable laws or regulations, including the US Telephone Consumer Protection ACT (TCPA), the US CAN-SPAM Act, and the Canada Anti-Spam Law. Client agrees that to the extent Verse contacts or assists in contacting third parties on Client’s behalf, that Verse is acting as Client’s agent in connection with such contact and that Client will be the maker, initiator and/or sender of any calls, texts and/or emails, and not Verse. Client also agrees that Verse will use the Lead’s area code to determine time zone unless Client specifically designates the Lead’s time zone, in which case Verse will rely upon Client’s representations to time zone. Client represents and warrants that it has provided any required notices and obtained all required consents to contact a Lead under all applicable laws. Client agrees that Verse shall have no liability to Client, Client’s business Leads or any third parties that arises from or relates to Client’s failure to comply with applicable laws, obtain any consents, provide any required notices, or determine the correct time zone for a Lead, as required by this section. You shall maintain accurate books and records in connection with obligations described in the AUP. Such books and records shall include without limitation records relevant to any customer lists and Lead consents, and all papers, correspondence, data, information, reports, records, files and other sources of information relating to customer lists and Lead consents. Our duly authorized representatives shall have access during regular business hours, to examine, review, audit and copy, at Our expense, all of Your books and records pertaining to customer lists and consents. You shall retain these records for a period of five (5) years after the termination or expiration of this Agreement, as applicable.
4.1. Payment. By providing Verse with a billing account, You represent and warrant that You: (a) are authorized to use the billing account that You provided and that any payment information You provide is true and accurate; and (b) authorize Verse to charge You using the billing account. You shall pay Verse fees in accordance with the amounts and dates specified on the applicable Order Form. The subscription fees set forth in each Order Form hereunder shall be fixed during the Subscription Term of such Order Form. Except as otherwise specified herein, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of purchase and fees paid are non-refundable. If you elect to add funds to your account by credit card and use such funds to pay the fees due, you are responsible for ensuring such funds cover the fees due. If your account does not have sufficient funds or your credit card declines a charge for the fees due, We may suspend the provision of the Verse Solution to all of your accounts until the fees due are paid in full. You are prohibited from creating new accounts until the fees due are paid in full. Any payment not received from You by the due date may accrue, at Our discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. You shall reimburse Verse for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Verse in the collection of overdue amounts.
4.2. Taxes. If We have the legal obligation to pay or collect taxes for which You are responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of Our performance under this Agreement, the appropriate amount shall be invoiced to and paid by You, unless You provide Verse with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.3. Suspension of Services. If any amount owed by You is thirty (30) days or more overdue, We may, with seven (7) days’ prior notice to You, without limiting Our other rights and remedies, suspend Verse Solution until such amounts are paid in full. We shall not exercise Our rights under this Section 4.3 if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. If You believe, in good faith, that an invoice contains incorrect fee information, You shall send a written notice to Verse within fifteen (15) days of receipt of invoice (“Dispute Period”) providing a reasonably detailed explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If We do not respond to the notice within thirty (30) days, Your determination as to the correct fee information set forth in the written notice shall be final. If You do not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. You remain obligated to pay Verse for all portions of the applicable invoice that are not under reasonable and good faith dispute. The parties shall work together expeditiously and in good faith to resolve all fee disputes.
5. Intellectual Property Rights.
5.1. General. All right, title, and interest in and to the Verse Platform, Verse Materials, Our Confidential Information and Documentation, including, without limitation, all modifications, enhancements, derivative works and intellectual property rights thereto shall belong solely to Verse and/or Our applicable suppliers.
5.2. Ownership of Your Content. Your Content is deemed Confidential Information under this Agreement. As between You and Verse, You retain ownership of all Your Content, including all right, title and interest therein.
5.3. License to Us. You hereby grant, and shall grant, to Verse a worldwide, royalty-free, non-exclusive, perpetual right to access, use, reproduce and prepare derivative works based on Your Content for the purpose of providing the Verse Solution hereunder and to improve or enhance the Verse Solution while maintaining the confidentiality of Your Content. You grant us and our Affiliates the right to process Your Content as necessary to provide the Verse Solution in a manner consistent with this Agreement. This license includes use of Your Content to compile Aggregate Data. You shall be solely responsible for ensuring that You have obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. You grant Verse, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display (1) any Non-Verse Application and program code created by or for You using the Verse Platform, or for use by You with the Verse Platform, and (2) any of Your Content, each as appropriate for Verse to provide and ensure proper operation of the Verse Platform and associated systems in accordance with this Agreement. If You choose to use a Non-Verse Application with the Verse Platform, You grant Verse permission to allow the Non-Verse Application and its provider to access Your Content and information about Your usage of the Non-Verse Application as appropriate for the interoperation of that Non-Verse Application with the Verse Platform. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Content, Non-Verse Application or such program code.
5.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Verse Platform any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the Verse Platform.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), Aggregate Data, Verse Materials, the Verse Solution, business and marketing plans, technology, financial and technical information, product designs, and business processes. Confidential Information (except for Your Content) shall not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3. Protection. Each party shall protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than reasonable care. Each party will notify the other promptly upon becoming aware of a security incident or potential security incident. Such notice will be provided in accordance with Section 12.14.
6.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5. Remedies. If the Receiving Party discloses or uses, or threatens to disclose or use, any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Representations and Warranties.
7.1. Mutual Warranties. Each party represents and warrants that (1) it has the legal power to enter into this Agreement, and (2) it will not transmit to the other party any Malicious Code.
7.2. Your Content. You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Your Content to us for use and disclosure pursuant to Section 5.3.
7.3. Our Warranty. We warrant during the Subscription Term that the Verse Platform will be free of material defects and will function in substantial conformance to Our Documentation, and that the Verse Services and Professional Services will be provided in a manner consistent with generally accepted industry standards. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WE DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES (1) OF MERCHANTABILITY, REASONABLE CARE, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), (2) THAT THE VERSE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, AND (3) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE FURTHER DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. No action for breach of the limited warranty set forth in this Section 7.3 may be commenced more than one (1) year following the expiration of the applicable Subscription Term.
8. Damages and Limitation of Liability.
8.1. Consequential Damages. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE VERSE SOLUTION, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Limitation of Liability. IN ALL EVENTS, OUR AGGREGATE LIABILITY TO YOU FOR CLAIMS RELATING TO THIS AGREEMENT OR THE VERSE SOUTION, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (1) THE AMOUNT ACTUALLY PAID BY YOU TO VERSE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR (2) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Mutual Indemnification.
9.1. Indemnification by Us.
(a) Subject to this Agreement, We shall defend against any third party loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought against You by a third party alleging that the use of the Verse Platform as contemplated hereunder infringes the intellectual property rights of a third party (“Claim Against Client”), and will indemnify You from any damages, attorneys’ fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Verse in writing of, a Claim Against Client.
(b) Our indemnity obligations are conditioned on You (1) promptly giving written notice of the Claim Against Client to Us, (2) giving Verse sole control of the defense and settlement of the Claim Against Client (provided further that We may not settle or defend any Claim Against Client unless We unconditionally release You of all liability, and (3) providing to Us, at Our cost, all reasonable assistance.
(c) In the event We are required to indemnify You in accordance with this Section 9.1, or if We reasonably believe the Verse Platform may infringe a third party’s intellectual property rights, then We may at Our sole option and expense (1) modify the Verse Platform so that it no longer infringes without materially adversely affecting its operation, or materially altering its capacity or performance, (2) obtain a license for Your continued use of the Verse Platform, and/or (3) remove the infringing component from the Verse Platform without materially adversely affecting its operation, or materially altering its capacity or performance. If, despite Our commercially reasonable efforts to do so, the foregoing options are not reasonably practicable, then this Agreement may be terminated at Our option, in which case We shall issue to You a refund of any and all prepaid fees covering the remainder of the then-current Subscription Term(s) from the point in time when You were unable to make use of the Verse Platform due to the third party infringement claim.
(d) Furthermore, We shall have no liability for any Claim Against Client under Section 9.1 to the extent such liability is the result of (1) modifications to the Verse Platform by anyone other than Verse or Our agents (provided that We shall not be liable if We or Our agents made the modifications using requirements, documents, written specifications or other written materials submitted by You or Your agents or representatives), (2) the use or combination of the Verse Platform with any other item not provided by Verse where in the absence of such use or combination, the Verse Platform alone would not have given rise to the Claim Against Client, or (3) Your continued use of an infringing version of the Verse Platform when the then-current version of the Verse Platform has been modified to be non-infringing.
9.2. Indemnification by You.
(a) Subject to this Agreement, You shall defend, indemnify and hold Verse harmless against any third party loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Verse by a third party (1) alleging that Your Content, or Your or any User’s use of the Verse Platform in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (2) arising from Your beach of the AUP; or (3) arising from a dispute between You and a User or a User and Verse.
(b) Your indemnity obligations are conditioned on Verse (1) promptly giving written notice of the Claim to You, (2) giving You sole control of the defense and settlement of the Claim, provided further that You may not settle or defend any Claim unless it unconditionally releases Verse of all liability, and (3) providing to You, at Your cost, all reasonable assistance.
9.3. Exclusive Remedy. This “Mutual Indemnification” Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section 9.
10. Access and Monitoring. We may access Your account and Your Content as necessary to identify or resolve technical problems or respond to complaints about the Verse Solution. Without limiting the foregoing and with two (2) days prior written notice, We shall have the right to remove any material submitted to the Verse Platform that We find to be in violation of the provisions hereof. We may terminate Your subscription to the Verse Solution in the event Your manner of using the Verse Solution exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected within fourteen (14) days of Our written notice.
11. Term and Termination.
11.1. Term of Agreement. The term of this Agreement commences on the Effective Date and continues until all Subscription Terms expire or are otherwise terminated.
11.2. Subscription Term Renewal. Subscription Terms shall automatically renew for additional periods of one (1) year unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. Notice of Your non-renewal shall be delivered to Verse as set forth in Section 12.14. Subscription pricing for each renewal term will not increase by more than 10% as compared to the prior term. The Verse Platform may automatically deactivate and become non-operational at the end of the Subscription Term, and You shall not be entitled to access the Verse Solution unless the Subscription Term is renewed.
(a) A party may terminate this Agreement for cause (1) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period, (2) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding, or (3) as otherwise provided herein.
(b) We may also terminate this Agreement immediately upon notice to You (1) for cause if We have the right to suspend under Section 4.3, (2) if Our relationship with a third-party partner who provides software or other technology We use to provide the Verse Platform expires, terminates or requires Verse to change the way We provide the software or other technology as part of the Verse Platform, or (3) in order to comply with the law or requests of governmental entities.
11.4. Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if You do not renew in accordance with Section 11.2, the rights and licenses granted hereunder will automatically terminate, and You may not continue to use the Verse Solution. If the Agreement is terminated based upon Our uncured material breach, We shall refund to You any prepaid fees covering the remainder of Your Subscription Term after the date of such termination. If the Agreement is terminated based on Your uncured material breach, You shall pay any unpaid fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of such termination. Termination of this Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.
12.1. General. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Headings in this Agreement are for the convenience of the parties only. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement.
12.2. Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
12.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, We may assign this Agreement in its entirety (including all Order Forms), without Your consent, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4. Entire Agreement; Breach and Waiver; Amendment. This Agreement, including all exhibits and addenda hereto and Order Forms constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. We may change the terms of this Agreement at any time by posting a new version of this Agreement online and notifying You as set forth above. Subject to the foregoing sentence, any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement, any addendum, and Order Form, the following order of precedence shall apply: (1) the terms of the Order Form, (2) the addendum, and then (3) the body of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other ordering documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void. No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.
12.5. Export Compliance. The Verse Platform, and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Verse Platform in a U.S. embargoed country (currently Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
12.6. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.7. Force Majeure. Subject to the further provisions of this section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, epidemic, pandemic, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. The period of excused performance pursuant to the foregoing only shall be the actual period during which such an occurrence continues. Accordingly, neither party hereto shall have the right to terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.
12.8. Liability for Subcontractors and Agents. To the extent We utilize subcontractors or agents in performance of Our obligations under this Agreement, We shall be responsible to You for the performance of this Agreement by such subcontractors or agents to the same extent that We would be responsible under the terms of this Agreement for such performance if it had been Our own performance, including, but not limited to intellectual property rights, infringements and breaches of confidentiality.
12.9. Compliance with Client’s Rules and Regulations. To the extent present on Your premises, Verse and its employees, agents and representatives shall be subject to the rules and regulations (including access to and use of Your computers and facilities) promulgated by You for the safe, orderly and efficient conduct of operations on Your property. We shall enforce observance of such rules and regulations and shall maintain discipline and good order among its employees, agents and subcontractors. Our employees, agents and subcontractors present on Your premises shall be subject to such security regulations as may be imposed by You from time to time.
12.10. Federal Government End Use Provisions. We provide the Verse Platform, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Verse Platform include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Verse to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
12.11. Dispute Resolution, Arbitration, Class-Action Waiver, Jury Waiver, and Governing Law
(a) Dispute Resolution. In the event of any dispute, claim, or controversy arising out of or related to the Subject Matter (a “Dispute”), the parties will first try to negotiate with each other in good faith to resolve the Dispute informally. If the parties do not reach a mutually agreeable resolution within thirty (30) days of one party notifying the other of a Dispute in writing, then either party may proceed to arbitrate or litigate as set forth in Section 12.11(b). Written notice of the Dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested.
(b) Arbitration. If the Parties are unsuccessful at settling any Dispute by informal means as set forth in Section 12.11(a), and except for intellectual property claims by Verse or either parties’ claims for injunctive or equitable relief for infringement or other misuse of intellectual property rights (such as trademarks, trade secrets, copyrights, and patents) which are not subject to arbitration and may, as an exception to this Section 12.11(b), be litigated (collectively “Excluded Claims”), such Dispute shall be settled by binding arbitration administered by the American Arbitration Association, in accordance with its Commercial Arbitration Rules in effect at the time of arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in San Diego, California by a single arbitrator selected by the parties from the roster of arbitrators of the American Arbitration Association. Such arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the arbitration provisions of this Agreement, including the enforceability, revocability, scope, or validity of the arbitration provision. Such arbitrator will have no authority to add parties, vary the provisions of the agreements between the parties, award punitive damages, or certify a class. Statute of Limitations. The parties agree that regardless of any statute or law to the contrary, any demand for arbitration under Section 12.11(b) this Agreement must be filed within one (1) year after such Dispute arose or the Disputes is waived and forever barred..
(c) Waiver of Jury Trial. EXCEPT AS TO EXCLUDED CLAIMS, EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO SUE IN COURT AND HAVE A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE SUBJECT MATTER.
(d) Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BROUGHT, HEARD, OR ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS.
(e) Governing Law. The parties agree that the laws of the State of California ,without regard to the conflict of law provisions, shall govern this Agreement, the Subject Matter and any Dispute, except to the extent governed by federal law.
12.12. Your Reference and Case Study. Neither party may issue a press release relating to this Agreement without the other party’s prior written consent. Either party may include the other’s name and logo in customer or vendor lists upon the other party’s prior written consent.
12.13. Survival. The parties’ rights and obligations under sections 4 (Fees), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), 11 (Term and Termination) and 12 (Miscellaneous) shall survive the termination of this Agreement for any reason.
12.14. Notices. All notices required or contemplated by this Agreement shall be in writing. Notices from You to Verse shall be delivered or mailed to 550 West B Street, 4th Floor, San Diego CA 92101, Attn: Verse.io Legal, emailed to [email protected] or use our contact form available at http://verse.io/contact-us/ and notices from Verse to You shall be delivered or mailed to You at the address given above. Any notice to be given or served hereunder by either party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed certified mail, postage prepaid, to You or Verse in accordance with this section.