VISIBLE TECHNOLOGIES, INC.
STANDARD TERMS & CONDITIONS
These Standard Terms and Conditions govern the provision of Services (as defined in Section 1) described in one or more Order Forms entered into in accordance with the process described in Section 1. These Standard Terms and Conditions and each such Order Form are referred to herein as the “Agreement”. Capitalized terms not defined herein shall have the meanings set forth in the applicable Order Form. Visible and Client agree as follows:
1. Services. Visible will provide Client access to its hosted software-based services identified in a mutually executed Order Form (the “Hosted Services”) and provide any professional services described in a Statement of Work that is attached to and referenced in a mutually executed Order Form (“Professional Services” and, together with the Hosted Services, the “Services”), and will deliver the reports described in such Order Forms (“Reports”), all in accordance with the terms and conditions of this Agreement. Order Forms hereunder will be executed by each Party and reference these Standard Terms and Conditions. If any term of an Order Form conflicts with this Agreement, the Order Form will control, but solely to the extent of the conflict.
2. Hosted Services
2.1. Hosted Services. Subject to the terms and conditions of the Agreement and Client’s compliance therewith, Visible grants to Client a limited, non-exclusive, non-transferable (except as permitted in Section 11.2), nonsublicensable (except as permitted in Section 2.5) right to access and use the Hosted Services during the subscription term specified in the applicable Order Form. Client may access and use the Hosted Services solely for its internal business purposes (unless explicitly set forth otherwise in an Order Form) and all access and use is expressly limited to the number of Authorized Users (as defined in Section 2.2) identified in the applicable Order Form for which Client has paid fees in accordance with Section 3.
2.2. Authorized Users. Authorized Users (as defined in this Section 2.2) must register to create an account (“Account”) for the Hosted Services. Authorized Users are responsible for safeguarding password their log-in credentials and are prohibited from disclosing them to any other person. Client will have responsibility for any activities or actions under the Accounts of Authorized Users, whether or not Client has authorized such activities or actions. Client will use reasonable efforts to prevent unauthorized use of the Hosted Services. In the event of unauthorized use by anyone accessing the Hosted Services through an Account of an Authorized User, Client will cooperate reasonably with Visible in terminating such unauthorized use. “Authorized User” means an employee or contractor of Client or Indirect User (as defined in Section 2.5) that has (i) been assigned a unique username-password combination to access and use the Hosted Services, and (ii) registered online to access and use the Hosted Services.
2.3. Protection against Unauthorized Use. Client shall not allow access to or use of the Hosted Services by anyone other than Authorized Users. Client will use reasonable efforts to prevent unauthorized use of the Hosted Services. In the event of unauthorized use by anyone accessing the Hosted Services through Client, Client will cooperate reasonably with Visible in terminating such unauthorized use. Client will be liable for any violation of the terms and conditions of this Agreement by any user who accesses Hosted Services on its behalf.
2.4. Use Restrictions. Client will not directly or indirectly (a) reverse engineer, decompile, or disassemble any Hosted Services or Visible Technology (defined in Section 5.1); (b) use, or permit use of, the Hosted Services, Visible Technology, or Client Data (defined in Section 5.2) to reverse engineer or otherwise derive any features of the Hosted Services or Visible Technology, or proprietary or confidential information or processes of Visible, (c) rent, sell, or lease the Hosted Services, Visible Technology, or access thereto; (a) copy, modify or distribute any portion of the Hosted Services (d) use or otherwise exploit the Services, Visible Technology, or Client Data to develop or offer a product or service that competes with the Services; or (e) other than as permitted expressly in Section 2.5, allow any third party to use the Services.
2.5. Permitted Third-Party Use. If the Order Form expressly specifies that Client is purchasing access to the Services for the use by of one or more third-party customers, Client may permit such authorized customer(s) (“Indirect Users”) to access and use the Hosted Services, provided that (i) Indirect Users will be subject to the scope and other restrictions set forth in the applicable Order Form (ii) Client remains responsible for such Indirect Users’ compliance with all limitations and restrictions on Client’s use of the Hosted Services and Visible Technology set forth in the Agreement, and will be liable for conduct of Indirect Users to the same extent as if Client directly engaged in such conduct; and (iii) Indirect Users agree to the Indirect User Terms presented during the registration process for the Indirect User (the current version of which can be viewed here: http://www.visibletechnologies.com/indirect.
2.6. Feeds and APIs. Visible will permit access to all or a portion of the Hosted Services’ functionality through any approved data feeds or application programming interfaces (each, an “API”) that are explicitly set forth in the applicable Order Form. All access to and use of any API constitutes use of the Hosted Services for purposes of this Agreement, and is subject to this Agreement.
2.7. Telecommunications and Internet Services. Client acknowledges and agrees that Client’s and its users’ use of the Hosted Services is dependent upon access to telecommunications and Internet services. Client shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Hosted Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Visible shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
3. Fees and Payment
3.1. Amount; Payment. Client will pay Visible the fees and other amounts specified in each Order Form in accordance with the payment terms set forth therein. Unless otherwise provided in the applicable Order Form, all payments will be made in U.S. dollars within 30 days of receipt of the applicable invoice and will be sent to the address or account specified on the invoice. Payment may be made by wire transfer to Visible’s nominated account.
3.2. Interest. Any undisputed amount not paid to Visible when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid. Payment of interest does not cure or excuse any payment default and is without prejudice to any other rights or remedies available to Visible. In the event of any action by Visible to collect any amount not paid when due, Client will pay or reimburse Visible’s reasonable costs of collection, including reasonable attorneys’ fees and court costs. Visible may accept any check or payment in any amount without prejudice to its right to recover the balance of the amount due or pursue any other remedy.
3.3. Taxes. Unless otherwise specified in the applicable Order Form, all amounts payable to Visible under the Agreement do not include any taxes, customs, duties, fees, or other charges assessed or imposed by any governmental authority other than taxes imposed on Visible’s net income. Client will pay or reimburse Visible for all such charges upon demand or provide certificates of exemption.
4. Term, Termination and Suspension
4.1. Term. This Agreement shall remain in force for a period of one (1) year from the Effective Date. Unless at that time, either party gives notice to the other party of its intention not to renew the Agreement, the Agreement shall renew automatically for successive periods of one (1) year, until terminated by either party in accordance with the terms hereof. Notwithstanding the foregoing, any Order Form will, unless earlier terminated in accordance with its terms or this Agreement, remain in effect for the term specified therein and the terms of this Agreement will survive and continue to govern for any open Order Form.
4.2. Termination for Material Breach or Default. If either party commits a material breach or default in the performance of any obligation under this Agreement or any Order Form, the other party may give the defaulting party written notice of the material breach or default and of its intent to terminate the Agreement or Order Form if the breach or default is not cured within 30 days after the defaulting party’s receipt of such notice (or such later date as may be specified in such notice). Material breaches committed by Indirect Users will be treated as material breaches by Client.
4.3. Notice of Termination. If the defaulting party fails to cure a material breach or default by 30 days after receipt of notice given under Section 4.2 (or such later date as such notice may specify), the non-defaulting party may terminate the Agreement or Order Form (as applicable) upon written notice to the defaulting party. If Client fails to timely pay any undisputed fees or other amounts due under any Order Form, Visible may, without limiting any other rights or remedies, suspend performance of the Services under such Order Form until it receives all undisputed amounts due.
4.4. Effects of Termination. If the Agreement or any Order Form expires or is terminated for any reason noted above, (a) all liabilities accrued thereunder prior to the effective date of termination or expiration will survive; (b) Client will pay Visible all fees and other amounts under the Order Form that accrued prior to the effective date of expiration or termination; and (c) Sections 4.4, 5, 7.1, 7.5, 8, 9, 10, and 11 of this Agreement will survive.
5. Ownership and Intellectual Property
5.1. Ownership; Reservation of Rights. The technology, software code, and other intellectual property and materials used by Visible to host and provide the Hosted Services and to perform the Professional Services, including, without limitation, any and all Content (as defined below) and APIs, and all improvements to, and all modifications and derivative works of, the foregoing (collectively, the “Visible Technology”), involve valuable intellectual property and proprietary rights of Visible and its licensors. No title to or ownership of the Hosted Services or Visible Technology, any associated intellectual property or proprietary rights, or any other rights in or to any other processes, methods, tools, ideas, techniques, or concepts of Visible or its licensors, whether conceived or invented in connection with the Services or otherwise (“Visible IP”) is transferred to Client or any third party under the Agreement. Visible and its licensors reserve all right, title, and interest (including all intellectual property and other proprietary rights) in and to the Hosted Services, Visible Technology, and Visible IP. No implied rights or licenses are granted by Visible or any third party in the Agreement.
5.2. Client Ownership of Reports and Client Data. Subject to the terms of the Agreement, all Reports delivered to Client will be owned by Client, and the Reports, as well as all data contained in such Reports or exported by Client from the Hosted Services using the Hosted Services’ standard functionality (“Client Data”), may be used, copied, and disseminated by Client in Client’s discretion, subject to: (a) the restrictions on the use of Client Data in Section 2.4, and (b) clarification that Client’s ownership of Reports does not extend to any Visible IP incorporated therein, including but not limited to the “look and feel” of Reports, the formats in which Client Data are categorized and presented, and the underlying Content that is incorporated within Reports. To the extent that any Visible IP is incorporated into a Report, Visible hereby grants Client a perpetual, limited, nonexclusive, nontransferable (except in connection with an assignment permitted under Section 11.2), nonsublicensable (except as specified in Section 2.5) royalty free license to use such Visible IP, solely as necessary to use such Reports in accordance with this Agreement.
5.3. Trademarks. Visible, Visible Technologies, Visible Intelligence, the Visible Technologies logo, the Visible Intelligence logo, Visible Edge, the Visible Edge logo, and any other product or service name or slogan contained on the Hosted Services are trademarks of Visible and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Hosted Service, including but not limited to those mentioned or displayed in any Content, are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by Visible, or vice versa.
6. Content and Interactive Services
6.1. Content. All news articles, press releases, user-generated and social media postings, messages, text, images, videos, articles, URLs, duplicates, or other materials (whether end-user generated, posted to, on, or from social media services, or otherwise), as well as any metadata relating to any of the foregoing, including but not limited to source name, news category, ticker symbol, keywords, source category, source rank, location, region, and language (collectively, “Content”) posted or published on, uploaded to, transmitted through, or linked from (hereinafter, “post”or “posted”), the Hosted Services are the sole responsibility of the person or entity from whom such Content originated. Visible does not endorse or adopt any Content and makes no representation or warranties regarding any Content, including, without limitation, regarding the accuracy, completeness, or authenticity of any information contained within any Content and any third-party sites or services to which links may be displayed within any Content. Client acknowledges that Visible does not control, and is not responsible for, any Content, and that by using the Hosted Services, Client may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Under no circumstances will Visible be liable in any way for any Content or for any loss or damage of any kind incurred in connection with the use of any Content.
6.2. Interactive Services. The Hosted Services may include commenting or messaging functionality, functionality that allows posting or transmitting Content to social networking platforms or other services, and similar services that enable or facilitate the posting of Content by Client (“Interactive Services”). By using any Interactive Services, Client agrees not to post any of the following:
6.2.1. Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
6.2.2. Content that violates, or that causes Visible to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction;
6.2.3. Content that infringes or violates any intellectual property or proprietary right of any party, or that Client otherwise does not have the right to make available;
6.2.4. Private or confidential information of any person or entity, any trade secrets or information for which Client has any obligation of confidentiality, or any material that impersonates any person or entity or misrepresents Client’s affiliation with any person or entity;
6.2.5. Viruses, corrupted data, or other harmful, disruptive, or destructive files or Content;
6.2.6. Content that violates any terms or conditions, policies, or guidelines of any social media platform or other platform or service to which it is posted; or
6.2.7. Content that transmits any bulk unsolicited commercial communications.
Client acknowledges that Visible does not pre-screen or approve Content, but that Visible has the right (but not the obligation) in its sole discretion to refuse, delete, or remove any Content that is posted using any Interactive Services or that is displayed on or through the Hosted Services.
6.3. Moreover Technologies. Moreover Technologies, Inc. (“Moreover”) provides news and social media content, including online news articles, press releases, online user generated and social media posts and links and metadata associated with a set of source sites to which Moreover links (collectively, “Moreover Content”). To the extent Client has access to the Moreover Content through the Hosted Services pursuant to an Order Form, Client may only view Moreover Content from its original link/location and email such original link. Client must not copy, sublicense, sell, rent, lease or otherwise distribute the Moreover Content. Client must not modify, dissemble, decompile, reverse engineer or make any other attempt to discover, obtain, or use the source code for the Moreover Content or any associated links, tools, technologies, or methodologies of Moreover.
6.4. GNIP. GNIP provides Twitter content which includes short-form real-time end user updates (“Tweets”), end user profile information, and other related content (collectively, “Twitter Content”). Client must not (a) sell, sublicense, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer Twitter Content in any manner, including without limitation through an API, to any third party; (b) create derivative works of individual Tweets; (c) create a service intended to replace Twitter’s service, or a service that focuses on the visualization or curation of content for public display; (d) remove, obscure or alter any copyright notices, trademarks, or other proprietary rights notices affixed to or contained within Twitter Content; or (e) interfere with, modify, disrupt or disable features or functionality, including without limitation any such mechanism used to restrict or control the functionality of GNIP’s service or the Twitter service.
7. Warranties and Disclaimer
7.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement and each Order Form has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it; (b) no third-party authorization or approval is required in connection with such party’s execution, delivery, or performance of either this Agreement or any such Order Form; and (c) the execution of each Order Form does not violate any applicable laws or the terms of any other agreement to which it is a party or by which it otherwise is bound.
7.2. Visible Intellectual Property Warranty. Visible represents and warrants that, to the best of its knowledge, it has all patent, copyright, and trade secret rights necessary to provide the Services and, if applicable, to deliver the Reports, under the applicable Order Form.
7.3. Limited Performance Warranty. Visible represents and warrants that the Hosted Services will function in all material respects in accordance with their published technical specifications. Visible’s obligations set forth in Section (C) of the Service Levels Agreement available at visibletechnologies.com/sla are Client’s exclusive remedy, and Visible’s entire liability in contract, tort, or otherwise, for any breach of Visible’s warranty in this Section 7.3.
7.4. The warranties and remedies in Sections 7.2 and 7.3 will not apply in the event of any of the following (each, a “Warranty Exclusion Condition”): (a) the Hosted Services, Visible Technology, or Reports being modified or reconfigured by anyone other than Visible without Visible’s express consent, (b) the Hosted Services, Visible Technology, or Reports being used in combination with any other products or services and, but for use in such combination, would not otherwise infringe, or (c) the Services, Visible Technology, or Reports being used other than in accordance with the Agreement.
7.5. Warranty Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS SECTION 7, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. VISIBLE MAKES NO WARRANTY THAT THE SERVICES OR ITEMS PROVIDED UNDER ANY ORDER FORM ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED.
8.1. By Visible. Visible will indemnify, defend and hold harmless Client and Client’s directors, officers, employees, agents, and representatives from and against any and all third party claims, actions, suits, proceedings, damages, losses, liabilities, costs, and expenses (including without limitation reasonable attorneys’ fees and court costs) (each, a “Claim“) that arise out of or in connection with any breach by Visible of any of its representations or warranties in Sections 7.1 and 7.2. Visible will have no indemnification obligation to the extent a Claim results from a Warranty Exclusion Condition. The indemnification obligations set forth in this Section 8.1 state Visible’s sole and exclusive liability, and the sole and exclusive remedy of Client, for any breach by Visible of its warranty in Section 7.2 and for any alleged infringement by Visible, the Hosted Services, the Visible Technology, or the Reports.
8.2. By Client. Client will indemnify, defend, and hold harmless Visible and Visible’s directors, officers, employees, agents, and representatives from and against any and all Claims that arise out of or in connection with Client’s or Indirect Users’ use of the Hosted Services, Reports, or Client Data, or breach of the Agreement, except to the extent Visible has indemnification obligations pursuant to Section 8.1.
8.3. Procedure. In the event of any Claim described in this Section 8, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the Claim; (b) permit the indemnifying party to control the defense and settlement of the Claim; and (c) cooperate with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the Claim. The indemnified party may participate in the defense and settlement of the Claim using attorneys of its choosing and at its own expense. The indemnifying party will not settle a Claim that imposes restrictions or obligations on, or require an admission of guilt from, the indemnified party without the indemnified party’s prior written consent.
9. Limitations of Liability
9.1. No Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT OR SUCH PARTY’S ITEMS OR SERVICES PROVIDED UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS, LOST OR CORRUPTED DATA, OR INJURY TO BUSINESS REPUTATION. NOTHING IN THIS SECTION 9.1 WILL LIMIT A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ITS OBLIGATIONS FOR ITS VIOLATION OF SECTION 10 OF THE AGREEMENT, OR LIABILITY FOR ITS VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS.
9.2. Cap on Liability. NEITHER PARTY’S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY ITEMS OR SERVICES PROVIDED BY A PARTY UNDER ANY ORDER FORM, WILL EXCEED THE TOTAL COMPENSATION PAID OR PAYABLE BY CLIENT TO VISIBLE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ASSERTION OF THE RELEVANT CLAIM. NOTHING IN THIS SECTION 9.2 WILL LIMIT A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR ITS LIABILITY FOR ITS VIOLATION OF SECTION 10 OR ITS VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS.
9.3. Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY VISIBLE TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10. Confidential Information
10.1. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to the other party and that is in tangible form and is marked as “Confidential”, “Proprietary”, or with some similar legend. Confidential Information includes the Visible Technology, notwithstanding any failure to mark such materials as “Confidential,” “Proprietary,” or otherwise. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with the Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
10.2. Restricted Use and Nondisclosure. Each party will protect the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Additionally, each party will not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with the Agreement, and the third party’s access to and use of such Confidential is subject to restrictions on use and disclosure no less protective of the disclosing party than those set forth in the Agreement. Notwithstanding anything to the contrary in this Section 10, however, each party may disclose Confidential Information: (a) as required by applicable law, regulation, court order, or subpoena, provided, however, that in the case of disclosures required by court order or subpoena, the receiving party will give the disclosing party written notice prior to making any such disclosure, and an opportunity to contest and/or seek a protective order with respect thereto; (b) to auditors or regulators; (c) to the professional advisors of either party, provided that such advisors are obligated to maintain the confidentiality of the information they receive; and (d) to the contractors of either party who are providing services to such party, who have a need access to such Confidential Information to perform such services, and who are subject to binding confidentiality obligations.
10.3. Confidentiality of Order Form Terms. Neither party will disclose the terms of any Order Form to any third party without the other party’s prior written consent, except as required by securities or other applicable laws. Notwithstanding the foregoing, each party may disclose the terms of any Order Form: (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of the Agreement or rights under the Agreement; and (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
10.4. Return of Confidential Information. Upon termination or expiration of the Agreement, or a party’s earlier request, each party will deliver to the other party (or if requested by the other party, destroy) all Confidential Information in such party’s possession or control.
10.5. Existing Obligations. The obligations in this Section 10 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
11.1. Relationship. Each party is an independent contractor and not a partner or agent of the other. The Agreement will not create or evidence any partnership or agency between the parties, nor will it impose any partnership or agency obligations or liability upon either party. Neither party is authorized to enter into or incur any agreement, contract, commitment, obligation, or liability in the name of or otherwise on behalf of the other party.
11.2. Assignability. Neither party may assign the Agreement, in whole or in part, to any third party without the other party’s prior written consent, which consent will not be unreasonably withheld; provided, however, that either party may assign the Agreement without the other party’s consent to any subsidiary or parent company of such party or to any successor by way of merger, consolidation, sale of assets, or similar transaction, provided that such subsidiary or parent company or successor assumes or otherwise is bound by all of the assigning party’s obligations under the Agreement Subject to the foregoing, the Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
11.3. No Third Party Beneficiaries. The Agreement is for the benefit of, and will be enforceable by, the parties only. The Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third party beneficiary of the Agreement.
11.4. Use of Information; No Legal Advice. The Services may involve Visible collecting content on social media and other types of media relating to Client, its products and services, or its competitors (“Social Content”). Client acknowledges and agrees that Visible is not obligated to identify any Social Content that Client or any third party is or may be required to take any action regarding (whether under any applicable law or regulation, or otherwise), or to provide any legal advice relating to any Social Content. Visible may use one or more subcontractors or other third parties to perform its duties under the Agreement, provided that Visible will remain responsible for its obligations under the Agreement.
11.5. Nonsolicitation. During the term of the applicable Order Form and for one year thereafter, Client will not directly or indirectly employ or solicit the employment or services of any Visible employee or independent contractor without Visible’s prior written consent.
11.6. Notices. Any notice required or permitted under the Agreement will, unless otherwise specified in any Order Form, be effective only if in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at its address set forth in the applicable Order Form and with appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.7. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.7. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party).
11.8. Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington, in connection with any action arising out of or in connection with the Agreement.
11.9. Waiver. The waiver by either party of any breach of any term of the Agreement does not waive any other breach. The failure of a party to insist on strict performance under the Agreement will not be a waiver of its right to demand strict compliance in the future, and will not be construed as a novation of the Agreement.
11.10. Severability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
11.11. Order of Precedence. If any term of any Order Form conflicts with this Agreement, the Order Form will control, but solely to the extent of the conflict.
11.12. Interpretation. Client has had the opportunity to review and to propose amendments to this Agreement, and the parties have had an equal opportunity to participate in the drafting of the Agreement. No ambiguity will be construed against a party based upon a claim that it drafted the ambiguous language. The headings at the beginning of several sections in the Agreement are for identification and reference purposes only and must not be used to construe or interpret the Agreement.
11.13. Entire Agreement. The Agreement, including all Order Forms and all exhibits, addenda, and schedules thereto, constitutes the final and complete expression of the agreement between these parties regarding its subject matter. This Agreement and the Order Forms constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement and (ii) the Indirect User Terms with respect to the Client (i.e., the Indirect User Terms do not govern the relationship with Client but do govern Visible’s relationship with Indirect Users). No employee, agent, or other representative of Visible has any authority to bind Visible with respect to any statement, representation, warranty, or other expression not specifically set forth in the Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. The Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Visible will not be bound by, and specifically objects to, any term or condition that is different from or in addition to the Agreement that is proffered by Client in any receipt, confirmation, correspondence, or otherwise, unless Visible specifically agrees to such provision in a written document signed by an authorized agent of Visible.