Main Services Agreement
Last Modified: Apr 22, 2024
This Main Services Agreement (together with all exhibits, schedules and appendices hereto, this “Agreement”) is entered into as of the effective date set forth on the applicable Order Form (the “Effective Date”) and represents the full legal agreement between the subscriber set forth on the applicable Order Form (“Subscriber”) and Vanilla Technologies Inc. (“Vanilla”), governing Subscriber’s access and use of the Services. Subscriber and Vanilla are each referred to as a “Party,” and collectively as the “Parties.”
Vanilla reserves the right, in its sole discretion, to modify or replace any part of this Agreement by (a) posting the revised Agreement on Vanilla’s website and, when the changes are material, (b) announcing the change(s) to Vanilla’s subscriber base, which may be done via generally distributed (including by electronic mail or within the Services) product release notes. Included as part of the change, Vanilla will update the ‘Last Update’ date at the top of the Agreement, which will reflect the date the revised Agreement was posted on the Vanilla website. The updated Agreement will apply to your use of the Services after the date on which Vanilla posts the updated Agreement or otherwise notifies you of such changes, and your continued use of the Services after that date constitutes your acceptance of the updated Agreement. If you do not agree to the modified or updated Terms, do not use or access (or continue to access) the Services.
1. Definitions
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and the plural forms of the terms defined:
“Access Credentials” means access credentials as needed to identify, authorize and designate roles for Authorized Users who will have certain rights (as appropriate to their role) to establish, administer, configure, manage and/or use the Services.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the Subscriber. Subscriber represents and warrants that it has the ability to bind any such Affiliate to the terms of this Agreement. For purposes of this definition, the term “control” shall mean, as to each such entity, the power to direct or cause the direction of the management and policies of such entity through ownership of at least 50% of such entity’s voting securities. Such entity shall be deemed to be an “Affiliate” only so long as such control exists.
“Authorized User” means Subscriber’s employees or other users utilizing the Services on behalf of Subscriber, as permissioned by Subscriber from time to time.
“Claim” means any claim, action, suit or proceeding brought by a third party.
“Data Abstraction Services” means certain professional services subject to the parameters set forth in herein and in the Documentation. Data Abstraction Services may be provided in a per unit model, or a subscription model, or other agreed-upon model described in an SOW or Order Form. In a per unit model, Subscriber purchases such services in the form of an “Abstraction Token.”
“Derivative Data” means data sets created by Vanilla that may include or be created from aggregated, anonymized, or de-identified Subscriber Data that does not, or cannot be used to, identify Subscriber, End Clients, or any individual, or generic content or statistical types of data classifications assembled by the Services in response to queries that is not specific to any Authorized User or End Client.
“Documentation” means the applicable Service’s documentation and usage guidelines, which are part of the Agreement.
“End Client(s)” means persons and entities who primarily reside in the U.S. and who engage Subscriber in an advisory, legal, or other professional capacity.
“End Client Data” means the data elements, information and materials pertaining to an End Client that are input into the Vanilla Platform Services by or on behalf of the Authorized User or submitted by or on behalf of an End Client into or through the Services, which may include Personal Data.
“Fees” means the dollar amounts payable for use of the Services, as specified in an applicable Order Form, or, in the case of Vanilla Document Builder, the amounts that an Authorized User of Subscriber agrees to pay for usage of Vanilla Document Builder by their End Client(s).
“IP Rights” means all patent rights and rights in any inventions (whether or not patentable), copyrights and copyrightable works, trademark rights, service mark rights, trade secret rights, and any other proprietary or intellectual property rights of any type, in each case whether or not registered, as they may exist anywhere in the world, now or in the future.
“Losses” means, collectively, the final settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded to a third party by a court of competent jurisdiction or agreed to as part of a monetary settlement.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an ordering document that has been executed by both Parties that specifies the Vanilla Platform Services and any Professional Services purchased by Subscriber under this Agreement. Each Order Form shall be subject solely to and incorporate by reference the terms of this Agreement. The Order Form identifies the particular Services for which access is being purchased by Subscriber from Vanilla, the fees, and the Term.
“Personal Data” means any personally identifiable information provided to Vanilla by or on behalf of Subscriber that is “nonpublic personal information” for purposes of Regulation S-P, including information that is characterized as a “personal identifier” in regulations issued under Regulation S-P (17 CFR Part 248 Subpart A). Personal Data provided by or on behalf of Subscriber will be the Confidential Information of Subscriber.
“Platform Use Data” means analytics, statistics or other data related to the use of the Services by Authorized Users (e.g., number of clicks, time spent on a certain web page, etc.).
“Professional Services” means Data Abstraction Services and VAI, or technical or implementation services provided by Vanilla under this Agreement, as described more fully in an Order Form, SOW, or the Documentation.
“Reports” means any and all written or electronic information, materials, communications, reports, analyses, presentations, measurements, metrics, or other output of data generated by the Vanilla Platform Services as the result of analysis, calculation, data integration, application of algorithmic rules, or any other computation of data elements applied to End Client Data as an output of the Vanilla Platform Services. Reports includes the data and information as produced by the Vanilla Platform Services, regardless of format.
“Security Breach” means the unauthorized disclosure or use of Subscriber Data (including any Subscriber Data in the possession of any of Vanilla’s subcontractors).
“Services” means the Vanilla Platform Services and the Professional Services ordered by Subscriber, as described more fully in an Order Form or an SOW.
“Statement of Work” or “SOW” means a document that may be executed by Subscriber and Vanilla describing certain Professional Services purchased by Subscriber under this Agreement. Each SOW shall be subject solely to and incorporate by reference the terms of this Agreement.
“Subscriber Data” means all data or information submitted by or on behalf of Subscriber, an Authorized User, or an End Client through the Services, including any End Client Data. Subscriber Data does not include Derivative Data or Platform Use Data.
“Subscriber Disclosures” means Subscriber’s End Client-facing disclosures provided to End Clients.
“Term” means the Initial Term and any Renewal Terms, as defined in Section 12.1, and as set forth in an Order Form executed by both Parties.
“Territory” means the United States.
“Third Party Data” shall mean any data element or information provided to Vanilla from Third Party Data Providers.
“Third Party Data Providers” shall mean those entities that provide data and services to Vanilla in connection with the Vanilla Platform Services.
“Transition Assistance Period” is defined in Section 12.5.
“Update” means any modifications, enhancements, bug fixes, or other updates thereto, when and if available, that Vanilla makes generally available to its clients at no additional cost.
“Vanilla Data” shall mean all ideas, concepts, data, Derivative Data, Platform Use Data, Reports, and Models, including but not limited to other data, information and materials pertaining to financial assets, financial products, research, market conditions, commentary, insights, directions, strategies, investment or portfolio holdings and the like, as well as data, information materials of a technical, strategic, operational, administrative, economic, regulatory report, risk management, planning, business, financial, or legal nature, documents, presentation reports, projections, forecasts to the extent created or used by Vanilla or provided by Vanilla to Subscriber pursuant to this Agreement.
“Vanilla Disclosures” are the disclosures provided by Vanilla in Reports or otherwise.
“Vanilla IP” shall mean the tangible embodiments of Vanilla’s ideas or concepts, Vanilla Data, Vanilla Platform Services, materials, documentation, skills, knowledge, experience, know-how, products and services, methodologies, financial planning expertise, and the like, and all IP Rights in the Vanilla IP.
“Vanilla Platform Services” means Vanilla’s proprietary online web-based platform, offered on a SaaS basis, as specified in the applicable Order Form. The Vanilla Platform Services do not include the Professional Services.
2. Services
2.1 Vanilla Platform Services Access. Subject to Subscriber’s compliance with the terms of this Agreement, Vanilla grants Subscriber a non-exclusive, nontransferable (except as expressly set forth in herein) right to access and use the Vanilla Platform Services on a remote basis (i.e., through the use of an internet browser) during the Term, subject to the Documentation, solely for Subscriber’s internal business purposes in the Territory (including as necessary for Subscriber’s provision of services to its End Clients in Subscriber’s ordinary course of business).
2.2 Beta Services and Trial Licenses. From time to time during the Term, Vanilla may provide Subscriber access to versions of the Services (a) that are not generally available to customers and that may be made available to Subscriber at no additional charge, to try at Subscriber’s option, and which are identified as beta, pilot, limited release, preview, non-production, evaluation, or similar description (“Beta Services”), or (b) to temporarily access the Services for evaluation purposes (“Trial License”). Subscriber may accept or decline any such Beta Services or Trial Licenses in Subscriber’s sole discretion. Beta Services and Trial Licenses are for evaluation purposes only and not for production use, are not subject to any service level agreements agreed to between Subscriber and Vanilla, and may be subject to additional terms. Vanilla is under no obligation to maintain, support, update, or provide error corrections for the Beta Services or the Trial Licenses. Vanilla may discontinue Beta Services at any time in Vanilla’s sole discretion and reserves the right to never make them generally available. VANILLA WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF, OR IN CONNECTION WITH, SUBSCRIBER’S USE OF A BETA SERVICE OR A TRIAL LICENSE. BETA SERVICES AND TRIAL LICENSES ARE PROVIDED “AS IS” AND AS AVAILABLE, AND ARE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE FOREGOING, VANILLA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. In the event of a conflict or inconsistency between this Section 2.2 and any other provision of this Agreement, the terms of this Section 2.2 shall control.
2.3 Restrictions. Subscriber shall comply with all applicable laws when implementing, configuring and using the Services. Subscriber shall not use the Services for any purposes beyond the scope of the rights granted in this Agreement, and shall not use Services for any End Clients who do not primarily reside in the U.S. Without limiting the foregoing, and except as otherwise expressly set forth in this Agreement, Subscriber will not (and will ensure that none of its Authorized Users, officers, directors, employees, consultants, Affiliates, subcontractors, agents and other representatives): (a) gain or attempt to gain unauthorized access to the Services, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Services or use the Services for any unlawful purpose; (b) rent, lease, lend, license, sell, distribute, or use for service bureau purposes, all or any portion of the Services or, otherwise make available or distribute all or any part of the Services to any third party; (c) copy, adapt, reverse engineer, decompile, disassemble, decode or modify in whole or in part, any of the Services (or otherwise attempt to derive or gain access to the source code or any algorithms of the Services); (d) use, view, or access the Services for the purpose of designing, modifying or otherwise creating any environment, program or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Services in violation of any of the Vanilla IP Rights or the obligations of confidentiality hereunder; (e) copy any features, functions, content, data or graphics from the Services; (f) send or store spam, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates a third party’s rights on or through the Services; (g) use any automated tool to access the Services; (h) send or store Malicious Code on or through the Services; (i) interfere with or attempt to interfere with or disrupt the integrity or performance of the Services or the data contained therein, including by taking any action that imposes or may impose an unreasonable or disproportionately large load on Vanilla’s infrastructure; (j) remove, alter, or obscure any proprietary notice or legend of Vanilla, its suppliers, or licensors upon any and all copies of the Services; or (k) make any Services available to anyone other than Subscriber and its End Clients, or use Services for the benefit of anyone other than Subscriber and its End Clients. In the event of any of the foregoing, Vanilla has the right to immediately suspend Subscriber’s and its Authorized Users’ access to the Services.
2.4 Subscriber Responsibilities.
(a) Subscriber is responsible for maintaining the confidentiality of all Access Credentials, and will be fully liable and responsible for any and all activities under its Access Credentials. Each Authorized User will have and use unique Access Credentials to access the Services. Subscriber agrees to keep all Access Credentials information up-to-date and to: (a) notify Vanilla immediately of any unauthorized use of its Access Credentials or any other breach of security; and (b) promptly terminate Access Credentials upon a termination of employment of any Authorized User. Vanilla reserves the right to immediately terminate, suspend or restrict any Authorized User’s account in the event that any suspicious activity arises from such account.
(b) Subscriber shall be responsible, and fully liable, for any action, inaction, or omission by any Authorized User that would be deemed a breach of the Agreement as if Subscriber had itself so done any of the foregoing.
(c) Subscriber shall not remove, obscure, or alter the Vanilla Disclosures.
(d) Subscriber is solely responsible for the provision and content of the Subscriber Disclosures and for compliance with law in the Subscriber Disclosures. The Subscriber Disclosures shall adhere to all Vanilla requirements conveyed to Subscriber. At a minimum, Subscriber Disclosures may not: (i) violate, be inconsistent with, purpose to supersede, or contradict any provision of this Agreement or the Vanilla Disclosures; (ii) promise accuracy of Reports or the results of the Services; (iii) characterize Data Abstraction Services, Platform Services, or Reports as legal, accounting, tax, or investment advice; or (iv) shift or impose liability on Vanilla.
(e) In the event that Subscriber Disclosures violate any Vanilla requirement, Vanilla reserves the right to notify Subscriber, and suspend the Services until Subscriber has rectified the issue to Vanilla’s reasonable satisfaction.
(f) Subscriber will be fully responsible for the provision, cost and expense of all the necessary computer hardware, software, modems, connections to the Internet and other items as may be needed to access the Services.
(g) Subscriber shall be solely responsible for its and its directors’, officers’, employees’, and Authorized Users’ compliance with (and hereby represents and warrants that as of the Effective Date that the foregoing are in compliance with) (a) all applicable import and export laws and regulations, including the regulations of the U.S. Department of Commerce, (b) all applicable economic sanctions laws and regulations, as well as any other government regulation that would prohibit or restrict the transactions described herein or the provision of services to End Clients, (c) the Economic Espionage Act, 18 USC §1831 et seq., (d) the U.S. Foreign Corrupt Practices Act and applicable anti-money laundering statutes, rules and regulations, and (e) any other governmental agency or legal authority relating to an Authorized User’s use of the Services (“Trade Laws”). Subscriber shall not directly or indirectly provide any Vanilla products or services to any government, country, corporation, or other entity, group, or individual with whom or which Trade Laws prohibit or restrict a U.S. person from engaging in transactions, and includes, without limitation, any individual, corporation, or other entity that appears on the Office of Foreign Assets Control’s (OFAC) Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC or the U.S. Department of Commerce, as each such list may be amended from time to time. Subscriber shall not take any action which shall cause Vanilla to be in violation of Trade Laws.
2.5 Data Abstraction Services.
(a) All Data Abstraction Services and Abstraction Tokens shall expire upon expiration or termination of the Subscriber’s Term. No refunds shall be made for Data Abstraction Services. Subscriber is solely responsible for any and all edits, additions, or deletions that any Authorized User makes to the data that results from Data Abstraction Services.
(b) Subscriber may elect to use an artificial intelligence solution within the Services (“VAI”). Subscriber may enable or disable its use of VAI, provided that Subscriber acknowledges that some Data Abstraction Services offerings may require the use of VAI, in which case Subscriber commits to enabling (and may not disable) VAI for the term of such license. End User Data is not used to train VAI and is not stored in VAI.
(c) Data Abstraction Services Subscriptions. Data Abstraction Services subscriptions may be used for Subscriber’s then current Term, but unused capacity does not roll over into subsequent years of the Term. Data Abstraction Services subscriptions are subject to the volume limitations set forth in the Documentation or in an Order Form.
2.6 Subscriber agrees that its subscription to and use of the Vanilla Platform Services is not contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Vanilla with respect to future functionality or features.
2.7 Vanilla may subcontract the performance of the Services (or any portion thereof). Vanilla assumes full responsibility for the acts and omissions of all such subcontractors and their compliance with the terms of this Agreement.
2.8 Vanilla Document Builder Access Licenses. Vanilla Document Builder Access Licenses permit an Authorized User to invite End Clients to use Vanilla Document Builder, and does not include any other features of a standard Vanilla license. Authorized Users with Vanilla Document Builder Access Licenses agree to not use other features without upgrading to a standard Vanilla license. If such use is made, the provisions of Section 5.6 shall apply and Vanilla may charge Subscriber, and Subscriber agrees to pay, for such additional use.
3. Data Usage
3.1 Subscriber Data.
(a) Subscriber hereby grants Vanilla and its subcontractors and service providers a worldwide, non-exclusive, royalty-free license during the Term and any Transition Assistance Period (as defined below) (and such reasonable time thereafter for Vanilla to fulfill its rights and obligations under the Agreement) to use, access, transmit, modify, reproduce, store, manipulate, process, electronically distribute, and display the Subscriber Data in connection with providing the Services to Subscriber and End Clients, to maintain, optimize, and improve the Services or other Vanilla products generally, for research purposes and as may be necessary for Vanilla to comply with applicable law or any Legal Requirement. As between the parties, other than End Client Data, (i) Subscriber owns the Subscriber Data, and (ii) Subscriber Data is the Confidential Information of Subscriber. Subscriber hereby grants to Vanilla a worldwide, non-exclusive, royalty free, perpetual license to use, access, transmit, modify, reproduce, store, manipulate, process, electronically distribute, and display the End Client Data as authorized by and for the use of the End Client as described in Section 3.3.
(b) The Vanilla Platform Services enable Authorized Users of Subscriber to, at their election, integrate with Third Party Data Providers, and port End Client data from the Third Party Data Providers into the Vanilla Platform Services. If Subscriber or any Authorized User elects to integrate the Vanilla Platform Services with Third Party Data Providers, Subscriber hereby grants to Vanilla and its subcontractors and service providers a worldwide, non-exclusive, royalty free license to use, access, transmit, modify, reproduce, store, manipulate, process, electronically distribute, and display the Third Party Data for the Term. Vanilla is not responsible for the accuracy, availability, or completeness of any Third Party Data, which is provided “AS-IS” without any warranty of any kind.
3.2 Vanilla Data. Vanilla may collect Platform Use Data: (a) in order to provide the Services to Subscriber; (b) for statistical use (provided that such data is no longer personally identifiable); or (c) to monitor, analyze, maintain and improve the Services. Vanilla may also create Derivative Data from Subscriber Data. Subscriber acknowledges that Vanilla owns all right, title and interest in the Platform Use Data and the Derivative Data (and if such ownership right is unenforceable, then Subscriber hereby grants Vanilla a world-wide, non-exclusive, transferable, royalty-free, perpetual, irrevocable license (with right to sublicense) to use, reproduce, electronically distribute, store, process, and display such data). Platform Use Data and Derivative Data are Vanilla Confidential Information. Vanilla shall take no action, and shall not allow others to take any action, that does or reasonably would lead to the identification or discovery of Subscriber Data underlying the Derivative Data.
3.3 End Client Data. Subscriber may elect to provide End Clients with their own access to Vanilla and the End Client Data therein, in which event Subscriber agrees that Vanilla may: (a) provide End Client Data directly to an End Client; and (b) during and after the Term and any Transition Assistance Period, retain, store, and use End Client Data to provide services to such End Client or allow such End Client, through itself or another subscriber, access and use the Vanilla Platform Services, subject to terms agreed to between Vanilla and such End Client.
3.4 Models. Subscriber acknowledges that Vanilla may train and improve machine learning models other than VAI (the “Models”). Subscriber agrees: (a) that Vanilla may use Subscriber Data to train and improve the Models, both during and after the Term; (b) that the Models, and any improvements thereto, will be and remain Vanilla Data and property in all respects; and (c) that Vanilla is free to use the Models (and any improvements thereto) without restriction, both during and after the Term.
4. Support
4.1 Vanilla shall use commercially reasonable efforts to: (a) provide access to the Services in accordance with the terms hereof; (b) provide support for the Services in accordance with Section 4.2; and (c) provide Subscriber with Updates as they are generally made available by Vanilla.
4.2 During the Term, Vanilla will provide Subscriber with access to the Vanilla Platform Services in accordance with the Service Level Agreement (the “SLA”) located at https://www.justvanilla.com/sla. Notwithstanding anything in the Agreement to the contrary, the parties acknowledge and agree that the SLA sets forth Vanilla’s entire liability, and Subscriber’s sole and exclusive remedy, with respect to any failure by Vanilla to provide the Vanilla Platform Services in accordance with the SLA.
5. Fees and Payment
5.1 Fees.
(a) Subscriber shall pay all Fees, in U.S. dollars, to Vanilla. Subscriber hereby agrees that any disputes concerning charges and/or Fees, shall be handled in accordance with the dispute resolution process set forth in Section 13.7. Subscriber is responsible for all Fees, even if such Fees or any portion thereof are due and payable after termination of this Agreement. Except as expressly provided in this Agreement, Subscriber will not receive any refund or prorated refund for amounts previously paid or amounts owed up to the effective date of termination of this Agreement or any Order Form.
(b) Subscriber-funded Vanilla Document Builder usage by End Clients. If Subscriber, or an Authorized User on behalf of Subscriber, elects to pay for Vanilla Document Builder services on behalf of an End Client, such payments shall be made by credit card, subject to the terms in Section 5.2. Subscriber understands that the End Client’s use of Vanilla Document Builder is subject to the Vanilla Terms of Service (as may be updated by Vanilla in its discretion from time to time), and that Vanilla is not a law firm and does not provide legal advice or legal services to any End Client.
5.2 Payment. Unless otherwise set forth in an Order Form, payment of all invoices shall be made by Subscriber to Vanilla in full upon receipt. Subscriber is responsible for providing valid, complete, updated, and accurate billing information to Vanilla. Subscriber hereby authorizes Vanilla and its successor or assigns to charge the credit card (“Card”) or debit via ACH from a depository account at a U.S. financial institution (“Account”) that has been designated by Subscriber for all fees and other amounts owed to Vanilla or its affiliates, whether on a one-time basis or on a recurring basis. Subscriber’s designated Card or Account are collectively referred to as the “Payment Method.” As a condition to receive the Service, Subscriber must authorize Vanilla to store the Payment Method for future transactions in accordance with this Agreement. Payment obligations are non-cancelable, and fees paid are non-refundable, unless otherwise provided herein. If Subscriber wants to change its Payment Method it may do so by notifying Vanilla in writing at receivable@justvanilla.com. In no event is Vanilla liable for any amounts or fees charged with respect to its charge or debit of the Payment Method. Subscriber will be responsible for any non-sufficient funds (NSF) fees for amounts charged to the Account. Vanilla may rely on the payment information provided by Subscriber, as may be updated from time to time. Subscriber authorizes Vanilla to share any information provided to Vanilla with its banking and payment processing partners. Subscriber’s authorization to charge or debit its Payment Method will remain in full force and effect for as long there are any outstanding financial obligations to Vanilla.
5.3 Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber shall be responsible for paying all federal, state, local or foreign sales, use, excise, personal property, VAT or other similar taxes, duties or charges of any kind (including, without limitation, any withholding tax) (collectively, “Taxes”) arising in connection with this Agreement and the Services. If Vanilla has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides Vanilla with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Subscriber is responsible for payment of all Taxes resulting from any Fees payable hereunder, other than any taxes based on Vanilla’s income and employees.
5.4 Overdue Charges. Without limiting Vanilla’s other remedies, any amount not received by Vanilla when due shall be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Such interest will accrue daily until all such Fees and any applicable interest charges are paid in full.
5.5 Suspension for Late/Nonpayment. If Subscriber fails to pay Vanilla any Fee or other amount due hereunder (unless Subscriber has disputed such Fees or other amounts in good faith), then in addition to any other rights and remedies Vanilla may have at law or in equity, Vanilla may temporarily suspend any and all Services access until all amounts due and owing have been paid in full. Any such suspension shall not constitute a breach by Vanilla or grounds for Subscriber to terminate for cause.
5.6 Audit and Overages. Vanilla has the right, upon reasonable notice to Subscriber, to conduct an audit of Subscriber’s records and account in order to determine compliance with the terms of this Agreement. Vanilla Platform Services and Professional Services are subject to usage limits specified in Order Forms and Documentation. If Subscriber exceeds a contractual usage limit, Subscriber will execute an Order Form for additional quantities of the applicable Vanilla Platform Services or Professional Services promptly upon Vanilla’s request, and/or pay any invoice for excess usage in accordance with the “Payment” section above.
6. Data Security
6.1 Vanilla has established, and agrees to maintain for as long as it retains Subscriber Data, commercially reasonable, industry standard safeguards designed to reasonably: (a) protect the security and confidentiality of Subscriber Data; (b) protect against anticipated threats and hazards to the security and integrity of Subscriber Data; and (c) protect against unauthorized access to or use of Subscriber Data.
6.2 Vanilla shall use commercially reasonable efforts to avoid the coding or introduction of viruses into the Services whose purpose is to disrupt, damage or interfere with Subscriber’s use of the Services.
6.3 Vanilla shall promptly and without undue delay notify Subscriber in the event Vanilla confirms that there has been a Security Breach. Such notification shall include the nature of the Security Breach and, if appropriate, Vanilla’s plan for remediation. Vanilla shall take commercially reasonable actions to limit the extent of the Security Breach and protect against recurrence of such Security Breach.
7. Proprietary Rights
7.1 Vanilla IP. Subscriber acknowledges that, as between the parties, Vanilla owns all right, title and interest in and to all the Vanilla IP and all IP Rights embodied therein (other than the Branding Elements, as defined below). Subscriber agrees to not infringe upon the Vanilla IP. Vanilla reserves all rights not expressly granted to Subscriber and its Authorized Users in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any IP Rights or other right, title, or interest in or to the Services. Vanilla further reserves the right to modify the features, programs and functionality included within the Services in its sole discretion, and to cease providing the Services at any time. Subscriber’s sole remedy in the event of any such changes shall be the right to terminate the Agreement and affected Order Forms in the event such changes material adversely affect Subscriber’s use of the Services.
7.2 Feedback. Subscriber may submit ideas, feedback, suggestions or comments to Vanilla that may enhance or otherwise improve the Services (the “Feedback”). Vanilla may, in its sole discretion, decide to incorporate some or all of such Feedback in the Services, but has no obligation to do so. Subscriber hereby grants Vanilla a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any Feedback. Subscriber has no obligation to provide Feedback.
7.3 Subscriber’s logo and branding elements (“Branding Elements”) may be reflected in Authorized User-facing screens and in Reports. Subscriber hereby grants Vanilla a world-wide, non-exclusive, royalty-free license during the Term of the Agreement to use, reproduce, and electronically distribute and display the Branding Elements solely in connection with providing the Services to Subscriber and Authorized Users.
7.4 Vanilla reserves the right to display its copyright and standard trademark graphic on the Services and any Report, image or other output from the Services, in a manner to indicate that the Services are “powered by” Vanilla or similar designation.
8. Confidentiality
8.1 As used herein, “Confidential Information” shall mean all confidential and proprietary information of either party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether such information is owned by such Party or by a third party, 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, whether disclosed orally or in writing, including without limitation the terms, conditions and performance of the obligations of this Agreement (including but not limited to pricing and other terms reflected in all Order Forms hereunder), the End Client Data, the Services, the Documentation, business and marketing plans, information relating to either party’s customers and/or vendors, technology and technical information, product designs, and business processes.
8.2 The Receiving Party shall treat all Confidential Information of the Disclosing Party as strictly confidential and shall exercise the same degree of care in the protection of such Confidential Information as it exercises with respect to its own Confidential Information, but in no event shall it exercise less than a reasonable degree of care. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than in connection with exercising its rights or performing its obligations under this Agreement. Furthermore, the Receiving Party shall not disclose to any third party (other than to its officers, directors, employees, consultants, attorneys, accountants, agents and independent subcontractors under a duty or obligation of confidentiality, or governmental agencies or regulatory bodies) or use (except as contemplated by the Agreement) the Disclosing Party’s Confidential Information.
8.3 Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party from and after the date such information becomes available to the public; (b) was known to the Receiving Party prior to its disclosure by or on behalf of the Disclosing Party without breach of any obligation owed to the Disclosing Party, and the Receiving Party can demonstrate its prior knowledge through written documentation; (c) was independently developed by the Receiving Party without the use of or reference to any Confidential Information of the Disclosing Party or breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party and the Receiving Party can demonstrate such lawful receipt through written documentation.
8.4 In the event the Receiving Party becomes subject to a bona fide legal requirement (i.e., by subpoena, oral deposition, interrogatories, request for production of documents, civil investigative demand, stock exchange or administrative order or otherwise) (“Legal Requirement”) to disclose any Confidential Information of the Disclosing Party, the Receiving Party will (a) promptly notify the Disclosing Party (if legally permissible) of the existence, terms and circumstances of the Legal Requirement so that the Disclosing Party may seek an appropriate protective order or waive compliance with the terms of the Agreement, and (b) cooperate fully with the Disclosing Party at the Disclosing Party’s expense, in seeking a protective order or other assurance that confidential treatment will be accorded to the Confidential Information. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and Receiving Party is, after consulting with legal counsel, legally compelled to disclose such Confidential Information of Disclosing Party, or if Disclosing Party waives compliance with the provisions of this Section 8 in writing, Receiving Party may disclose, without liability hereunder, such Confidential Information in accordance with, but solely to the extent necessary to comply with, such Legal Requirement. Such Confidential Information will otherwise continue to be afforded the protections of this Section 8.
8.5 The Receiving Party shall promptly notify the Disclosing Party if there has been any unauthorized use, access to or disclosure of the Disclosing Party’s Confidential Information of which the Receiving Party has knowledge, regardless of whether a Security Breach has occurred.
8.6 Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there may be no adequate remedy at law for breach of this Section 8 and that such breach may cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief in addition to whatever remedies it might have at law or under the Agreement. Upon the termination of the Agreement, unless otherwise prohibited by applicable law, each party will destroy or deliver to the other all Confidential Information of the other party in its possession or control, except as otherwise provided for herein (provided that the obligations of confidentiality and data security hereunder shall continue to apply to all Confidential Information not destroyed or returned and which remains in the Receiving Party’s possession).
9. Warranties and Disclaimers
9.1 Vanilla Warranties.
(a) Vanilla warrants that the Vanilla Platform Services will operate substantially in accordance with the Documentation. For any breach of the limited warranty set forth above, Subscriber’s exclusive remedy and Vanilla’s entire liability under this Agreement shall be limited to the provision of error corrections for, or replacement of, in accordance with the support obligations hereunder, the non-conforming component of the Vanilla Platform Services, or the re-performance of any portion of a Vanilla Platform Service that causes Vanilla to be in breach of the warranty. THIS SECTION 9.1(A) STATES THE ENTIRE OBLIGATION AND LIABILITY OF VANILLA, AND THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER, FOR ANY CLAIM RELATING TO THE PERFORMANCE OF THE SERVICES.
(b) Vanilla represents and warrants to Subscriber that it: (i) is duly organized, validly existing and in good standing under the laws of the country and/or state in which it is organized; and (ii) has the full corporate power and authority to enter into and perform its obligations under this Agreement and any Order Form.
9.2 Subscriber Warranties. Subscriber represents and warrants to Vanilla that it: (a) is duly organized, validly existing and in good standing under the laws of the country and/or state in which it is organized; (b) has the full corporate power and authority to enter into and perform its obligations under this Agreement and any Order Form (c) has and will continue to have the right to provide Vanilla with all Subscriber Data (including End Client Data) for the purposes set forth herein; (d) will comply with all applicable law or regulation, including without limitation, make all required disclosures to its End Clients, including without limitation, in the Customer Disclosures; and (e) has made and will continue to make all material and required disclosures to its End Clients about Subscriber’s use of the Services and the relationship between Vanilla and Subscriber, including any fee or payment arrangements.
9.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VANILLA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VANILLA SPECIFICALLY DISCLAIMS (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUBCONTRACTORS AND SERVICE PROVIDERS) ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, RESULTS, ACCURACY, COMPLETENESS, AVAILABILITY, TIMELINESS, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OR THE REPORTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL BETA SERVICES ARE DISTRIBUTED “AS-IS.”
VANILLA IS PROVIDING THE SERVICES ON AN “AS IS” BASIS. VANILLA DOES NOT WARRANT THAT THE SERVICES, OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED, COMPLETE OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SUBSCRIBER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY (INCLUDING THE REPORTS) IS ACCURATE OR SUFFICIENT FOR SUBSCRIBER’S PURPOSES.
VANILLA DOES NOT VERIFY THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED BY SUBSCRIBER OR THIRD PARTIES, AND THE INACCURACY OR INCOMPLETENESS OF SUCH INFORMATION MAY MATERIALLY IMPAIR THE EFFICACY OF THE REPORTS. THE SERVICES AND THE REPORTS ARE INTENDED TO PROVIDE A HYPOTHETICAL ILLUSTRATION OF END CLIENTS’ PLANS FOR INFORMATIONAL AND DISCUSSION PURPOSES ONLY. VANILLA DOES NOT INDEPENDENTLY EVALUATE THE LEGAL SUFFICIENCY OR VALIDITY OF END CLIENTS’ PLANS. THE SERVICES AND THE REPORTS ARE BASED ON THE ASSUMPTION THAT END CLIENTS’ PLANS ARE LEGALLY EFFECTIVE AND ENFORCEABLE ACCORDING TO THEIR TERMS. IN THE EVENT OF A DISCREPANCY BETWEEN THE SERVICES AND THE REPORT, AND AN END CLIENT’S PLAN, THE END CLIENT’S PLAN SHOULD BE RELIED UPON.
NEITHER THE SERVICES NOR THE REPORTS ARE LEGAL, TAX, INVESTMENT, OR FINANCIAL ADVICE, NOR DO THEY MODIFY THE TERMS OF END CLIENTS’ PLANS.
VANILLA IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL ADVICE, INTERPRETATION, OR REPRESENTATION. THE SERVICES AND THE REPORTS ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. SUBSCRIBER WILL ADVISE THEIR END CLIENTS TO CONSULT WITH THEIR ATTORNEYS ON ALL LEGAL MATTERS, INCLUDING QUESTIONS ABOUT THE SUITABILITY OF THEIR PLANS FOR THEIR GOALS, THE STRENGTHS AND WEAKNESSES OF A PLAN, A PLAN’S LEGALITY AND ENFORCEABILITY, WHETHER AN END CLIENT SHOULD IMPLEMENT ANY MODELED TAX OR DISTRIBUTION STRATEGIES, AND ANY QUESTIONS AN END CLIENT HAS ABOUT THEIR PLAN.
VANILLA IS NOT AN INVESTMENT ADVISER OR BROKER-DEALER AND DOES NOT PROVIDE FINANCIAL OR INVESTMENT ADVICE, AND IS NOT RESPONSIBLE FOR PROVIDING ANY INVESTMENT ADVISER DISCLOSURES. THE REPORTS DO NOT CREATE AN INVESTMENT ADVISORY OR ANY KIND OF FIDUCIARY RELATIONSHIP BETWEEN AN END CLIENT OR SUBSCRIBER AND VANILLA. SUBSCRIBER WILL ADVISE THEIR END CLIENTS TO CONSULT WITH THEIR FINANCIAL OR INVESTMENT ADVISER FOR FINANCIAL AND INVESTMENT ADVICE.
ANY ASSUMPTIONS, OPPORTUNITIES, SCENARIOS, STRATEGIES, AND CALCULATION METHODS SHOWN IN THE REPORTS ARE SELECTED BY SUBSCRIBER AND MAY NOT ACCURATELY REFLECT AN END CLIENT’S PLAN. SUBSCRIBER SHALL ADVISE THEIR END CLIENTS THAT IT IS THE END CLIENTS’ RESPONSIBILITY TO UPDATE THEIR PLAN AS THEY DEEM APPROPRIATE. ANY DISTRIBUTION OR TAX PROJECTIONS REFLECTED IN THE REPORTS ASSUME THAT CURRENTLY APPLICABLE LAW REMAINS IN EFFECT. THE REPORTS DO NOT AND CANNOT PREDICT ANY FUTURE LEGISLATIVE, JUDICIAL OPINIONS, OR REGULATORY CHANGES. WHETHER ANY PLANNED TAX OR OTHER PLANNING RESULT IS REALIZED BY AN END CLIENT DEPENDS ON THE SPECIFIC FACTS OF THEIR SITUATION AND APPLICABLE LAW AT SUCH TIME. VANILLA IS NOT RESPONSIBLE FOR ANY OF THE ASSUMPTIONS, OPPORTUNITIES, SCENARIOS, STRATEGIES, AND CALCULATION METHODS THAT SUBSCRIBER (OR AN AUTHORIZED USER) SELECTS AND ENTERS INTO THE VANILLA PLATFORM, WHICH GENERATES THE REPORTS.
VANILLA IS NOT AN ACCOUNTING FIRM OR TAX ADVISOR, AND DOES NOT PROVIDE ACCOUNTING OR TAX ADVICE. SUBSCRIBER SHALL INSTRUCT END CLIENTS TO CONSULT WITH THEIR TAX ADVISOR FOR TAX ADVICE. ANY ESTATE TAX, GENERATION SKIPPING TRANSFER TAX, GIFT TAX AND OTHER TAX CALCULATIONS PRESENTED IN THE REPORTS ARE ESTIMATES ONLY, BASED ON RATES AND EXEMPTIONS CONTAINED IN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS PROMULGATED THEREUNDER (COLLECTIVELY, THE “CODE”), TOGETHER WITH RATES AND EXEMPTIONS, IF ANY, OF THE END CLIENTS’ DECLARED STATE OF RESIDENCE. NOTE THAT THE CODE AND STATE LAWS CAN CHANGE AT ANY TIME, WHICH CAN MATERIALLY IMPACT THE ADVANTAGES AND DISADVANTAGES OF ANY TAX OR ESTATE PLANNING STRATEGY. PLEASE NOTE THAT VANILLA DOES NOT CONTEMPLATE NON-U.S. TAX LAWS, AND NOT ALL ASPECTS OF U.S. TAX LAWS ARE SUPPORTED BY VANILLA, INCLUDING BUT NOT LIMITED TO VALUATION OF SPLIT INTEREST TRUSTS, LIFE ESTATES, GRATS AND QPRTS; STATE INHERITANCE TAXES; VALUATION DISCOUNTS UNDER SECTION 2032A OR SIMILAR LAWS. A FINITE NUMBER OF DECIMAL POINTS ARE TRACKED, AND AT TIMES CALCULATIONS MAY BE ROUNDED AND MAY VARY FROM OFFICIAL CALCULATIONS.
10. Mutual Indemnification
10. 1 Indemnification by Vanilla. Subject to the terms of this Agreement, Vanilla will: (a) defend Subscriber from and against any third party Claim alleging that the use of the Vanilla Platform Services by Subscriber as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, or trade secret rights of a third party, and (b) indemnify Subscriber for Losses arising out of such Claims. Vanilla shall have no obligation to defend or indemnify Subscriber for a Claim if it arises as a result of: (i) any Subscriber use or modification of the Vanilla Platform Services or the Reports, or (ii) the combination, operation, or use of the Vanilla Platform Services or the Reports with third party software, services or other products or materials not furnished by Vanilla. If a Claim related to infringement is made or appears possible, Subscriber agrees that Vanilla may, in its sole discretion: (X) modify or replace the Vanilla Platform Services or the Reports, or component or part thereof, to make it non-infringing; or (Y) obtain the right for Subscriber to continue use. If Vanilla determines that none of these alternatives is reasonably available, Vanilla may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Subscriber. THIS SECTION 10.1 STATES THE ENTIRE OBLIGATION AND LIABILITY OF VANILLA, AND THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER, WITH RESPECT TO ACTUAL OR ALLEGED INFRINGEMENT OF IP RIGHTS OR ANY OTHER INDEMNIFICATION CLAIM.
10.2 Indemnification by Subscriber. Subject to the terms of this Agreement, Subscriber will: (a) defend and hold Vanilla harmless from and against any third party Claim made or brought against Vanilla arising out of or related to the (i) use, processing, storage, access, or provision of Subscriber Data (including End Client Data); (ii) Subscriber’s use of the Services or the acts or omissions of its Authorized Users, including breach by Subscriber of any obligation under this Agreement; (iii) any representation or warranty made by Subscriber to any End Client regarding the Services which is not expressly set forth in this Agreement; (iv) any Subscriber’s or Authorized User’s use or modification of the Services or the Reports, any election on the part of an Authorized User to include messaging or opportunities in the Services or a Report, or use of the Services by or on behalf of Subscriber or its Authorized Users outside the purpose, scope or manner of use authorized by this Agreement, including the combination, operation, or use of the Services with third party software, services or other products or materials not furnished by Vanilla; (v) breach by Subscriber of any representation or warranty set forth herein; and (b) indemnify Vanilla for Losses arising out of such Claims.
10.3 The obligations set forth in this Section 10 are conditioned upon the following: (a) the party seeking indemnification (“Indemnitee”) must notify the indemnifying party (“Indemnitor”) in writing, promptly after receipt of actual notice of any Claim; (b) Indemnitor shall have sole control and authority with respect to the defense, litigation, compromise or settlement of such Claim (except to the extent that any settlement involves material commitments, responsibilities or obligations on the part of Indemnitee, in which case such settlement shall require the prior written consent of Indemnitee, which consent shall not be unreasonably delayed, conditioned or withheld); and (c) Indemnitee shall provide reasonable information, cooperation and assistance as required by Indemnitor (at Indemnitor’s expense). Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing, provided, however, that Indemnitee shall at all times be subject to Indemnitor’s sole control and authority with respect to defending, litigating or settling the Claim.
11. Limitation of Liability
11. 1 Exclusion of Damages. EXCEPT AS MAY NOT BE PERMITTED BY APPLICABLE LAW AND AS SET FORTH IN SECTION 11.3, IN NO EVENT SHALL EITHER PARTY OR VANILLA’S AFFILIATES, REPRESENTATIVES, OR SUBCONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT OR ANY ORDER FORMS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, LOSSES RESULTING FROM BUSINESS DISRUPTION, REPUTATIONAL HARM; REDUCTION IN SHARE PRICE OR SHARE VALUE, LOSSES RELATED TO COMPLIANCE FAILURES, LOSS OF GOODWILL, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
11.2 EXCEPT AS SET FORTH IN SECTION 11.3, IN NO EVENT SHALL VANILLA’S (AND THAT OF ITS AFFILIATES, REPRESENTATIVES AND SUBCONTRACTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE MONTH PERIOD PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. VANILLA DISCLAIMS ALL LIABILITY, DIRECT OR INDIRECT, FOR BETA SERVICES.
11.3 Exceptions. Notwithstanding the foregoing, no limitation of either party set forth in this Section 11 shall apply to: (a) any liability arising out of or in connection with the willful or intentional malfeasance of a party; (b) any breach or violation of Sections 2.1 (Vanilla Platform Services Access) – 2.4 (Subscriber Responsibilities); (c) Subscriber’s indemnification obligations hereunder; and (d) any Fees or amounts due and owing hereunder.
12. Term and Termination
12.1 Term. This Agreement commences on the Effective Date and shall continue in effect for the term set forth in the applicable Order Form (the “Initial Term”), unless otherwise terminated in accordance with this Agreement. Following the Initial Term, unless the Order Form provides otherwise and unless the Order Form is for a Trial License or an Abstraction Services subscription, the Agreement shall renew automatically for successive one (1) year periods at Subscriber’s then-current pricing, unless otherwise set forth in the Order Form (each a “Renewal Term”) unless and until either party provides the other sixty (60) days written notice prior to the expiration of the then-current Term of its election not to renew, or Vanilla notifies Subscriber of updates to pricing. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.” The license usage amounts in Renewal Terms for Vanilla Platform Services shall be at the same license usage amounts ordered by Subscriber (which may be set forth in one or more Order Forms) in the previous Term unless otherwise requested by Subscriber and set forth in a new Order Form. Vanilla shall notify Subscriber of Fees for the upcoming Renewal Term prior to the end of the then-current Term.
12.2 Termination for Cause. Either party may terminate this Agreement for cause: (a) upon written notice to the other party in the event of a material breach of this Agreement by the other party which remains uncured thirty (30) days after receipt of written notice thereof unless the breach is, by its nature, incapable of being cured within thirty (30) days in which case the breaching party shall be granted a reasonable amount of time to cure; or (b) if 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 and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof.
12.3 Effect of Termination. Upon any expiration or termination of this Agreement, except as set forth herein, each Party shall (a) promptly discontinue all use of the other party’s Confidential Information, (b) upon request, destroy, all copies of such party’s Confidential Information then in its possession except as set forth in Section 12.4; and (c) promptly pay all amounts due and owing hereunder.
12.4 Subscriber Data upon Termination. Vanilla will delete all End Client Data from the Services within ninety (90) days following the termination of the Agreement or upon written request. Notwithstanding the foregoing, Vanilla may retain copies of the Subscriber Data, in accordance with its standard data backup procedures or as otherwise required by law or regulation. Vanilla’s data security and confidentiality obligations set forth herein will continue to apply to any copies of the Subscriber Data that are retained by Vanilla. Notwithstanding the foregoing or anything to the contrary herein, Vanilla may retain, use, store, and provide End Client Data for the continued purpose of providing services to End Client following expiration or termination of this Agreement. Vanilla may also retain and use Derivative Data.
12.5 Transition Assistance. Provided that all Fees have been paid and that this Agreement has not been terminated by Vanilla for breach by Subscriber, upon the written request of Subscriber received by Vanilla prior to the expiration or termination of this Agreement, Vanilla shall continue to provide Subscriber access to the data within the Services (as it existed as of the date of expiration or termination) for up to three (3) months at the then current Fees for such Services (the “Transition Assistance Period”).
12.6 No Records Preservation. Each party hereby acknowledges and agrees that in no event shall Vanilla be obligated to preserve any records on behalf of Subscriber as may be required to be preserved by Subscriber by law or regulation. Subscriber shall be solely responsible for Subscriber’s compliance with such provisions, if applicable, and Subscriber agrees that it shall not hold Vanilla out to any governmental or regulatory entity as preserving any such records on behalf of Subscriber.
12.7 Survival. The provisions of Sections 2.2 – 2.4 (Services), 3.3 (End Client Data), 5 (Fees and Payment), 7.1 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimers); 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.3 (Effect of Termination), 12.4 (Subscriber Data upon Termination), 12.5 (Transition Assistance), 12.7 (Survival), and 13 (Miscellaneous) and any other Sections which, by their nature, are intended to survive, shall survive expiration or termination of this Agreement for any reason.
13. Miscellaneous
13.1 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will act solely as an independent contractor of the other party and neither party shall, and shall not have the right to, act for or bind the other party in any way (including, without limitation, creating or assuming any obligation on behalf of the other party) or represent that the other party is in any way responsible for any acts or omissions of such party.
13.2 Force Majeure. Notwithstanding anything herein to the contrary, neither party shall be liable for any failure to perform its obligations under this Agreement (except for the obligation to make payment hereunder) if such failure arises, directly or indirectly, out of: any natural disaster; acts of government; change in any law or regulation; acts or omissions of any third party not under the reasonable control of a party; civil unrest, wars, or acts of terror; strikes or other labor problems; Internet service provider or hosting facility failures; pandemic or other health emergency; delays involving hardware, software or power systems not within Vanilla’s possession or reasonable control; network intrusions or denial of service attacks; incompatibility of Subscriber’s equipment or software with the Services; or any other cause, whether similar or dissimilar to any of the foregoing that is beyond a party’s reasonable control (individually or collectively, a “Force Majeure Event”).
13.3 Notices. All notices under this Agreement will be in writing and sent by certified mail or nationally recognized overnight courier to the other party as set forth on the Order Form (as it may be modified by the recipient by written notice to the other), and copies thereof may be sent by email. Where notification is made to Subscriber, it shall be sent to the Subscriber Contact email set forth in the Order Form. All such notices will be effective upon delivery, but email notices will be effective only upon confirmation of receipt. Copies of all notices to Vanilla shall also be sent to: legal@justvanilla.com.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
13.6 No Assignment. Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under the Agreement (whether voluntarily or by operation of law) without the written consent of the other (and any such attempt shall be void), except that either party may assign and transfer the Agreement in its entirety and its rights and obligations hereunder, without the other party’s consent, to (a) an Affiliate, or (b) any third party who succeeds to substantially all its business or assets, whether by sale of assets, merger or otherwise. Any attempted assignment in violation of the foregoing shall be null and void. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Dispute Resolution. The Parties will attempt to resolve any claim, dispute, or controversy of whatever nature arising out of or relating to this Agreement, pursuant to the provisions of this Section. Any controversy or claim between the Parties arising from or in connection with the agreement or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement shall first be submitted to the following informal dispute resolution before proceeding with any legal action: (a) a Party must first refer the dispute, by notice to the other Party, to designated senior officers of Subscriber and Vanilla, for attempted resolution by good faith negotiations within thirty (30) days after that notice is received, or such other period of time as the parties mutually agree; (b) if such dispute is not resolved by the end of the thirty (30) day period, the parties may thereafter seek legal redress in a court of law. Notwithstanding the foregoing, a Party may seek injunctive relief from any court of competent jurisdiction in accordance with Section 13.9 (Injunctive Relief) without adhering to the provisions of this Section.
13.8 Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof. Any action or proceeding to enforce rights under the Agreement shall be brought exclusively in the state courts of Delaware or the United States District Court for the District of Delaware (having territorial and subject matter jurisdiction over such dispute) and each party hereby consents to such exclusive jurisdiction and venue. Each party hereby consents to personal jurisdiction as set forth herein.
13.9 Injunctive Relief. The parties agree that any violation or threatened violation of Sections 2.3 (Restrictions), 2.4 (Subscriber Responsibilities), 7 (Proprietary Rights) and 8 (Confidentiality) of this Agreement may result in immediate and irremediable damage to the other party and that monetary damages alone may be inadequate compensation. Therefore, in the event of a violation or threatened violation of such Section(s) a party may, in addition to other remedies, immediately seek injunctive relief (without the necessity of posting a bond) prohibiting the violation or threatened violation or compelling specific performance.
13.10 Publicity. Vanilla may only use the name, trademarks, or logos of Subscriber in marketing materials with the prior consent of Subscriber. Neither Party shall, without a party’s prior written consent in each instance, refer to the existence of this Agreement in press releases.
13.11 No Third-Party Beneficiaries. No provision of this Agreement is intended, nor shall it be interpreted, to provide or create any third-party beneficiary rights or any other rights of any kind in any End Client, client, customer, Affiliate, stockholder, partner, member, director, officer or employee of any Party hereto or any other person or entity.
13.12 Entire Agreement. This Agreement, together with all executed Order Forms under this Agreement, and all exhibits, schedules and addenda hereto, constitutes the entire agreement of the mutual understanding between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. Preprinted terms in Subscriber purchase orders or other Subscriber -generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed, clicked through, or otherwise agreed to by Vanilla and/or purport to take precedence over this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any SOW, (3) the Documentation, (4) any exhibit, schedule or addendum to this Agreement, (5) the body of this Agreement.
13.13 Counterparts. This Agreement and any Order Forms and SOWs executed hereunder may be executed (including by electronic means) in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
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