Last updated: November 30, 2021
Subject to this Agreement, Vividly hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable, limited license to access and use the trade management and optimization software platform as described in more detail at https://govividly.com/pricing and purchased by Customer in an Order (the “Software Services”), for use solely in connection with Customer’s internal business operations in accordance with this Agreement.
Subject to this Agreement and as described at https://www.govividly.com/service-levels, Vividly will provide assistance to Customer for problems that are the result of an error or defect in the Software Services (“Support Services”). Subject to this Agreement and as described at https://www.govividly.com/service-levels, Vividly will meet the service levels as described therein.
Subject to this Agreement and as described in more detail and purchased by Customer in an Order, Vividly shall provide implementation services and guidance to allow the Customer to successfully use the Software (“Implementation Services,” and together with the Software Services and the Support Services, the “Services”).
Customer shall pay Vividly the fees set forth in and in the matter as described in the Order. If full payment is not made in compliance with this section or the applicable Addendum, Customer may be assessed a late charge at a rate equal to 2% per month or the maximum allowed by Law, whichever is less. If Customer becomes thirty (30) or more days past due and fails to pay all past due fees within ten (10) days of Vividly’s written notice of such delinquency, Vividly, in its sole discretion may suspend access or delivery of Services provided under this Agreement until all past due charges and any related interest are paid, or terminate the Agreement. During any period for which access or delivery of the Services is suspended, Customer shall continue to incur and pay any minimum fees due. Customer shall pay Vividly all costs of collection of past due amounts owed to Vividly hereunder, including without limitation, attorney fees, collection agency fees and court costs.
Customer shall reimburse Vividly for all reasonable, incurred Customer-related expenses, including without limitation travel, lodging, meals and out of pocket expenses.
Fees are exclusive of sales, use, excise, ad valorem and other taxes. When Vividly has the legal obligation to collect such taxes, the appropriate amount shall be added to Vividly’s invoice and paid by Customer, unless Customer provides Vividly with a valid tax exemption certificate prior to issuance of the invoice.
Vividly, its affiliates or third party licensors own and hold all right, title and interest in and to the Software Services and any Intellectual Property contained therein, including without limitation all underlying data compilations and information, all materials related to the Software Services. Nothing contained herein shall transfer any ownership rights to Customer in the Software Services.
Customer is the exclusive owner of all right, title and interest in and to Data. Vividly is hereby granted a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute such Data so long as such Data does not and is not capable of identifying Customer or any individual person or entity, including but not limited to, for business purposes. Customer represents and warrants that it has all rights necessary to provide Data and other materials that it may make available to Vividly under this Agreement and that Vividly may use, copy and otherwise manipulate such Data and other materials as necessary for Vividly to perform the Services required under this Agreement. Customer shall use the Services in compliance with all applicable Laws, statutes, ordinances and regulations.
Vividly shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer and its Authorized Users relating to the Services.
“Vividly”, the Vividly logo and all Vividly product names are trademarks or service marks of Vividly or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that Customer shall have the limited right to use the Marks solely as they appear in the Services. Customer shall not use the Marks in any advertising or promotional material unless approved in advance and in writing by Vividly. Customer shall not remove, alter or obscure any Marks or proprietary notices contained in the Services or other materials provided by Vividly.
Vividly may include Customer’s trademarks, name, products, packaging, and logos in its customer lists, press releases, marketing materials, and on its website. Customer may request Vividly to withdraw use of Customer’s trademarks. Upon the execution of this Agreement, Vividly may issue a press release announcing the relationship and the manner in which Customer will use the Services, subject to Customer’s prior review and written approval.
Customer shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying all third-party access charges incurred while using the Service. Customer shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses"). Customer, and its Authorized Users, shall abide by all local and international Laws and regulations applicable to its use of the Services, use the Services only for legal purposes, and comply with all regulations, policies and procedures of networks connected to the Services. Customer shall promptly provide Vividly with all reasonable requests it make for information and assistance in performing its obligations to Customer (for example, providing assisting with data mapping) and shall meet all reasonable timelines and deadlines set by Vividly.
Customer shall not use the Software Services for purposes other than as set forth in the Agreement. Customer will not, and will ensure that its Authorized Users will not: (a) upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may the operation of the Service; (b) modify, disassemble, decompile or reverse engineer the Service; (c) probe, scan, test the vulnerability of, circumvent any security mechanisms used by the sites, servers or networks connected o the Service; (d) take any action that imposes an unreasonably or disproportionately large load on the sites, servers or networks connected to the Service; (e) copy or reproduce the Service, except as permitted under this Agreement; (f) access or use any other clients' or their users' data through the Service; (g) maliciously reduce or impair the accessibility of the Service; (h) use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, harmful, hateful, or otherwise objectionable material; or (i) transmit or post any material that encourages conduct that could constitute a criminal offense or give rises to civil liability.
Each Authorized User of Customer will be given a unique Access Code to be used to access the Services. Customer is responsible for maintaining (including the confidentiality of) the Access Codes and will be solely liable for all activities that occur under such Access Codes or arising from Customer’s instruction in connection with the disclosure of the Access Codes. Customer shall immediately notify Vividly of any unauthorized use of any such Access Codes. CUSTOMER AGREES THAT ACCESS CODES MAY NOT BE SHARED AND MAY ONLY BE USED BY ONE AUTHORIZED USER. Customer will ensure that its Authorized Users comply with these terms and conditions.
The Parties agree that that all times, and notwithstanding Recipient shall not use Confidential Information for any purpose other than to fulfill its obligations or exercise its rights under this Agreement. Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person has need to know such information and who is bound by obligations of confidentiality no less restrictive than those of this Agreement; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but in any event, with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Discloser’s Confidential Information that comes to Recipient’s attention.
In the course of this Agreement, each Party may receive nonpublic information from the other Party that is confidential and proprietary in nature (“Confidential Information”). The Party disclosing such Confidential Information is the “Discloser,” and the Party receiving such Confidential Information is the “Recipient.” Such Confidential Information includes, but is not limited to (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within three (3) business days; and (c) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential, from the nature of the information and the circumstances surrounding its disclosure.
Notwithstanding the foregoing, the restrictions on use and disclosure of Confidential Information set forth in this Section 5 shall not apply to information that: (a) is rightfully in Recipient’s possession prior to the time of disclosure; (b) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information; (c) becomes known publicly, before or after disclosure, through no fault of Recipient; (d) is subsequently disclosed to the Recipient by a third party without any obligations of confidentiality; or (e) is approved for release in writing by Discloser.
Recipient may disclose Confidential Information as required by applicable Law or by proper legal or governmental authority, provided that: (a) the Recipient shall use all reasonable efforts to provide the Discloser with at least ten (10) days’ prior notice of such disclosure; (b) the Recipient shall disclose only that portion of the Confidential Information that is legally required to be furnished; and (c) the Recipient shall use reasonable efforts to ensure that the Confidential Information which must be disclosed receives confidential treatment.
Each Party represents that it has implemented and maintains an industry-standard information security program. Such program shall include appropriate administrative, technical and physical safeguards reasonably designed to: (a) ensure the security and confidentiality of Confidential Information; (b) protect against any anticipated threats or hazards to the security or integrity of Confidential Information; (c) protect against unauthorized access to or use of Confidential Information; and (d) ensures disposal of Confidential Information in a secure manner.
If a Party experiences a security breach that compromises the Confidential Information of the other Party (a "Security Breach"), a Party will promptly notify the other Party of such Security Breach, and will promptly coordinate with the other Party to investigate and remedy the Security Breach. Except as may be strictly required by applicable Law, a Party agrees that it will not inform any third party (but excluding third parties who are under contract with a Party to assist with Security Breaches and the investigation thereof) of any such Security Breach without the other Party’s approval, which shall not be unreasonably withheld or delayed; however, if such disclosure is required by applicable Law, a Party agrees to work with the other Party regarding the content of such disclosure so as to minimize any potential adverse impact upon the other Party and its clients and customers.
Vividly may utilize subcontractors in the performance of Services under the Agreement. Vividly shall be responsible for performing due diligence of its subcontractors and managing their performance, including, securing contractual obligations relating to confidentiality. The use of any subcontractor shall not release Vividly from any of its obligations under the Agreement and Vividly shall remain liable for all acts and omissions of any such subcontractor.
Customer acknowledges and agrees that the Services are not intended to be for record retention and will not use them as such. Customer agrees to keep copies of all Data that it uploads to the Services in another location and that Vividly is not liable to Customer or its Authorized Users for any corruption, loss or inability to access Data. Customer acknowledges and agrees that all Data will be inaccessible to them after the termination or expiration of this Agreement and that Vividly will not return any Data within the Products or Services unless the Parties agree in writing to such return.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, VIVIDLY MAKES NO PROMISES ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS", AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO VIVIDLY), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VIVIDLY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERRORS OR OMISSIONS OR WILL BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN, OR THE UNAVAILABILITY OF, THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS OR UNAVAILABILITY RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. VIVIDLY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETARY OF THE USE OF THE SERVICES FOR ANY SPECIFIC PURPOSES.
Vividly makes no representation that the Service is appropriate or available for use outside of the United States. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed the import or export of goods, on the United States Treasury Department's List of Specially Designated Nationals or United States Commerce Department's Table of Deny Orders.
Both Parties represent and warrant that: (a) the Party is a properly organized business entity, in good standing in the locations where it operates or conducts business; (b) the Party has the corporate authority and capacity to enter into this Agreement, in accordance with applicable Law and its articles of incorporation, bylaws and/or other governance documents; (c) the Party will comply with all applicable Law; (d) the Party is not under any restriction or obligation that the Party could reasonably expect might affect the Party’s performance of its obligations under this Agreement; (e) the Party has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under this Agreement; and (f) the Party will not make any representations, warranties, or guarantees on behalf of the other Party.
The parties agree that the Term is set forth in the Order Form. This Agreement begins on the Effective Date and shall continue until the expiration or termination of all Addenda. If terminated earlier than the end of the Term as specified in the Order Form, Customer is responsible for the remaining monthly subscription fees up to the end of the term unless Customer terminates for Vividly’s material breach pursuant to Section 10.2.
Each Party may terminate this Agreement with by delivering written notice of the termination to the other Party, if the other Party materially breaches any of its obligations, covenants, or representations, and the breaching Party fails to cure the breach within thirty (30) days following such notice. Notwithstanding the foregoing, Vividly may immediately terminate this Agreement (a) upon written notice in the event Customer breaches this Agreement after receiving two prior breach notices; or (b) if Customer breaches the licenses granted hereunder.
Notwithstanding the foregoing, Vividly may terminate this Agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the monthly Subscription Fee on time three times over any 12-month period.
Either Party may immediately terminate this Agreement upon written notice to the other Party in the event the other Party: (a) becomes insolvent; (b) files, submits, initiates, agrees to or is subject to any bankruptcy petition, conservatorship, request or petition for appointment of a receiver, or demand or application for voluntary or involuntary dissolution; or (c) makes a general assignment for the benefit of its creditors.
Upon expiration or termination of this Agreement, (a) all license rights granted by Vividly to Customer pursuant to the Agreement shall terminate; (b) Customer shall cease all use of the Services; and (c) Customer shall pay Vividly in full for all Services access or used. upon the effective date of the termination. If the Agreement is terminated due to Vividly’s breach, Vividly shall refund to Customer any prepaid fees for Services not yet used as of the effective date of termination. Customer will have thirty (30) days from the date of termination or expiration to retrieve a copy of any Data from Vividly that Customer wishes to keep.
Within fifteen (15) days of expiration or termination of this Agreement, Customer shall, at Vividly’s sole discretion and request, destroy or return all Confidential Information (including all copies of the same) and certify such destruction or return in writing signed by Customer. Notwithstanding the foregoing, Customer may retain a copy of Vividly’s Confidential Information in an archival database, as required for regulatory compliance and internal record-keeping, and for no other use, commercial or otherwise.
Vividly shall indemnify, defend and hold harmless Customer against all losses and expenses arising out of any proceeding brought by a third party against Customer to the extent that it is based on a claim that the Services infringe the third party's Intellectual Property rights (an “Infringement Claim”). Vividly’s obligations with respect to this section are conditioned upon: (a) Customer providing Vividly with prompt written notice of the Infringement Claim or threat thereof; (b) Customer giving Vividly full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (c) Customer giving Vividly all information and assistance reasonably requested by Vividly in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal.
If an Infringement Claim has been made, or in Vividly's opinion is likely to be made, Vividly may, at its sole option and expense, either: (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services so that they become non-infringing; or (c) terminate both Parties’ respective rights and obligations under this Agreement with regard to the Services, and refund to Customer a pro-rata amount of any prepaid fees actually paid by Customer for the unused portion of such Services.
Notwithstanding the foregoing, Vividly’s indemnification obligations under this section shall only apply if (a) Customer’s use of the Services complies with this Agreement and all documentation related to the Services; (b) the alleged infringement was not caused by or related to Customer modifying or altering the Services or documentation related to the Services (unless Vividly consented to the modification or alteration in writing); (c) the alleged infringement was not caused by Customer combining the Services with products not supplied by Vividly, unless Vividly consented to the combination in writing; and (d) the alleged infringement is not related to Customer’s continued use of the Services after Vividly has informed Customer of modifications or changes to the Services required to avoid the Infringement Claim.
Except for Vividly’s indemnity obligations set forth above, Customer shall indemnify, defend and hold Vividly harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Vividly by a third party arising out of or related to (a) the use or misuse of the Services by Customer or its Authorized Users; (b) Customer’s provision of or Vividly’s use of any Data; (c) Customer’s breach of this Agreement; (d) Customer’s violation of any Law or the rights of any third party; and (e) Customer’s negligence or willful misconduct.
VIVIDLY’S TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT OR FOR ANY OTHER CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE FEES PAID BY CUSTOMER TO VIVIDLY UNDER THIS AGREEMENT DURING THE CONSECUTIVE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL VIVIDLY OR ITS AFFILIATES OR THIRD PARTY PROVIDERS, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, COMPENSATORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL OR USE, LOST OR DAMAGED CONTENT OR OTHER INTANGIBLE LOSSES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF VIVIDLY IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. VIVIDLY’S TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT OR FOR ANY OTHER CAUSE OF ACTION REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO DIRECT MONEY DAMAGES.
“Access Code” means an Authorized User’s or a computer system’s unique authentication credential(s) used to access to Services. Authentication credentials can include user-id and password, certificates, or other methods that uniquely identify and authenticate an Authorized User or computer system. User-ids may be created by Vendor on behalf of Customer for their Authorized Users, they may be created by Customer on behalf of their Authorized Users.
“Authorized User” means any of Customer’s full-time or part-time employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide services to Customer who are authorized by Customer to access and use the Service on behalf of Customer.
"Data" means all the information Customer provides or makes available to Vividly or that is created or culled by the Service, or otherwise related to Customer’s use of the Services.
“Effective Date” shall mean the date agreed upon by the Parties, and detailed on the Order, for the beginning of the period of performance under this Agreement.
“Implementation Date” means the estimated date, detailed on the Order, for which the implementation process (as described on the Order) for the Services is estimated to be complete.
"Intellectual Property" means any and all of the following in any jurisdiction throughout the world: (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (b) copyrights, including all applications and registrations related to the foregoing, (c) trade secrets and confidential know-how, (d) patents and patent applications, (e) websites and internet domain name registrations, and (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
“Go Live Date” means the estimated date, detailed on the Order, that the Services shall be ready for operational use for normal daily business purposes.
"Law" means any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, or any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any governmental authority having the force of law.
The Parties intend that this Agreement, together with all Addenda that are referenced in this Agreement and refer to this Agreement, represent the final expression of the Parties' intent and agreement between the Parties relating to the subject matter of this Agreement, contain all the terms the Parties agreed to relating to the subject matter, and replace all the Parties' previous discussions, understandings, and agreements relating to the subject matter.
If any provision, or part thereof, of this Agreement is declared unenforceable, illegal or invalid in any respect under any Law, such provision or part thereof, shall be null and void and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired and such provisions will continue to be valid and enforceable.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Facsimile and .pdf signatures to this Agreement shall be acceptable and binding.
Neither Party may assign this Agreement or any of their rights or obligations under this Agreement without the other Party's written consent; provided, however, that either Party may freely assign this Agreement to a successor in interest following the sale, transfer or other disposition of all or substantially all of the assets or outstanding equity of such Party.
The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such.
The Parties agree that this Agreement, including each Addendum, are for the benefit of the entities executing such document(s) and are not intended to confer any rights or benefits on any third party, including any employee or client of either entity executing such document(s), and that there are no third party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
Customer acknowledges that the Services are valuable commercial products, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of Vividly’s Intellectual Property rights therein shall be deemed a material breach of the Agreement, for which Vividly may not have adequate remedy in money or damages, and Vividly shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
The Parties shall give all notices and communications between the Parties in writing by (a) personal delivery, (b) a nationally-recognized, next-day courier service, (c) first-class registered or certified mail, postage prepaid, or (d) electronic mail to the Party's address specified in this Agreement, or to the address that a Party has notified to be that Party's address for the purposes of this section. A notice given under this Agreement will be effective on the other Party's receipt of it, or if mailed, on the earlier of the other Party's receipt of it and the fifth business day after mailing it.
This agreement shall be governed, construed, and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Sussex, Delaware.
Neither Party's failure or neglect to enforce any of rights under this Agreement will be deemed to be a waiver of that Party's rights. A waiver or extension is only effective if it is in writing and signed by the Party granting it.
Except for any payment obligations hereunder, neither Party will be liable for performance delays nor for non-performance of obligations due to circumstances or causes beyond its reasonable control (a “Force Majeure Event”; provided, however, that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
The following sections shall survive the expiration or termination of this Agreement: §2 Payment, §3 Proprietary Rights; Publicity, §5 Confidentiality, §7 Warranty Disclaimer, §10 Term and Termination, §11 Indemnification, §12 Limitation on Liability, §13 Definitions and §14 General Provisions, and any other sections which, by their very nature, are intended to survive the expiration or termination of this Agreement.