Last updated: January 31, 2017
DEFINITIONS. ”Affiliate,” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity. “Agreement” means these Terms of Service, applicable Service Orders and any other transaction documents executed by and between the parties. “Customer” means the entity that orders the Services and is responsible for the payment of fees under, and in compliance with, this Agreement. “Viewpath” means Viewpath, LLC., its Affiliates, or entities authorized by Viewpath to provide a Service. “Service” means services or products ordered by Customer” in a Transaction Document. A Service may include software (e.g., scripts or other code) that is provided solely to enable Customer’s use of the Service. “Transaction Documents” means documents that set forth the description of the Services being purchased from Viewpath and any additional terms set forth in Order Forms, Statements of Work or other documents executed by the parties. Other capitalized terms used here have the definitions set forth below or in the Transaction Document(s).
SCOPE. Customer and its Affiliates may order Services by executing the applicable Transaction Documents. Transaction Documents are effective when fully executed by both parties. Unless otherwise agreed by the parties, any conflict between a Transaction Document and these terms will be resolved in the favor of the Transaction Document.
CONFIDENTIAL INFORMATION. This section 5 shall not apply so long as Viewpath and Customer are parties to an effective non-disclosure agreement that would govern the disclosure of information hereunder. Any information that a receiving party knows, or has reason to know, is confidential or proprietary (because such information is identified by the disclosing party orally, or in writing, as such, or is not generally known in the relevant industry), is “Confidential Information” and shall remain the sole property of the disclosing party. The terms of any Transaction Document shall also constitute Confidential Information. Neither party shall disclose, use, modify, copy, reproduce or otherwise divulge Confidential Information of the other, except as required by law or in furtherance of the relationship between the parties. This section shall not apply to information disclosed in published materials, generally known to the public, lawfully obtained from any third party, or known to or independently developed by the receiving party, including, but not limited to, anonymous user data collected by the receiving party in connection with the Services. Neither party shall use the other party’s name, logo, or marks without the other party’s prior written consent.
TERM AND TERMINATION.
DISCLAIMER AND LIMITATIONS. EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SECURITY. EXCEPT FOR EACH PARTY’S LIABILITY ARISING OUT OF ITS INDEMNIFICATION, PAYMENT AND CONFIDENTIALITY OBLIGATIONS AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LIABILTIY FOR ALL CLAIMS ARISING HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO VIEWPATH UNDER THE APPLICABLE TRANSACTION DOCUMENT DURING THE SIX MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION REPLACEMENT SERVICES OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OR LIABILITY.
MISCELLANEOUS. ANY NOTICE REQUIRED OR PERMITTED SHALL BE IN WRITING AND SHALL BE DELIVERED TO THE CONTACT PERSON LISTED ON THE TRANSACTION DOCUMENTS BY PERSONAL DELIVERY, DEPOSITED WITH AN ESTABLISHED OVERNIGHT COURIER, OR MAILED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED. SUCH NOTICE WILL BE DEEMED TO HAVE BEEN GIVEN AS OF THE DATE IT HAS BEEN SO DELIVERED OR DEPOSITED, OR FIVE DAYS AFTER IT HAS BEEN MAILED. CUSTOMER MAY ASSIGN THIS AGREEMENT WITH VIEWPATH’S PRIOR WRITTEN CONSENT, WHICH WILL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED. THE AGREEMENT IS BINDING UPON AND INURES TO THE BENEFIT OF EACH PARTY AND ITS SUCCESSORS AND PERMITTED ASSIGNS. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WASHINGTON, EXCLUDING ITS BODY OF LAW CONTROLLING CONFLICT OF LAWS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT WILL BE BROUGHT EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN THE WESTERN DISTRICT OF WASHINGTON AND THE PARTIES IRREVOCABLY CONSENT TO THE PERSONAL JURISDICTION AND VENUE THEREIN. NOTWITHSTANDING ANY LOCAL LAWS TO THE CONTRARY, THE PARTIES AGREE THAT THE GOVERNING LANGUAGE OF THIS AGREEMENT AND ANY NOTICES RELATED HERETO SHALL BE ENGLISH. PRIOR AGREEMENTS, REPRESENTATIONS, AND STATEMENTS WITH RESPECT TO THE SUBJECT MATTER ARE SUPERSEDED. THIS AGREEMENT MAY BE CHANGED ONLY IN WRITING SIGNED BY VIEWPATH AND CUSTOMER, AND NO EFFECT SHALL BE GIVEN TO TERMS SET FORTH IN ANY CUSTOMER PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT. NO FAILURE OR DELAY BY EITHER PARTY TO EXERCISE OR ENFORCE ANY OF ITS RIGHTS OPERATES AS A WAIVER OF ANY SUCH RIGHT. IF ANY PROVISION IS HELD UNENFORCEABLE, THAT PROVISION WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE, AND THE OTHER PROVISIONS SHALL REMAIN IN EFFECT. IF EITHER PARTY IS PREVENTED FROM PERFORMING ANY OF ITS OBLIGATIONS DUE TO ANY CAUSE BEYOND THE PARTY’S REASONABLE CONTROL, THAT PARTY’S PERFORMANCE WILL BE EXCUSED FOR THE PERIOD OF THE DELAY OR INABILITY TO PERFORM DUE TO SUCH OCCURRENCE. THE PARTIES ARE INDEPENDENT CONTRACTORS. CUSTOMER SHALL NOT, NOR SHALL IT CAUSE VIEWPATH TO, EXPORT OR PERMIT ANY THIRD PARTY TO EXPORT DIRECTLY OR INDIRECTLY, ANY ITEM WITHOUT APPROPRIATE LICENSES AND CLEARANCES. SECTIONS 4, 5, 6 c), 8 AND 9 SHALL SURVIVE TERMINATION.