Last Updated: October 1, 2024
This Master Service Agreement (the "Agreement") governs the use of the Service (defined below), and includes any service level agreement (the "SLA"), any support plans, any applicable data processing addendum, and security overview that is currently in effect or may hereafter come into effect, all of which are hereby incorporated by reference in their entirety. This is a legal agreement between Venchrz, Inc. ("Venchrz") and you or the entity that you represent ("Customer"). By accepting this Agreement, either by physically signing this Agreement, by clicking a box or button indicating your acceptance, by executing an order form or similar instrument that references this Agreement, or by accessing the Service, you agree to the terms of this Agreement. If you do not agree with the terms of this Agreement, you must not accept this Agreement, and may not use or access the Service.
Subject to Customer's compliance with this Agreement and Customer's payment of all fees due, for the duration of the applicable subscription period, Venchrz grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as may be expressly permitted herein) revocable, right to access and use the Service in accordance with any Documentation, solely for Customer's internal business purposes, limited to the quantities and any other limitations set forth in the applicable Order. Customer may use the Service for the benefit of its Affiliates, and Affiliates may use the Service for their own benefit, limited to the quantities and any other limitations as set forth in the applicable Order and subject to compliance with all terms of this Agreement. Customer guarantees that each Affiliate will fully perform its obligations hereunder, and Customer is responsible for any breach of this Agreement by its Affiliates. Venchrz will use commercially reasonable efforts to provide availability for the Service during the applicable subscription period in accordance with the SLA, if applicable. Notwithstanding anything to the contrary in this Agreement, any use of the Service by Customer or its users that threatens the security, integrity or availability of the Service (in Venchrz's reasonable judgment) may result in the immediate suspension of Customer's access to the Service; however, Venchrz will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such breach or threat prior to such suspension. During the applicable subscription period, Venchrz will provide support services to Customer purchased under an applicable Order. Customer acknowledges and agrees that, as part of the Service, Customer Data may be transferred to and processed by Third-Party Processing Services, including large language models such as OpenAI's GPT, for the purpose of providing insights, automation, or other functionalities enabled by the Service. Venchrz will ensure these third-party processors implement appropriate security measures and comply with applicable data protection laws.
Venchrz shall have the right to suspend the provision of the Services and/or deny the Customer's access to the Services without first hearing from the Customer if: (a) Venchrz determines that the Customer's or any of its authorized users' use of the Services disrupts or poses a security risk to the Service or to any other customer or vendor of Venchrz, (b) if applicable law or a court or administrative order requires Venchrz to do so, (c) Venchrz becomes aware of, or reasonably suspects, any activities of the Customer or its authorized users that infringe on acceptable uses, this Agreement, or other agreements or guidelines which may be associated with use of the Services, (d) if the Services are used contrary to, or for a purpose prohibited by this Agreement, applicable laws or court or administrative orders, (e) the Services are used in a manner that jeopardizes the provision of the Services to other users, (f) Venchrz determines that the Customer or any of its authorized users is using the Services for fraudulent or illegal activities, or (g) any vendor of Venchrz has suspended or terminated Venchrz's access to or use of any third-party services or products required to enable the Customer to access the Services. Venchrz shall promptly notify the Customer of the suspension of the Services under this section as well as the grounds for such suspension and shall use its best efforts to resolve the issue with the Customer without undue delay. The Customer understands that the Services are hosted by a subprocessors of Venchrz chosen by the Customer from the options provided by Venchrz on the website or applicable Order. Such subprocessors may reserve rights to discontinue their hosting at any time. Venchrz shall not be liable in any way for any discontinuation of such services provided by subprocessors. Venchrz undertakes to inform the Customer of such discontinuation without delay after having become aware of any third party plans to discontinue the provision of subprocessor hosting services affecting the Customer.
Subject to Customer's compliance with its obligations under this Agreement, Customer may use the Service for the duration of Customer's subscription specified in the applicable Order. If Customer does not renew the subscription to the Service on or before the subscription period renewal date, Customer's right to use the Service terminates and the Service will no longer operate. The Agreement will remain in effect for the Term.
Customer will not, nor will Customer assist others to: (i) copy or distribute the Service or Documentation (except for a reasonable number of copies of the Documentation for internal use) or modify, encumber, enhance or create any derivative works of the Service or Documentation, including without limitation, customization, translation or localization; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or the underlying ideas, algorithms, structure, sequence and organization of the Service; (iii) sell, license, sublicense, rent, lease, lend or transfer the Documentation or Service or provide, disclose or use the Service or Documentation for the benefit of any third party; (iv) remove, alter or obscure any patent, copyright, trademark or other proprietary notices on the Service or Documentation; (v) publish or disclose to any third party any technical features or specifications, performance, functionality, or benchmark tests, or comparative or competitive analyses relating to the Service and free trials; (vi) access or use the Service or Documentation to promote, distribute, sell, or support any product or service competitive with Venchrz; (vii) violate or circumvent any technological restrictions in the Service; (viii) use the Service for any purpose or in any manner not authorized by this Agreement; (ix) use the Service in violation of any applicable local, federal, or other laws and regulations; or (x) host, support, use or otherwise deploy the Service as a service on behalf of any unaffiliated third party without Venchrz's express written agreement. Customer must promptly notify Venchrz of any unauthorized use of or access to the Service purchased by Customer.
Customer is responsible for using a key management system for secure storage of Customer's passwords, keys or other access authentication methods to access the Services ("Credentials"). Customer acknowledges and agrees that Venchrz is unable and has no obligation to recover Customer's Credentials if lost by the Customer. Customer acknowledges the loss of such Credentials by Customer may result in the loss of access to Customer Data. Customer is responsible for maintaining the confidentiality of all usernames and passwords required for its use of and access to the Service and for all activities conducted in connection therewith.
Customer shall only upload Customer Data to the Service that it has the authority to upload.
The rates applicable for the Service are disclosed in the applicable Order. Unless otherwise specified in the Order, fees for overuse of the Service will be on a pro rata basis, and such overages will be invoiced separately.
Unless otherwise stated in the applicable Order, all fees are due and payable within thirty (30) days from the invoice date. If Customer believes any invoice is incorrect, Customer must contact Venchrz in writing within fifteen (15) days from the invoice date to request an adjustment or credit. All fees are non-cancelable and non-refundable, except as expressly stated in this Agreement.
Customer is responsible for all applicable taxes, duties, or other governmental assessments, including any value-added tax (VAT), goods and services tax (GST), sales, use, or withholding taxes, imposed on or in connection with this Agreement or the performance of services hereunder, excluding taxes based on Venchrz's net income. If Customer is required to deduct or withhold any tax from any amount payable hereunder, the amount payable will be increased as necessary so that after making all required deductions and withholdings, Venchrz receives an amount equal to the amount it would have received had no such deductions or withholdings been made.
As between Venchrz and Customer, Venchrz owns and reserves all right, title, and interest in and to the Service, Documentation, and all enhancements, modifications, and updates to the foregoing, including all intellectual property rights therein. Customer is not granted any rights to any trademarks, logos, or service marks of Venchrz. Customer owns and reserves all right, title, and interest in and to the Customer Data, subject to Venchrz's rights to use the Customer Data as necessary to provide the Service. Customer hereby grants to Venchrz a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Venchrz to provide the Services to Customer.
Customer may provide Venchrz with feedback, comments, and suggestions for improvements or enhancements to the Service ("Feedback"). Customer grants Venchrz a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use, copy, modify, distribute, and create derivative works of the Feedback for any purpose.
"Confidential Information" means any non-public information disclosed by one party ("Disclosing Party") to the other party ("Receiving 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. Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will (i) use the Confidential Information of the Disclosing Party only as permitted under this Agreement, (ii) protect the Confidential Information of the Disclosing Party with the same degree of care it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, and (iii) not disclose the Confidential Information to any third party except to its Affiliates, employees, contractors, and agents who need access to such Confidential Information for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective as those in this Agreement. The Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that the Receiving Party provides the Disclosing Party with advance notice thereof (to the extent permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will comply with all applicable laws and regulations in its performance of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND ANY RELATED SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. VENCHRZ DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. VENCHRZ DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE SERVICE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Venchrz will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"), and will indemnify Customer for any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives Venchrz written notice of the Claim Against Customer, (b) gives Venchrz sole control of the defense and settlement of the Claim Against Customer (except that Venchrz may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) provides to Venchrz all reasonable assistance, at Venchrz's expense. If Venchrz receives information about an infringement or misappropriation claim related to the Service, Venchrz may, in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Customer's continued use of the Service in accordance with this Agreement, or (iii) terminate Customer's subscriptions for the Service upon thirty (30) days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer's breach of this Agreement or the combination of the Service with any product, service, hardware, data, or business process not provided by Venchrz.
Customer will defend Venchrz against any claim, demand, suit, or proceeding made or brought against Venchrz by a third party alleging that Customer Data, or Customer's use of the Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Venchrz"), and will indemnify Venchrz for any damages, attorney fees, and costs finally awarded against Venchrz as a result of, or for any amounts paid by Venchrz under a court-approved settlement of, a Claim Against Venchrz, provided Venchrz (a) promptly gives Customer written notice of the Claim Against Venchrz, (b) gives Customer sole control of the defense and settlement of the Claim Against Venchrz (except that Customer may not settle any Claim Against Venchrz unless it unconditionally releases Venchrz of all liability), and (c) provides to Customer all reasonable assistance, at Customer's expense.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO VENCHRZ UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES).
This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless Venchrz has given Customer written notice of a pricing increase at least sixty (60) days before the end of the then-current term, in which case the pricing increase will be effective upon renewal and thereafter.
A party may terminate this Agreement for cause (i) upon thirty (30) days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
If this Agreement is terminated by Customer in accordance with Section 10.3 (Termination for Cause), Venchrz will refund Customer any prepaid fees covering the remainder of the term of all Order(s) after the effective date of termination. If this Agreement is terminated by Venchrz in accordance with Section 10.3, Customer will pay any unpaid fees covering the remainder of the term of all Order(s). In no event will termination relieve Customer of its obligation to pay any fees payable to Venchrz for the period prior to the effective date of termination.
The sections titled "Fees", "Proprietary Rights", "Confidentiality", "Disclaimers", "Indemnification", "Limitation of Liability", "Refund or Payment upon Termination", and "General Provisions" will survive any termination or expiration of this Agreement.
The Service, other Venchrz technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer will not permit any access or use of the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea region) or in violation of any U.S. export law or regulation.
Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Venchrz's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Venchrz's Legal Department at legal@venchrz.com.
This Agreement, including all exhibits and addenda hereto, and all Order(s), constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. If there is any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement, and (3) the Documentation.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
This Agreement will be governed exclusively by the internal laws of the State of Tennessee, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Tennessee will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Venchrz should be sent to Venchrz, Inc., 1104 Pin Oak Ln, Brentwood, TN 37027, Attn: Legal Department, or to legal@venchrz.com. Notices to Customer will be sent to the address specified in the applicable Order.
This Agreement may be executed in counterparts, which taken together will constitute one instrument. Execution and delivery of this Agreement by exchange of electronically signed counterparts via facsimile, e-mail, or other electronic means will be effective as delivery of a manually executed counterpart.